NATIONAL ENERGY BOARD OFFICE NATIONAL DE L’ÉNERGIE
Hearing Order OH-3-2011 Ordonnance d’audience OH-3-2011
Vantage Pipeline Canada Inc. (Vantage) Vantage Pipeline Project Application of 7 February 2011
Vantage Pipeline Canada Inc. (Vantage) Demande du 7 février 2011 visant le projet de pipeline Vantage
VOLUME 1
Hearing held at L’audience tenue à
Regina Inn Hotel and Conference Centre 1975 Broad Street Regina, Saskatchewan
November 1, 2011 Le 1 novembre 2011
International Reporting Inc. Ottawa, Ontario (613) 748-6043
© Her Majesty the Queen in Right of Canada 2011 © Sa Majesté du Chef du Canada 2011 as represented by the National Energy Board représentée par l’Office national de l’énergie
This publication is the recorded verbatim transcript Cette publication est un compte rendu textuel des and, as such, is taped and transcribed in either of the délibérations et, en tant que tel, est enregistrée et official languages, depending on the languages transcrite dans l’une ou l’autre des deux langues spoken by the participant at the public hearing. officielles, compte tenu de la langue utilisée par le participant à l’audience publique.
Printed in Canada Imprimé au Canada
Transcript Order RH-2-2004 HEARING /AUDIENCE OH-3-2011
IN THE MATTER OF Vantage Pipeline Canada Inc. (Vantage) Vantage Pipeline Project Application of 7 February 2011
HEARING LOCATION/LIEU DE L'AUDIENCE
Hearing held in Regina (Saskatchewan), Tuesday, November 1, 2011 Audience tenue à Regina (Saskatchewan), mardi, le 1 novembre 2011
BOARD PANEL/COMITÉ D'AUDIENCE DE L'OFFICE
G. Habib Chairperson/Présidente
D. Hamilton Member/Membre
B. Vergette Member/Membre
Transcript Hearing Order OH-3-2011
APPEARANCES/COMPARUTIONS
Applicant/Demandeur Vantage Pipeline Canada Inc. - Ms. L. Bernette Ho
Associations Canadian Association of Petroleum Producers (CAPP)
Tioga to Empress Landowner Committee and Canadian Association of Energy and Pipeline Landowners Association (TELC/CAEPLA) - Mr. Dave Core - Ms. Stephanie Fradette
Companies/Compagnies ATCO Midstream Ltd. - Mr. Terry Timoruski
NOVA Chemicals Corporation - Mr. James H. Smellie - Ms. Lindsey Aufricht
Talisman Energy Inc.
TransCanada PipeLines Limited
Aboriginal Groups/Groupes Autochtones Big Bear Band - Chief Alex Little Bear
File Hills Qu’Appelle Tribal Council - Mr. G. Rangi Jeerakathil
Little Pine First Nation - Mr. G. Rangi Jeerakathil
Lucky Man Cree Nation - Mr. Rangi Jeerakathil
Mosquito Grizzly Bear’s Head Lean Man First Nation - Mr. Rangi Jeerakathil
Pasqua First Nation - Chief M. Todd Peigan
Transcript Hearing Order OH-3-2011
APPEARANCES/COMPARUTIONS (Continued/Suite)
Aboriginal Groups/Groupes Autochtones (continued/suite) Poundmaker Cree Nation #114 - Mr. Rangi Jeerakathil
Siksika Nation - Mr. Clarence Wolf Leg - Mr. Richard Righthand
Wood Mountain First Nation - Mr. Rangi Jeerakathil
Governments/Gouvernements Alberta Department of Energy
Saskatchewan Ministry of Energy and Resources
Government Participants/Participants du gouvernement Fisheries and Oceans Canada
Transport Canada
National Energy Board/Office national de l’énergie - Mr. David Cox - Ms. Diana Audino
Transcript Hearing Order OH-3-2011
TABLE OF CONTENTS/TABLE DES MATIÈRES (i)
Description Paragraph No./No. de paragraphe
Opening remarks by the Chairperson 1
Registration of appearances by Ms. Audino 36
Preliminary matters brought forward by Mr. Core 99 Preliminary matters brought forward by Mr. Jeerakathil 146 Preliminary matters brought forward by Chief Peigan 233
TELC/CAEPLA Panel Mr. Dave Core Ms. Stephanie Fradette Ms. Janet Heatcoat Mr. Monty Heatcoat Mr. Danny Martin
- Examination by Ms. Audino 322 - Opening statement by Ms. Fradette 350 - Examination by Ms. Ho 370 - Examination by Ms. Audino 444 - Examination by Member Vergette 678 - Examination by Member Hamilton 697 - Examination by the Chairperson 804
Big Bear Band Chief Alex Little Bear
Oral presentation by Chief Little Bear 899 - Examination by Ms. Audino 942 - Examination by Member Hamilton 998
Transcript Hearing Order OH-3-2011
TABLE OF CONTENTS/TABLE DES MATIÈRES (ii)
Description Paragraph No./No. de paragraphe
Siksika Nation Mr. Clarence Wolf Leg Mr. Richard Righthand
Oral presentation by Mr. Wolf Leg 1044 - Examination by Ms. Audino 1070
Vantage Pipeline Canada Inc. Panel 1 Mr. David Schmunk Mr. Terry Killackey Mr. Gord Salahor Mr. Gerry Goobie Mr. Allan Broenink
- Examination by Ms. Ho 1106 - Examination by Ms. Fradette 1158 - Examination by Mr. Core 1232 - Examination by Mr. Jeerakathil 1304 - Examination by Chief Peigan 1325 - Examination by Mr. Cox 1368 - Examination by the Chairperson 1432
Transcript Hearing Order OH-3-2011
LIST OF EXHIBITS/LISTE DES PIÈCES (i)
No. Description Paragraph No./No. de paragraphe
C15-8 Opening statement of Ms. Stephanie Fradette 114
C12-5 Poundmaker Cree Nation No. 345, letter of withdrawal, letter of support and request to have evidence removed from the record 162
C14-4 Letter from the Wood Mountain First Nation No. 388, letter of withdrawal, letter of support and request to have evidence removed from the record 166
C9-4 Letter from the Lucky Man First Nation No. 341, letter of withdrawal, letter of support and request to have evidence removed from the record 170
C8-5 Letter from Little Pine First Nation No. 340, letter of withdrawal, letter of support and request to have evidence removed from the record 173
C10-4 Letter from Mosquito Grizzly Bear's Head Lean Man First Nation No. 343, letter of withdrawal, letter of support and request to have evidence removed from the record 175
C7-8 Amended Affidavit of Edmond Bellegarde, Chairman of File Hills Tribal Council 219
B46 Cover letter opening statement and preliminary project abandonment plan and cost estimate submitted by Vantage
Transcript Hearing Order OH-3-2011 Opening remarks Chairperson --- Upon commencing at 9:06 a.m./L’audience débute à 9h06
1. THE CHAIRPERSON: Good morning, ladies and gentlemen. Bonjour, mesdames et messieurs.
2. My name is Georgette Habib and I am the Chair of the Panel established by the National Energy Board to consider the Vantage Pipeline Project filed by Vantage Pipeline Canada ULC, whom I will refer to as Vantage.
3. My fellow Panel Members are, to my right, Mr. David Hamilton, and to my left, Mr. Bob Vergette.
4. On 7 February, 2011, Vantage applied to the Board for a Certificate of Public Convenience and Necessity under section 52 of the National Energy Board Act for authorization to construct and operate a 578.3-kilometre pipeline from a location near Beaubier, Saskatchewan to a location near Empress, Alberta.
5. On April 5th, 2011, the Board issued Hearing Order OH-3-2011 setting this application down for a public hearing, the oral portion of which commences today here in Regina.
6. Prior to getting into the specifics of how this hearing will unfold, I would like to go over a few safety issues. To ensure the safety of all participants, I would like to take this moment to discuss the evacuation plan should the need arise.
7. The designated emergency exit for this side of the building is through the doors that you came into when you entered this room and the door to my right.
8. From the main doors that you entered the room, please take the stairwell, where you can proceed down to the main level lobby and out the main doors. Please exit in an orderly fashion and gather a safe distance away from the building.
9. Once outside, please ensure that your entire group has evacuated the building. If a member of your group is missing, please advise hotel staff.
10. At this time, I would like to introduce you to Board staff who are here today.
11. On your right-hand side, the left-hand side of the Panel, we have our Board counsel, Diana Audino and David Cox.
Transcript Hearing Order OH-3-2011 Opening remarks Chairperson
12. Seated next to Board counsel are Krista Wandler, our Socio-Economics, Aboriginal and Land Specialist; Susan Baker, our Hearing Manager; Christina Rehbein, our Assistant Hearing Manager and Environmental Assessment Coordinator; and Gordana Mesar, Engineering Specialist.
13. Seated behind Board counsel are Ms. Danielle Comte and Ms. Debra Gilbert, both of whom are Regulatory Officers for this proceeding. Also from time to time you will see Monika McPeake, who is our IT specialist. Seated to the left of Ms. Comte is our court reporter, Dale Waterman.
14. Our staff are wearing name tags for easy identification. Please feel free to approach any of them if you have concerns or questions.
15. The hearing is being broadcast live from the NEB’s website.
16. Following the registration of appearances and preliminary matters, we will proceed with the evidentiary portion of the hearing. Board counsel will be responsible for calling up the witness panels.
17. In respect of the hearing schedule, the Board intends to sit this morning from 9:00 until 12:30, at which time we will break for lunch. We will take a mid- morning break at approximately 10:15. This afternoon we will resume at 2:00 p.m. and continue until 4:00, or later if necessary.
18. Given that this is the first day of the hearing, we request that all counsel or party representatives meet with our counsel during the morning and lunch breaks to discuss the proposed timetable and to identify any special concerns. Following the lunch break, the Board will advise about sitting hours for tomorrow.
19. Now, some general comments about the procedure regarding the presentation of evidence and argument. When each party’s witness panel is presented, the panel will first adopt its written evidence and will then be available for cross-examination by registered parties, generally in the order indicated in the Order of Appearances.
20. Following questions by Board counsel, if any, the Board Members may then also ask questions of the witness panel. Parties who need to be present should be certain to make themselves available until the close of the business day at each day.
Transcript Hearing Order OH-3-2011 Opening remarks Chairperson 21. At the back of the room you will find a number of documents, including the list of parties, the procedural directive and the exhibit list. Once registration of appearances takes place, a copy of the Order of Appearances will also be placed at the back of the room.
22. During this proceeding, the Board will be viewing exhibits electronically. As counsel or witnesses refer to a document by its exhibit number, it will be displayed electronically on the screens. To assist with this process, parties are asked to identify each document to which they refer to by its exhibit number.
23. Also in advance of cross-examining other parties, those proposing to ask questions of other parties should provide Ms. Comte or Ms. Gilbert as early as possible with the list of documents that they intend to refer to so that these documents may be retrieved quickly and accurately during their cross-examination.
24. The information should include the exhibit numbers, including a sub-letter if that is included on the exhibit list, and the Adobe page number.
25. We ask that you check the exhibit list before you register your appearance. If you intend to file a document which does not appear on the exhibit list, you must seek permission of the Board to do so.
26. If you intend to seek permission to file a document, please indicate that you have a preliminary matter relating to the filing of a new document when you come forward to enter your appearance.
27. If permission is granted by the Board, you will need to provide six copies to the Regulatory Officer, five copies to Board counsel and make certain that additional copies are available at the back of the hearing room for other parties.
28. If any party has questions with respect to process or requires any information on hearing-related matters, please speak to Board counsel.
29. Witnesses will be either sworn or affirmed by the Regulatory Officer prior to adopting their pre-filed evidence or being cross-examined. Please advise the Regulatory Officer of your preference.
30. I would also like to remind everyone that the Board is here to listen to the evidence and the views of the parties, not to engage in debate or to answer any questions from the parties.
Transcript Hearing Order OH-3-2011 Registration of appearances Ms. Audino
31. We remind parties that the principal purpose of cross-examination in our proceedings is to clarify and test the evidence that has already been filed. Parties should not restate their own evidence or repeat cross-examination questions that have already been asked.
32. My role as the Chair of the Panel is to ensure that the hearing unfolds in an efficient and respectful manner. The Board expects all parties to show respect and courtesy to each other, Board staff and the Board. I look forward to everyone’s full cooperation in this regard.
33. We will now proceed with the registration of appearances. When your name is called, please come forward and register your appearance. Please state your name and the organization that you represent, if applicable.
34. In addition, please indicate whether you wish to be called upon for cross- examination or for final argument and whether you have any preliminary matters. Any preliminary matters will be addressed following the registration of appearances.
35. Ms. Audino, please proceed with the registration of appearances.
36. MS. AUDINO: Thank you, Madam Chair.
37. For the record, my name is Diana Audino, and next to me is David Cox. We are Board counsel for this proceeding.
38. As the Chair stated, I will begin with the registration of appearances. We will begin with the Applicant, Vantage Pipeline Canada ULC.
39. MS. HO: Good morning, Madam Chair, Panel Members.
40. THE CHAIRPERSON: I think we have a problem with the mic, Ms. Ho.
41. MS. HO: How about now; better?
42. Good morning, Madam Chair, Panel Members. My last name is Ho, initials L.B., for Vantage Pipeline Canada ULC.
43. We do wish to participate in cross-examination and final argument, and I
Transcript Hearing Order OH-3-2011 Registration of appearances Ms. Audino have no preliminary matters.
44. THE CHAIRPERSON: Thank you, Ms. Ho.
45. MS. AUDINO: Thank you.
46. The Canadian Association of Petroleum Producers…?
--- (No response/Aucune réponse)
47. MS. AUDINO: The Tioga to Empress Landowner Committee and Canadian Association of Energy and Pipeline Landowners Association (TELC/CAEPLA)…?
48. MR. CORE: My name is Dave Core, and I’m representing TELC/CAEPLA, and we do have a number of preliminary matters to address.
49. MS. AUDINO: And for cross-examination, just to confirm?
50. MR. CORE: Yes, we’re here for cross-examination and final argument.
51. MS. AUDINO: Thank you, Mr. Core.
52. ATCO Midstream Ltd. ...?
53. MR. TIMORUSKI: I am Terry Timoruski with ATCO Midstream. We’re here to observe, but we do reserve the right to speak to the issues at some point in time.
54. MS. AUDINO: Thank you.
55. NOVA Chemicals Corporation…?
56. MR. SMELLIE: Good morning, Madam Chairman and Board Members. James H. Smellie and Lindsey, with an E, Aufricht, A-U-F-R-I-C-H-T, for NOVA Chemicals Corporation.
57. I needn’t be called for cross-examination purposes, Madam Chairman, but I expect I will have something to say to you once the evidence is all in. And I don’t have any preliminary matters.
Transcript Hearing Order OH-3-2011 Registration of appearances Ms. Audino
58. Thank you.
59. MS. AUDINO: Thank you.
60. Talisman Energy Inc...?
--- (No response/Aucune réponse)
61. MS. AUDINO: TransCanada PipeLines Limited...?
--- (No response/Aucune réponse)
62. MS. AUDINO: Big Bear Band...?
63. CHIEF LITTLE BEAR: Good morning to the Chairman -- Chair, Panel Members.
64. I’m here to speak today on our traditional lands, and to see that they’re protected, and to our sacred sites.
65. MS. AUDINO: Thank you. Would you mind please stating your name for the record?
66. CHIEF LITTLE BEAR: Chief Alex Little Bear.
67. MS. AUDINO: Thank you, Mr. Little Bear.
68. CHIEF LITTLE BEAR: Thank you.
69. MS. AUDINO: File Hills Qu’Appelle Tribal Council...?
70. MR. JEERAKATHIL: Good morning. Rangi Jeerakathil for File Hills Qu’Appelle Tribal Council.
71. I might as well also say that I’m registering appearances on behalf of the Poundmaker Cree Nation, the Wood Mountain First Nation, the Lucky Man First Nation, the Little Pine First Nation, and the Mosquito Grizzly Bear’s Lean Man First Nation.
Transcript Hearing Order OH-3-2011 Registration of appearances Ms. Audino 72. We do have preliminary matters. We intend to conduct cross-examination and present oral argument, although the Nations which I mentioned. Poundmaker, Wood Mountain, Lucky Man, Little Pine, and Mosquito, will not be conducting cross-examination or making oral argument. And I’ll be dealing with them in the preliminary matters.
73. MS. AUDINO: Thank you.
74. MR. JEERAKATHIL: Thank you.
75. MS. AUDINO: We will then move on to Pasqua First Nation...?
76. CHIEF PEIGAN: Good morning, Madam Chair. Good morning to the Board Members, to the Panel, and to all of those that are in attendance.
77. My name is Todd Peigan. I am the Chief of the Pasqua First Nation within the Treaty 4 territory.
78. One of the requests I have is Pasqua did not retain legal counsel to submit evidence before the hearing because our view is that the legal counsel that would be submitting on our behalf pledges their allegiance to Canadian law.
79. The territory of Treaty 4 is that we’re requesting our own submission afterwards, Madam Chair, based on our own testimony, our own views. It’s not testimony. It’s not facts of law. It’s our own views because it has to be registered here, Madam Chairman, and to the Board, what our views are.
80. It’s not based on Canadian law because we take the position that Canadian law compliments this system.
81. We have made treaties with the Queen of England and Canada has to honour that as well. The province came after; Treaty 4, 1874, September 15th, was signed prior to this province being created and the territory of Treaty 4 is where the line is coming through.
82. So, Madam Chairman, we’re here to just observe, take our notes, but we would also submit our own written -- and it’s not based on legalities -- our position in regards to this pipeline.
83. Thank you very much.
Transcript Hearing Order OH-3-2011 Registration of appearances Ms. Audino
84. MS. AUDINO: Thank you.
85. The Siksika Nation...?
86. MR. WOLF LEG: Good morning. I’m Councilman Clarence Wolf Leg from Siksika First Nations. We’re here to make an oral statement today.
87. Thank you.
88. MS. AUDINO: Thank you.
89. The Alberta Department of Energy...?
--- (No response/Aucune réponse)
90. MS. AUDINO: The Saskatchewan Ministry of Energy and Resources...?
--- (No response/Aucune réponse)
91. MS. AUDINO: Fisheries and Oceans Canada...?
--- (No response/Aucune réponse)
92. MS. AUDINO: Transport Canada...?
--- (No response/Aucune réponse)
93. MS. AUDINO: Are there any other intervenors who have not been called yet?
--- (No response/Aucune réponse)
94. MS. AUDINO: Thank you. That concludes the registration of appearances.
95. THE CHAIRPERSON: Thank you.
96. Perhaps we can start with the preliminary matters?
Transcript Hearing Order OH-3-2011 Preliminary matters Mr. Core
97. MS. AUDINO: Yes. We will begin with TELC/CAEPLA preliminary matters.
98. THE CHAIRPERSON: Mr. Core?
99. MR. CORE: I’d like to begin with the issue of -- overnight, we decided to produce an opening statement. I have 20 copies here of it. Ms. Stephanie Fradette, an affected landowner, has an opening statement that we would like to file with the Board and I have 20 copies of that.
100. THE CHAIRPERSON: Yes, that would be acceptable.
101. Ms. Comte, can you give an Exhibit number?
102. MS. AUDINO: Perhaps we should also just confirm if there are any objections to the opening statement being filed? Ms. Ho?
103. MS. HO: Madam Chair, we haven’t seen the opening statement yet and so it’s hard for me to express a position not having seen it quite yet. But I wouldn’t expect to have any difficulties.
104. THE CHAIRPERSON: You would not expect?
105. MS. HO: I would not expect, but as I say, I haven’t seen it yet.
106. THE CHAIRPERSON: That’s what I asked you. So perhaps, Ms. Comte, you would give an exhibit number and, Ms. Ho, once you have a chance to look at it, you’re welcome to come forward.
107. MR. CORE: I have one other; Ms. Fradette would like to read it into the record also. Okay?
108. THE CHAIRPERSON: That’s fine, Mr. Core.
109. MR. CORE: Okay. The other matter is ---
110. MS. AUDINO: I’m sorry, Mr. Core, if we can just ---
111. MR. CORE: Oh, sorry. I’ll wait.
Transcript Hearing Order OH-3-2011 Preliminary matters Mr. Core
112. MS. AUDINO: --- have Ms. Comte advise us of the exhibit number.
113. MR. CORE: Okay.
114. THE REGULATORY OFFICER: C15-8.
--- EXHIBIT NO./PIÈCE No. C15-8:
Opening statement of Ms. Stephanie Fradette
115. THE CHAIRPERSON: Thank you, Ms. Comte.
116. MR. CORE: Madam Chair, the CEA Act in the comprehensive study list is referred to a number of times throughout the IRs and in the Application. I’m not sure it’s in the exhibit list. If I refer to it, I’m just wondering if we need to file it as an exhibit?
117. THE CHAIRPERSON: I wouldn’t think so, but I’m going to ask my legal counsel here to confirm. It’s a piece of legislation.
118. MR. CORE: It’s legislation.
119. THE CHAIRPERSON: Yes, no need to.
120. MR. CORE: No need. And then the last request, Madam Chair, is there’s been much talk about all-season public highways, and I think it’s imperative that this issue be addressed at this hearing.
121. We have -- the landowner group has bought rural municipality maps that designate what roads are. It appears to be that there’s controversy on this, and in our evidence we talked about the fact that some of these roads are not what they appear to be as filed.
122. We would like to refer to these maps. It’s hard to make 20 copies of these maps. They’re very expensive and they’re big and they’re hard to make copies of.
123. But our organization, the TELC/CAEPLA group, the landowners affected by this feel that it is important that we verify that what is being said is what it is and we feel that these maps need to be looked at and understand what these roads are that
Transcript Hearing Order OH-3-2011 Preliminary matters Mr. Core are claimed to be all-season public roads.
124. And so we’re filing these. We’d like to file these because we want to refer to them. In fact, we want to look at them and make sure we understand what these roads are that are referred to as all-season public highways.
125. And, you know, we’re quite adamant about this that they need to be looked at and they need to be looked at by your Panel and other people in this room so we come to an understanding of what’s being referenced.
126. THE CHAIRPERSON: Any comments Ms. Ho?
127. MS. HO: Madam Chair, I guess I’m not clear whether Mr. Core is proposing to look at these maps during the course of cross-examination. And if so, whether he'd be proposing to put each map and have a discussion or ask questions in relation to each map during the proceeding itself, or are you intending to just file them and refer to them in argument?
128. MR. CORE: I'd like to look at each map during cross-examination, if we could.
129. MS. AUDINO: Have you had the chance to look at them, Ms. Ho?
130. MS. HO: I have not.
131. MR. CORE: The maps are referred to in Information Requests by the National Energy Board. The maps are referred to and Vantage refers to these maps in their responses to -- well, no, actually, I'm sorry. I'm mistaken.
132. Actually, Vantage refers to the RM maps in their responses to questions about all-season public highways. It refers that they're outdated and this, that and the other. So the maps have been referenced and we have the maps and travelled the line and many of these landowners live in these rural communities and these maps say a lot more than anything else.
133. I think it's very imperative that we look at these maps to verify what roads are all-season public highways.
134. MS. HO: Madam Chair, I don't think we would object to Mr. Core
Transcript Hearing Order OH-3-2011 Preliminary matters Mr. Jeerakathil putting the maps to the witnesses as long as the witnesses have adequate time to look at them so they can understand what it is that's being put to them during the course of cross-examination.
135. THE CHAIRPERSON: Of course.
136. MS. HO: Thank you.
137. THE CHAIRPERSON: Thank you, Mr. Core.
138. MR. CORE: I think that's everything that I have at the moment.
139. THE CHAIRPERSON: Okay. Thank you.
140. We will mark them as exhibits once you make reference to them.
141. MR. CORE: Okay.
142. THE CHAIRPERSON: Not at this point.
143. MR. CORE: Thank you very much.
144. THE CHAIRPERSON: Thank you.
145. MS. AUDINO: Mr. Jeerakathil with File Hills Qu'Appelle Tribal Council.
146. MR. JEERAKATHIL: Yes, I have several exhibits to enter into the proceeding. I have copies here for the Registry Officer and counsel.
--- (A short pause/Courte pause)
147. MR. JEERAKATHIL: The first is a letter from the Poundmaker Cree Nation No. 345 -- well, sorry, it's on our letterhead actually. It's with respect to the Poundmaker Cree Nation No. 345, and it is a letter of support for the project.
148. And in the letter, the Poundmaker -- we request that the Poundmaker Cree Nation's evidence filed in this proceeding be withdrawn and, in particular, those exhibits would be C12-3 and C12-4.
Transcript Hearing Order OH-3-2011 Preliminary matters Mr. Jeerakathil 149. THE CHAIRPERSON: We need a minute here because we have to confirm what it IS that we've got. We've got -- each one of us have six copies of the same thing; So just one moment, sir.
150. MR. JEERAKATHIL: Certainly.
--- (A short pause/Courte pause)
151. MS. AUDINO: Just to confirm, that is the one letter from Poundmaker that you provided to counsel?
152. MR. JEERAKATHIL: Yes.
153. MS. AUDINO: Yes.
--- (A short pause/Courte pause)
154. MS. AUDINO: We just need a moment to organize the documents.
155. MR. JEERAKATHIL: Sure. I thought I had organized them, but perhaps I didn't.
--- (A short pause/Courte pause)
156. THE CHAIRPERSON: So we're starting with Poundmaker?
157. MR. JEERAKATHIL: Correct.
158. THE CHAIRPERSON: We're with you now.
159. MR. JEERAKATHIL: Okay. Thank you.
160. So I've gone through the exhibit for Poundmaker. I wonder whether that could have an exhibit number.
161. THE CHAIRPERSON: Any party has any comment? If no, an exhibit number, please?
162. THE REGULATORY OFFICER: C12-5.
Transcript Hearing Order OH-3-2011 Preliminary matters Mr. Jeerakathil --- EXHIBIT NO./PIÈCE No. C12-5:
Poundmaker Cree Nation No. 345, letter of withdrawal, letter of support and request to have evidence removed from the record
163. MR. JEERAKATHIL: The next document I'd like to enter is another letter on MacPherson Leslie & Tyerman letterhead with respect to the Wood Mountain First Nation No. 388. And it is also a letter of withdrawal from the proceeding, a letter of support and a request to withdraw evidence.
164. And the exhibit which it would seek to withdraw would be C14-3. And I'm wondering whether we can have an exhibit number for that letter.
165. THE CHAIRPERSON: Any comments? An exhibit number, then.
166. THE REGULATORY OFFICER: C14-4.
--- EXHIBIT NO./PIÈCE No. C14-4:
Wood Mountain First Nation No. 388, letter of withdrawal, letter of support and request to have evidence removed from the record
167. MR. JEERAKATHIL: The next letter is again a letterhead on the letterhead of MacPherson Leslie & Tyerman with respect to the Lucky Man First Nation No. 341, and it is a letter of withdrawal, a letter of support and a request to have evidence removed from the record.
