The National Energy Board has denied a motion presented by economist Robyn Allan to restore the oral cross-examination of witnesses for the regulator's Trans Mountain pipeline expansion hearing. (Allan is an occasional Tyee contributor.)
As a consequence, it will be the first regulator public hearing on a major pipeline project requiring an environmental assessment that doesn't include such oral cross-exams.
The regulator instead chose a written process for the Trans Mountain hearing because of the large number of interveners involved. "We have more interveners than we have ever had before and in order to hear from everyone in an orderly and efficient way, the panel chose to go with the written format," a spokesperson for the regulator has said.
"The Board is of the view that there is sufficient opportunity to probe evidence that is filed by asking and receiving answers to written information requests," reads today's ruling on the motion. "If responses are not considered satisfactory, there is more than one opportunity to bring a motion to compel a further and better response."
The board, which is 90 per cent funded by industry levies, added that it can make its own rules.
"The legislation makes it clear that the Board is master of its own procedure and can establish its own procedures for each public hearing with regard to the conduct of hearings. This includes the authority to determine for a particular public hearing the manner in which evidence will be received and tested," reads the ruling.
Allan and nearly a dozen other intervenors, including Green MP Elizabeth May and the Cities of Vancouver and Burnaby, had argued oral cross-examination "is a right and a duty; both of which are fundamental to the public hearing process."
Without the right of oral cross-exams, interveners, lawyers and National Energy Board panelists cannot test the veracity and accuracy of witnesses and their evidence, argued Allan. Nor can they question them under oath.
Cross-examination, a key part of public hearings, also gives all participants the ability to spot inaccuracies, clarify contradictions and assist the panel in making a competent decision in the public interest, she said.
Allan said she will appeal the ruling.
Houston-based Kinder Morgan wants to triple the capacity of its Trans Mountain pipeline to ferry 890,000 barrels of primarily diluted Alberta bitumen to a marine terminal in Burnaby, where the oil will be loaded on tankers for export to Asia.
It must go through the regulator's public hearing process to proceed.
Andrew Nikiforuk is an award-winning journalist who has been writing about the energy industry for two decades and is a contributing editor to The Tyee.