New Pipeline Environmental Assessment Principles welcomed–with reservations  

Stephen Hazell

Stephen Hazell
Director of Conservation
and General Counsel

Nature Canada welcomes with reservations the interim principles for pipeline hearings announced by Nature Resources Minister Jim Carr and Environment Minister Catherine McKenna on January 27, 2016. These principles include undertaking deeper consultations with indigenous peoples, assessing upstream greenhouse gas emissions, engaging communities through a Ministerial representative, and extending the time frames for government decisions on the Trans Mountain and Energy East Pipeline/Tanker projects being reviewed by the National Energy Board.

During the January 27, 2016 media conference, Ministers Carr and McKenna repeatedly emphasized the importance of evidence-based decision making in the pipeline review process. Unfortunately, the Ministers are not requiring the National Energy Board to reinstate the rights of intervenors such as Nature Canada to cross-examine witnesses during hearings. This right was denied to Nature Canada and BC Nature in the NEB’s Trans Mountain hearings. In Nature Canada’s view, cross-examination is a critical tool to test evidence in hearings to get at the truth of issues such as risks of oil tanker spills.

Image of an oil tankerSection 36(5) of the NEB’s Rules of Practice and Procedure provide for the cross-examination of evidence filed by parties to a proceeding. The NEB has the power to dispense with its Rules when in the public interest; however the heavy weight of public concern and the significant environmental and socio-economic risks associated with the Trans Mountain and Energy East projects demand a high standard of procedural justice regarding the testing of evidence. Nature Canada calls on Ministers Carr and McKenna to ensure that cross examination remains a key feature of all future NEB hearings including Energy East.

Ministers Carr and McKenna provided repeated assurances that no project currently under review would be required to “return to square one”. It is possible, however, to apply the principle of evidence-based, scientific decision-making to NEB hearings without returning to square one. Section 52(7) of the National Energy Board Act provides Minister Carr and the Governor in Council with the authority to extend the time limit for the NEB to submit its report. A small extension would be sufficient for interveners to test Trans Mountain’s evidence through cross examination and, in so doing, apply the principle of evidence-based decision making.

Nature Canada is concerned in particular that risks and potential effects of a catastrophic spill from an oil tanker in the Salish Sea or Vancouver Harbour have not been properly assessed by the National Energy Board.  Hearings on pipeline/tanker projects must rigorously examine the risks and environmental effects of potential oil spills if the Government of Canada expects to regain the confidence of Canadians in the environmental assessment process.

To Learn More

Read why our lawyer Chris Tollefson feels the lack of cross-examination has vexed the process.

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