168. And the exhibit which is sought to have removed from the record is C9-3.
169. THE CHAIRPERSON: I'm assuming no comments then. An exhibit number, please?
170. THE REGULATORY OFFICER: C9-4.
--- EXHIBIT NO./PIÈCE No. C9-4:
Lucky Man First Nation No. 341, letter of withdrawal, letter of support and request to have evidence removed from the record
171. MR. JEERAKATHIL: The next document, again a letter on
Transcript Hearing Order OH-3-2011 Preliminary matters Mr. Jeerakathil MacPherson Leslie & Tyerman letterhead with respect to the Little Pine First Nation No. 340. It is a letter of withdrawal, a letter of support and a request to have evidence removed from the record, in particular, Exhibits C8-3 and C8-4.
172. THE CHAIRPERSON: Comments? An exhibit number, then, please?
173. THE REGULATORY OFFICER: C8-5.
--- EXHIBIT NO./PIÈCE No. C8-5:
Little Pine First Nation No. 340, letter of withdrawal, letter of support and request to have evidence removed from the record
174. MR. JEERAKATHIL: The next letter or document is a letter again on MacPherson Leslie & Tyerman letterhead with respect to the Mosquito Grizzly Bear's Head Lean Man First Nation No. 343, and it is again a letter of support for the project, a letter of withdrawal and a request that evidence be removed from the record, in particular, Exhibit C10-3.
175. THE CHAIRPERSON: Any comments? An exhibit number, please, then?
176. THE REGULATORY OFFICER: C10-4.
--- EXHIBIT NO./PIÈCE No. C10-4:
Mosquito Grizzly Bear's Head Lean Man First Nation No. 343, letter of withdrawal, letter of support and request to have evidence removed from the record
177. MR. JEERAKATHIL: Thank you. We have copies of those letters to put at the back table.
178. THE CHAIRPERSON: Mr. Jeerakathil, just one moment, please?
--- (A short pause/Courte pause)
179. THE CHAIRPERSON: Just to confirm, Mr. Jeerakathil, for the six letters that you have given us ---
Transcript Hearing Order OH-3-2011 Preliminary matters Mr. Jeerakathil 180. MR. JEERAKATHIL: I believe there are five.
181. THE CHAIRPERSON: Oh, sorry, I added another letter -- another piece that was on the five of them.
182. So right now, the parties, you are saying they are in support of the application?
183. MR. JEERAKATHIL: Correct.
184. THE CHAIRPERSON: And the parties had submitted information with respect to TLUs. And do I take it, then, that there has been adequate response by the Applicant in terms of how to deal with the concerns that have been raised?
185. MR. JEERAKATHIL: Yes. For the nations that have filed letters of withdrawal, which are before the NEB, that is the intent of the letter.
186. THE CHAIRPERSON: Mr. Jeerakathil, the Board recognize that an applicant has the right to withdraw evidence that they had submitted, but also that there is a discretion by the Board with respect to whether that will be granted; so the Board would reserve its decision on this matter.
187. MR. JEERAKATHIL: Certainly, and I understand that that is the case.
188. THE CHAIRPERSON: Thank you.
189. MS. AUDINO: If I may also confirm, sorry, before you go that we did -- the Board did receive a letter from the Nekaneet Band, which is somewhat similar to these letters that you filed today, and may you -- we do have an exhibit number for that letter. It’s Exhibit C7-7, the letter from the Nekaneet Band.
190. Could you just confirm, because that band is a member of your client, the Tribal Council, whether -- what the position is of the Tribal Council with respect to that letter?
191. MR. JEERAKATHIL: Well, the Wood Mountain is also a member of that Tribal Council as well. So both Wood Mountain and Nekaneet are members of File Hills and those First Nations have complete authority to withdraw whatever they provided in the proceeding, you know, in a view of the file by the Tribal Council. They don’t seek to, you know, suggest anything other than that.
Transcript Hearing Order OH-3-2011 Preliminary matters Mr. Jeerakathil
192. MS. AUDINO: And can you confirm which exhibits in particular Nekaneet Band would like to withdraw from the record? I’m sorry; you may not have had a moment to check that out.
193. MR. JEERAKATHIL: I don’t, but I could do that.
194. MS. AUDINO: Okay. If you would just undertake to provide us with the exhibits that Nekaneet would wish be withdrawn from the record.
195. And then, Madam Chair, since the Board just reserved its decision with respect to the withdrawal of evidence, I understand that the intention was that the Nekaneet letter was included in that decision.
196. THE CHAIRPERSON: It certainly is, but I do have a question about that letter to counsel.
197. MR. JEERAKATHIL: Yes.
198. THE CHAIRPERSON: If I recall my reading of that letter, it didn’t say that Nekaneet would support the application. If I recall well, it just said that they’re withdrawing the evidence. I could be corrected. So is that a point of distinction?
199. MR. JEERAKATHIL: I have to be careful here because I don’t actually act specifically for Nekaneet. File Hills had evidence filed by Nekaneet for it in the proceeding. Nekaneet was not an intervenor in the proceeding. And I do not have specific instructions from Nekaneet to speak for them with respect to the intent or meaning of that letter.
200. And so I apologize; I can’t be of assistance with respect to that.
201. THE CHAIRPERSON: Ms. Ho?
202. MS. HO: Perhaps, Madam Chair, I can assist. The last sentence of that letter submitted and marked as Exhibit C7-7 does state Nekaneet First Nation supports the project application.
203. THE CHAIRPERSON: Well, thank you for that clarification. So now we have six letters that essentially say the same thing.
Transcript Hearing Order OH-3-2011 Preliminary matters Mr. Jeerakathil 204. MR. JEERAKATHIL: Yes.
205. THE CHAIRPERSON: Thank you.
206. MS. AUDINO: And just one more -- thank you. Sorry.
207. MR. JEERAKATHIL: Yes.
208. MS. AUDINO: I have a preliminary matter I’d like to address with Pasqua First Nation, if you are ---
209. MR. JEERAKATHIL: Should I deal with the File Hills preliminary matter?
210. MS. AUDINO: Oh, sorry, I thought you were done. I apologize.
211. MR. JEERAKATHIL: No, I'm not done, sorry.
212. MS. AUDINO: Okay. Go ahead.
213. MR. JEERAKATHIL: You can’t get rid of me yet.
214. So I have -- File Hills filed evidence in the proceeding and we don’t intend to seat a panel of File Hills to adopt the evidence. Instead, we understand it’s acceptable Board procedure to have an Affidavit sworn to adopt the evidence with any changes that are indicated, and I’ve provided a copy of the Affidavit to my friend.
--- (A short pause/Courte pause)
215. MR. JEERAKATHIL: So this is an Affidavit of Chairman Edmond Bellegarde, who is the Chairman of File Hills Tribal Council, to adopt the evidence with some minor changes. And these aren’t new paragraphs; they’re just some minor amendments.
216. I didn’t black line them, but there’s some minor changes to the text. And we’d like to have that marked as the next exhibit for File Hills, if that’s appropriate.
217. THE CHAIRPERSON: Any objections?
218. Ms. Comte?
Transcript Hearing Order OH-3-2011 Preliminary matters Mr. Jeerakathil
219. THE REGULATORY OFFICER: C7-8.
--- EXHIBIT NO./PIÈCE No. C7-8:
Amended Affidavit of Edmond Bellegarde, Chairman of File Hills Tribal Council
220. MR. JEERAKATHIL: And just a further clarification with respect to that Affidavit and the evidence of File Hills.
221. The evidence of File Hills -- the written evidence of File Hills contains reference to Affidavit evidence filed by Nekaneet and Wood Mountain, both of which have made a request to withdraw their evidence.
222. So to the extent that the written evidence refers to the Affidavit evidence of those Bands, which have settled, we would submit the Board should give it limited to no weight as opposed to having it removed from the record. That would be our position.
223. THE CHAIRPERSON: We note your submission, sir.
224. MR. JEERAKATHIL: Thank you.
225. So those were my preliminary matters.
226. THE CHAIRPERSON: Thank you.
227. MR. JEERAKATHIL: Thank you.
228. MS. AUDINO: Thank you.
229. If I may just call upon Chief Peigan from the Pasqua First Nation? Hi, Chief.
230. CHIEF PEIGAN: Good morning.
231. MS. AUDINO: Good morning.
232. I just wanted to confirm whether or not you had a preliminary matter. I
Transcript Hearing Order OH-3-2011 Preliminary matters Chief Peigan noted when you registered your appearance that you mentioned you’re here to monitor the proceeding, but then you also indicated that you may have some written evidence you would like submitted. Is that correct?
233. CHIEF PEIGAN: Yes, Madam Chairman. Again, good morning.
234. What we would like to do is do a written submission after the hearing. The written submission would be based on our views on the way life progresses.
235. And if I may, Madam Chairman, when Treaty was first signed in 1874, September 15th, the Crown promised to teach us the cunning of the white man. The cunning of the white man pertains to knowing the process of the National Energy Board, the process of the Canadian Environmental Assessment Act, the process of the Saskatchewan Environmental Assessment Act, the process of the way in which authorization for industry such as this to use traditional territories belonging to the Treaty 4 First Nations.
236. That is what the submission would be based on. We feel that we haven’t been fully consulted in terms of what is due process, because yes, I did receive emails.
237. It’s a lot of papers you sent out, and I commend all of those that are in attendance and submitted those submissions, but one of the things that I relayed to Vantage in our discussion was just that, us in Pasqua to know what this whole process is about and we had our own discussions in regards, but that fell off the track.
238. My good friend there I just met this morning, Mr. Rangi -- I can’t pronounce his last name -- also speaks on behalf of the Fire Hills Qu’Appelle Tribal Council, which Pasqua is a member of as well. Like that’s an administrative entity.
239. My reserve, Pasqua Indian Reserve Number 79, signed that Treaty. We were the original treaties that signed; Chief Pasqua. Therefore, the submission we would be making is based, one, on the territories that we hold within Treaty 4, and this pipeline is coming through the Treaty 4 territory.
240. The territory that cannot be defined by Elders' testimony for time and time again, Elders' testimony has been laid out. Delgamuukw opened that case up. Taku and Haida Rivers, they had the -- the Taku River and Haida Nation, they had that; then the Mikisew when the Elders' testimony came about.
Transcript Hearing Order OH-3-2011 Preliminary matters Chief Peigan 241. But one thing we’re missing, Madam Chairman, is things that have been created by the Government of Canada by Orders in Council, and I refer to the National Energy -- the Natural Resources Canada, the Surveyor General’s office, they provide those maps.
242. They provide the Treaty 4 territory maps. So I don’t have to ask my Elders because the Government of Canada already recognizes what those territories are from Number 1 to 11 the Robertson Huron.
243. All those treaties the government, the Natural Resources Canada, which is the entity to provide those documentation, you can go on their website and get any of those maps. So why do we have to come and demonstrate it’s our territory when it’s already provided by the Government of Canada, which the National Energy Board also reports to?
244. That is what the submission that we will be doing. How your recommendation, your decision comes about is entirely up to you. We respect that as well. But it has to be documented because that is the position of the Pasqua First Nation, the people of Pasqua. We’re not a community; we’re a nation.
245. We haven’t met with representatives of all those involved. NOVA, they’re supplying the gas in the United States. The Jay Treaty, how that implicates that. These things -- it’s bigger than just what -- in our view, it’s bigger than just what is happening here today. It’s bigger in regards to how nations can unilaterally impose their law that is not recognized yet.
246. When you have two nations that have an agreement, both nations have to agree. Pasqua, the nation of Pasqua, my Chief, Chief Pasqua, meaning the prairie, did not agree with those things and the Chiefs after him did not agree.
247. That is why I’m here today, to listen to what people have to say to document that because the violations that has happened in this whole process and how the First Nations listed were not consulted.
248. Thirty-four (34) First Nations and Treaty 4 received correspondence. That is not consultation. What are their views? A phone call -- the secretary answered. That is not consultation. That’s part of the matrix; it’s flawed.
249. The legality to have to be submitted today, I’m not a lawyer. I don’t intend to be, I’m not trying to be. What I’m explaining today is what was told to me,
Transcript Hearing Order OH-3-2011 Preliminary matters Chief Peigan what was taught to me by my Elders. My Elders taught me that you always got to fight for your land, this land, Treaty 4 territory. That’s where this pipeline is coming through.
250. And I apologize, Madam Chairman, and to the Board, we could not get that submission in because we’re having other disputes in our territory. We have other industry and we only have so much resources to do that. I’m the resource.
251. I have to meet with those industry; I have to lay our position out. I have to deal with what is the best interest of the people I serve on the Pasqua and in reserve. That is what we’re up against, Madam Chairman.
252. All the processes you laid out to the First Nations, how do we understand that? I don’t. Can someone please come and tell me what that process is because Treaty identified the teaching the cunning of the white man, to understand our rules, our laws, our policies. We haven’t been taught all those rules. We haven’t been taught all those policies, so we’re asking, who is going to teach that in this process alone?
253. We met with Vantage. They explained what their process is and where they’re going to go. I commend them for that. NOVA did not explain to us what the ethane gas is comprised of.
254. Did they ask us for permission for coming through our territory? I’ve hunted in those areas. South of Assiniboia I’ve hunted. I’ve hunted in the Cypress Hills area. I’ve hunted in the Moose Mountain area. Those are my traditional lands, and I’m still here today. I don’t need an Elder to tell you that; I’ve done it.
255. And when it comes through third party interest that -- is that not an interest? Do I not have an interest if those are my hunting areas? Those are my grounds I walk through. It doesn’t matter if they’re belonging to fee simple holders because my view and our people’s view is even that’s illegal, and that’s what our submission will be based on, Madam Chairman.
256. It’s our belief -- it’s our rationale because the way our Elders taught us, but we’ve been imposed with so many laws, rules, and regulations, which way do we turn? Do we turn to CEAA for this process? CEAA is supposed to be looking after First Nations' lands, a federal entity, the honour of the Crown.
257. NEB, First Nation National Energy Board, the federal government who
Transcript Hearing Order OH-3-2011 Preliminary matters Chief Peigan created that, you have an honour of the Crown for us as nations.
258. That’s what we don’t all know. That’s what we need to be taught. We need to be shown that. No one has offered anything to us in terms of employment. We recognize we got to live in society in harmony, but when we get stepped on do we just lay there, do we just lay there and take it?
259. We’ve seen that. We’ve seen how that has played out with First Nations people. We’ve seen the policies that the government has implemented. We’ve seen these things. So I ask you that to allow us to do our submission.
260. And I apologize because it is only me that has to review all your documents. It’s only me that has to review all the other industries' documents and study them. So unfortunately, I couldn’t get to the Vantage one because I’m busy having fights where they’re trying to take our own Indian reserve lands and I’m trying to stop that because of industry.
261. So I ask you if we could do that, do that submission and that someone could come and ask and show us and tell us what is NEB’s process, what is this whole thing about.
262. I taught myself it, but the cunning of the white man is you’re there to show my people, my Council members. I have eight Council members. They need to be taught that process.
263. I have 1,854 band members, citizens, belonging to the Nation of Pasqua. They need to be taught that process because I get questioned from it. Why are we not fighting this; that’s what I get questioned. Because of the process. Well, what’s the process? I can’t explain it because that’s not my responsibility. That’s industry, that’s government’s responsibility and we’ve asked that. We’ve asked that of the province. We asked that of the Federal Minister of Indian Affairs, but everyone turns a deaf ear.
264. Are we that type of people that we could be pushed aside? Because that’s reality and that’s why I ask, Madam Chair, being respectful, I apologize if I upset anyone, if I caused any bad feelings, I apologize, but these are what we believe in and this is what I get faced with, day in and day out from my people I serve.
265. So I cannot just sit here and say, “Yes, Vantage, go through our territory” without really sitting down and knowing the process. I can’t -- what’s the legalities
Transcript Hearing Order OH-3-2011 Preliminary matters Chief Peigan going to do, nothing.
266. So I ask you, Madam Chairman, I’m going to end there because of due process here, I understand there’s a due process here too and maybe I’m not following it either so, I don’t know, but I ask that, you know, we are allowed to do a written submission in regards to what I just discussed because it’s just bigger than this process, the concerns we have.
267. Thank you.
268. THE CHAIRPERSON: Thank you, Chief Peigan.
269. I still need some clarification. When you speak about written submission what timeframe you have mind?
270. I first want to say, the Panel is here because we want to hear from people, like yourself, and others, about how does this project impact them and I wanted to understand from you, within the course of today and the next few days that we are here together, would you be asking questions of Vantage so that you have a better understanding of how their project is going to impact you? In what role you will be participating, will you be submitting an argument at the end of the process?
271. So when you’re speaking about permission for a submission I’m not understanding as within the NEB process or can you clarify that for me?
272. CHIEF PEIGAN: Thank you, Madam Chairman. I apologize.
273. The submission -- when I read some of the due processes in regards to this hearing, there was comments or there was a process about legal arguments at the end for a submission that you may not attend this process but you could submit a legal argument or arguments.
274. Well, unfortunately, I can’t submit legal arguments because I’m not a lawyer.
275. MS. AUDINO: It’s final argument that we refer to; so it doesn’t have to be just legal argument. It’s final argument that comes in after the close of the evidentiary portion of the hearing which means after all of the witness panels have been presented. Then the Board would close the evidentiary portion of the hearing and open it up to any oral argument or written argument.
Transcript Hearing Order OH-3-2011 Preliminary matters Chief Peigan
276. So parties have an opportunity to file written argument if that’s their preference over oral argument and the written argument would have to be submitted prior to the oral argument commencing.
277. CHIEF PEIGAN: And that’s the due process that I reviewed that you have to submit, so then all the other parties can review, ask questions here. But again -- okay, so then with your process there’s no -- there’s no process to submit anything after this, right?
278. MS. AUDINO: That’s correct.
279. CHIEF PEIGAN: Okay. Then that’s what I was asking.
280. MS. AUDINO: Okay.
281. CHIEF PEIGAN: Now, in terms of oral, you have to submit your oral argument as well, right?
282. THE CHAIRPERSON: It’s either oral or written, not both.
283. CHIEF PEIGAN: Now, in terms of oral there’s just that oral arguments but do I got to write down my oral arguments?
284. THE CHAIRPERSON: No.
285. CHIEF PEIGAN: So then I could also do my oral comments in regards to this, Madam Chairman, in regards to what I’m talking about, I could talk about it -- I feel more comfortable talking like this than writing it down because what we were taught is you keep everything in here and in here.
286. I tried to write it down before and I can’t; I can’t write it down.
287. THE CHAIRPERSON: Chief Peigan, you will have every opportunity to address the Panel in the form of oral final argument and it’s not a legal argument it’s the way you would wish to address the Panel, it’s your choice.
288. And you also have the opportunity, if you’d like, to cross-examine. Panel 2 will be on -- panel 2 from Vantage who would be speaking to consultation matters
Transcript Hearing Order OH-3-2011 Preliminary matters Ms. Audino and if you have any questions of them, you can ask them questions in front of the Panel.
289. So that’s how you can participate in the hearing but you’re certainly welcome to give us your final argument orally. You don’t need to write it.
290. CHIEF PEIGAN: So do I just stand up and say I have a question?
291. THE CHAIRPERSON: When it is time to cross-examine the Vantage panel our legal counsel will be calling in on people who would want to examine them and if you’d like to be called upon to ask questions you can certainly do so.
292. CHIEF PEIGAN: I thank you, Madam Chairman.
293. THE CHAIRPERSON: Thank you.
294. MS. AUDINO: Thank you.
295. Okay. So I would just like to make a couple further comments for the record.
296. Just to indicate that the TELC/CAEPLA panel raised also as a preliminary matter prior to this hearing commencing whether or not it could present its panel at a prescribed time. Vantage did no object to this request but recommended that TELC/CAEPLA be heard first following the preliminary matters.
297. The Board confirmed that it would hear from TELC/CAEPLA first, so we will be hearing from TELC/CAEPLA shortly.
298. And then one final note. Also, we had a request from Siksika First Nation and Big Bear Nation that they be allowed to present oral evidence at the hearing and the Board confirmed that it would hear from Chief Big Bear Nation and Siksika Nation.
299. And I understand in speaking with Siksika Nation that they would like to present their oral evidence following the TELC/CAEPLA panel. And I have not had an opportunity to hear from Big Bear Nation whether they would also like to -- yes, I just see the Chief nodding his head.
300. So if it’s okay with the Panel the request is that we hear from Siksika First
Transcript Hearing Order OH-3-2011 Preliminary matters Ms. Audino Nation and Big Bear Nation, their oral evidence, following the TELC/CAEPLA panel. Is that acceptable to the Board?
301. THE CHAIRPERSON: Ms. Ho, any comments?
302. MEMBER HO: We have no objection to that proposal, Madam Chair.
303. THE CHAIRPERSON: Thank you very much.
304. The Board accepts that.
305. MS. AUDINO: Thank you. That concludes the preliminary matters.
306. THE CHAIRPERSON: Thank you.
307. Mr. Core?
308. MS. AUDINO: Do we want to take a break now and then introduce the panel or should we commence?
309. THE CHAIRPERSON: Time flies; I didn’t notice that we were already past 10 o’clock. So perhaps we can take 20 minutes break and we will be back at 10:30.
310. Thank you.
--- Upon recessing at 10:06 a.m./L’audience est suspendue à 10h06 --- Upon resuming at 10:31 a.m./L’audience est reprise à 10h31
311. THE CHAIRPERSON: Ms. Audino?
312. MS. AUDINO: Thank you, Madam Chair.
313. I would like to call upon the Tioga to Empress Landowner Committee and Canadian Association of Energy and Pipeline Landowner Associations, or TELC/CAEPLA as we will refer to you in this proceeding.
314. And they are already seated at the witness table.
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Ms. Audino 315. Madam Chair, given that Mr. Core is a member of the witness panel, I will be leading the panel through the formal adoption of their pre-filed written evidence.
316. However, prior to doing so, I will just briefly introduce the witnesses before having the clerk administer the oath.
317. So we have, at you immediate right, Mr. Dave Core. He’s the Director of Federally Regulated Projects for CAEPLA.
318. Beside him is Ms. Stephanie Fradette. She’s a TELC/CAEPLA committee member and affected landowner. Ms. Janet Heatcoat is beside her; TELC/CAEPLA committee member as well and affected landowner.
319. Mr. Dan Martin, also a TELC/CAEPLA member and affected landowner, and beside Mr. Martin is Mr. Monty Heatcoat, a TELC/CAEPLA committee member and affected panel member.
320. I would like to ask the Regulatory Officer if she could please administer the oath.
DAVE CORE: Sworn STEPHANIE FRADETTE: Sworn JANET HEATCOAT: Sworn MONTY HEATCOAT: Sworn DANNY MARTIN: Sworn
321. MS. AUDINO: Thank you, Ms. Comte.
--- EXAMINATION BY/INTERROGATOIRE PAR MS. AUDINO:
322. MS. AUDINO: Mr. Core, I will ask you to adopt the evidence of TELC/CAEPLA in this proceeding.
323. Do you have before you a copy of the Board’s list of exhibits that have been pre-filed by TELC/CAEPLA in the proceeding? That is the C15 section of the exhibit list?
324. MR. CORE: Yes, I do.
325. MS. AUDINO: Okay. And you were present a moment ago when we
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Ms. Audino had the -- when we introduced the opening statement of TELC/CAEPLA, which was marked as Exhibit C15-8; is that correct?
326. MR. CORE: Yes.
327. MS. AUDINO: And I will ask Ms. Fradette to actually adopt the opening statement, as it was prepared by her.
328. But with respect to all of the other exhibits in the C15 section, can you confirm that those documents were prepared under your direction and control?
329. MR. CORE: Yes.
330. MS. AUDINO: Do you have any corrections to those documents?
331. MR. CORE: No, I don’t.
332. MS. AUDINO: And are the documents accurate to the best of your knowledge and belief?
333. MR. CORE: Yes, they are.
334. MS. AUDINO: Do you accept and adopt the documents as the evidence of TELC/CAEPLA in this proceeding?
335. MR. CORE: Yes, I do.
336. MS. AUDINO: Ms. Fradette, you were present a moment ago when TELC/CAEPLA introduced the C15-8 exhibit, which is the TELC/CAEPLA opening statement?
337. MS. FRADETTE: Yeah.
338. MS. AUDINO: And was that document prepared under your direction and control?
339. MS. FRADETTE: Yes.
340. MS. AUDINO: Do you have any corrections to the statement?
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Opening statement
341. MS. FRADETTE: No.
342. MS. AUDINO: Is the statement accurate to the best of your knowledge and belief?
343. MS. FRADETTE: Yes.
344. MS. AUDINO: Do you accept and adopt the statement as the evidence of TELC/CAEPLA in this proceeding?
345. MS. FRADETTE: Yes.
346. MS. AUDINO: Madam Chair, I believe Ms. Fradette would like an opportunity to present this opening statement to the panel.
347. THE CHAIRPERSON: We were all eager to hear it. Thank you.
348. MS. FRADETTE: Thank you.
349. That’s all you need now, you can hear me?
350. Okay, well, my name is Stephanie Fradette, my family and I are directly affected landowners of this project. I’ve been asked by the TELC/CAEPLA landowner group to make a few opening remarks; so here they are.
351. Farmers and ranchers are pro-development and support the oil and gas industry. We are ourselves businesspeople, we are innovative, generally understand technology, support it, and understand the need for the transportation of energy and other feedstock for the petrochemical industry through pipelines.
352. We understand that pipelines are needed; yet, we have the responsibility to be stewards of our land to protect it for future generations. When a pipeline is proposed for our property, agreements that we do not fully understand are presented to us by land agents.
353. While many of us are good farmers and ranchers, very few of us have spent much time studying pipeline construction practices or NEB regulations and laws. We lead busy lives and the proposal becomes an intrusion.
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Opening statement 354. From the start we understand that these companies have the right to expropriate our land. We are well aware of the Crown corporations’ rights here in Saskatchewan and we understand that there is usually nothing you can do but take what is offered as an easement agreement and compensation.
355. We also understand that as individuals our concerns are basically irrelevant. We understand the single individual who questions the pipeline company will be led down the arbitration road and forced to accept what the Board sees as acceptable for them and their operations.
356. We have to trust that what we are being told by the land agents and the company they represent is the truth. Because the easement agreement refers to the National Energy Board Regulations we also have to trust that these regulations are just, fair and enforced. We also have to trust that they are being explained to us in a responsible and honest fashion.
357. We are here this morning to come to a better understanding of what and who we can trust and to also better understand the NEB regulations, and through this process test their enforcement.
