http://rabble.ca/blogs/bloggers/desmog-canada/2014/04/dissenting-voices-quietly-vanish-kinder-morgan-trans-mountain-p
Dissenting voices quietly vanish from Kinder Morgan Trans Mountain
Pipeline review
By Emma Gilchrist
| April 15, 2014
A lawyer representing the City of Burnaby says the National Energy Board
(NEB) has turned its review of Kinder Morgan's Trans Mountain pipeline
into a "mere paperwork exercise" by cutting all cross-examination from
the process.
"We were expecting that there would be public hearings and
cross-examination of the evidence,"Gregory McDade said at a City of
Burnaby information session last week. "There are no hearings...There
will be no public examination of Kinder Morgan's evidence whatsoever."
In a YouTube video from the information session, McDade deconstructs the
NEB's April 2 "hearing order," noting that the only way for the City of
Burnaby to raise concerns is now by submitting written "information
requests." This applies to all intervenors, including the Province of
B.C. and the Department of Fisheries and Oceans.
"They call it a hearing order, but it should be called a 'no hearing'
order," McDade quipped.
"What we have here is a mere paperwork exercise. It is not a hearing and
it is not public. It is not independent. All three panelists on the
National Energy Board are from the oil and gas industry."
Kinder Morgan's Trans Mountain proposal would triple the amount of oil
the company ships to Burnaby and increase the number of oil tankers
travelling through Vancouver Harbour and the Gulf Islands seven-fold.
McDade said he'd planned on calling citizens of affected Burnaby
neighbourhoods to testify, but now that won't be possible.
"Our chances to represent your voices and your questions are no longer
there," he told Burnaby residents at the information session. "It's
going to have to go through information requests."
The only true oral hearing segment of the process is for the
presentation, and questioning of, aboriginal traditional evidence. The
NEB calls the final summary arguments "oral hearings," but they are near
the end of the process and no new evidence can be presented at that time.
Karen Campbell, a staff lawyer for Ecojustice, told DeSmog Canada the
information request process is no substitute for cross-examination.
"A virtual exchange of documents online, which is what this process
primarily is, will not allow intervenors to really get to the bottom of
the issues around this proposal," Campbell said. "Given how utterly
contentious this project is, providing an opportunity for oral
cross-examination is a critical piece of the puzzle."
"Radical change" to process
During the Enbridge Northern Gateway pipeline hearings, there were more
than 90 days of cross-examination. Chris Tollefson spent 26 hours
cross-examining Enbridge witnesses as legal counsel for Nature Canada
and BC Nature -- groups he's also representing during the Kinder Morgan
review.
"It's a radical change. It's a fundamental change," Tollefson told
DeSmog Canada about the Trans Mountain review. "I'm not sure what's left
of the hearing process to the Trans Mountain hearing. The exchange of
the written questions and answers is the prelude to the main event, but
now there's no main event."
He added: "In any process where you're trying to get at the truth,
trying to test the evidence, it's absolutely essential that you be able
to pose questions to live witnesses who are under oath and who are
required to answer the questions."
Cross-examination crucial during Enbridge Northern Gateway hearings
Tollefson said that during the Enbridge hearings, cross-examination
highlighted some of the most contentious issues, which were ultimately
used to challenge the panel's ruling in the federal court of appeal. He
suspects the panel reviewing Kinder Morgan's Trans Mountain proposal
will be called upon to revisit this decision.
"If they don't, the concern is that the evidence that they're going to
be relying on to make their recommendation will have not have been
properly tested," he said. "I think it cuts both ways, because not only
is the proponent's evidence not being put to the test, but neither is
the evidence of any other party. The panel, in my view, is going to be
hampered in doing its job."
Tollefson said in a process restricted to written answers, it's very
easy to avoid directly and completely answering questions.
Timeline condensed by federal government
The Trans Mountain review has been condensed after the federal
government's 2012 budget bill overhauled environmental assessments and
put a new 18-month timeline on reviews conducted by the National Energy
Board.
"It has been put under a completely unrealistic timeline," Tollefson said.
Burnaby Mayor Derek Corrigan has said he would be willing to stand in
front of a bulldozer to stop Kinder Morgan's project from going ahead.
"I'm prepared to fight this up until the bitter end," he told Global
News. "I'm incensed over the way we've been treated."
On Saturday, hundreds of citizens rallied against the project in
Burnaby, B.C.'s third largest city and the site of Kinder Morgan's oil
storage tanks and at least two major Kinder Morgan oil spills.
Community information sessions on the project have turned into rallying
cries, with city officials frustrated with the NEB process.
"What we really need to do is let the government know that no public
hearings is not an acceptable approach to this matter," McDade said at
last week's information session.
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