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No Cross-Exam in Trans Mountain Hearing Hurts NEB Credibility: Economist

Oral process needed for accountability, says Robyn Allan.

By Andrew Nikiforuk 23 Apr 2014 |

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. Find his previous stories here.

This coverage of Canadian national issues is made possible because of generous financial support from our Tyee Builders.

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Cross-examination gives NEB hearing participants the ability to spot inaccuracies, clarify contradictions, and assist the panel in making a competent decision in the public interest, says independent economist Robyn Allan.

The failure to include oral cross-examination as part of the public hearing process for the Trans Mountain pipeline expansion project could undermine the credibility of the National Energy Board, says an independent economist.

In a notice of motion filed with the federal pipeline regulator this week, Robyn Allan, a former senior economist for the B.C. Central Credit Union, also argues that oral cross-examination adds accountability and transparency to a hearing process in a democracy.

Without this right, interveners, lawyers and National Energy Board (NEB) panelists cannot test the veracity and accuracy of witnesses and their evidence, explains 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 says.

“If the public believes, or has reason to believe, the NEB review process is biased in favour of the industry and unfair to the public interest because interveners in this hearing are not able to fulfill their role, the public may no longer support the hearing process, or the National Energy Board as an institution,” writes Allan in her submission.

Houston-based Kinder Morgan, the third-largest energy company in the United States, wants to triple the capacity of the 61-year-old 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.

Given that the project could pose spill risks to salmon watersheds, depreciate urban land values and increase tanker traffic in Vancouver, it is vital that evidence presented by a U.S. company be open to cross-examination, Allan argues.

NEB communications officer Sarah Kelly explains that the regulator “has chosen to use a written format (Information Requests) in order to test the evidence” -- the same process used for the Line 9B hearing to reverse the flow of an aging 38-year-old Enbridge pipeline in Ontario.

But that hearing wasn't similar to those of other major pipeline projects, argues Allan, as it didn't require an environmental assessment and fell under a different set of NEB regulations. The regulator went on to say that in the case of the Trans Mountain hearing, “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.”

But having more interveners shouldn’t be an “excuse for removing from the process the most relevant aspect for understanding and protecting the public interest,” Allan charges.

‘Watershed’ hearing deserves cross-exam: Weaver

According to Allan, the Trans Mountain project could be the first NEB public hearing on a major pipeline project requiring an environmental assessment that doesn't include the cross-examination of witnesses.

Other major pipeline projects such as Keystone, Alberta Clipper and Northern Gateway all included oral cross-examination as part of the hearing process.

Cross-examinations during the Gateway hearings yielded information on insurance liabilities and the chemistry of bitumen in sea water.

The hearing order for the Gateway application explained that “the purpose of oral questions is to allow the Panel and Parties to 'test' the evidence submitted.”

Allan's plea for a more rigorous process has been echoed by other critics.

Gregory McDade, a lawyer representing the city of Burnaby in the NEB's review of Trans Mountain, said at a city information session last week, “We were expecting that there would be public hearings and cross-examination of the evidence... There will be no public examination of Kinder Morgan's evidence whatsoever.”

Given the absence of oral cross-examination, McDade suggested that the NEB call its hearing order, a detailed menu of how the hearings will unfold, a “no hearing order.”

Green MLA Andrew Weaver and Victoria New Democrat MP Murray Rankin have also called upon the regulator to introduce full oral cross-examination into the hearing process.

“This is a watershed moment for the B.C. government's claim that it will stand up for British Columbians,” said Weaver in a statement. “Without oral cross-examination, the government has little ability to credibly and transparently represent the best interests of British Columbians in this process.”

No public input on what NEB would examine

The omission of oral cross-examination from the hearing order isn't the only controversy dogging the Kinder Morgan NEB application.

Interveners have challenged the impartiality of NEB panelists (David Hamilton has ruled on three other Kinder Morgan-related applications including Trans Mountain toll rates and the reversal of a condensate line to facilitate bitumen exports), the restriction of participants, the 15-month timeline, and the limited scope of the hearings.

During the Trans Mountain hearings, the NEB's hearing order states that it “does not intend to consider the environmental and socio-economic effects associated with upstream activities, the development of oil sands, or the downstream use of the oil transported by the pipeline.”

In other words, the board will not address climate change, the carbon bubble (80 per cent of current oil reserves are unburnable, say experts, and must stay in the ground) oilsands expansion, foreign ownership, condensate imports or the impact of raw bitumen exports on Canadian jobs and the economy.

During the hearing, the NEB will examine the potential environmental and socio-economic impacts of the multi-billion-dollar project, as well as the need and economic feasibility of the project. There was no public discussion on what the NEB would examine in its hearing.  [Tyee]

Read more: Energy,


Excerpted from Robyn Allan's notice of motion on why cross-examination in NEB hearings matters:

"The oral cross-examination phase of the NEB public hearing process has historically represented an integral part of the mandated public review process and provides an important method by which:

"a) All parties to the hearing can more completely fulfill their rights and duties;

"b) The evidence on the record may be more thoroughly tested than what is afforded through written information requests as a stand-alone process;

"c) The preparation of final oral and written argument is more fully, and fairly, supported;

"d) The expertise and reliability of the witnesses may be directly and more rigorously tested than what is possible with written information requests;

"e) NEB legal counsel may fulfill one of its two main functions which is to 'cross-examine the applicant's and interveners' witnesses in order to establish clearly the evidence needed for the Board' to arrive at its recommendation and finalize its list of conditions;

"f) The Panel members may orally question the applicant and intervener witnesses on the evidence they have prepared;

"g) A strong incentive is provided to the applicant and interveners to ensure they appropriately and rigorously answer written interrogatories since they know they may face scrutiny and accountability for their written answers during an oral cross-examination process conducted under oath."

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