358. I can assure you that this is the first time that I have ever had to take part in something like this and I understand why more people don’t. The preparation alone has been intimidating and the thought of being cross-examined is almost overwhelming.
359. Some landowners along this proposed project got together to try to better understand the implications of having a pipeline on their property and make sure that it is protected. In short order it became apparent to us that we didn’t know where to begin, and we sought CAEPLA’s help in this endeavour.
360. And about CAEPLA, the Canadian Association of Energy and Pipeline Landowner Associations is Canada’s foremost and leading association of landowners who have a direct and ongoing interest in the way government and energy regulators define and then influence the relationships that exist between landowners and various aspects of the energy sector.
361. A decidedly pro-development organization -- association -- CAEPLA’s role is to advance the legitimate interests of landowners within the context of development and at the same time provide all Canadians with a better understanding
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Ms. Ho of the way property rights encourage responsible stewardship. And I think it’s important for you to understand how important it was for us to work with an organization that is pro-development.
362. As I said before, we are all businesspeople and we enjoy operating in a robust economy, and it’s great when everyone’s making money. But we don’t want a pipeline’s profit to come at any cost to us.
363. Many of our landowners have been told contradictory information and have become frustrated. We would like to believe that people who come into our homes to do business with us are being open and honest. After all, these agreements are perpetual agreements we are being asked to sign, and I don’t think that complete honesty is too much to ask before we start a forever deal.
364. And as a result of participation in this hearing we hope to feel assured that this company proves trustworthy and that the Energy Board is helping us in our role to be stewards of the land and our families.
365. That’s all I have. Thank you.
366. THE CHAIRPERSON: Thank you, Ms. Fradette.
367. MS. AUDINO: Madam Chair, I believe that counsel for Vantage now has some questions for this panel.
368. THE CHAIRPERSON: Ms. Ho?
369. MS. HO: Thank you, Madam Chair.
--- EXAMINATION BY/INTERROGATOIRE PAR MS. HO:
370. MS. HO: Good morning, panel.
371. I think I had an opportunity to meet most of you just prior to you taking the stand. But for the record, my last name is Ho, and I am counsel to Vantage and I have just a few questions for you this morning.
372. Ms. Fradette, I don’t think it will take an hour; so you don’t have to worry. And I also think that most of my questions are primarily for you, Mr. Core.
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Ms. Ho 373. Sir, I’d like to take you to Exhibit C15-4a, which is your written evidence ---
374. MR. CORE: Yes.
375. MS. HO: --- that you have filed.
376. And sir, in paragraph 7 of that evidence you provide a list of the issues or concerns to TELC, and I take it that those are the types of issues that are addressed in the Enbridge agreement you reference in paragraph 10 of your evidence?
377. MR. CORE: That’s true.
378. MS. HO: And just so that we’re on the same page, sir, when I reference the Enbridge agreement you understand that I am referring to the agreement that was entered into between the MPLA, and the SAPL, and Enbridge in respect to the Alberta Clipper and Southern Lights Project?
379. MR. CORE: That’s right.
380. MS. HO: Sir, would it be fair to say that all of the issues in your paragraph 7 are addressed in some form in the Enbridge agreement?
381. MR. CORE: Yes, they are. Not completely, it’s the best easement agreement we could negotiate at the time, but it was precedent-setting.
382. MS. HO: Okay, and would you confirm that you were involved in the negotiation of the Enbridge agreement on behalf of MPLA and SAPL?
383. MR. CORE: Yes, I was.
384. MS. HO: Now, sir, when you look at paragraph 10 of your evidence you say:
“To date, despite TELC/CAEPLA’s efforts to resolve with Vantage the outstanding landowner issues, with mitigation measures as provided for in the Enbridge agreement, conditions that have been used in multiple landowner negotiations since, Vantage has failed to resolve all of those issues.” (As read)
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Ms. Ho 385. Do you see where I’m reading from, sir?
386. MR. CORE: Yes, I am. I do.
387. MS. HO: And, sir, focusing on that last portion of paragraph 10 where it reads “Vantage has failed to resolve all of those issues”, would you agree with me that one way of interpreting what you have written here is that Vantage has failed to resolve any of the issues provided for or addressed in the Enbridge agreement?
388. MR. CORE: No, I would disagree with that. What I state is Vantage has failed to resolve all of those issues.
389. MS. HO: Okay. So let me just clarify, then, for the record because perhaps I misread that statement then. Is it your evidence that -- sorry. So you’re not telling the Board that Vantage has not agreed to at least some of what the Enbridge agreement provides for; correct?
390. MR. CORE: No, when I wrote this Affidavit we were in the middle of negotiations. There had been no signed agreement at that time. And I understand as of midnight last night there is nothing agreed to at all. In fact, I have an email to that effect, that everything’s off the table as of midnight last night because we’re attending this hearing.
391. MS. HO: Sir, would you confirm for the Board that in June of this year Vantage agreed to every form of mitigation measure that is provided for in the Enbridge agreement as long as it related or was relevant to the Vantage pipeline project?
392. MR. CORE: No, what we received was an email stating that they had agreed to most of the mitigations for the issues that we’ve listed, but there was still outstanding issues -- a few outstanding issues. And we did not meet again to settle those outstanding issues.
393. I have to admit that we had good negotiations with Vantage, I cannot refute that, in that we were making good headway, but we came to a position where we were at that we couldn’t go any further.
394. MS. HO: And sir, would you agree with me that the primary issue that remains to be resolved between TELC and Vantage are related to compensation matters?
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Ms. Ho
395. MR. CORE: I would suggest that the slate is clean. I have an email that says that everything has been taken off the table as of October 31st because of our attendance at this hearing. So I understand there is no agreement on anything at this time.
396. I have a copy of that email if I need to produce it from Mr. Schmunk that says, as of October 31st, everything’s off the table. The landowners here with me have a copy of that email also if you want to confirm that with them.
397. MS. HO: I understand that, sir, but my question was -- well, let me ask it this way. Would you confirm for the Board that you received an email from Mr. Schmunk on June 17 of this year providing you with what was, at that time, Vantage’s latest proposed form of agreement with TELC? Do you recall that?
398. MR. CORE: Could you rephrase that question? I’m trying to make sure I don’t get caught in something here that I ---
399. MS. HO: I’m not trying to be ---
400. MR. CORE: --- say the wrong thing.
401. MS. HO: I’m not trying to be tricky, sir, and ---
402. MR. CORE: Okay.
403. MS. HO: --- by all means, if you misunderstand a question, I’m happy to rephrase it or repeat it.
404. On June 17 of this year, my understanding is that Mr. Schmunk sent you an email, and attached to that email was Vantage’s proposed form of agreement to be entered into between TELC and Vantage.
405. MR. CORE: Okay. Up until that point in time, we had hired legal counsel to interpret our -- the results of our first negotiation, and legal counsel interpreted the first proposed easement agreement.
406. The date you’re speaking of, Mr. Schmunk sent us an email saying that he was willing to accept other proposals before us but was not willing to meet the issue of annual fees and compensation levels that we were referring to.
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Ms. Ho
407. Legal counsel did not review that document, so it was not settled. It was proposed to us, but we don’t accept anything until our legal counsel has looked at it on behalf of the landowners. But we did receive that email.
408. MS. HO: And did you look at that proposal, sir?
409. MR. CORE: Yes. Yes, we did.
410. MS. HO: And if you were to compare the Enbridge agreement to what Vantage sent to you on June 17, other than compensation-related matters, which I think you’ve touched upon, you would agree with me, sir, that you would find the Enbridge agreement and the Vantage proposal to be remarkably similar; correct?
411. MR. CORE: Without legal counsel having reviewed it -- I’m not a lawyer and so I can’t say that it was reviewed from a legal perspective. I would say it was close. But without that legal counsel review, I cannot say that it was equal, but it was getting close.
412. MS. HO: Is it your position, sir, that other than compensation-related matters, the Enbridge agreement and what Vantage proposed are not similar?
413. MR. CORE: Just excuse me for one moment. I want to say that, you know, I’m working with this committee here who makes decisions, so I want to make sure that when I respond, I’m responding on behalf of the committee, too.
414. MS. HO: That’s fair, sir.
--- (A short pause/Courte pause)
415. MR. CORE: It may be that some of the committee wants to respond to some of this because they make the decisions along with me.
416. So go ahead and ask again. I don’t remember your last question.
417. MS. HO: I was just asking, sir, is it your position that, other than compensation-related matters, the Enbridge agreement and what was proposed by Vantage are not similar?
418. MR. CORE: Yes, they were, except for compensation and annual fees
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Ms. Ho and -- but we had not decided -- as Stephanie just pointed out to me, there were a number of issues that were still outstanding as far as the certain committees that we were to agree to, et cetera. There were still outstanding issues that we did not understand at that time.
419. Vantage had proposed that they would give the same agreement that was negotiated to all people. They had proposed that, and we were trying to understand how our construction monitor and the joint committees, as related to the Enbridge deal, would function and what their responsibilities would be.
420. But yes, it was getting very close to -- from a mitigation perspective, it was getting close to the Enbridge agreement. Yes, it was.
421. MS. HO: Mr. Core, if I could take you to paragraph 33 of your evidence. In there you talk about the proposed route and you state that “it seems counter to good pipeline engineering construction and safety practices”.
422. Do you see where I’m reading from, sir?
423. MR. CORE: Yes, I do.
424. MS. HO: Sir, you’d confirm for the Board that you are not a professional engineer?
425. MR. CORE: No, I am not a professional engineer.
426. MS. HO: And do you think, sir, that Vantage has any professional engineers working on the Vantage pipeline project?
427. MR. CORE: I’m sure they do.
428. MS. HO: And sir, you understand that the National Energy Board has regulatory oversight in respect to this project?
429. MR. CORE: Yes, I do.
430. MS. HO: And do you think that the Board has any professional engineers reviewing the work being submitted by Vantage?
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Ms. Audino 431. MR. CORE: Yes, I do.
432. MS. HO: Would you agree with me, sir, that Vantage has people working on this project who are well versed in construction and safety practices?
433. MR. CORE: Yes, I do.
434. MS. HO: And do you think that the Board has people working on this project who are familiar with construction and safety practices?
435. MR. CORE: I’m sure they do.
436. MS. HO: Would you agree with me, sir, that the Board is well positioned to assess the engineering, construction and safety practices proposed by Vantage?
437. MR. CORE: Yes, I -- yeah, I would agree.
438. MS. HO: Thank you for answering my questions. Thank you, panel, that’s everything I have and I appreciate -- to the landowners, thank you for traveling to Regina.
439. THE CHAIRPERSON: Thank you, Ms. Ho.
440. MS. AUDINO: Thank you, Madam Chair.
441. I understand that there are now -- no other parties have expressed a desire to ask questions of this panel, but I’d just like to take this opportunity to confirm that.
--- (No response/Aucune réponse)
442. MS. AUDINO: And seeing no one rise, the Board does have a few questions.
443. THE CHAIRPERSON: Please proceed.
--- EXAMINATION BY/INTERROGATOIRE PAR MS. AUDINO:
444. MS. AUDINO: Thank you.
445. Again, good morning. My name is Diana Audino, and I have a few
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Ms. Audino questions for your panel on behalf of the Board and Board staff.
446. Ms. Fradette, you describe CAEPLA a little bit in your opening statement, but I was wondering if you could provide the Board with some background regarding the formation and nature of the TELC/CAEPLA organization.
447. MS. FRADETTE: How our group came to be formed?
448. MS. AUDINO: That's right.
449. MS. FRADETTE: Well, yeah, it's actually very -- pretty uncomplicated. When we got sort of rumour of a pipeline stirring, we started to find information. I can't tell you for sure if we heard from RRM about the pipeline first or if we actually heard from Vantage first. I would have to check. I keep a diary, but I didn't bring it.
450. But -- so once we found out about it, we started to ask questions. As many of you know, my parents, who are landowners on this too, have an Alberta pipeline. We talked to them. In discussion with them, they said we better start looking at what's going on here.
451. We started talking to other landowners. We started looking around into where we could find information. A group of us contacted Dave. He said, "If you want me to come talk to you, I'll come talk to you". And he came down to a meeting in Lake Alma, and I think one in Assiniboia the same day.
452. A group up at Assiniboia had -- we'd talked to each other and he did two meetings. And then we organized a group and asked him to help us, asked CAEPLA to help us organize ourselves, figure out what we were doing.
453. MS. AUDINO: Do you recall exactly when the organization was formed? Months and year, maybe, or...
454. MS. FRADETTE: I would say September of last year.
455. MS. AUDINO: Okay. I'd just like to address a question to each committee member, the landowners.
456. Could each of you please tell us where you reside in relation to the project? Ms. Fradette, we could start with you, if that's okay.
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Ms. Audino 457. MS. FRADETTE: Okay. Well, I live southwest of Lake Alma.
458. And how much detail do you want?
459. The pipeline goes on -- crosses our place for about three to four miles, as far as we know. We're on the north -- our home corner is the northwest of 29 and the pipeline, the closest it comes to our house is right at the edge of that corridor on the southwest.
460. MEMBER HAMILTON: Perhaps, if I may, it would help if I -- I was going to have the same question, if you could maybe just ---
461. MS. FRADETTE: Just point to where I live?
462. MEMBER HAMILTON: Thank you.
463. MS. FRADETTE: Okay. Lake Alma where -- to southwest of Lake Alma where the pipe's at an angle.
464. MS. AUDINO: Right there.
465. MS. FRADETTE: Okay. That's where I live.
466. MS. AUDINO: Thank you.
467. MS. HEATCOAT: I am -- see the little blue dot where the pumping station is proposed? I'm about a half mile to the left.
468. MS. AUDINO: Okay.
469. MR. MARTIN: I actually own two tracts of land that the pipe crosses. One is -- just go to your right a bit, Dave, where that lake is. No, up across the Number 1 Highway. That is called Crane Lake. That is my home where I reside.
470. And then I also have a tract of land close to Gardenhead that I still don't know where the pipeline is going to be. I just know it's going to be on my land somewhere.
471. MS. AUDINO: Okay. Thank you.
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Ms. Audino 472. MR. HEATCOAT: I'm about two miles east of the blue dot, south of Assiniboia. Yeah, in that area.
473. MS. AUDINO: Thank you. That helps the Board, just give some context so we can know exactly how the pipeline -- how close you are in relation to the pipeline. And I note that, Mr. Martin, you did indicate that you don't know the exact specifics, but that it will be on your land.
474. MR. MARTIN: As a TELC committee member, too, I'm representing people from Ridgemont all the way to Gardenhead that are also in our group that could not attend today, so there's many more landowners, not just me, that I'm here to speak on behalf of.
475. MS. AUDINO: Okay. And just approximately how many landowners does TELC/CAEPLA represent?
476. MR. HEATCOAT: Can I answer that?
477. MS. AUDINO: Yes.
478. MR. HEATCOAT: We represent all of them because in their opening statement here with Vantage Pipeline, it states that any compensation that is -- that we negotiate or any agreements that we negotiate through CAEPLA also will be given to the rest of the owners who have signed this agreement.
479. So we're not just representing ourselves or the 20 percent so to speak, I think we represent all landowners because the reason they signed this, is because they were told that anything that we negotiated, they would also get.
480. MS. AUDINO: So exactly how many land -- do you know just a rough figure of how many landowners are a party to that agreement with TELC/CAEPLA?
481. MR. HEATCOAT: Six hundred (600).
482. MS. AUDINO: All 600 ---
483. MR. HEATCOAT: Yes.
484. MS. AUDINO: --- landowners affected by the Vantage Pipeline.
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Ms. Audino 485. MR. HEATCOAT: Yes. They've all been told that whatever CAEPLA negotiates, they would be also privy to.
486. MS. AUDINO: Could you advise the Board as to what your outstanding issues are with the Vantage project as landowners, from your perspective?
487. MR. MARTIN: I have many outstanding issues. One is that they will not bury the pipe deep enough so I can continue my farming practices on my land without being held responsible if I damage the pipe.
488. When they cross the road in any of the RMs here, they dig that pipe down deep enough so no matter what road it will ever eventually become, you can have heavy traffic at all times. The farmer, everyone has to get bigger. Our tractors get bigger, our machinery gets bigger. We have to get written permission to cross your pipeline that I don't even want. Why is that?
489. I never asked for this pipeline, nor did they ever ask me to have this pipeline, but I have to follow their rules. And I have deeded land, not leased land. I don't believe that to be fair in my practice of work.
490. MS. AUDINO: And I believe CAEPLA's evidence was that you recommended a depth of cover of about five feet. Is that still your position?
491. MR. MARTIN: I don't know if ---
492. MS. AUDINO: Okay.
493. MR. MARTIN: --- that I can honestly say that.
494. MS. AUDINO: Okay. So do you have an idea in mind as to how many feet?
495. MR. MARTIN: The same depth they have to put in underneath the road, any road in this RM or in Saskatchewan. If it's fair for the RM people, why is it not fair for the landowners?
496. I know it's a little more cost to them, but they're the ones making money from this; not me, the landowner.
497. MS. FRADETTE: Well, and to touch on what Danny's saying is how
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Ms. Audino this route goes, it's following -- there's some spots where it angles across full sections or quarter sections, but for the -- a lot of it, it's following along road allowances, which is right on your edge of your field, which is where you will build fences, which is where you would put vineyards, which is where you cross every time to get into the field.
498. So by putting this route in like, this following road allowances instead of following a straight line, you're actually putting your pipeline in where there would be more traffic, more heavy traffic, and possibly more development, post pounding, buildings, bins, that sort of thing.
499. But we have -- there's a lot more issues, if you want to know.
500. MR. MARTIN: Not to mention, not all of us have control over who enters our land. I have a tract of land where semis, as a rule, always turn around because they get lost in that area.
501. So if they actually ruptured the pipeline and he drives away, who’s liable, is responsible for it? It's on my land. I take it it would be my responsibility for something I didn't do. Why is that allowed?
502. MS. FRADETTE: We have ongoing, of course, liability concerns. The abandonment issue comes up repeatedly with landowners that have already signed the easements and those who haven't because the liability issue -- as far as the landowner is concerned, the only way the termination of a pipeline, that it will never be our problem, is if that pipeline is no longer there.
503. And we understand there's a cost to it and we understand it'll be new soil disturbance and new reclamation, but the only way we can be assured that that pipe will never be in our way if we want to build a yard there or dig a gravel pit or an oil well goes there or a yard site goes there after this pipeline is gone is if that pipe isn't there.
504. And if it's too costly for a pipeline company to dig up that pipe, I don't know how it could possibly be affordable for us to dig up that pipe for our project down the road. The liability, the abandonment issues are huge.
505. MS. HEATCOAT: My concern is land values in Saskatchewan have increased dramatically in the last two years, as well as our produce. The prices are escalating because of food issues in the world. And as farmers, what is that going to
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Ms. Audino do to our production when the pipeline comes across the land, as well as our income?
506. This comes across in our production for the next 50 years, so it -- the impact is forever on our production and our land values. If, all of a sudden there's leaks or environmental issues and this land goes out of production, what happens to me and my income? It will be gone. That's how we make our living.
507. MS. FRADETTE: As far as other landowner issues that have gone on, it's not necessarily a pipeline construction issue; it's the initiation of discussion. It's being -- there's a lot of pressure for landowners to sign stuff they don't understand.
508. I'm sure you could survey the 80 percent of people that have signed those agreements and they could not tell you what their agreement says. If you sat down for a face-to-face with them, they could not tell you what they have agreed to.
509. They agreed to it because they didn’t think they had a choice because even at the up-front meetings that were held in town, the discussion of arbitration came up and a decreased payment if you forced this to arbitration. So people are signing onto things that they don’t have -- that they don’t fully understand.
510. I'm trying to -- I have to check my notes. There is other issues that I need to tell you.
511. MR. MARTIN: Not to mention, I was told to get legal counsel for this would cost me between 200 and $300,000. This pipeline doesn’t even come close to paying me that across my land. How is that fair for me to protect myself for nothing?
512. It’s got to come out of my pocket for these pipelines to make a profit and I’m supposed to just cough that up to protect my land, to be a steward of the land. It’s a hard struggle.
513. MS. FRADETTE: There’s also the concerns -- as far as health and the structure of pipelines, as Ms. Ho pointed out, we are not pipeline engineers. However, most of us operate with common sense, and some of us have even maybe put a waterline in the ground and we know if we put a line in the ground, the straighter it is, the better it is. And a pipeline with more bends just doesn’t make a lot of sense to us.
514. And regardless of how well they build their pipeline, there is a risk to us having that on our land because the chances that I will be blown up crossing this
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Ms. Audino pipeline I’m going to hope are very slim and assume they’re very slim. But regardless, they’re infinitely higher than if that pipeline wasn’t there.
515. The chances of me blowing up crossing where there’s no pipeline, I’m going to say, are even lower. It’s just -- there’s a constant risk there. I know we have a duty of care when we have a pipeline on our land. You’re doing the first call and you’re doing all that, but with it there, there is a risk that someone might forget, that you might hire someone who misunderstands you.
516. There’s a risk to people when they have a pipeline on their land that someone will be hurt or something will be damaged, regardless of how careful people are.
517. MR. CORE: I’d just like to add to that. Stephanie mentions the bends in the pipe and no, I’m not an engineer but I’ve been dealing with these issues since -- I first became aware of things in 1993.
518. And in any hearings I’ve attended and anybody I’ve talked to have told me that the intention when you build a pipe is to keep it as straight as possible so that -- for the movement of pigs through it and to reduce the need for higher pressure, to reduce wear on the corners, et cetera.
519. Maybe ethane doesn’t cause the same amount of wear of others, but I know that standard practice has been to keep the pipe as straight as possible to reduce certain engineering factors. That’s all I know. I’m not an engineer and I trust that the Board takes these things into account; that’s what your job is.
520. I do have to say that, you know, the landowners are here because they want to understand the NEB process better, too. In fact, I’m still learning more about it every day. I think the Chief made some good comments there this morning, that this is new territory. I even find this, even though I’ve attended many of these, very intimidating.
521. But I think the thing is is that what the -- what landowners have conveyed to me many times is, you know, the easement agreement says it refers to NEB Regulations when it talks about abandonment or crossing and this. And they don’t understand them. They haven’t -- they’ve read them, but don’t fully understand the implications of it and they do need it interpreted to them.
522. So they’re here to try and understand if the NEB is doing its job because
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Ms. Audino they don’t know. They don’t know you folks and they don’t know the professionals across the room here. And so that’s why they wanted to attend.
523. Before they sign an agreement, they want to know who the regulator is. They want to be here and understand how you think and what you do, and they have questions to ask that I can’t answer; you’re here to answer those.
524. And I think this is a great opportunity for them to understand when they sign an agreement can we trust the company and can we trust the NEB, and I think that’s part of this process and why they’re here.
525. I have to tell you, they’re very nervous about being here, but I’ll let them talk. I just wanted to add that at this point.
526. MR. HEATCOAT: Okay. My first meeting with Vantage Pipeline occurred in the spring of 2011. The President and Vantage representatives left me feeling, as a landowner, that I had absolutely no rights.
527. We were given a map of the proposed route and a contract to sign with the amount of compensation to be paid; half in the form of a bonus payment, a bonus to be paid if we agreed on the terms and signed before April 30th of 2011.
528. We were told if we did not sign on time or caused any problems, they would simply expropriate and we would not receive the bonus payments.
529. That, to me, was very heavy-handed and that’s probably why you have 80 percent sign-up on this. Okay. It’s a -- it’s a school yard bully mentality.
530. We were told the payments were adequate and not negotiable. As landowners, we were fortunate to be represented by Dave Core here with CAEPLA because, as of today, the last heavy-handed move with CAEPLA is that we have no contract coming in today. We were told if we showed up today all our contracts are null and void.
531. So all the negotiations we’ve been doing since last fall mean nothing to us -- or mean nothing to them.
532. MS. AUDINO: And in your negotiations, had you reached the point where almost the only outstanding issue was compensation, as was raised in Vantage’s evidence and by Vantage’s counsel today?
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Ms. Audino
533. MS. FRADETTE: No. Like Dave said, our agreement that we were working out with them was similar to the Enbridge agreement.
534. MS. AUDINO: Right.
535. MS. FRADETTE: In my mind, as a landowner, that Enbridge agreement is good, it’s not perfect, and there was still outstanding issues. Our negotiations had been confusing because of this promise from Vantage that everyone gets the same thing. But then partway through that, we have emails saying that this easement will be for our TELC group's people; not for everyone.
536. So there was a lot of outstanding issues as far as who was getting the agreement, which complicated our construction monitors and our joint committees and the people we would have representing us on the construction and dealings with them, so there was outstanding issues.
537. As far as where we are now, we can go through the old easement which is now, I guess, what is on the table and what other people have signed. I’m not sure if this is in evidence. I’m sure it is because it’s their sample agreement from their application.
538. But in the very first clause of this it says that they plan to put in -- well, it says they can operate, maintain, inspect, patrol, alter, remove, da, da, da, one or more pipelines. It’s not clear -- it says it’s subject to a second clause, which was very complicated.
539. It’s going to put in one and in the future, if we don’t consent to a second one, they do it according to the National Energy Board Regulations, a second pipeline.
540. MS. AUDINO: Sorry, Ms. Fradette, I don’t mean to interrupt. I think you are referring to the easement agreement that Vantage filed as an exhibit in this proceeding; is that correct?
541. MS. FRADETTE: That’s right.
542. MS. AUDINO: I just want to verify with our Regulatory Officer if we can confirm that exhibit number and maybe pull it up so everyone can follow where you’re reading from.
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Ms. Audino
543. MS. FRADETTE: Oh, that would be wonderful.
--- (A short pause/Courte pause)
544. MS. AUDINO: Sorry. I’m pretty sure I have quick access to the exhibit.
545. I believe it’s B1-6 -- sorry. Yes, B1-6, the sample easement agreement; is that correct? If you could pull it up, Ms. Comte.
546. I have page 148 at the bottom, if that’s of assistance.
--- (A short pause/Courte pause)
547. MR. CORE: Stephanie has asked me to clarify something before she goes any further.
548. MS. AUDINO: Sure.
549. MR. CORE: What she said.
550. MS. AUDINO: Yes.
551. MR. CORE: Is now the time?
552. MS. AUDINO: Sure.
553. MR. CORE: When we were in negotiations landowners received a letter -- or early, before negotiations even. I’m not sure what date. And I think there is a copy of it in the filing, that the other landowners received a letter where they understood that whatever was negotiated by somebody else on the pipeline that they would get the same agreement.
554. And so in our negotiations we were trying to understand the concept. Like we actually have 60 approximately -- we’re not sure of how many now because of the movement of the pipeline -- but 60 Canadian members of the Association. But we understood by this letter that was given to all of the landowners that whatever was negotiated they were all to receive the same agreement. That’s what we understood.
555. So when we were negotiating, and we’re negotiating construction
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Ms. Audino monitors and joint committees to look after the construction, we couldn’t understand whether we were -- you know, how three joint committees could look after the whole project if it’s 650 people. So we were in the middle of trying to figure out how do we analyze the joint committee and the responsibilities to cover that many people.
556. So I think that’s the thing that I’m trying to clear up here. Monty talked about it that, you know, we’re representing. It was Vantage’s initiative to give all landowners a letter that said they all would get whatever was negotiated.
557. So we were trying to come to terms with certain agreements within that, how it would be handled. So there were still many outstanding issues.
558. MS. FRADETTE: So moving on, since as of last night the negotiation, whatever had been done I guess isn’t any more; so I can carry on with what our issues are.
559. On this page if you scroll down to where it says “Do hereby grant convey set over and transfer” it goes in there that there can be one or more pipelines, which is fairly wide open when you think you’re getting one, and it says it’s to carry ethane, other liquid and gases, hydrocarbons, which is also fairly open, and then it subjects that to Clause 21.
560. And in Clause 21 it says that they’re going to put in one pipeline but in the future if they want to put in more it’ll be with your consent, or in the absence of such consent and agreement in accordance with all authorizations and determinations, including with respect to any additional compensation payable made under the National Energy Board Act.
561. I have no idea what that really means but it sounds to me like they can in the future, if I sign this, if I do not give consent to a second pipeline, that they can still do it.
562. Moving on, this agreement that is being presented to us, in the second, number two, if you go down, it says at the very -- well the third from the bottom line there -- yeah, first paragraph, it gives Vantage pipeline the right to enjoy ingress and egress, which from my understanding gives them the right to your full quarter to access their right-of-way, which is not what most people think they’ve agreed to. Most people think that the pipeline company has the right to the right-of-way.
563. Moving on through this one onto number four, say -- I’ve just gone
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Ms. Audino through this quickly so I’m sure I’m missing something -- it talks about how we as landowners can use the right-of-way for normal farming practices. But there in line three it says that we shall not without the prior written consent of Vantage Pipeline -- and they’re not going to withhold it but we still have to get written consent to excavate, drill, install, erect, place or plant, and most of us will be planting over the right-of-way something. So there’s questions there.
564. MS. AUDINO: M’hm.
565. MS. FRADETTE: And then even in paragraph 5 in the very first line it says it will not object to owners, which again it, to me, implies that we still have to be getting consent.
566. Down onto -- further on in paragraph 5, the third line from the bottom where there is a number five in brackets, it says that we have to be giving five days notice in writing to conduct other activities.
567. In paragraph 7 it talks about putting in the pipeline, and there’s words in there like at the very last of the first line and part of the second, “insofar as it is practical to do so”, which leaves it open if it becomes impractical, if it’s too costly or too hard that maybe they don’t have to do it how they’ve said they’re going to do it.
568. Moving onto paragraph 8 in the second line it says they may install pipe and other equipment and impertinences in, on, over, across, under or through the right-of-way, which is quite a bit more than a pipe, which most people think they’ve agreed to.
569. Again in paragraph 9 in the third line it talks about reclamation after discontinuance of the pipeline, again, in as far as is practicable to do so with no definition of what makes it practical or not practicable to fix something.
570. And again when you -- at the bottom of nine -- I think that’s number nine -- it talks about -- and this is a big one -- upon the discontinuance of the pipeline Vantage Pipeline will discontinue or abandon the pipeline in a manner determined by the National Energy Board Regulations.
571. We’ve had landowners whose land men have told them that that rule means the pipe will come out of the ground. We’ve had another landowner that says that rule means they fill it with foam and leave it where it is. We are not really clear on what the rule is but here we are expected to sign it.
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Ms. Audino
572. They talk in paragraph 11 about the right to assign this agreement in part or whole to other people. I’m not really sure what that means.
573. In paragraph 13 we’re already agreeing that we will execute further documents without knowing what they are.
574. Again in paragraph 15 it talks about doing other things. It will locate above ground installations with our consent. But in the absence of such consent they can still go forward with it according to the Energy Board Act.
575. It talks in paragraph 16 about this section 112 and it says that Vantage Pipeline will not object to any application we make to cross the road -- to cross the pipeline; so again implying that we have to be asking permission to cross this pipeline.
576. So as you can see, the agreement in front of us today has a lot of outstanding issues. And even if there was a negotiated one that we were in the middle of, which we aren’t anymore, this agreement is what apparently 80 percent of the landowners have signed, and you could go into any one of their homes and ask them if they know what this means and they wouldn’t, and that’s why we’re here.
577. MS. AUDINO: And do you have any suggestions as to how Vantage can mitigate some of your concerns, some of your issues? What have you proposed?
578. MS. FRADETTE: What have we proposed? I didn’t -- there’s lots they could do. They could start with an agreement that isn’t so lopsided. And I mean the pipeline company -- not pipeline companies, we’ve dealt with oil companies, and they’re the same. They bring a document to you that is completely written to protect them. The problem is that it’s presented to you as though you don’t have any choice but to sign it.
579. MR. CORE: We were -- we’ll be completely upfront here. We were negotiating with Enbridge and we were ---
580. MS. AUDINO: With Vantage or ---
581. MR. CORE: With Vantage. I’m sorry. The Enbridge agreement.
582. MS. AUDINO: Right.
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Ms. Audino
583. MR. CORE: We were using the Enbridge agreement as the basis for negotiation. Not the complete negotiation. You know, we had issues on annual payments, et cetera, that -- you know, like because there’s annual risks, annual liabilities, annual costs and annual obligations that come along with a pipeline that landowners recognize -- like, you know, things aren’t concluded once its buried. There’s annual things that landowners have to put up with that they’ve never had to put up with before and don’t have to put up with without pipelines.
584. So there was an outstanding issue of annual fees and there were other outstanding issues. We were negotiating these issues. And landowners wanted to be secure in that they understood NEB regulations, and so that’s why they’re here.
585. They want to understand that the NEB does enforce their regulations and enforce the companies to follow the regulations because these contracts refer to NEB regulations. And so they wanted to be here to talk to you people and explain their issues, but because we’re here everything’s been taken off the table.
586. Like, you know, they’re supposed to be free to come here but if they come here, everything we’ve negotiated was taken off the table last night at midnight.
587. MS. AUDINO: So Mr. Core, is it fair to say that up until I guess midnight last night the Enbridge and Saskatchewan Association of Pipeline Landowners Agreement that was used as a template agreement was addressing some of the landowner concerns, so you can cover some of those concerns by way of that agreement or a similar type of an agreement?
588. MR. CORE: Yeah, that agreement was a precedent-setting agreement and does address many of those concerns. That agreement is four years old now and things have changed since then and yeah, we -- Vantage was working with us on that up until last night.
589. MA. AUDINO: If you do reach an agreement with Vantage would you have any concerns with Vantage filing the finalized settlement agreement with the Board?
590. MR. CORE: No, none whatsoever. In fact, landowners across Canada would like all of these agreements filed, they should not be confidential. It would educate landowners as to what needs to be done and it would educate the industry rather than keeping secrets about resolution to problems that have been imposed upon
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Ms. Audino landowners for many years.
591. And as you know, with the XL pipeline in the U.S., these issues have to be addressed. This is a new age and landowners need to be respected. We end up -- and I’m a landowner too. We end up with the hardware and we’re going to get left with it.
592. If we look at the abandonment proposal that Vantage has put forward as of yesterday, they’re going to leave the pipe in the ground and they’re ignoring -- even as far as I understand -- they’re ignoring NEB regulations as set out under the LMCI concerning abandonment issues and financing of abandonment and, you know, I won’t get into all that but I understand the company’s don’t even want to follow what the Board has proposed there.
593. So, you know, Vantage was making headway with us and -- but I guess that’s all water under the bridge now.
594. MS. FRADETTE: And I understand what’s going on and the compensation issue and yes, we were at a standstill on compensation; there’s no doubt about it but compensation is also, as far as I know, an issue. I mean this project is being built to generate profit.
595. The purpose of this -- like this pipe is not being put in the ground to settle the west, it’s not the railway coming in, it’s not power bringing to rural Saskatchewan; this is a pipeline that’s taking production gas from North Dakota and shipping it to Alberta to make plastic to sell; it’s all about making money.
596. And yes we came to a standstill on money. Because the annual payment is the only way that we can ensure that we will be compensated and have our costs recovered in the future. Because I’m sure no one in this room can tell me what will be going on on our place in 20 or 30 or 40 or 50 years. We have been told well maintained this pipe could last upwards of 100 years. That’s three generations from where I -- that’s two generations past my children.
597. No one in this room can tell me what it’s going to cost them if this pipe is still in the ground. Yeah right now everyone thinks that Lake Alma is the middle of nowhere, nothing will ever happen there. Maybe it is, but you can’t tell me that for sure and the only way that we can balance that is through an annual payment.
598. And I know that everyone on this side of the room is well aware of an
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Ms. Audino annual payment that is being paid. My parents are landowners on this, they live in Alberta, they’re on the Foothills pipeline, they are one of the few people who do receive an annual payment on the Foothills pipeline.
599. MR. MARTIN: I also receive an annual payment on that pipeline and I also have a second pipeline going through which you guys are aware if is the Keystone XL. We did come to an agreement with them.
600. But just to show you how one-sided this all is, in that agreement, when I signed it, it said that I would not be allowed to attend any of your hearings, if so I would be -- you know, they could take legal action against me. How is that right? And my agreement is confidential so I cannot tell anyone that. How is that right?
601. And now Vantage is coming in to put in another one. How much do I have to endure to be a rancher, to grow food, to feed you and all your families, you know, just to do my way of life but they can endure whatever they want or put on me whatever they feel fit to make a profit.
602. MS. FRADETTE: And Janet spoke earlier about land value and there’s all -- I mean there’s charts that they print out as far as the land value and what they’re going to pay per acre and all this is figured out but why the annual payment becomes important is because land values change.
603. Even since the start of this program we’ve seen land values in some parts almost double in one year in rural Saskatchewan. An example that I would like to make is this pipeline that -- my parents are in Cochrane, when they agreed to that -- well when my grandparents agreed to that pipeline in 1980, land value were in the, say, $500 an acre range which works to about 80,000 a quarter. That was 30 years ago.
604. Land values on some of that land now currently are over $4 million a quarter and if they were not receiving an annual payment those quarters would be -- well they are severely devalued with a pipeline on it because the only place that land sells is for development and with a 200-metre -- well a 100-foot easement and another 100-foot safety zone, no development is going to happen through the middle of those quarters.
605. And the annual payment is the only way they have been compensated to have that there because it’s a big cost to those people and I know they’re well aware of it, we talked about it during negotiations because a comment was made, well they
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Ms. Audino weren’t going to give some people annual payments and some people not which is what happened on the Foothills line because some people were not happy now with that Foothills line because people are getting an annual payment.
606. Well I’m sure everyone in this room can guess who is not happy with the pipeline anymore, it’s the people who aren’t getting an annual payment because at this point in time it is a pure, pure liability to them and that’s how it goes.
607. MR. MARTIN: Arc Energy has several gas wells on my land and in all the agreements I have with them they have to review every five years and justify, you know, if my land value goes up they pay me a little more.
608. Why is it that Vantage doesn’t have to do that, it’s the same track of land. They’re going right through the same spot but yet they’re exempt from that? How is that fair?
609. MS. FRADETTE: I understand when it comes to money talk a lot of time people will make the recipients of the money look greedy and this is not about greed; this about business, first -- well it’s about business, it’s also about where we live, it’s also protecting our assets. We buy these things.
610. I know there’s many jokes about poor farmers and you know, and it isn’t the most profitable business but we do buy land to make money. It is our asset. It’s what people retire on and having something put in your land now that in 30 years when I’m going to retire is going to be a pure liability to me seems foolish.
611. MR. MARTIN: Or what happens if it explodes and takes that land out of use for us? You know, when I bought my ranch 16 years ago I had to pay 1.2 million for it, they’re not going to pay me anywhere near enough to even pay off one quarter if this pipeline takes that out on me.
612. So how is that fair to me, I continue paying to the bank for something that’s useless now?
613. MS. AUDINO: So with respect to -- just if I could summarize, a few, at least, of your concerns relate to abandonment, depth of cover, and safety issues. Is that correct?
614. I know there are many things we spoke about but a few of those were ---
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Ms. Audino 615. MR. MARTIN: A lot of the very big issues, yeah.
616. MS. AUDINO: Yes. Yes. Am I missing anything?
617. MS. FRADETTE: Did you say liability?
618. MS. AUDINO: And liability, okay.
619. And just with respect to safety, I would like to just turn your attention to Exhibit A21, if we could pull that up. This exhibit is a letter from the Board to Vantage, outlining possible conditions that may be attached to a certificate if the project were approved by the Board.
620. Specifically, Condition 39, if we could go to that condition. Condition 39 deals with emergency procedures, manual consultation summary. The condition essentially requires Vantage to consult with agencies, municipalities and landowners that may be involved in an emergency response related to the Vantage pipeline, for the development of the final emergency procedures manual.
621. Would this condition resolve your outstanding issue with respect to safety?
622. MS. FRADETTE: Actually no. I always -- maybe this is a naïve assumption, I always assume that companies have an emergency response plan. I would -- I mean, if there’s an explosion I would assume that something was underway whether or not I had input into it. And actually, it's not that -- our concern isn't that they wouldn't handle an emergency well. Your concern is that you would be the emergency.
623. That's the -- I mean, if you're the one who's hit it and caused an explosion, well, the response plan might be quite meaningless to you. Do you get -- I mean, that sounds a bit sort of sarcastic, and it's not intended to. There's a risk with having it there. And the fallout of it, I guess, you figure out after, but there's an imminent risk to people when you're dealing with pipelines.
624. MR. CORE: I've been involved in quite a few projects up in the Fort St. John and Dawson Creek area, and I have to say that emergency plans are great as long as everybody's on the same page.
625. Up there, a company will come in to people's property concerning sour gas
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Ms. Audino leaks on pipelines and they'll tell them to shut the door, stay in the house and don't move. That's their policy. And another company will come to the same people and say, "Get in your car and get out of there" if there's a leak.
626. So emergency response plans, et cetera, are good in theory. I think it's better to pre-prepare for emergencies and try to make sure pipelines are buried deeper and that they're placed in such a way that these concerns are reduced. This is important, but I don't think it would resolve most landowner issues.
627. I know you're referring strictly to this project, and so I just wanted to add that.
628. MS. AUDINO: And this condition, the intent of it, is at least while it's a requirement to file these plans and the regulator takes certain precautions and has certain obligations by way of its legislation, it does at least say you would need -- Vantage, you would need to consult with landowners with respect to the plan to gather any input that landowners might have.
629. MS. FRADETTE: I mean, they're welcome to ask us for input, but the other thing I think that you really have to realize is where this pipeline runs, a lot of it, we're very rural. I mean, in cases of emergency, if someone really was hurt, it's not good for us. We do not have ambulances.
630. And I mean, that's the thing. We want it more -- we want to be assured that it's not going to happen.
631. MR. MARTIN: It's funny, actually, this document because the foothills pipeline which crosses my place, there's a compressor two miles south of us, and they have an ongoing safety things and they set up signs and make mock demonstrations for their employees of how they need to evacuate the area and leave.
632. They never come to me in my house and say, "Dan, you got two young kids. No, you just stay here; we'll deal with it. As long as our employees get out so we can do something, that'd be the important thing", you know.
633. So what -- again, the landowner is still sitting there with nothing. But the pipeline protects its employees and, you know, why wouldn't make this plan -- even though they have it now, why wouldn't they say, "All landowners to the north, flee north", you know. Or at least say, "Go in the basement", you know.
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Ms. Audino 634. But they don't tell us anything. But yet they let us know that we can't drive over their pipeline. Can't pound posts there, you know.
635. MS. AUDINO: And from your experience, Mr. Martin, because you do have other pipelines on your property, I take it then, you are familiar with the Board's crossing regulations as well?
636. MR. MARTIN: I had to be forced to learn that by one of your helicopters landing and telling me that I'm not allowed driving my tractor across that pipeline, which I had no idea was there. So that's how I learned it.
637. Not the easy way; I learned it the hard way, and was reminded at how much cost that would cost me if I made that mistake again.
638. MS. AUDINO: I just would like to get your comments on one final proposed condition. It's Condition 5. The intention of this condition is it's a -- deals with landowner complaint tracking, and it would require Vantage from the start of construction through to abandonment, so throughout the life of the pipeline, to track landowner complaints related to the project.
639. So Vantage would be required to listen to the concerns of landowners and resolve these concerns. If not resolved, Vantage would have to take further action.
640. Since this condition deals with landowners, we just want to give you an opportunity to provide any comments on this condition.
--- (A short pause/Courte pause)
641. MS. FRADETTE: I understand -- I sort of understand what you're saying here.
642. So it will be up to Vantage to track their own complaints and then they will be submitted to the Board? Is that what I'm -- I'm not really ---
643. MS. AUDINO: So this condition is if -- it's a way for -- it requires Vantage to deal with outstanding landowner complaints and that's throughout the course of the pipeline, and then advise the Board of these complaints and how they are resolved. So it's a way to require them to deal with landowner complaints.
644. MS. FRADETTE: Yeah.
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Ms. Audino
645. MR. CORE: There is a record, and I could go back and find a letter where I reported to the Board. Like over the years, when a landowner had a complaint, they would call the pipeline company, okay. This is kind of going back in time here.
646. A landowner would contact a company and complain, and if the complaints weren't addressed, they'd call the NEB. The next day, the company would be knocking on the door. They were contacted by the NEB to go and address the issue.
647. That doesn't give the landowner a sense of security whatsoever that their issues are being addressed, that their safety concerns are being addressed. Like you know, you call the NEB, you call the teacher, and the teacher sends the bully out to talk to you again. It doesn't work. In fact, I have a record of reporting that to the Board and the Board, I understood, was -- had made changes to that process.
648. This almost sounds like the same sort of process. Maybe I'm wrong, and maybe that can be explained to me, but that's what I'm reading there.
649. MS. AUDINO: The Board would still have its landowner resolution process, so what you described would still exist. This is just something above and beyond that that also requires the company to advise the Board of any concerns. So it's in addition to that.
650. MS. FRADETTE: I think that maybe I'm just missing something because I've just read it, but I don't see anywhere where it requires the Board to communicate -- I mean Vantage to communicate with the Energy Board anywhere.
651. MS. AUDINO: Vantage shall create and maintain the records and -- so it's for audit purposes. And then the Board has the ability to confirm that they have these records and can question them on these records.
652. So sorry, I may have misstated that. It's for audit purposes, so they have to have it available and the Board would question them on it or has that ability.
653. MS. FRADETTE: Because then my question, I guess, goes to letter (g), is then if the complaint was not resolved that further actions are to be taken to resolve it.
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Ms. Audino 654. Like what -- it just seems it's -- I could have those same rules in my own house, right. No one's going to make me do it.
655. MS. AUDINO: Would it ---
656. MS. FRADETTE: I can just keep a list of when my kids complain and then tuck it away if there's no -- there's no action.
657. MS. AUDINO: So would your concern, perhaps, be addressed if they were required to file the tracking with the Board, perhaps, on a periodic basis or something to that effect?
658. MS. FRADETTE: Well, to me, what makes sense logically is if you're having issue with a company and there's a body that regulates that company, why your complaints wouldn't go directly to that body and that body deal with the complaint would make a lot more sense to me.
659. MR. CORE: Actually, in the Enbridge agreement some of this is addressed.
660. MS. AUDINO: Okay.
661. MR. CORE: And we were getting close to that, as Vantage says. We were getting close to that. I understand we're not anywhere near close to that now.
662. But that's why we have construction monitors that monitor the construction while the construction of the pipeline is going on, and they make sure that the company is living up to the agreement that they've signed with landowners. And that monitor is there to resolve landowner issues with the company in some fashion.
663. Then also, we negotiate a joint committee, which we were working on with Vantage at the time, previous to last night, but we were having difficulty. The joint committee would be a committee of possibly some of these people who could look after -- if the construction monitor is having problems or a landowner is having a problem, they can phone the joint committee and talk to them about the problems of construction.
664. And they can even exist after construction -- some have on the Keystone pipeline -- to resolve issues with landowners. And then if the landowner -- the
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Ms. Audino construction monitor can file his reports with the National Energy Board.
665. There's one working up in Dawson Creek right now that's doing a marvellous job on -- I forget which pipeline it is -- the Groundbirch pipeline. And he files reports with pictures every week and if there's problems with landowners, he attends to it and the company works with him. TransCanada works with him to resolve it. And if he can't, the joint committee comes together and, at times, the joint committee can even go and meet with the landowner.
666. If the pipeline company says this landowner is totally unreasonable, the joint committee will go with them and meet with the landowner and try to find a solution to the problem.
667. This is a good way of doing business. You’re not relying on the people profiting from you to resolve your issues and we’re not relying on the NEB, but we should be able to also rely on the NEB, when we call them with an issue, that the NEB would hold the companies accountable to resolving it, not just send the company back out because the landowner loses all sense that he has any right to complain.
668. In fact, when he gets the knock on the door the next day he goes, “Oh I wish I hadn’t complained” because the guy is back -- the land agent is back on the door knocking on it saying, “Well, you know, I’m back; I hear you complained to the NEB”. This doesn’t work.
669. The processes that we’re negotiating work.
670. MS. AUDINO: Okay.
671. MR. CORE: Is it perfect; no, but it’s far better than some of this.
672. MS. AUDINO: Madam Chair, if I may just have a moment to confer with staff.
673. THE CHAIRPERSON: Absolutely.
--- (A short pause/Courte pause)
674. MS. AUDINO: Thank you, Madam Chair. Those are all of our questions.
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Member Vergette
675. THE CHAIRPERSON: Thank you very much, Ms. Audino.
676. Mr. Vergette?
677. MEMBER VERGETTE: Thank you.
--- EXAMINATION BY/INTERROGATOIRE PAR MEMBER VERGETTE:
678. MEMBER VERGETTE: Just a question for Mr. Core. You refer to other projects where they were either mandated through conditions or for other reasons, that there is a landowner committee.
679. If your land group, the TELC, had its druthers -- if it could have what it wanted in that regard, would you want the Board to impose a similar committee structure on this project as well, assuming that the Board approves it?
680. MR. CORE: I’d suggest what these landowners want and what all landowners want is to negotiate these issues with the company rather than imposing. I think what landowners want is a relationship with the company.
681. Like there is a duty of care that goes along with these pipelines being imposed on land, and these landowners have that duty of care. They need a good strong relationship with the pipeline company. They need to trust the pipeline company, and the pipeline company needs to trust them.
682. This is a business relationship. As Stephanie said, the pipelines that are being built today, you know, back in the fifties -- back in the fifties, it was in the public interest to build pipeline across Canada to get energy from the western market to the -- from the western production to the eastern market.
683. The pipelines that are being built today are for profit for private companies. Is it in the public interest? That’s questionable. There’s never been a debate about that.
684. These pipelines are being built for profit, and landowners shouldn’t bear that risk so they should have a business agreement here with these companies that is mutually beneficial that doesn’t leave them with any risk because they’re not sharing in the profit of it, so why should they bear any risk.
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Member Vergette 685. And so I guess what I’m saying is, rather than file conditions, I just -- I think these landowners would agree that what they would rather have is that the permit not be granted until there’s a negotiated settlement that’s mutually beneficial to both of them so that there’s a relationship here that works and that we can move ahead on.
686. We were getting close to that and we attended here today, and because we attended here today, for some reason, it’s all been taken off the table. And you know -- and you know, they came here because they’re trying to understand this annual payment policy. Like we have an example of an annual payment renegotiated every so many years that addresses the future impositions and the changes to the environment and the changes to land values, and the changes to the pipeline industry.
687. And that’s why, you know, we came here to have a better understanding so that they could have a better understanding of what they’re dealing with so they can go back and talk to their -- the people they’re representing and provide a better understanding to all landowners.
688. And so I think forcing a condition on is not a resolution. I think we need to support negotiated settlements that resolve the issues that get us to the point where there are committees that are worked out because if you impose a committee, then you’re imposing things on landowners that maybe they can’t handle. Like it’s difficult to put these joint committees together because people have to find the time to do it.
689. And if you ever followed Stephanie for two minutes in her life, every time I call her she’s out -- and I’m telling you, she’s out branding cattle, haying, running the haybine. She’s got three little girls this big. I can never get a hold of her. She’s all over the country. And landowners, that’s what they have to deal with.
690. So I think it’s got to be something negotiated that’s reasonable for these people to take part in. This is a great imposition. A lot of people don’t know it, but once you’ve had one pipeline -- and that’s the interesting thing with this pipeline proposal. Many of these people have never had a pipeline; they have no idea what the implications are.
691. Most of the people that CAEPLA has worked with, a lot of them have a pipeline corridor and understand the issues and understand the difficulties. These folks don’t or haven’t, and they’re starting to understand some of the implications.
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Member Hamilton
692. But short answer to your question, I’m sorry, I think a negotiated settlement is far better than imposition, but -- because we know what it’s like to be imposed upon, but if you need to impose something on them to make this happen, then I guess that’s what you have to do. I don’t like impositions.
693. MEMBER VERGETTE: That’s responsive. Quite a long response, but responsive.
694. Thank you.
695. THE CHAIRPERSON: Mr. Hamilton?
696. MEMBER HAMILTON: Thank you, Madam Chair.
--- EXAMINATION BY/INTERROGATOIRE PAR MEMBER HAMILTON:
697. MEMBER HAMILTON: I, too, believe in a mutually beneficial negotiated settlement is definitely the way to go for all parties involved.
698. And I -- perhaps my question should be -- this one should be to Vantage for their understanding of the email, but I can’t go there right now but I will raise that later if I have to.
699. But you were coming to the hearing prior to getting the email, is my understanding. So when you were -- what changed your view of coming to the hearing with receiving that email? Were you coming saying that we’ve gone this far, we’ve had good negotiations as you have said, Mr. Core and others, and also Vantage, that you were close, so the fees, the annual fees, the compensation were all issues that we would have probably heard -- we’ve heard about; we would have heard more.
700. So what changed? Did something change since you got the email? Did you come in with a different view?
701. MR. CORE: I have to tell you, I don’t really want to be here. This is not the most fun place to be, is here. I’d rather be farming if I could, but I can’t any more.
702. What I’d like to say, what the landowners said to me and what I’ve talked
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Member Hamilton about is that we’re just here to be honest and tell what we know. And there’s no other implications as such.
703. If we were here to try and impose -- you know, sometimes it’s the case that hearings are used as leverage to get a negotiated settlement. I would suggest in this case that in the end, you know -- in the last few days, there were discussions about compensation and so whatever reason the things were pulled off the table was - - I can’t say; I didn’t write the email.
704. But landowners are here and we’re here -- I think what we want is the Board to hear that they don’t understand these easement agreements, they don’t understand the role of the NEB. I sometimes have trouble understanding the NEB’s enforcement of their Regulations and, you know, this may come up in cross-examine of -- I can’t cross-examine you folks, okay. I can’t ask you questions.
705. But in cross-examination of Vantage, I hope to come to a better understanding of the enforcement of LMCI abandonment issues, crossing issues and the all-season public highway issue, which is really a CEAA issue.
706. But if the regulations are there, why aren’t they enforced and why aren’t they followed? That’s what we want to understand. Because in easement agreements, landowners -- the company keeps saying that issue is addressed by NEB Regulations; you don’t need to worry about it.
707. Well, landowners know nothing about your Regulations. I’ve been at this I don’t know how many years, and I’m still trying to understand them all. So that’s why they’re here. They want to be able to trust you folks, and they want to be able to trust Vantage because this will be with them forever.
708. Did that answer your question?
709. MEMBER HAMILTON: Yes, I understand. And perhaps I’ve got a couple of other questions, unless you wanted to add something to that. I saw your ---
710. MR. MARTIN: Well, I’m here because I want you to understand that I don’t understand you.
711. You know, Mr. -- from the Pasqua Nation said that, you know, they’re having trouble understanding the white man way. I’m white and I don’t understand our ways. No one’s taught me this.
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Member Hamilton
712. You guys have built a Board of whoever you all consist of. How many are actual landowners? You know, there doesn’t seem to be any of us in that place saying “No, no, you’re not addressing our issues.” We don’t even know how to address you.
713. This is where this problem stems from. It’s one-sided, only one way. We own the land but yet we’re not able to do anything about it. They come and they put in their pipeline; we have to sign their paper or we go to arbitration. That’s all that’s left for us.
714. Or we’ve got to come up with millions of dollars to fight this. So again we’re left with nothing. But -- so I came -- I was coming here regardless of whether we had an agreement or not so you will understand that this is one-sided and one- sided only.
715. MEMBER HAMILTON: Mr. Heatcoat, you were going to add something.
716. MR. HEATCOAT: Yes, I have a lot of respect for Chief Peigan of the Pasqua Nation for coming here to speak today.
717. I feel that these pipeline companies should not have the right to go to us as landowners and tell us that they have the NEB in their back pocket; that they can expropriate and to intimidate landowners. I’ve had my neighbours intimidated.
718. We’ve had members of the committee here sign off because they were told that they might possibly get a pumping station on their land if they signed, but did they get an agreement, no, but they were intimidated.
719. So is that the way this process works? Is the NEB in -- is the NEB with Vantage or with these pipeline companies?
720. I have nothing against personally the people who are running Vantage but I do take exception to the way that they send land agents around to pit landowners against landowners and to lie and be deceitful.
721. And I know no more about this process than Chief Peigan that was here today. And we have no one to turn to as landowners. This is a federal process. The provincial government does not help us. We’re counting on you people to help us.
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Member Hamilton And that’s why I’m here today.
722. MEMBER HAMILTON: Thank you.
723. MR. HEATCOAT: And compensation’s another matter but maybe we can get that resolved.
724. We’re not against the pipeline coming across our land but I’m certainly against having my land stole from me and I certainly do not like to be stepped on.
725. I’ve had land agents tell landowners that we’re forming a union, and you know how much farmers hate unions, well I am a union member. I belong to Local 555 of the Boilermakers. This is not a union. This is just a group of landowners who have nowhere to turn. Thank God we had a guy like Dave Core to back us up on this.
726. MS. FRADETTE: It is true. I would just like to ---
727. MEMBER HAMILTON: Yes, go ahead.
728. MS. FRADETTE: I guess you’re asking us what our intentions were coming here, and I’m sure you could tell when we arrived we had no idea. We just knew this was something we have to come to because we know we have to deal with Vantage Pipeline.
729. This is not like selling a car or selling a house or anything, you don’t get approached by a buyer and they say “I’ll pay you $5,000 for your house” and you say “forget it” and that’s the end of the deal. This isn’t this kind of deal. This is something wanted, not wanted, supported, not supported, it’s something we have to deal with. And we came here because it seems like that’s what we’re supposed to do.
730. I mean, we’ve been told a number of times since we got here from everywhere “oh, just relax, just relax.” So, I mean, it’s quite obvious that it’s intimidating. And I don’t know that we had much for expectations, we just knew that we didn’t have anything signed and this pipeline is still proceeding so I guess we should show up, and that’s why we’re here.
731. MEMBER HAMILTON: I hope you’re feeling a little bit more comfortable because it’s the three of us that will make that determination whether the pipeline will proceed or not, so that’s why we’re here to hear yours and everybody else’s point of view on that.
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Member Hamilton
732. I’m just following up on something that you said, Mr. Heatcoat, was the 80/20 that if -- did I understand you to say that if there was an agreement -- if you had reached your agreement that it would apply to the other 80 as well; they would ---
733. MR. MARTIN: Yes, it’s on the ---
734. MEMBER HAMILTON: --- revise their agreement?
735. MR. MARTIN: --- front page of Vantage’s original ---
736. MEMBER HAMILTON: Okay.
737. MS. FRADETTE: I don’t know if the cover letter is part of that exhibit. It must be. I don’t know what exhibit that was.
738. MEMBER HAMILTON: I apologize if I didn’t read that. But is it in the ---
739. MR. MARTIN: Yes, it’s ---
740. MS. FRADETTE: It’s on the cover letter that landowners were given with the sample easement. I’m sorry, I don’t know what that was.
741. MEMBER HAMILTON: So the commitment was if they had reached -- if you had reached your agreement, being the 20 percent, that it would apply ---
742. MR. MARTIN: Yes.
743. MEMBER HAMILTON: --- across everybody.
744. MS. FRADETTE: Yeah. And actually a lot of the people that have signed -- I’ve spoken to a lot of people on this line, and there is a high number of people who have signed this fully expecting a better deal, signed it because they were scared of losing their bonus payment and they thought well we’re going to get the same anyhow as you guys so I’m not going to risk this bonus payment, I’m signing it and good luck to you guys, hope you get us something better.
745. MR. CORE: This actually causes a great deal of strife amongst the committee because they’re doing all this work -- like I have to tell you, these folks --
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Member Hamilton and Stephanie in particular, her life has been put into turmoil doing this and yet all these other folks have not supported these neighbours, they’re just sitting back waiting for them to get a negotiated settlement that addresses these issues.
746. So it has caused some problems but, you know, this is life and we have to ignore it. If we’re able to get issues addressed and everybody else benefits, that’s the joys of democracy, isn’t it.
747. MS. FRADETTE: Well -- and we hope -- we hoped -- me as an individual, if we were to get a better agreement that better protected landowners rights I couldn’t care less if people who didn’t join our group got that same deal. I hope they do get that same deal, because it’s not just their land, it’s going to be their kids land or whoever buys that land, and there’s no reason that those future land holders should be stuck with a bad deal.
748. MEMBER HAMILTON: Just, if I may, following up with you, Mr. Martin, was you indicated earlier on in our discussion was that you didn’t know where the pipeline was going. Is that correct, you didn’t know where this pipeline was going to go?
749. MR. MARTIN: The pipeline has always been told that it’s going to follow the new pipeline coming through, the XL, and we don’t know what side but they’ve also always told us if you did not want the pipeline we’ll go around you. No one’s ever talked to me about going around me.
750. MEMBER HAMILTON: And does Keystone was to go across your property?
751. MR. MARTIN: It does.
752. MEMBER HAMILTON: It does. And you negotiated an agreement with them?
753. MR. MARTIN: That’s right, and it’s under a -- I’m not allowed to talk about that.
754. MEMBER HAMILTON: Okay. Yes, I understand that, and I’ll stay away from it.
755. MR. CORE: In response to -- a lot of landowners don’t -- aren’t sure
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Member Hamilton where the pipe’s going. Because it follows the roadway they have been told that if they don’t want the pipeline it can be moved across to the other side of the road.
756. So many landowners -- like I can’t even state how many landowners we actually have left in our group because the pipe -- landowners have been told that the pipe has been moved across the road or back the road.
757. Like in most conditions, if it goes across the country, the pipe can’t move like that, but under these conditions landowners have been told that the pipe can be easily moved from one side of the road to the other if they don’t want it on their property. So I think that’s something that people were referring to.
758. MS. FRADETTE: If I could expand on that, because unfortunately not everyone’s here who’s involved. And it does sound good if they say if you don’t want it we’ll move it off your place, but it doesn’t appear that that is always the truth.
759. We have a man at Richmound out by Fox Valley up at the top there, and he’s not here today, but it crosses part of his land. He let them survey and go forward with that and then he was asking questions of his land woman -- I’m not sure who she is -- and she was told if he didn’t want the pipeline they would move it off of his place.
760. And this man was not being belligerent, he was not being obnoxious, he’d thought about it, he went back to her and he said “It’s not worth it for me, move it off mine”, no, they won’t move it off his because if they move it off his it affects the 75- kilometre rule and they’ll be over on the 75 kilometres, is what he was told.
761. Down at the bottom where I am at Lake Alma we’ve had neighbours -- our neighbours contacted who are not on the proposed route who have been asked to sign easements and they have been told that they are being approached to sign easements because we -- my husband and my parents and I -- are too difficult to deal with so they’re moving the pipe around us.
762. To our knowledge, the pipe is not being moved around us, but I don’t know. So there is a lot, a lot of confusion.
763. In fact, what has been told to our neighbours -- it came back to me via my father-in-law -- was that they had to move the pipe around us we were so difficult to deal with. If they contacted is we were going to sue them, so they had no choice but to contact our neighbours to move the pipe around us.
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Member Hamilton
764. This is what has caused a lot of confusion and made us unsure of where the pipe is and who actually is affected by it. Because we don’t know how easily the pipe can actually be moved, but we are led to believe that it’s quite easily.
765. MR. CORE: Can I just add to that to the -- you know, I do want to give - - I want you to know that when Mr. Schmunk was contacted a couple of times about these sort of issues, he did contact his land agents because it was getting out of hand and so we did contact Mr. Schmunk and it was a land agent problem.
766. I would give credit to Mr. Schmunk, I don’t think it was his company’s way of doing things, but land agents, I think, have a tendency to do these things with a lack of knowledge, possibly. So you know, I just want to give the credit that he -- when he was contacted we were told -- he told us -- that he addressed the issue.
767. MR. MARTIN: When I was contacted too for the new XL line, Dean Burnett and one of his land men from HMA came to my house, actually with documents, and I knew exactly what quarters the pipeline was going to be on.
768. And, you know, I was able to address the facts of my concerns, whether I had water wells, cattle issues, and whatnot. I have no idea what quarters Vantage is going to put their pipeline on except I do know on two quarters because they said they’re going there and that’s the only two quarters I have in that area. So, you know, it’s quite a difference between one company to the next.
769. MR. HEATCOAT: Okay. This pipeline is being imposed on us. It is not up to me to hire a lawyer to read a contract such as that, to let me know whether it’s worth -- is it worth signing. There’s a -- we’re representing landowners for 580 kilometres that are depending on the panel here to go back to them and tell us to negotiate, and tell them what they’re signing is going to be okay.
770. So I don’t think it should be up to us to have to pay for somebody like Dave Core to come on our side and help us out. That should be paid for by the pipeline companies, or some -- or the NEB, but it should not be a burden upon ourselves. And that I’d like to see -- that is my recommendation.
771. Thanks.
772. MR. MARTIN: Well, I think also, it would be different if the pipeline company actually wanted to go to go into business with Dan Martin. They don’t want
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Member Hamilton to go in business with me. They just want my land. That’s the truth.
773. You know, I’m expected to pay for -- well, I am paying for all of this, coming here out of my own pocket. Apparently, there is some type of thing that the NEB has that will allow money. I have no idea where that comes from, but I found out today I’m way beyond getting that money, because there was a deadline some time ago and apparently they put an ad in a paper somewhere saying Vantage was going to put in a pipeline.
774. I get the paper twice a week, I never seen it. And I did see one little thing, but you can’t tell where that pipeline’s going, you know? I could -- I got to get a magnifying glass to read the fine print.
775. So I -- you know, it’s -- how’s that fair, you know? There should be a list of names in there saying, yes Dan Martin, your -- the pipeline’s coming through your land, if you want to get some help from us this is what you need to do and here’s the deadline to do it. But that doesn’t even happen.
776. MS. FRADETTE: And just -- I mean, again, there’s been a lot of confusion, but as far as I knew, because we’ve been working with CAEPLA, but we didn’t see any route on paper until after their application was made in February. But people were being contacted to sign up in, you know, September, October of the year prior.
777. So, I mean, you don’t really -- you know, you haven’t seen the application, you haven’t seen the route but you’re asked -- landowners are asked to commit before the company has even submitted their application. It’s a bit backwards.
778. MR. CORE: Concerning intervenor funding, this is the time to talk about that. They brought it up, I forgot about it. You know, I understand that intervenor funding somewhat came about because of some of the things CAEPLA has done. But I have to say that it doesn’t work the way it is.
779. People have said, why doesn’t CAEPLA apply for intervenor funding? I’m not an ambulance chaser, never have been and I’m not, and I would not apply for intervenor funding until landowners have called me up and said they want help.
780. It was interesting, somebody applied for a job the other day with me, and he was a lawyer and he actually said to me, “yeah, I applied for funding on...” I’m
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Member Hamilton not sure if it was this pipeline or the Bakken Pipeline -- he said, “I always thought it was a way to make money.” And you know, that was the worries about intervenor funding, that’s why it should be a cost recovery program.
781. But I have to say, even on the Gateway Pipeline two years ago, intervenor funding was available and people said, “Dave, CAEPLA should be applying for that funding.” And I said,” no, we don’t have landowners that are requesting our help, so I’d be an ambulance chaser if I went for it.”
782. And that’s not -- we try to maintain our integrity, we go when people call us and ask us, and we help them organize and the intervenor funding program, the way it’s set up, it’s too early, and the cut off date is too early unless you have somebody out there who’s saying,” yeah, I’m going to apply for this and then find somebody to represent”, you know, and I will say no more about that.
783. So it isn’t working for landowners; that’s all I can say. It might be working for other stakeholders who monitor the paper or you know, environmental people or whatever, but it’s not working for landowners. They’re too busy to be looking for intervenor funding for something they’re not aware of. And so I -- this was a good chance to bring that up, it does need to be remodelled or something.
784. Thank you.
785. MEMBER HAMILTON: Well, as a Board I think we’re always looking to hear how our various initiatives do work and I certainly appreciate those comments and saying.
786. I know we’ll hear probably more, as you cross-examine Vantage’s panels today and tomorrow. But individually or collectively, from what you’ve -- we’ve exchanged today, how would you want to proceed so that you can achieve your settlement and your -- whatever you want in agreements? How would you as a group, individually, collectively, now want to proceed in discussions with Vantage?
787. MR. CORE: I have to let them talk, I’m just -- I just help them.
788. MEMBER HAMILTON: That’s fine, that’s the way it should be.
--- (A short pause/Courte pause)
789. MS. FRADETTE: As you can tell we’re very confused. But -- because
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by Member Hamilton again, the process becomes sort of blurry to us.
790. What we’d like to make sure of is that we can negotiate, that we have the freedom to negotiate with them. We’d like to sit back down at a table and get it ironed out.
791. We’re not sure of how the approval process goes, I really don’t know. But we’d like for our hands to not be tied dealing with a company that already has approval to go across our land. Does that make -- do you know what I’m saying?
792. MEMBER HAMILTON: You would like to see your negotiated settlement before we make a determination. Is that what you’re saying?
793. MS. FRADETTE: Well, of course. Because like I said before, it’s not a normal negotiation. We know we have to figure something out with them, and if they get -- it’s already a rather unbalanced negotiation to start with, and if they have one more, sort of block -- if they have the okay of the Energy Board that they are going across our place, it really tips the scales a lot more. Yeah, we would definitely like to have a negotiated settlement before anything else is decided.
794. We'd also like to clearly know where the route is and who the settlement will be for, whether it's us and our TELC members whether it's everyone along the route. We just need some clarity to move forward.
795. MEMBER HAMILTON: I appreciate those comments.
796. Maybe one follow-up, perhaps, to the group, and perhaps Mr. Core could answer, but the group as well. Had you any discussions with asking Vantage for legal fees?
797. MR. CORE: We actually have negotiated -- I have to admit ---
798. MEMBER HAMILTON: To review the contract.
799. MR. CORE: Yeah. Vantage did forward legal fees to our counsel to review the contract the first time, and there still is some money left in trust to continue reviewing future and, if there isn't enough money, I know that -- well, I can't say I know. I imagine Mr. Schmunk would provide more.
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by the Chairperson 800. But at this time, I have to say, I can't -- you know, as of last night, I understand there's nothing on the table, so I don't know what to say to that.
801. MEMBER HAMILTON: That's fine, thank you.
802. And from the Board's point of view, I appreciate you do taking the time you've taken to come here despite the intimidating process, and I hope you go with a little different view of it when you go. But thank you again to each of you for coming today.
803. MR. CORE: Thank you.
--- EXAMINATION BY/INTERROGATOIRE PAR THE CHAIRPERSON:
804. THE CHAIRPERSON: Thank you.
805. I just want to follow up on the discussion that Mr. Hamilton started with you. And before I start, Ms. Fradette, you look anything to me but being intimidated. And I'm saying this in a complimentary fashion, so thank you very much for your participation here. And the Board is always willing and happy to hear the perspective of the landowners.
806. And you did say -- now, before I ask the question, I'm just going to make this commercial. You did say that you don't know the NEB processes and it's like a puzzle to you. But any time you pick up the phone and you ask the NEB to send staff to talk to you about our process, we'd be more than happy to do that.
807. Actually, with every application our staff would be more than happy to come for an open house and discuss our process.
808. We're not proponents; we're not supporting the pipeline company. But just we want to tell you how you can participate in our process because it's very important for us to hear your views. That would be input for us and the information available to us in making the decision; so I encourage you to do that.
809. We don't want to be a puzzle to you. We want to be part of informing you about who we are, what we do and how we work on behalf of all Canadians, whether it's landowners and others. So I encourage you to take advantage of that.
810. So now I come to my question. As you know, and especially Mr. Cole
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by the Chairperson would know -- I don't know to what extent the individual members on the panel would know. As you know, issues of compensation and easement agreements, which are commercial agreements or private agreements between the pipeline and the landowner, is outside the jurisdiction of the Board. So I am puzzled -- or not puzzled; I should say torn when you say, "Well, we want a better deal".
811. And I wanted to be frank and say, if it is related to compensation and what you negotiate, it's really outside the jurisdiction of the Board. We're not able to participate into that discussion.
812. If you were to say, "Well, there are things we want you as an Energy Board to be aware of and we would like you to pay attention to in your deliberations and this is A, B, C, D and E", I am very much interested to hear what these are.
813. But on the issue of compensation, our hands are tied. Our legislation does not give us that authority.
814. So I wonder, when you speak of a better agreement, is there anything other than compensation that you would like this Board to have regard to when we are deliberating on this project? That portion I'm very much interested to hear from you.
815. MS. FRADETTE: I understand what -- I think I understand what you're asking, but what we're finding -- what I feel we need, and this is maybe -- I don't know how you make it a regulation -- is we need an agreement that says clearly what we are agreeing to. Not referring to Energy Board Regulations; nothing of the sort, because regulations can be changed, legislatively. So you think you've agreed to something, and then that changes.
816. So I'm not sure really what the Board's role is. I'm not -- again, it's very confusing. I know that you're open and we can phone you, but you know when you get to a point where you're so confused you don't know what question to ask? That's how I feel about approaching the Energy Board.
817. You don't even know what question to ask to even get close to the right answer. And that's sort of the level of confusion where we are.
818. As far as the Board's roles on what they legislate into agreements, I'm not really sure how to answer that. But all I know is that it -- we're -- we seem to be expected to take part in this if we don't have a deal.
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by the Chairperson
819. And so we're here because we -- this is the road we're travelling down because, eventually, a pipe is probably going to go in the ground. And if we're -- if our deal's taken off the table and we're at this meeting, I don't know what else to talk about besides our deal.
820. I guess I don't know if that answers your question, but I really don't know how to answer it.
821. MR. CORE: Madam Chair, respectfully, you know, I know I've addressed these issues before. And I want to be really candid.
822. The Enbridge I'd like to see change because landowners are compromised by this process because you -- the Board Regulations and legislation state, and it's been repeated to me many times, that you're not involved in the private contractual agreements and you're not involved in the compensation, but the fact that you can give right of entry determines both of those issues.
823. It determines the negotiation of both of those issues. And it's used against landowners constantly that right of entry will be given; you better take what we're offering you.
824. Having said that, in the past, what we learned as landowners when we started in 1993 by working together and hiring legal counsel -- you'll see we're here with no legal counsel today and, in fact, the last two or three hearings we've done, quite a few hearings, we've had no legal counsel. And I have to say it's difficult to make our points because we're not trained. But we want you to hear us.
825. We don't want it to be filtered through legal counsel. We want you to hear us. The reason we got the precedent-setting deal with MPLA/SAPL was because we raised -- well, in 1993 we raised $300,000, landowners, to go to an inter-provincial hearing to make our case that the project was unsafe at that time. They were changing pipeline from oil to gas. And we proved our case, but it cost a fortune. And it was difficult to raise that money.
826. Over the period of time, we found that by hiring legal counsel and experts to prove that there's impositions on landowners -- and we had to hire experts because farmers and ranchers aren't considered experts, even though they've been at this and nobody else can do what they do. We're not considered experts. We have to hire people with degrees who are just out of university to prove our case or they won't be
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by the Chairperson listened to.
827. We learned that by hiring legal counsel, raising hundreds of thousands of dollars and taking great risk that we could prove our points through legal counsel and experts. The Enbridge deal, we spent a half a million dollars on experts and legal counsel to provide a case that refuted and could be used in a professional manner to counter what was being presented by Enbridge. It was a pile of money. We can't get -- help -- get people to raise that kind of money. And so it was leverage.
828. They made a deal with us to keep us from the hearing, okay, because we had enough evidence to show that. That's how this used to be done. And that's why the Energy Board didn't learn a whole lot, was because we were able to leverage a deal by hiring experts and legal counsel.
829. Now what we're attempting to do is to be here so that you can hear the issues, and there needs to be change. The NEB Regulations were created 50 years ago, and some have been changed that impose even more liabilities on landowners since it was first created in whatever year it was 50 years ago. And it was designed to take the debate on pipelines out of the House of Commons and to bring what should be an independent regulator to deal with the issues, okay.
830. This is 50 years later and you still are not involved in easement agreements and still not involved in compensation yet you still can give right of entry, even though the public interest has not been analyzed, like we don’t have a national energy policy so we don’t know why these pipelines still have right of entry.
831. I have to agree that at some point there has to be right of entry if one landowner holds out of some kind but not the same right of entry that was there in the public interest to look after the Canadian population from east to west.
832. Now we’re building pipelines that are all going south or they’re going to send stuff to Asia for private profit to send our raw material out of the country or import. This is not the same issue. So the National Energy Board needs to change.
833. Your right of entry orders, the fact that you can give that to a company, if they can prove to you that it’s in the interest, however they do that, I’m not sure how they do it, leaves landowners carrying the risk for a private company. Not for the Canadian public.
834. The world has evolved, the economy has evolved, pipelines are for a
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by the Chairperson different purpose than when the NEB was designed 50 years ago. You do have -- you directly impact the private contractual agreement, it’s not a private contractual agreement because of the right-of-way. You are not -- when you give right of entry that is not an expropriation -- we use the word “expropriation”, expropriation occurs when title changes.
835. The fact that landowners remain on title means that ultimately they are responsible for everything. An expropriation for a road title is transferred. When title is transferred all responsibility is transferred to that other person or entity.
836. But when you give a right of entry order and the easement is still in the title of these landowners ultimately they’re responsible. If a company becomes insolvent, if the NEB changes regulations they become the ones on the end of it, not the pipeline company.
837. Ultimately, environmentally, these landowners will be held responsible. If a pipeline is abandoned, 10 years later contamination shows up, ultimately they’re responsible because their name is on title.
838. There needs to be -- instead of easement agreements it should be a lease agreement, there should be annual payments that keep the companies tied to their pipeline, that they can’t ever walk away from it and it needs to be a business agreement.
839. So, you know, I understand that you’re saying things as per legislation and regulations but the reality is much different. When the NEB changes abandonment regulations it changes their agreement.
840. When the NEB changes easement agreement -- or crossing issues it changes their agreements; when the NEB creates a safety zone it restricts more of their land and takes more of their land away from them that they own.
841. So the NEB does -- does determine the easement agreement and the compensation agreement and this is why we’re here, to help you understand that.
842. And you know, being here is much different for these folks than being out branding cattle. You know, if we took you and said go and brand a cow, we’re not going to show you how to do it you would have a challenging time. Maybe you don’t, maybe you do that, I don’t know.
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by the Chairperson 843. But I guess what I’m saying is is that what happens here does. So what can the NEB do? Well, we need to work with our Members of Parliament and politicians to get legislation changed and we’re attempting to do that, maybe not successfully but here I think the NEB has a responsibility to understand what’s happening and the impositions and if you can sit back and -- and say, you know, these folks need a negotiated settlement, we’re going to sit on the permit.
844. And I know the pipeline company will say to you, well that puts us in a position where we’re blackmailed. Well, it’s no different position than these landowners are in.
845. You know, if you say, well you got to negotiate a settlement and if the settlement isn’t there when I reach section 87 of the Act -- it actually refers to if one of the parties wants to they can contact the Minister to hire a negotiator; that’s a feasibility there too.
846. But there are processes that can happen to get a negotiated settlement that works for everybody, arbitration isn’t the answer either. Arbitration, we can talk about that and we can talk about annual payments.
847. There is a regulation that you folks have that you can enforce under Section 86 that says annual payments renegotiated every five years.
848. When I -- and what the pipeline companies have determined that is, in Stephanie’s parent’s case and Danny’s case, they have that agreement on the Foothills pipeline and everybody’s been trying to buy that out. But under your Regulations it says an annual payment renegotiated every five years and yet nobody will follow through.
849. The arbitration committee won’t award it. What they’ll do is give equal payments over nine years. Well, how does that address the issue of negotiations every five years and even as I’ve discussed before, you know, it’s been taken to the court.
850. So, you know -- like, and this is what the landowners are trying to understand is all you can do is put conditions on. Can you not turn down a project if it doesn’t meet certain standards, is it only that you can put conditions on.
851. I can’t ask you questions; I’m sorry, but these are the issues that -- you know -- we’re trying to pose to you.
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by the Chairperson
852. THE CHAIRPERSON: I get what you are saying, Mr. Core, or I understand your position but outside the regulation, outside the legislation, I was wondering if there are any things that you could recommend to this Panel with respect to this specific project to address some of the concerns that you have raised?
853. For example Mr. -- I think it’s Mr. Martin who had talked about the depth of cover and you had talked about having to ask permission from the company to use your agriculture vehicle to cross.
854. And I wonder if you are aware of the exemption order, I wonder if Mr. Core had -- if you weren’t personally aware, that there is an exemption order by the NEB to allow you to use your agriculture vehicle for regular farming activities without having to request permission from the pipeline company and that exemption order is in effect.
855. MR. MARTIN: No, I’m sorry, I wasn’t totally aware of that. But like I say, being a landowner and dealing with the Foothills pipeline now for 16 years when I have to fix a fence I must call them and have someone come out to watch me pound the post to make sure I don’t cause any structural damage to the pipe.
856. But where the pipe is on the road allowance it’s down deep, 10-12 feet and then as it gradually goes in my land it comes back up to where it’s only a metre of coverage. Why is it so one-sided that the road -- why can’t industry put it down the same depth all the way along and then I would not -- you would not even need that clause for farming practices or pounding posts.
857. The landowner wouldn’t be responsible for wrecking it because -- I mean under the -- when they go under the Number One highway it’s going to go very deep there to make sure all the B-Trains and everything else driving up and down the highway will not compromise that pipeline, why can’t it be the same for us landowners and that’s what I was expecting, is that not something that the NEB should look at enforcing to the pipeline companies?
858. Like I say, all our machinery is getting bigger; if you’re going to stay in farming you got to grow. I’ve had to expand my land base twice to keep up and in order I also have to go to four-wheel drive tractors, air seeders. We use semi’s now to load all our hay.
859. The weight issue is getting tremendous on the land but yet the pipeline is
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by the Chairperson only a metre deep and I need permission if I’m going to drive that semi across, according to what Foothills Pipeline has told me.
860. THE CHAIRPERSON: Yes, that’s correct. I mean it depends on the vehicle that you want to move and it depends also on the activity. I’m not saying that any agriculture activity would be exempt, I mean that -- you have to be careful in terms of -- there are exemptions for certain type of activities so I don’t want to mislead you there.
861. So you have to be -- you have to be aware of that is what I’m saying. I don’t want you tomorrow to go across with something that you’re not supposed to.
862. MR. MARTIN: No. And I am aware of that but also in return though too once they put the pipeline on my land now basically I’m working for them regardless whether they think so or not because every time I’m out there I got to be conscious of where that pipeline is.
863. I’m trying to teach my children how to farm and maybe in a -- this isn’t really legal but they drive tractors; I’ve got to pay attention to that, they don’t go off the way. They don’t understand that that pipeline is dangerous; they sure as heck don’t. But, you know, I’ve constantly got to follow behind.
864. Like I said, now that my ranch is opened up to oil and gas and we have Texas gates everywhere, hunters come flying in. We have a tremendous amount of trouble now with overnight campers because they’re too cheap to pay for a campground of $5. So they figure they can drive out and camp wherever they want and they light fires; they have a little barbeque. These are all things I have to go around and monitor now without being compensated for. Just for these guys to make their profit.
865. I’m not -- you know, it’s just part of my life now. Yes, I have to accept it but that’s why I’m here, I’m trying to explain that it’s just not right. Like why should I carry the burden of all this weight while their burden is to make sure they make a good profit and pay their shareholders and move on to sell -- that’s another thing, if they decide to sell this pipeline now I’ve got to find out who that is.
866. You know, are they going to be nice people to deal with or are they going to be bad people to deal with, you know. It’s constantly on my shoulders as the landowner to bear this burden of something that I have no control over.
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by the Chairperson 867. Like I said, they never come and said “Dan, would you like to go in business with me? We need your land and we’re going to pay you a nice profit, you know, for your land and we’re going to go in business together.”
868. No, it’s “Dan, we’re putting in a pipeline through. Guess what buddy, get onboard”. It’s coming and I understand that, we all need energy but I just think that there’s way better ways this can be resolved instead of saying oh, there’s another thing that slipped through the cracks, we’ll try and fix it next time.
869. MR. CORE: Madam Chair, I have that exemption order in front of me because here’s an opportunity to discuss that. I intended to write about it sometime but I’ve never found the time.
870. But Clause 4 of the exemption order puts the whole responsibility back on to landowners. It basically says if you’re unsure call. As soon as you say that you’re back to section 112.2 and the landowner better call because, you know, they’re not sure of all of the standards for their equipment.
871. All of this -- they have to make a judgment call, it’s not up -- if a landowner makes a judgment call crossing the pipeline it can come back on them. So this does not alleviate them from section 112.2 at all, they still have to refer back to that to protect themselves in court.
872. They should have permission every time they cross that pipe because it even says under Section 4 if you are unsure at all of low-risk conditions noted in paragraph 1 will be met in relation to the proposed agricultural activity or unsure if the proposed agriculture activity could jeopardize the safe and secure operation of the pipeline they must contact the pipeline company before crossing the pipeline.
873. Section 4 basically negates everything else in that exemption order because from a legal perspective in court if a landowner were unsure and proven wrong it’s back on him. I actually discussed this with a lawyer about a month ago and he agreed with me and that’s the problem, is that all of the things that are passed need to be looked at from a landowner perspective, not from a legal perspective, a regulatory perspective or a company perspective; all of these things need to be looked at by experts and legal counsel for landowners, not just by landowners, not by me because I’m not an expert, as was stated here, I’m not an expert engineer and I’m not a lawyer.
874. So we need to have the funds to participate in the design of exemptions
Transcript Hearing Order OH-3-2011 TELC/CAEPLA Panel Examination by the Chairperson like this so that they are real and actually will alleviate landowners of liability.
875. I could go into other exemption orders and other things where it hasn’t worked; I won’t do that, I don’t want to take that time. But the point here is to be made that it takes professional experts and legal counsel to address these issues.
876. Thank you.
877. MS. FRADETTE: If I could say one more thing about that, as far as a suggestion. Because again, I mean what we’ve just been talking about, we’re sitting here and it’s all Acts and Regulations and these sorts of things and these are something I guess that we should -- are expected to be finding on our own and I think that’s where part of the problem is.
878. Is again that where I said, you’re so confused you don’t know what to ask, that’s sort of where this comes from. I don’t know anything about exemptions or even where to find them.
879. And I think -- I don’t know the answer but right now as it sits the negotiating between the landowner and the pipeline company is nowhere level. Because when we sit down at a table, the pipeline company has a huge right and that is ultimately the right of entry that they are allowed.
880. But there is absolutely nothing setting off that huge right, there is no huge responsibility of disclosure or huge responsibility to tell the truth even when they come and deal -- there’s no balance there. There’s just nothing that offsets that huge right.
881. And when that huge right -- when we know that in the end they can get a right of entry and give us this deal that the other 80 percent signed, and that’s that, then I don’t know where you -- like I don’t know how it works, I don’t know how you make legislation, I have no idea how any of that goes but currently there is absolutely no balance, nothing offsetting that huge right when we sit down to negotiate.
882. THE CHAIRPERSON: I think that concludes the panel questions. And I want to thank you very much for your participation and given your witness, Mr. Core, I’m not going to ask you if you want to re-direct.
Transcript Hearing Order OH-3-2011 Big Bear Band Presentation by Chief Little Bear 883. And by the way, you say that you’re not a lawyer but I think you’re being very effective, so in terms of you presenting your -- the group here.
884. Well, thank you very much and with that the panel is released.
885. MR. MARTIN: Thank you.
886. MR. CORE: Thank you very much and I think we’ve all learned a lot here today and we thank you for that.
887. MR. HEATCOAT: Thank you.
888. THE CHAIRPERSON: Given the time, we’re past our lunch break, I think we will break now until 2:00 p.m.
889. Thank you.
--- Upon recessing at 12:38 p.m./L’audience est suspendue à 12h38 --- Upon resuming at 2:01 p.m./L’audience est reprise à 14h01
890. THE CHAIRPERSON: Welcome back, everyone. We're just about ready to proceed; right, Ms. Audino?
891. MS. AUDINO: Yes, we are.
892. I would like to introduce the witnesses. We have Chief Alex Little Bear of the Big Bear Nation, and he will be presenting oral evidence. We'll hear from him first. And then, we will hear from the Siksika Nation, who will also be presenting oral evidence. That's Clarence Wolf Leg and Mr. Richard Righthand.
893. If you could administer the oath.
--- (A short pause/Courte pause)
CHIEF ALEX LITTLE BEAR: Sworn CLARENCE WOLF LEG: Sworn RICHARD RIGHTHAND: Sworn
894. MS. AUDINO: And just with respect to Siksika Nation, I just wanted to clarify that Mr. Pantherbone and Mr. Winnipeg were not able to join us today. Is that
Transcript Hearing Order OH-3-2011 Big Bear Band Presentation by Chief Little Bear correct? Okay.
895. Thank you.
896. Madam Chair, Chief Little Bear is now available to present his oral evidence.
897. THE CHAIRPERSON: Before you start, Chief, I just wanted to welcome you and to tell you that the Panel is very much looking forward to what you have to say. Thank you for being here.
898. Please proceed.
--- ORAL PRESENTATION BY/REPRÉSENTATION PAR CHIEF LITTLE BEAR:
899. CHIEF LITTLE BEAR: Yes, good afternoon to Madam Chairman and the Panel.
900. I'd like to thank you for giving me a chance to speak and to present who we are.
901. And I guess I just wanted to go back to a long time to show how we've lived on these lands and how long we've been here, and how our treaties came to be. And I don't want to take up a lot of time. I just want to do it really quick.
902. But I'd like to go back to before the treaties. These treaties you see now, like Treaty 4, Treaty 6, all the treaties, at one time, they were all one Band. They weren't a whole bunch of, you know, different First Nations and like they have now. They were all one Band, and all the different areas, we protected our borders; but we also had peace treaties with one another to hunt, to go and exchange things; you know?
903. And once in a while, we'd fight but it was -- these borders for Treaty 6, Treaty 3 and Treaty 4 were around a long time before the White people came.
904. And how it became to be all different Bands is when they came to make the treaties. And as the government wanted to control these lands and have control over them, they couldn't get one Chief to sign for all of them, so they made different Bands. You know, they'd go to one group of people and they wouldn't have a Chief,
Transcript Hearing Order OH-3-2011 Big Bear Band Presentation by Chief Little Bear so they'd say, "Well, you be the Chief and you sign here. And you sign here". And that's how we have so many Bands within our treaty areas.
905. And we've been here for hundreds, hundreds of years, my people have. And after the treaties came, we never did get on to a reserve because my grandfather wouldn't sign. And then, when he finally did sign, he was -- there was, you know, like they call it the “Frog Lake Massacre”, you know, and a lot of things said about that.
906. But nobody ever talks about my relations that died there, you know, the children that they starved to death and the women that they starved to death and the people that they starved to death there. Nobody talks about that part. You know, they only talk about the other part.
907. But then, beyond that, he went to prison. They put them in prison for treason. Treason in his own country, in his own land. They put him in jail for that, and he died shortly afterwards. So we never did have a reserve; you know? We just never got down to it. And we had the land. My great-grandfather, Chief Big Bear, had taken land there at Frog Lake, but never -- there was never a survey.
908. It was supposed to be surveyed in the spring but, by the time the spring came, there would be none of us left. None of them would be left. They'd be starved to death; huh?
909. So that never came to be and we've never settled a land claim. We’re just doing it now; we’re just in the process of doing our land claim now and up to this point here. But I’d like -- the reason I’m going back so far is to show how we’ve occupied these lands so long.
910. Before that -- before when -- before the Treaties and that, we hunted buffalo all over the place, you know, went way down south right up to -- up north here, we’d come back to the -- up to the trees, to the bush for the winter.
911. But we had -- and we went to, you know, Treaty 3, Treaty 4, all these different Treaty areas because we had peace Treaties with them and there were certain protocols. You didn’t just go in there and go and start hunting and stuff. There’s certain protocols that you did before you went back, and before they came into our territories.
912. And -- but after the Treaties came then there was a lot of different bands
Transcript Hearing Order OH-3-2011 Big Bear Band Presentation by Chief Little Bear and we -- I was born in Cadillac, you know, that’s right on -- almost on the where the pipeline is and we were never recognized. We were kind of hiding out all of the time, you know, didn’t want to go to jail, or be hung, or be shot. So we never -- we were never told who we were.
913. But for that south country there, all through where the pipeline goes has made a living for us since, you know, hundreds of years ago, right up to the present time.
914. When we were -- when I was born, when I was young, just small, we’d hunt coyotes with hounds, just about almost where the pipeline goes. And we trapped, you know, in all the rivers there, we fished in all the rivers there, all through this country. That’s how we survived at that time, you know, hunting and trapping, and right up until this time we do that.
915. And after that when I was a younger man and started working, I worked in this -- or almost all the -- where this whole pipeline goes from Empress down -- right down to you know, where the pipeline goes by Regina, south of Regina.
916. I worked as a contractor, like we picked rocks, you know, and broke the land, we -- lots of this land where this pipeline goes now, where these farmers are now, we dug that land up when it was prairie, you know, dug the rocks off there and hauled them off of there, you know, with tractors and wagons.
917. And we lived out there as we worked, and we did this for 30 years I worked that there and a lot -- at that time there was a lot of small farmers and really good people, and I always had work, you know. I built fences, I hauled bales, I picked rocks; I did whatever and never signed a contract. It was always just a handshake.
918. You never had a bad time, you know, and met a lot of good people and a lot of them -- some of them have passed away, but there’s some that are still there and still good friends with them.
919. And all this time here, we knew where our spiritual grounds were within this land and we knew where the medicines were, and we picked medicines then, I picked medicines since I was a small boy and I still do, and we still use them every day. And the berries -- so you know, you use that land for hundreds of years, right up to the present time, it’s the same, that’s kept us alive, kept us -- our needs, you know, whatever we needed.
Transcript Hearing Order OH-3-2011 Big Bear Band Presentation by Chief Little Bear
920. And trapping, we’d trap there. In 1995 up to 2000, my cousin had the best pelts in the world and I think it was England or France where they sent them after they sell them here. And for five years in a row he had the best pelts, beaver and muskrat.
921. So these lands have sustained us well, you know, taken care of us good, if you know how -- where to look for things and how to live in this land. It looks kind of rough and stuff but it’s really not, you know, you can live there very well. We lived there for very well, for hundreds of years, up until the present.
922. And my cousins who are in the States, they come up from the U.S. and they come and pick berries, and trap, and get medicines, you know, we pick -- I was going to bring some of the things that we do here, we pick chokecherries and I grind them. I grind them with a -- what they use, and what I use too for grinding chop for, you know, for pigs and for horses and for cattle.
923. But I grind those chokecherries in that and I pick about 500 bags, you know, the bags are about, just little bags like that. And we’ve done that for years and years, we’ve picked that, and we pick them for ourselves and for the old people and for ceremonies and that’s what we do. And same with Saskatoons, and same with the medicines that we have, we pick them, we pick them for other people, for older people that can’t go out and get them.
924. So this land has taken care of us for a very long time and we would like to see it taking care of our grandchildren. And that’s my concern with this pipeline is just to make sure that we have -- it doesn’t destroy our medicines, our berries, you know, our sacred sites.
925. Like, we have some there that I would like to really look into. I didn’t have a chance this summer to -- because we’re a poor reserve and we couldn’t borrow money to do a traditional land map, what they call it. We didn’t have funding for that, but I didn’t need a land map for that. The only thing that I was worried about was the tepee rings or the fires that they find along the pipeline.
926. Now, we just wanted to use the GPS to identify the points where they’re at and to see what kind of the medicines and the berries and the streams that they go through, you know, because we’ve depended on them and it has taken care of us for a long time. It’s not like it’s a land that doesn’t root, it produces well for the ranchers, and for the farmers, but it also takes care of us too.
Transcript Hearing Order OH-3-2011 Big Bear Band Presentation by Chief Little Bear
927. And the one other concern I have is the pipeline, the abandonment of the pipeline. Like, I had -- I have met with TransCanada and Enbridge, I would like to go on record as saying I couldn’t come to agreements with them. I still have to deal with them. But the thing was the abandonment of the pipeline.
928. Like, this pipeline is going to be abandoned some day or it’ll be of no use, and what are they going to do with it? Are they going to take it out? You know, do they have funding for it?
929. Like, my grandchildren will be great, great, grandchildren, I guess, will be the ones that’ll have to deal with it at that time. And if it turns out to be a really bad situation -- and then it’s not just this pipeline there’s -- I think when I dealt with Enbridge they had six of them at once, you know, side by side. And TransCanada had a couple there, the same thing.
930. So there’s different pipelines. There’s going to be a pile of these pipelines after that are underneath the ground and if they’re left there like that, then what’s going to happen with them, you know.
931. That’s one big concern I have, because like I say, these lands have taken care of us for a long time and we enjoy them, we look after them, we get along with everybody in them countries -- in that country there, in those territories.
932. So I want to thank people for giving me this time to talk. I thank you.
933. THE CHAIRPERSON: We want to thank you.
934. MS. AUDINO: Thank you.
935. We’d just like to clarify whether Vantage has any questions of Big Bear Nation.
936. MS. HO: We do not, but we do thank you, Chief, for attending today.
937. THE CHAIRPERSON: I suppose staff have no questions?
938. MS. AUDINO: We actually, just have a few clarification questions.
Transcript Hearing Order OH-3-2011 Big Bear Band Examination by Ms. Audino 939. THE CHAIRPERSON: Okay.
940. MS. AUDINO: If that’s okay?
941. THE CHAIRPERSON: Yes, please go ahead.
--- EXAMINATION BY/INTERROGATOIRE PAR MS. AUDINO:
942. MS. AUDINO: Okay. Thank you again for being here today, Chief Little Bear.
943. I was wondering if it would be possible for you to just show generally on the map to point out where your Nation is located?
944. CHIEF LITTLE BEAR: (Off mic). We’re about down here but quite a ways north. We’re up by North Mountain. I don’t know if you have that on that...
945. MS. AUDINO: Okay.
946. CHIEF LITTLE BEAR: Then there are traditional lands that we’ve used all of the time. Since ---
947. MS. AUDINO: Okay.
948. CHIEF LITTLE BEAR: --- for hundreds of years.
949. MS. AUDINO: And you mentioned that you fished in the rivers. Is it possible to just provide a few more details about which rivers in particular, if you recall?
950. CHIEF LITTLE BEAR: Yeah, the Duncairn Dam and the Swift Current River, it goes right down to the Duncairn Dam and then to -- at Lake Pelletier.
951. MS. AUDINO: Okay.
952. You also mentioned some spiritual grounds. Could you tell us where those are located?
953. CHIEF LITTLE BEAR: One is located right on the hills -- on a hill by - - south of the river at Empress.
Transcript Hearing Order OH-3-2011 Big Bear Band Examination by Ms. Audino
954. MS. AUDINO: Okay.
955. CHIEF LITTLE BEAR: And it's -- the reason it's a spiritual hill is that's where my grandfather got his name there. He had a vision there, and people have gone there. We still go there. Like, it's a place for -- to pray.
956. Like, they used to use it a long time ago when they were going to go buffalo hunting or if they had problems of any kind. It used to be like a church, like people use today, but that's -- so that's one place there.
957. And then also, in the sand hills there, south of the sand hills towards Maple Creek, there's a -- there's some hills there that are rippled like this. And my great-grandfather, Chief Little Bear, at one time was fighting with Blackfeet, my friends here.
--- (Laughter/Rires)
958. CHIEF LITTLE BEAR: And there, he -- or catching up to them at the sand hills there, so he would -- they had a lot of magic. They had -- they could do great -- they had great powers, these Chiefs, at one time.
959. And so, one day, they were going to catch up to him. He turned back and shook the ground like this. And those sand hills are still like that today.
960. And then, the Blackfeet called him “Ground Shaker”. Not “Little Bear”, they called him “Ground Shaker”. But that was in times gone past. That's a long time ago. That's a legend and it must be true because the hills are there.
961. MS. AUDINO: What about the medicines that you mentioned that you pick and use? Are -- where, exactly, do you pick those medicines?
962. CHIEF LITTLE BEAR: Where do I use them? Well ---
963. MS. AUDINO: Or where are they found?
964. CHIEF LITTLE BEAR: They're pretty well found all over there.
965. MS. AUDINO: Okay.
Transcript Hearing Order OH-3-2011 Big Bear Band Examination by Ms. Audino 966. CHIEF LITTLE BEAR: I was going to bring some today; you know?
967. I was going to bring choke cherries and show we bag them and I was going to bring the medicines there, too, and I was going to bring sweetgrass and sagebrush.
968. So these medicines are all through there. Yeah, they're pretty well all through there, but they're getting -- they're getting to be less and less of them as more development takes place; you know?
969. MS. AUDINO: M'hm.
970. CHIEF LITTLE BEAR: We might have to grow them ourselves; I don't know. If it keeps going like this.
971. But they are through -- all through there, you know, along through the rivers and around the hills.
972. MS. AUDINO: M'hm.
973. CHIEF LITTLE BEAR: And there's certain times of the year you pick some of them.
974. MS. AUDINO: Is that the same thing with the berries and saskatoons that you mentioned that you pick as well? Are they located all over the province?
975. CHIEF LITTLE BEAR: Yeah, yeah. You can pretty well pick them all over, yeah.
976. MS. AUDINO: And what about the trapping?
977. You mentioned that you trapped in -- between 1995 and 2000. Is that -- do you still trap?
978. CHIEF LITTLE BEAR: No, that wasn't me; that was -- trapping, that was my cousin.
979. MS. AUDINO: Your cousin?
980. CHIEF LITTLE BEAR: Yeah.
Transcript Hearing Order OH-3-2011 Big Bear Band Examination by Ms. Audino
981. MS. AUDINO: Okay.
982. CHIEF LITTLE BEAR: No, he doesn't trap no more. He passed away in -- a couple years ago here so ...
983. But he was a good trapper, and -- but I don't trap no more. But they still trap around through there, my cousins.
984. MS. AUDINO: And so given your concerns you mentioned, these are some of your concerns with the project because you don't want your medicines to be destroyed and the berries and these sacred sites.
985. Is there anything that you think Vantage could do to address your concerns?
986. CHIEF LITTLE BEAR: I think they've done a good job with having archaeologists and biologists, and they seem to be really concerned with the sacred sites and stuff in there also.
987. I think, probably, it would help us to kind of monitor them, monitor them.
988. MS. AUDINO: Okay.
989. CHIEF LITTLE BEAR: Monitor them, yeah.
990. MS. AUDINO: Okay.
991. CHIEF LITTLE BEAR: You know, every few years. I think that would be ---
992. MS. AUDINO: Thank you.
993. CHIEF LITTLE BEAR: If that makes sense?
994. MS. AUDINO: Yes, thank you.
995. Those are all of our questions, Madam Chair. Thank you. Thank you very much.
Transcript Hearing Order OH-3-2011 Big Bear Band Examination by Member Hamilton
996. CHIEF LITTLE BEAR: Thank you.
997. THE CHAIRPERSON: Thank you, Ms. Audino.
--- (A short pause/Court pause)
--- EXAMINATION BY/INTERROGATOIRE PAR MEMBER HAMILTON:
998. MEMBER HAMILTON: Thank you, Chief, for your comments.
999. And have you -- in your traditional lands right now, do you have any pipelines going through it?
1000. Have you had any pipelines going through your traditional lands right now?
1001. CHIEF LITTLE BEAR: Yeah, we've had Enbridge and TransCanada.
1002. MEMBER HAMILTON: And are you aware that if we could consider -- if Vantage find any, you know, plants -- medicine plants or rare plants -- that we can condition them to protect them, report on them and those kinds of things as well?
1003. You're familiar with that? We can make sure that they protect the sacred sites and the plants in all those areas; right?
1004. CHIEF LITTLE BEAR: Yes, that would be good. That would be good.
1005. MEMBER HAMILTON: That is normally what we would condition Vantage to do to ensure that they, you know, through the --
1006. Did they do a TLU? Did you have a TLU?
1007. I'm sorry; I can't remember the record. Did you have discussions with them for Traditional Land Use? You didn't ---
1008. CHIEF LITTLE BEAR: No, we plan to have them, though.
1009. MEMBER HAMILTON: Okay.
Transcript Hearing Order OH-3-2011 Siksika Nation
1010. And you're quite obviously very willing to have those -- you know, have discussions with Vantage on all of those areas as well.
1011. CHIEF LITTLE BEAR: Yes, I do, and we support the pipeline; you know? We -- for development; you know?
1012. MEMBER HAMILTON: Yeah.
1013. Great. Thank you, Chief. Thank you.
1014. THE CHAIRPERSON: Thank you, Mr. Hamilton.
1015. I want to thank you again, Chief Little Bear, for your comments, and you are released.
1016. I think it's you, now, Mr. Wolf Leg.
1017. MS. AUDINO: Yes, I just would, first, like to run through the adoption of their pre-filed exhibits ---
1018. THE CHAIRPERSON: Certainly.
1019. MS. AUDINO: --- because Siksika Nation has filed some evidence on the record.
1020. And I believe, Mr. Righthand, you were going to do that. Is that correct? Okay.
1021. So do you have before you the list of exhibits that have been pre-filed by the Siksika Nation in this proceeding; that's the C13 section of the exhibit list?
1022. MR. RIGHTHAND: Yes.
1023. MS. AUDINO: Can you confirm that the evidence was prepared under your direction and control?
1024. MR. RIGHTHAND: Yes.
1025. MS. AUDINO: Do you have any corrections to make to the evidence?
Transcript Hearing Order OH-3-2011 Siksika Nation
1026. MR. RIGHTHAND: Yes, I'd like to withdraw C13-5A -- those are mine -- to C13-5N.
1027. MS. AUDINO: So that was C13-5 ---
1028. MR. RIGHTHAND: A.
1029. MS. AUDINO: --- A? To C13?
1030. MR. RIGHTHAND: Dash 5N.
1031. MS. AUDINO: 5N. Okay.
1032. With -- so you're asking the Board to withdraw that evidence as well.
1033. MR. RIGHTHAND: Yes. But to adopt the others.
1034. MS. AUDINO: Just to continue, then, with the -- so the remainder of the evidence filed by the Siksika, is that accurate, to the best of your knowledge and belief?
1035. MR. RIGHTHAND: Yes.
1036. MS. AUDINO: And do you accept and adopt the filings as the evidence of the Siksika Nation in this proceeding?
1037. MR. RIGHTHAND: Yes.
1038. MS. AUDINO: Thank you, Mr. Righthand.
1039. I believe it was Mr. Wolf Leg who was going to present the oral evidence on behalf of Siksika Nation?
1040. MR. RIGHTHAND: Yes.
1041. MS. AUDINO: Madam Chair, he is now available to present his oral evidence.
Transcript Hearing Order OH-3-2011 Siksika Nation Presentation by Mr. Wolf Leg 1042. THE CHAIRPERSON: Thank you.
1043. Please proceed.
--- ORAL PRESENTATION BY/REPRÉSENTATION BY MR. WOLF LEG:
1044. MR. WOLF LEG: First of all, I'd like to thank Madam Chair and the Board and those that are involved with this hearing for allowing me, on behalf of the Nation, to give this oral statement.
1045. Just before I go into the statement, it's always good to know who's making a statement. Sometimes people say: “Well, who’s that guy that was saying all those things”.
1046. Like, the Chief here, I have a lot of respect for Chiefs. I have served close to 10 terms with our Nation as a leader and I served -- and my job is to make sure the Chiefs know the history prior to Treaty about our people and our traditional ways.
1047. In the early sixties, I was a soldier. I was a Peacekeeper in lands across I’d never seen. I’d read about in books and Cyprus and North Africa, the Congo and Libya and my home base was in Germany. So I travelled quite extensively as a warrior for Canada.
1048. When I came back, I did not know the Elders were going to -- were going to give me an honour. I travelled with my boyhood name when I was a child. Broken Knife was my name. When I came back I went into a lodge with 15 of our spiritual leader, traditional spiritual leaders. I did not know they’re going to call me to that lodge. All of them are sacred society leaders, warrior society leaders.
1049. And when I came out, I came out with the name I carry today. My name is Mikisew, Red Crane. Red Crane travelled that part of the country where the pipeline, that was their responsibility. There was four of them as young warriors and, when I was given the name. I did not know in the future I would be walking Keystone Pipeline, the entirety, down to the U.S. border.
1050. And as I walked it, I knew exactly where I was going because the name I was given gave me my GPS, gave me a location. There are rivers and lakes that no longer exist but, prior to my -- the name I was given is my fourth great grandfather prior to Treaty. So you would say it’s about 250 years back before Treaty, nothing out there.
Transcript Hearing Order OH-3-2011 Siksika Nation Presentation by Mr. Wolf Leg
1051. So what happened, I knew exactly. I became a member of a warrior society and, eventually, over the years I became a holder, a partner to our sacred medicine bundle. We carry the prayers for the people. We carry the stories for the people that are thousands of years old.
1052. And to be a member of sacred societies, the ceremonies and the songs tell the story of the land. When I look at this land, I see the trails where my ancestors travelled, where they camped, where they died, where they succumbed to diseases which they did not know about; where they gathered, where they hunted, where they got their -- which is called “napatipeosen” (phonetic), our way of life.
1053. Everything was there, the medicines -- I was just telling the Elder Richard had some stuff for your cold. We happened to have it with us, so we still carry out medicines today. So even though we’re -- we fight a good battle now and then in the old days, we still respect each other as adversary. Just like truce warrior.
1054. That’s who I am, that’s who was presented and I’m also a member of our Treaty 7 Elder Councillors Advisory Group. I just got appointed not too long ago.
1055. With that, I’d like to read a prepared statement.
1056. Siksika is a signatory to Treaty 7 and it’s part of what is known as the Blackfoot Confederacy. Siksika is a First Nation and has historically and continues to practice traditional rights, including harvesting rights pursuant to Treaty Number 7 and the Natural Resources Transfer Agreements of 1930.
1057. It is beyond dispute that Siksika Aboriginal and Treaty Rights are constitutionally protected pursuant to section 35 of the Constitution Act of 1985.
1058. The Treaty area and Siksika’s traditional territory encompasses a considerable geographic region which includes Southern Alberta and certain portions of the Vantage project area.
1059. Siksika members, even today, continue to exercise their collective rights to harvest plants and wildlife within the project area in a variety of ways. For instance, Siksika members hunt, fish and gather traditional medicines in these regions, the bounty of which is used to sustain and enhance our cultural practices and our tradition.
Transcript Hearing Order OH-3-2011 Siksika Nation Examination by Ms. Audino
1060. We have participated in an extensive discussion with Vantage. In this case, based on our work and experience with Vantage, we are confident that the honour of the Crown has been upheld in this case and the project will proceed in a way that respects Siksika’s Aboriginal Treaty Right.
1061. At all times, Siksika’s traditional ways must be balanced with the need for new development infrastructure. In this respect, we believe that Siksika has been treated fairly throughout the consultation process.
1062. I believe relationship is never-ending task. Relationships sometimes do not have everything in the forefront, those are developed through time, such as the Treaty that was dealt with by the Crown -- the Queen Victoria. There was a relationship. Even today we still -- in a political way, we still battle in a way on the intent of those treaties.
1063. But, at this point in time, that’s our oral statement presented to this Board.
1064. Thank you.
1065. THE CHAIRPERSON: Thank you.
1066. MS. AUDINO: Thank you very much.
1067. I’d just like to confirm whether Vantage has any questions of this panel.
1068. MS. HO: We have no questions. Thank you.
1069. MS. AUDINO: And the Board and Board staff, we just have one question for you.
--- EXAMINATION BY/INTERROGATOIRE PAR MS. AUDINO:
1070. MS. AUDINO: Just to confirm that you are in support of the project.
1071. If that’s the case?
1072. MR. WOLF LEG: That’s a question I will answer this way: Our intention is not support for the project but support in a way they’re honouring the things that we’re very concerned about; not just the things, our historical sites and the
Transcript Hearing Order OH-3-2011 Siksika Nation Examination by Ms. Audino plants and the gathering aspect of our ways. That’s how I’ll answer that question.
1073. MS. AUDINO: Thank you.
1074. Sorry, I didn’t mean to -- I should have just clarified that you are, as you indicated, happy with the way that Vantage is working with you to mitigate your concerns.
1075. Maybe that’s a better way of saying it.
1076. MR. WOLF LEG: Yes.
1077. MS. AUDINO: Thank you very much. Those are all of our questions.
1078. THE CHAIRPERSON: Thank you.
1079. Mr. Hamilton?
1080. MEMBER HAMILTON: I don’t -- I don’t have a question but I’d just like to thank you for telling us who you are and especially at this time of the year, in November, the 11th, for your service, on my behalf and all Canadians. I appreciate that.
1081. Thank you.
1082. THE CHAIRPERSON: Mr. Hamilton spoke on behalf of the whole Panel. Thank you very much for being here and for your comments.
1083. You are now released.
--- (The witness is excused/Le témoin est libéré)
1084. THE CHAIRPERSON: I suppose, now, we would be ready for Panel 1 of Vantage.
1085. Ms. Ho?
1086. Would you like about five minutes to have ---
Transcript Hearing Order OH-3-2011 Vantage Pipeline Canada Inc. Panel 1 Examination by Ms. Ho 1087. MS. HO: If we may, Madam Chair?
1088. THE CHAIRPERSON: --- your panel ready?
1089. MS. HO: Yes, please. Thank you.
1090. THE CHAIRPERSON: Okay.
--- (A short pause/Courte pause)
1091. THE CHAIRPERSON: Ms. Ho, we’re ready when you are.
1092. MS. HO: Thank you, Madam Chair.
1093. I am pleased to present to you the Applicant’s first panel in this proceeding.
1094. Seated closest to the Board is Mr. Gerald Goobie of Purvin & Gertz. Next to Mr. Goobie is Mr. Terry Killackey. He is the Regulatory Manager of the Vantage Pipeline Project.
1095. Mr. David Schmunk is the Chief Operating Officer for Vantage. He will serve as panel chair.
1096. Seated next to Mr. Schmunk is Mr. Gordon Salahor. He is responsible for commercial matters in relation to the Vantage project. And finally, seated closest to myself is Mr. Allan Broenink. He is here on behalf of NOVA Chemicals Corporation.
1097. MS. AUDINO: If we could actually just have the clerk administer the oath at this moment.
DAVID SCHMUNK: Sworn TERRY KILLACKEY: Sworn GORD SALAHOR: Sworn GERRY GOOBIE: Sworn ALLAN BROENINK: Sworn
1098. MS. HO: Madam Chair, just one administrative matter prior to asking the witnesses to adopt their evidence.
Transcript Hearing Order OH-3-2011 Vantage Pipeline Canada Inc. Panel 1 Examination by Ms. Ho
1099. On October 31st, Vantage filed with the Board a cover letter opening statement and preliminary project abandonment plan and cost estimate. My understanding is those have not yet received exhibit numbers or they’ve not yet been assigned exhibit numbers and perhaps we could attend to that matter now.
1100. THE CHAIRPERSON: Absolutely.
1101. Ms. Comte?
1102. THE REGULATORY OFFICER: B46.
--- EXHIBIT NO./PIÈCE No. B46:
Cover letter opening statement and preliminary project abandonment plan and cost estimate submitted by Vantage
1103. THE CHAIRPERSON: Thank you.
1104. And the Members have read the opening remarks so there is no need to read them into the record again.
1105. MS. HO: Thank you, Madam Chair.
--- EXAMINATION BY/INTERROGATOIRE PAR MS. HO:
1106. MS. HO: Mr. Schmunk, do you have with you a copy of the following materials; your written direct evidence marked as Exhibit B44-10, your opening statement, which has just been marked -- sorry, your opening statement and preliminary abandonment plan and cost estimate of Vantage, which has just been marked as Exhibit B46, and Exhibit B40-2, which is the table listing the evidence that panel one is responsible for in this proceeding, being portions of Volume 1 of the Application, several of Vantage’s responses to information requests and the additional written evidence of Vantage?
1107. MR. SCHMUNK: I do.
1108. MS. HO: And with the exception of the evidence that was prepared by Mr. Goobie, being Attachment A-1, found in Volume 1 of the Application, which is marked as Exhibit B1-6, was the remainder of that evidence prepared by you or under
Transcript Hearing Order OH-3-2011 Vantage Pipeline Canada Inc. Panel 1 Examination by Ms. Ho your direction and control?
1109. MR. SCHMUNK: Yes, it was.
1110. MS. HO: Do you have any corrections or additions to make to that evidence?
1111. MR. SCHMUNK: No, I don’t.
1112. MS. HO: And is that evidence accurate to the best of your knowledge and belief?
1113. MR. SCHMUNK: Yes, it is.
1114. MS. HO: And do you accept and adopt that evidence on behalf of Vantage Pipeline Canada ULC in this proceeding?
1115. MR. SCHMUNK: Yes, I do.
1116. MS. HO: Mr. Goobie, do you have before you the report prepared by Purvin & Gertz identified as Attachment A-1, found in Volume 1 of the Application, being Exhibit B1-6?
1117. MR. GOOBIE: Yes, I do.
1118. MS. HO: And do you also have before you, sir, a copy of your curriculum vitae which was filed as part of that report?
1119. MR. GOOBIE: Yes, I do.
1120. MS. HO: Do you have any corrections or additions to make to that evidence?
1121. MR. GOOBIE: No, I do not.
1122. MS. HO: And is that evidence accurate to the best of your knowledge and belief?
1123. MR. GOOBIE: Yes, it is.
Transcript Hearing Order OH-3-2011 Vantage Pipeline Canada Inc. Panel 1 Examination by Ms. Ho 1124. MS. HO: Do you accept and adopt that evidence in this proceeding?
1125. MR. GOOBIE: Yes, I do.
1126. MS. HO: I’m going to come down to this end, Mr. Broenink. Do you have before you, sir, your direct evidence which has been marked as Exhibit B44-3 in this proceeding?
1127. MR. BROENINK: Yes, I do.
1128. MS. HO: Do you have any corrections or additions to make to that evidence?
1129. MR. BROENINK: No, I don’t.
1130. MS. HO: Is that evidence accurate to the best of your knowledge and belief?
1131. MR. BROENINK: Yes, it is.
1132. MS. HO: And do you accept and adopt that evidence in this proceeding?
1133. MR. BROENINK: Yes, I do.
1134. MS. HO: Mr. Salahor, do you have before you your direct evidence which has been marked as Exhibit B44-8 in this proceeding?
1135. MR. SALAHOR: Yes, I do.
1136. MS. HO: Do you have any corrections or additions to make to that evidence?
1137. MR. SALAHOR: No, I don’t.
1138. MS. HO: Is that evidence accurate to the best of your knowledge and belief?
1139. MR. SALAHOR: It is.
1140. MS. HO: And do you accept and adopt that evidence in this proceeding?
Transcript Hearing Order OH-3-2011 Vantage Pipeline Canada Inc. Panel 1 Examination by Ms. Ho
1141. MR. SALAHOR: Yes, I do.
1142. MS. HO: Mr. Killackey, not to leave you last, but do you have, sir, before you your direct evidence which has been marked in this proceeding as Exhibit B44-6?
1143. MR. KILLACKEY: Yes, I do.
1144. MS. HO: And do you have any corrections or additions to make to that evidence?
1145. MR. KILLACKEY: No.
1146. MS. HO: Is that evidence accurate to the best of your knowledge and belief?
1147. MR. KILLACKEY: Yes.
1148. MS. HO: And do you accept and adopt that evidence in this proceeding?
1149. MR. KILLACKEY: I do.
1150. MS. HO: Thank you.
1151. Madam Chair, I should just note, I’m sure Mr. Smellie is well known to the Board, but I just did want to indicate on the record that because Mr. Broenink is seated with us on this panel we thought it would be appropriate for Mr. Smellie to join us at counsel table.
1152. And with that, this panel is available for cross-examination.
1153. THE CHAIRPERSON: Thank you.
1154. Any party prior to Mr. Core?
--- (No response/Aucune réponse)
1155. THE CHAIRPERSON: Well then, Mr. Core, we’re all ready for you.
Transcript Hearing Order OH-3-2011 Vantage Pipeline Canada Inc. Panel 1 Examination by Ms. Fradette
1156. MR. CORE: If I could, Stephanie is going to ask some questions. She has more knowledge in some aspects of this than I do so I’ll have her ask her questions first.
1157. THE CHAIRPERSON: That will be just fine.
--- EXAMINATION BY/INTERROGATOIRE PAR MS. FRADETTE:
1158. MS. FRADETTE: Hi. I thought being cross-examined was going to be bad enough but, okay, I only have a few. Okay, I don’t know if I have to reference exhibit numbers but the first place I have a question -- well, my second question refers to the Application. Do we need to pull it up, or not?
1159. THE CHAIRPERSON: Just first try your question and ---
1160. MS. FRADETTE: Okay.
1161. THE CHAIRPERSON: --- and if we need to find ---
1162. MS. FRADETTE: My first question ---
1163. THE CHAIRPERSON: --- an exhibit ---
1164. MS. FRADETTE: Sorry.
1165. My first question for you is what is your forecast gross income once you’re operational?
1166. MR. SALAHOR: We didn’t provide an income forecast only a toll forecast. So you could -- if you wanted to take our toll estimates, which are provided in Article 2.4, you could take an estimate of our volume and that would be a revenue forecast.
1167. MS. FRADETTE: Okay. I did that, but I have one question I need clarification on.
1168. How many gallons of ethane are in a barrel?
1169. MR. SALAHOR: Forty-two (42).
Transcript Hearing Order OH-3-2011 Vantage Pipeline Canada Inc. Panel 1 Examination by Ms. Fradette
1170. MS. FRADETTE: Okay. That's the number I used.
1171. And so once your pipeline is operational, how many days per year do you expect to be pumping?
1172. MR. SCHMUNK: If everything is designed correctly, hopefully 365 days a year, 24 hours a day.
1173. MS. FRADETTE: Okay. That's better than I expected.
1174. And then how soon after you're operational do you plan on increasing your shipments up to 60,000 barrels per day?
1175. MR. SALAHOR: We don't have any plan to do that right now.
1176. MS. FRADETTE: Okay. So ---
1177. MR. SALAHOR: We don't have any shipping obligations that would cause us to go up to 60,000 right now.
1178. MS. FRADETTE: Okay. So why would you build a pipeline capacity with double, then, what you need?
1179. MR. SALAHOR: We built using standard size piping and to allow for potential growth, so using 10-inch piping, it's capable to in excess of 60,000. But -- by adding more pump stations. So we built it optimizing the amount of steel and horsepower that we would use. To build a smaller pipe, you need more pumps. A larger pipe costs more money, but it's fewer pumps.
1180. So based on our forecast of what our volumes might be and what might be a reasonable provision for growth, we settled on a 10-inch pipe with two pump stations as our initial configuration.
1181. MS. FRADETTE: Okay. So there is no future plan right now to increase your shipments?
1182. MR. SALAHOR: There's no plan right now.
1183. MS. FRADETTE: Okay.
Transcript Hearing Order OH-3-2011 Vantage Pipeline Canada Inc. Panel 1 Examination by Ms. Fradette
1184. MR. SALAHOR: We would require additional shipping commitments in order to undertake that, more than likely.
1185. MS. FRADETTE: Right. Okay. So then for a forecast growth income, you were working on a 365 day year, hopefully. I used 300. But even using a 300 day year and a 42-gallon barrel, that works out to roughly $33 million would be a fair estimate of your gross income?
1186. MR. SALAHOR: How many barrels a day did you use?
1187. MS. FRADETTE: Well, I used 30,000 barrels per day and 42 gallons per barrel. Sorry. Maybe I misspoke. And I used a 300 day year, not a 365.
1188. MR. SALAHOR: Yeah, that's probably a reasonable estimate of -- I'd maybe undertake to confirm that exactly. But that's probably a reasonable estimate of revenue.
1189. MS. FRADETTE: Okay.
1190. MR. SALAHOR: That's not our income, by the way. That's our revenue.
1191. MS. FRADETTE: Okay. On page 11 of your Application, it says that:
"The transportation service agreement between Vantage and NOVA Chemicals also provides for possible adjustments to the fixed portion based on the final capital cost."
1192. Does this mean that if your capital costs are higher, NOVA may increase its tolls? That's on -- sorry -- page 11.
1193. MR. GEORGE: That's correct, it does say that. And there are provisions within certain bandwidths for NOVA to pay higher or -- higher tolls in the case of higher capital costs or lower in case of lower capital cost. So it's a bit of a sliding scale within certain defined ranges.
1194. MS. FRADETTE: Okay. In your opening statement in -- on the second page, you talk about financial payments to landowners and to First Nations communities. You reference paying 25 million to landowners, but you didn't mention your financial contributions to First Nations communities. Well, you mentioned
Transcript Hearing Order OH-3-2011 Vantage Pipeline Canada Inc. Panel 1 Examination by Ms. Fradette them; you didn't put a dollar value.
1195. How much total were the financial contributions paid to First Nations communities?
1196. MR. KILLACKEY: Our agreements with our First Nations communities are all confidential.
1197. MR. FRADETTE: Okay. In your application -- back to the application, on page 4, there's no cost estimated for this. There's no cost allowance in your chart of projected costs. There's a land cost, but nothing securing money for First Nations so how are you able to secure those funds? What portion of your forecast does that come out of?
--- (A short pause/Courte pause)
1198. MR. KILLACKEY: Those are all quite broad categories. The -- we would likely lump the cost for First Nations, any agreements we had with First Nations communities, under land. But it's kind of a small number compared to the numbers on that table.
1199. MS. FRADETTE: How much Aboriginal-owned land does this project cross?
1200. MR. KILLACKEY: None.
1201. MS. FRADETTE: Okay. And have any future contributions for First Nations been agreed to, future contributions with the First Nations communities?
1202. MR. KILLACKEY: Well, we have agreements with First Nations that involve many things, and some now, some in the future.
1203. MS. FRADETTE: Okay. And I have one more, and I'm going to apologize for the -- how the question is worded, but I don't know how else to ask it.
1204. Is this project out of money?
1205. MR. SCHMUNK: No, it isn't.
1206. MS. FRADETTE: Okay. The reason I'm asking that is because in an
Transcript Hearing Order OH-3-2011 Vantage Pipeline Canada Inc. Panel 1 Examination by Ms. Fradette email between our landowner group and you in the response you sent on October 26th when we were discussing compensation -- and for background, the compensation discussion revolved a linear bonus payment of $17 per metre. And you wrote back:
"All our project can afford is the $17 over a 35-year period."
1207. The request was that landowners accept the $17 a metre over a 35-year term. So I did more math, and when I calculated out that payment of $17 a metre over 578.3 kilometres, this works out to about 9.8 million. And if your projected capital cost is 240 million, this works out to a 4 percent increase in the capital cost of your project. So it surprised me that a 4 percent increase would make it unaffordable.
1208. So is that what you're saying, that in order to keep this project feasible, a 4 percent increase in your capital needs to be financed over 35 years?
1209. MR. SCHMUNK: No, I think if we refer back to those discussions, what we were referring to there is annual income versus upfront capital cost.
1210. So we've got an annual revenue, you have to take the revenue number you calculated minus the expenses to run this pipeline, minus the financing expenses, minus the expenses to operate the corporation. And on top of that you would have to tack on an annual payment to landowners. And that is where our finances are getting -- in that email, I was referencing it getting tight.
1211. So it wasn't in reference to the capital cost; it was in reference to more the annual operating costs.
1212. MS. FRADETTE: Okay. So this isn't actually a question because I’m sure you are, but you are aware the annual payments being made on the Foothills pipeline.
1213. MR. SCHMUNK: Yes, I am.
1214. MS. FRADETTE: You're aware of how those payments were structured?
1215. MR. SCHMUNK: Yes, I am.
1216. MS. FRADETTE: Okay. So would making comparably structured annual payments on this pipeline be cost prohibitive to this line?
Transcript Hearing Order OH-3-2011 Vantage Pipeline Canada Inc. Panel 1 Examination by Ms. Fradette 1217. MR. SCHMUNK: For us, it's a balance of whether you make annual payments for the lifetime of the project or you make a significant upfront payment. I think all of the discussions that we've had thus far and all of the previous pipelines that have had discussions and settlements with CAEPLA have tended to go with significant upfront payments. That is the structure we have stuck with thus far.
1218. MS. FRADETTE: Okay. So do you think that landowners should receive annual payments?
1219. MR. SCHMUNK: I think it's -- it would be an interesting debate, likely not to happen here, whether or not a pipeline should change their methods and produce annual payments or offer annual payments. I think it's a balance between whether or not you pay a significant amount of money upfront or you pay a -- or an annual contribution for the operation of the pipeline as it goes on into the future.
1220. I'm not sure if most pipeline companies can afford both and I think that's been the crux of our discussions.
1221. MS. FRADETTE: What if landowners didn't expect both?
1222. MR. SCHMUNK: All of the landowners we have discussed with thus far, with likely the exception of TELC, have expressed the desire to have upfront payments. The Schedule 1 of our easement document does allow for annual payments and if the landowner wants the upfront payments divided out in equal increments over a period of time we can also do that.
1223. MS. FRADETTE: Right, but it didn’t allow for ongoing, for the lifetime of the easement payments?
1224. MR. SCHMUNK: We can structure it to have the payments over 10 years, 20 years, 30 years or 40 years, 50 years.
1225. MS. FRADETTE: But it’s the same dollar value. If it was 30,000 today over 30 years that would be $1,000 a year or 30,000 today?
1226. MR. SCHMUNK: That’s the essential structure of it, yes. And that’s what most pipeline companies have been offering.
1227. MS. FRADETTE: So aside from the reason that other pipelines aren’t
Transcript Hearing Order OH-3-2011 Vantage Pipeline Canada Inc. Panel 1 Examination by Mr. Core paying it why do you think that landowners should not receive annual payments for the lifetime of their easements?
1228. MR. SCHMUNK: Again, I think it’s a balance between whether or not you get a significant upfront payment or annual payments. If the pipeline industry moves towards annual payments for the pipelines that are being installed now and in the future, I think that would follow suit.
1229. MS. FRADETTE: So I’m going to ask my one other question again. So making comparably structured annual payments comparable to the Foothills line would that be considered cost-prohibitive to this project?
1230. MR. SCHMUNK: I think if the structure was put in place such that the -- such that Vantage understood what the obligations were over time it probably could be structured into this agreement.
1231. MS. FRADETTE: Okay.
1232. I don’t think I have anymore questions. All right, thank you.
--- EXAMINATION BY/INTERROGATOIRE PAR MR. CORE:
1233. MR. CORE: I only have a few questions and they might be simple to answer. I’ll refer to National Energy Board’s Information Request Number 3, that’s B14-2, page 8, at Response B, page 10.
1234. I guess we should start at page 8 where the questions were asked.
“A) Please provide evidence of Riverstone’s ability to finance the Vantage pipeline project. Please include details like credit rating, size of asset base and past performance.”
1235. We turn to your response and it’s quite lengthy. I guess the question I have; Riverstone is an American financial group; is that the case, it’s not a Canadian group but an American investment group?
1236. MR. SALAHOR: Riverstone, right, it’s based in the United States and they are an equity -- private equity organization. They source their -- they’re investors, they have investors or unit holders or they call them limited partners and those funds come from investors in the United States and other countries, but
Transcript Hearing Order OH-3-2011 Vantage Pipeline Canada Inc. Panel 1 Examination by Mr. Core Riverstone itself is based in the United States.
1237. MR. CORE: And Riverstone is actually a very large investment group that has investments in energy projects around the world, is that not the case?
1238. MR. SALAHOR: Yeah, as we noted in our submission they are -- they have several billion dollars or many billions of dollars of their partner’s money invested in undertakings, mostly in North America but probably elsewhere as well.
1239. MR. CORE: And so they’re well able to afford this project if it’s, you know, able to show a return on their investment?
1240. MR. SALAHOR: We believe so.
1241. MR. CORE: Yes.
1242. The next question; if we move to Request B:
“Please identify what factors, if any, could affect the financing of the Vantage pipeline project.”
1243. And we go to your response on page 10, it states that:
“Riverstone and Mistral have had preliminary discussions with several financial institutions regarding the possibility of securing debt financing for the project. Based on these discussions Riverstone and Mistral believe that the Vantage Pipeline project will attract debt financing, in which case the full capital requirement will not be obtained from Riverstone. Discussions with financial institutions will be resumed in late 2011.”
1244. I guess the first question I have is to secure debt financing what sort of collateral is used to do that?
1245. MR. SALAHOR: Generally it’s the contract that we have with our shipper is the evidence or the basis for the loan, so our source of revenue from the shipper, our tolls.
1246. MR. CORE: And that’s the only collateral that you use, you don’t mortgage? In many pipeline cases I’ve had landowners that have mortgages on their
Transcript Hearing Order OH-3-2011 Vantage Pipeline Canada Inc. Panel 1 Examination by Mr. Core easement this thick that you can’t follow. Is the easement put up as collateral?
1247. MR. SALAHOR: No it’s not.
1248. MR. CORE: Not in any fashion?
1249. MR. SALAHOR: Not to my knowledge.
1250. MR. CORE: Okay. So financing with borrowed money does not put landowners at any risk?
1251. MR. SALAHOR: No, there’s no difference whether it’s debt or equity to the landowner.
1252. MR. CORE: Okay. And why would you go for debt financing if you have the funds available -- the cash funds available with Riverstone?
1253. MR. SALAHOR: It’s a standard capital markets -- any company generally uses debt and equity to finance its activities. It’s a way you optimize your capital structure which helps to improve your margin if you can do so.
1254. MR. CORE: So if this pipeline is approved it improves your equity base, so then you’re able to use this as collateral to borrow more money?
1255. MR. SALAHOR: No. Generally we’re only allowed to borrow against, you know, existing assets.
1256. MR. CORE: Okay. Page 11 of the same exhibit, Response A, it states partway down, Response A:
“As described in Section 2.4, Volume 1 of the application the toll in the contract with NOVA Chemicals is comprised of a fixed portion and an operating portion. Assuming that the operating portion of the toll recovers the actual operating cost then at least 90 percent of the 240 million capital cost would be recovered in the first 10 years of the NOVA Chemicals contract.” (As read)
1257. So this pipeline isn’t going to run full and yet in 10 years you’re going to cover the capital costs, 90 percent of the capital costs; is that right?
Transcript Hearing Order OH-3-2011 Vantage Pipeline Canada Inc. Panel 1 Examination by Mr. Core 1258. MR. SALAHOR: That’s true under certain volume assumptions and under the assumption that the operating toll does cover our operating expenses.
1259. MR. CORE: And so what percentage of the flow on this pipeline, like what -- you know, are you running 50 percent with the NOVA contract or what percentage are you running?
1260. MR. SALAHOR: We’re not at liberty to disclose what the NOVA commitment is in terms of barrels.
1261. MR. CORE: Well, I would think that you’ve already said what that is, haven’t you, when Stephanie asked questions?
1262. MR. SALAHOR: We’ve provided -- we’ve provided estimates, I believe, of what we expect the flow might be.
1263. MR. CORE: So you’re saying just with the NOVA contract in 10 years your capital costs will be covered; that’s what you’re saying, or 90 percent covered.
1264. The question I have then is when Stephanie asked her questions you said you built a 10-inch pipeline because it would take less pumping stations to move the same amount of product.
1265. What is the potential capacity of this pipeline, the full potential if you were to add appropriate pumping stations and run at maximum pressure?
1266. MR. SALAHOR: Yeah, I think we’ve said in our application by adding two more pump stations we can get it up to 60,000 barrels a day.
1267. MR. CORE: And so right now it’s about 30,000?
1268. MR. SALAHOR: Yeah, our current design with two pump stations is 40,000 barrels a day.
1269. MR. CORE: Forty thousand (40,000) and you’re running about 50 percent capacity so you have capacity to double that. So you could make some substantial money off this in 10 years if you can find some other shippers to add to it.
1270. MR. KILLACKEY: Yeah, there’s definitely a situation. If we -- the more volumes we have the more revenue we’ll get, it’s better for us. If we have less
Transcript Hearing Order OH-3-2011 Vantage Pipeline Canada Inc. Panel 1 Examination by Mr. Core volume under the NOVA contract than we anticipate than it’s worse for us. So there is definitely an incentive for us one way or the other.
1271. MR. CORE: Is there any incentive for landowners, the people that are -- that have this transportation system within their property and are allowing you the opportunity to make this money, is there an opportunity for landowners to share in these profits since they are sharing in the risk?
1272. MR. KILLACKEY: No, there isn’t. The land costs are being treated like a lot of our other capital costs. Our pipeline vendor doesn’t share in our loss or gain, because we could make less money than that as well.
1273. MS. FRADETTE: Since you brought up your other capital costs, I would like to know what other supplies or services you consider part of your capital costs or what you need to acquire outside of land to get this pipeline built?
1274. MR. SCHMUNK: Yeah, I think the Table 1-1 that you’ve referred to previously in page 4 of the Volume 1 is our summary of the capital cost and all the different categories.
1275. MS. FRADETTE: Okay. And how do you secure these products or services?
1276. MR. SCHMUNK: Just like in any project development you secure them through contracts.
1277. MS. FRADETTE: Right. And with any of these other outside of land -- these other supplies or services -- have you ever threatened legal action or arbitration to secure this product or service?
1278. MR. SCHMUNK: No, we haven’t. And typically in the free marketplace we go out and get services and there are companies that provide that service, so it’s a contract that’s mutually beneficial to both parties.
1279. MS. FRADETTE: That’s all. Thank you.
1280. MR. CORE: I think Stephanie was making a point there.
1281. So at page 13 of the same document -- and you might not be the panel to ask this, it’s concerning abandonment, and you can tell me whether I should keep this
Transcript Hearing Order OH-3-2011 Vantage Pipeline Canada Inc. Panel 1 Examination by Mr. Core question till the next one.
1282. MR. SCHMUNK: I could probably answer that before you start. If you could reserve all your abandonment questions for panel 2 ---
1283. MR. CORE: Okay.
1284. MR. SCHMUNK: --- that would be appreciated.
1285. MR. CORE: Okay, I’ll do that. I think it was because I was on this document I grabbed that question.
1286. I think I just have one more question as far as economics goes, and that might be saved for the next panel too.
1287. At page 14 -- yeah, it’s under economics -- at 310, at the bottom of the page you list the U.S. and Canadian government bodies that were to be notified and approvals to be gotten from.
1288. And it’s interesting, I note, that the Saskatchewan Ministry of the Environment is not included in that, and it was interesting two days or three days ago that we received a response -- all of us received a response from the Saskatchewan Ministry of the Environment that they had not been notified until October. Could you explain why they were not notified and approval sought from them?
1289. MR. SCHMUNK: They were actually notified last year. When we started our project we met with the Ministry of the Environment. Through the NEB process they missed one of the deadlines through their own internal processes and that’s what they were referring to in that letter.
1290. MR. CORE: So I guess my question would be under the screening process then somehow they got left out of the picture. Would that be the case, that there was a lack of communication within the environmental process?
1291. MR. SCHMUNK: No, we’ve had great communications with Sask Environment. We’ve met with them many times in meetings with them and went through our whole project with them from start to finish and have had good feedback from Saskatchewan Environment and incorporated the majority of their suggestions in our environmental assessment and environmental protection plan.
Transcript Hearing Order OH-3-2011 Vantage Pipeline Canada Inc. Panel 1 Examination by Mr. Jeerakathil
1292. So it was just an internal communication issue within Sask Environment itself not with us.
1293. MR. CORE: Yeah, and I’m not insinuating such, I want to assure you of that. I’m trying to understand how they got -- their information came in so late.
1294. I was lead to believe in their letter that they had only had the last 30 days to look at your application, and then I was -- by reading their letter I was lead to believe that they hadn’t taken part in the information request process either. Would that be the case?
1295. MR. SCHMUNK: No, they’ve been fully engaged from the start of this project.
1296. MR. CORE: Okay. It just doesn’t make sense to me the letter that I read from them the other day, and when I called them, they alluded to the fact that they hadn’t been involved. So I’m just not sure what’s happened there.
1297. And I think that’s all the questions I have at this time. Do you have any, Stephanie?
1298. Thank you very much, gentlemen.
1299. THE CHAIRPERSON: Thank you, Mr. Core.
1300. Board counsel; Mr. Cox?
1301. MR. COX: Thank you, Madam Chair.
1302. Before I get started, is there any other -- are there any other parties that wish to ask this panel any questions?
1303. THE CHAIRPERSON: Oh, I apologize, I overlooked you.
--- EXAMINATION BY/INTERROGATOIRE PAR MR. JEERAKATHIL:
1304. MR. JEERAKATHIL: No, that’s fine. I had one short question which I think is best addressed to this panel as opposed to the environment panel.
Transcript Hearing Order OH-3-2011 Vantage Pipeline Canada Inc. Panel 1 Examination by Mr. Jeerakathil 1305. And I might as well just read into the record right now an undertaking response to the Board to provide the Nekaneet exhibits to be withdrawn. I’ll do that now. That’s C7-3B and C7-3C. Thank you
1306. There was a question asked in First Nation request to Vantage 1.5G, which is Exhibit B19 in the record with the respect to the capital structure of the pipeline, and the response referred us to Volume 1 of the Application, section 1.6, and response to NEB IR 3.6B.
1307. And I’ve looked at those and I didn’t see in there a proposed capital structure for the pipeline, and I’m wondering -- I know there was some discussion about the potential for debt or equity and I’m wondering whether you know what the proposed capital structure will be in terms of debt equity.
1308. MR. KILLACKEY: We don’t have the answer to that just yet. We’re obviously -- as we noted, we’ll be working on obtaining whatever debt financing we can with the balance of the project being equity.
1309. So there is a possibility if our project did not qualify, you know, under the lending guidelines or if the debt markets are not open to us, that we could fund it with 100 percent equity or that we could use a portion of debt. Those are -- we haven’t really sorted that out yet.
1310. MR. JEERAKATHIL: So then, if I understand your answer correctly, you’re basically saying that it will have a very thick equity component in all likelihood?
1311. MR. KILLACKEY: I’m not saying, I’m just saying we don’t know at this time exactly. You know, it’s probably between -- notionally it’s probably between somewhere in 60 percent debt to 0 percent debt. We -- it really depends on the debt markets at the time that we’re out attempting to get our funding.
1312. MR. JEERAKATHIL: And is the high equity thickness that you’re anticipating related to the higher business and financial risk of your pipeline?
1313. MR. KILLACKEY: I wouldn’t necessarily say we know that we’ll have a high equity thickness. Every project is financed on its own merits and I don’t consider this, you know, to be an extraordinarily, you know, high risk or a low risk project really.
Transcript Hearing Order OH-3-2011 Vantage Pipeline Canada Inc. Panel 1 Examination by Chief Peigan
1314. It's in the eyes of the lenders. So I wouldn't say we have a high equity component, but it's possible that we could. So it's up to the lending markets to decide. We're not the judge of that.
1315. MR. JEERAKATHIL: But would you agree that, generally, in terms of utility capital structures, the higher the equity thickness, the higher the business risk?
1316. MR. KILLACKEY: That's true. And in this case, a utility structure -- a pure utility structure where there's 100 percent cost recovery where the toll is rate based and cost recovery, cost of service oriented, those have much higher debt- carrying capacity than a negotiated toll such as our system. That's true, in general.
1317. MR. JEERAKATHIL: And what is the expected return on equity for the pipeline?
1318. MR. KILLACKEY: That information is all confidential. We're not providing that.
1319. MR. JEERAKATHIL: Would it be fair to say that it's going to be higher than the formula return of the NEB?
1320. MR. KILLACKEY: It -- because it's -- because we don't have a cost of service or an arrangement that guarantees our income, it's going to fall within a range. So our return on equity will depend on the performance of the business. So it's -- we don't have a guaranteed return on equity at all, so it may be higher; it may be lower.
1321. MR. JEERAKATHIL: Thank you. Those are my questions.
1322. THE CHAIRPERSON: Thank you, sir.
1323. Chief Peigan, do you have any questions for this panel?
1324. CHIEF PEIGAN: Thank you, Madam Chair.
--- EXAMINATION BY/INTERROGATOIRE PAR CHIEF PEIGAN:
1325. CHIEF PEIGAN: Good afternoon to you all.
1326. I guess one of the questions I have in regards to all the landowners that the
Transcript Hearing Order OH-3-2011 Vantage Pipeline Canada Inc. Panel 1 Examination by Chief Peigan landowners' group raised on those minerals with those lands, have the province sent correspondence to you in terms of First Nations impacted under the '92 framework agreement on the treaty land entitlement? Because lands -- minerals held by the Crown, the Crown has a duty to inform those treaty land entitlement First Nations that receive settlement, and in the province there's 33.
1327. Any lands that are -- any minerals held by the Crown, the Crown has to inform those First Nations. On the proposed pipeline there's 30 quarter sections of land that are held by the Crown. And I checked with the Federation of Saskatchewan Nations, and the First Nations were not advised.
1328. I am a treaty land entitlement First Nation as well. I haven't been advised by the First Nation Métis Relations Office or by the Land Divisions Office from the province on -- and if we're interested in those -- acquiring those minerals of those lands.
1329. So I guess that's my question, have you guys been contacted or has the province told you otherwise?
1330. MR. KILLACKEY: So maybe I'm a little confused, Chief. We aren't extracting anything from the ground or taking anything from the land in Saskatchewan. This is a pipeline.
1331. All of the feed stock, the ethane that goes into the pipeline, comes from North Dakota right now. So I'm not aware of any notification under the section you're referring to.
1332. CHIEF PEIGAN: I just asked the question, Madam Chairman, and I just want to see if they received that information.
1333. THE CHAIRPERSON: And I suppose he answered the question as they haven’t.
1334. CHIEF PEIGAN: If they received notice from the province on 30 sections of land, quarter sections of land, that the minerals are held by the Crown. And since they are held by the Crown, did the Crown advise them that it's okay to go through there?
1335. Because it pertains to my oral argument as well.
Transcript Hearing Order OH-3-2011 Vantage Pipeline Canada Inc. Panel 1 Examination by Chief Peigan 1336. MR. KILLACKEY: So we did not receive any notification about any lands or minerals within lands, so I'm still confused by the question.
1337. CHIEF PEIGAN: Okay. So you don't -- you're not aware if the province said you don't have to worry about the minerals?
1338. MR. KILLACKEY: No, we're not touching the minerals.
1339. CHIEF PEIGAN: I mean the province has said you don't have to worry about that.
1340. No, it's just important because I need that information.
1341. MR. KILLACKEY: They've not mentioned anything about minerals.
1342. CHIEF PEIGAN: Okay. The other question I have, of the 34 First Nations in the Treaty 4 area, I know you sent correspondence out and -- but has anyone from Vantage attended each First Nation, or just a phone call? Because I'm referring now to your matrix.
1343. MR. KILLACKEY: They've all been sort of various forms of communication. Some have started with phone calls. Some have involved correspondence, sending information back and forth. Some involves meeting directly, more than one meeting. So each of the discussions with each of the communities has taken on a slightly different form.
1344. CHIEF PEIGAN: Okay. You mentioned earlier to the landowners' group that you're just following the way in which industry deals with revenue sharing. That's was one of your responses to the group because they were asking for annual payments versus lump sum payments based on the cost of land sales of the future.
1345. And your reply was that it was just in terms of what industry's doing right now.
1346. Now, is that correct?
1347. MR. KILLACKEY: Yes, that’s correct.
1348. MR. PEIGAN: Okay. Now, in saying that, you also referenced Enbridge. Enbridge, with the 34 First Nations, has an agreement. Enbridge came to
Transcript Hearing Order OH-3-2011 Vantage Pipeline Canada Inc. Panel 1 Examination by Chief Peigan the National Energy Board and Enbridge has a -- it's a multi-million dollar agreement with the Treaty 4 First Nations, 34 of them, one-time payment for being good citizens.
1349. Is Vantage prepared to have some dialogue on that? I'm not saying agree to it, but have dialogue.
1350. MR. KILLACKEY: Up to this point, we've been working with each of the communities directly, and we continue to work with several of those communities. We don't envision sort of a broad agreement with all 34 First Nations.
1351. CHIEF PEIGAN: Okay. And my last question. The agreement that was sent to Pasqua for $1,000 -- up to $1,000, what was that for? Is that just for consultation funds?
1352. MR. KILLACKEY: Well, to get into the -- that was a template agreement that had a -- the $1,000 payment you refer to was sort of an initial payment that would go to the Band or go to the First Nation. There were a lot of blanks and areas that were left to fill in in that agreement.
1353. It was only a means of a -- it was more of a starting point for the discussions with each of the communities and just a way to frame the dialogue and start the dialogue. So that that $1,000 was just -- was something that we had in there as an initial payment.
1354. There was -- the rest of it had discussed payments for meetings and then there was just sort of a broader area, which was payments depending on what the needs of the community were and what sort of impact the community had.
1355. So that template agreement was a similar agreement sent to several groups and, again, was just a starting point of discussion.
1356. CHIEF PEIGAN: I apologize, Madam Chairman. I have -- in his response, I have other comments -- or other questions.
1357. On the environmental, is there a trust fund set up for environmental contamination?
1358. MR. KILLACKEY: No. We have no plans to set up a trust fund for environmental contamination. The -- you know, ethane is sort of like natural gas. It
Transcript Hearing Order OH-3-2011 Vantage Pipeline Canada Inc. Panel 1 Examination by Chief Peigan doesn't hang around. It vaporizes, and -- if there is any release, so there isn't any sort of long-term effects from the release. It's not like crude oil, for instance.
1359. But I guess the short answer is no, we don't have any trust fund set up.
1360. CHIEF PEIGAN: Okay. Now, are you aware that the pipeline comes through the Treaty 4 territory?
1361. MR. KILLACKEY: Yes.
1362. CHIEF PEIGAN: Thank you, Madam Chairman.
1363. THE CHAIRPERSON: Thank you, Chief.
1364. Given the hour right now, I was wondering if we can take a 15-minute break. But the intent of the Board is perhaps to finish with this panel before we adjourn for tomorrow. So how about we take 15 minutes break and come back with Board staff asking questions.
1365. Thank you.
--- Upon recessing at 3:31 p.m./L’audience est suspendue à 15h31 --- Upon resuming at 3:48 p.m./L’audience est reprise à 15h48
DAVID SCHMUNK: Resumed TERRY KILLACKEY: Resumed GORD SALAHOR: Resumed GERRY GOOBIE: Resumed ALLAN BROENINK: Resumed
1366. THE CHAIRPERSON: Mr. Cox, we’re ready.
1367. MR. COX: Thank you, Madam Chair.
--- EXAMINATION BY/INTERROGATOIRE PAR MR. COX:
1368. MR. COX: Good afternoon. Again, my name is David Cox and I’m here to ask you a few questions on behalf of the Board and Board staff. There’s just a very few.
Transcript Hearing Order OH-3-2011 Vantage Pipeline Canada Inc. Panel 1 Examination by Mr. Cox
1369. The first one has to do with the ownership of the facility. Could you please confirm that the facility to be constructed and operated will be owned and operated by Vantage Pipeline Canada ULC?
1370. MR. SCHMUNK: That is correct.
1371. MR. COX: Thank you.
1372. The next brief area of questioning goes to the issue of the credit worthiness of NOVA Chemicals. First, as a preliminary, NOVA Chemicals is the only firm shipper on the Vantage pipeline at present. Is that correct?
1373. MR. SCHMUNK: That’s right.
1374. MR. COX: And at -- I’m going to ask you now to turn to Exhibit B32-2, Adobe pages 40 and 41, please. Just wait for a minute to get it up on the screen.
1375. This is Vantage’s response to the Board’s Information Request 8.25. This IR focused on the details regarding NOVA Chemicals’ proof of creditworthiness. And at the heading just below or just beside, I should say, A -- response A and B, I’ll just read what it says:
“At the time Vantage and NOVA Chemicals entered into definitive agreements pertaining to the transportation of ethane on the proposed Vantage pipeline NOVA Chemicals held an investment grade rating from the Dominion Bond Rating Service of triple B low. NOVA Chemicals presently maintains this rating and as such is not required to provide further financial assurances to Vantage.”
1376. Could you please confirm that NOVA Chemical still meets the criteria for demonstrating creditworthiness in order to qualify for contracted service on the Vantage pipeline?
1377. MR. SALAHOR: Yes, they do, and their rating remains triple B low by Dominion Bond Rating as well.
1378. MR. COX: Thank you very much.
Transcript Hearing Order OH-3-2011 Vantage Pipeline Canada Inc. Panel 1 Examination by Mr. Cox 1379. The next area of questioning is about ethane supply and the timeliness of the Tioga plant start-up. Please turn to Exhibit B1-3 at page 22. This is 3.4 of the Application, shipper demand for transportation services. And there it states:
“The transportation service agreement entered into with NOVA Chemicals commits capacity on the Vantage pipeline to NOVA Chemicals for ethane purchased directly from and originating at Hess Corporation’s natural gas plant located in Tioga, North Dakota. Ethane transportation service under this agreement is scheduled to commence in the fourth quarter of 2012 with initial contract service quantities escalating to approximately 30,000 barrels per day by calendar year 2015.”
1380. And the question I have is are the timelines that are referred to here still accurate; that is, is the commencement of the transportation service in the fourth quarter of 2012 and the quantities reaching approximately 30,000 barrels per day by 2015?
1381. MR. SALAHOR: Yeah, we believe the projected start-up dates are still accurate and the volume is committed by contract as well.
1382. MR. COX: Thank you.
1383. The next area of questioning is about ethane supply and the NOVA Gas Hess Memorandum of Understanding. For this I’d ask you to turn to Exhibit B1-3, page 22, at Lines 9 to 11. I’ll just read out the paragraph of interest here, it’s:
“Refer to Appendix A, Attachment A2 for a copy of NOVA Chemicals news release dated July the 15th, 2010 announcing a Memorandum of Understanding with Hess Corporation to purchase 100 percent of the ethane produced at the Hess Tioga Gas Plant under a long-term agreement.”
1384. The question I have is, is NOVA’s contract with Hess Corporation to purchase 100 percent of the ethane produced at the Hess Tioga Gas Plant or to purchase up to 30,000 barrels per day from their facility, which is it?
1385. MR. BROENINK: The ethane supply arrangement between NOVA Chemicals and Hess is subject to confidentiality provisions.
Transcript Hearing Order OH-3-2011 Vantage Pipeline Canada Inc. Panel 1 Examination by Mr. Cox 1386. NOVA has contracted for 100 percent of that supply -- right to acquire 100 percent of the supply produced out of that plant, but getting into further details I am concerned in regard to the confidentiality nature of that arrangement.
1387. MR. COX: Okay, I’ll ask the next question and you can determine what you want to do with it. But what happens if the production exceeds the 30,000 barrels per day at the plant, will NOVA still transport 100 percent of it on the Vantage system?
1388. MR. BROENINK: Yeah, that’s the exact detail that I’m concerned of getting into.
1389. MR. COX: Okay.
1390. MR. BROENINK: NOVA has the right to acquire that volume.
1391. MR. COX: May I have a minute, please?
--- (A short pause/Courte pause)
1392. MR. COX: Thank you.
1393. The next area of questioning is about supply and seeking source or production from other facilities.
1394. I'd ask you to turn to Exhibit B1-6 at page 25, which is Vantage's Application, Volume 1, Appendix A.
--- (A short pause/Courte pause)
1395. MR. COX: While we're waiting for it to come up on the screen, I'll just read the paragraph:
"Assuming that the composition of raw gas remains similar to what is being currently produced, then Purvin & Gertz estimates that there will be approximately 40,000 to 50,000 barrels per day of potential ethane volumes in reasonable proximity to the Vantage pipeline. This includes 25,000 to 30,000 barrels per day from Tioga and 15,000 barrels per day to 20,000 from other area facilities."
Transcript Hearing Order OH-3-2011 Vantage Pipeline Canada Inc. Panel 1 Examination by Mr. Cox
1396. Could you please specify the source of the 15 to 20,000 barrel per day volumes mentioned as coming from other facilities?
1397. MR. GOOBIE: In coming up with the estimate of 15 to 20,000 from the other area facilities, I looked at the gas supply in the other facilities in the area and just assumed that the composition would remain the same, and did the same kind of calculation.
1398. So if you look at the total area, I believe previously in the report I talked about, I believe it was, on the order of 400 million cubic feet a day; something in that range.
1399. And if you look at the composition of the gas as it was explained previously in looking at the -- and making the assumption that all of that was going to be processed in a similar manner in the other facilities that were mentioned in the report, you would come up with a figure in the 15 to 20,000 barrel a day range. That was how it was done.
1400. MR. COX: So there are no additional details other than what's in the report regarding the assumptions?
1401. MR. GOOBIE: No, not really. No.
1402. MR. COX: Okay.
1403. Are there any alternative means of moving the NGL-rich gas out of the region that could affect the volumes?
1404. MR. GOOBIE: Could you repeat the question again? I just want to make sure I understand what you're getting at.
1405. MR. COX: If there were alternative means of moving NGLs out of the region -- NGL-rich gas out of the region, would those alternatives affect the volumes or affect your projected volumes?
1406. MR. GOOBIE: The projected available volumes are on the basis of the expectation of what the gas produced in the area was going to be, and under the assumption that it would all be processed in gas processing facilities in that area.
Transcript Hearing Order OH-3-2011 Vantage Pipeline Canada Inc. Panel 1 Examination by Mr. Cox 1407. It didn't really have anything to do with whether it was going on Vantage or another pipeline. There are other options in the area. Gas could be moved to the Alliance pipeline. I believe Alliance has announced a connection to the Tioga plant. Alliance is well known to take rich gas.
1408. I understand that -- I think it was mentioned in the report -- One Oak has also a proposal for a liquids pipeline that would run south out of that area to connect to One Oak's overland pass line.
1409. So there are other possibilities that the -- that liquids could get out of there either in liquid form or as part of a rich gas stream; if it went to Alliance, for example.
1410. MR. COX: Thank you.
1411. Next question would be directed to Mr. Broening.
1412. Has -- does NOVA have any concerns regarding the volumes from Hess?
1413. MR. BROENING: No.
1414. We're actually quite excited and comfortable with the opportunity that -- the arrangement that we've entered into with Hess and we're quite confident and looking forward to the volumes arriving in the province.
1415. MR. COX: Thank you.
1416. The final question is on a bit of a different topic -- going back to some earlier evidence this afternoon -- and that is in regards to costing the pipeline.
1417. If the pipeline was installed one foot deeper, what would be the incremental cost?
1418. MR. SCHMUNK: That's a difficult question to answer. I don't think I could provide an answer off the top of my head for that question.
1419. What I'd like to make note of is the Code only requires us to bury the pipeline three feet deep to the top of the pipe. We've already undertaken to bury the pipeline deeper, with four feet of cover, so we've already went an extra step to bury the pipeline deeper than what the Code requires.
Transcript Hearing Order OH-3-2011 Vantage Pipeline Canada Inc. Panel 1 Examination by the Chairperson
1420. And it is generally done that way so that we can alleviate the concerns that the landowners have about crossing the pipe with heavy equipment.
1421. MR. COX: That's fair enough, Mr. Schmunk, in respect of answering the question.
1422. Would Vantage be willing to give an undertaking to provide us with the information?
1423. MR. SCHMUNK: We -- I'd like to think about that.
1424. That is actually quite a bit of work because it now increases the amount of soil that you'd excavate from the ditch. It increases the slope of the ditch, it increases the footprint.
1425. There might be other environmental issues that we have to now consider which may be things like increasing the right-of-way, increasing the temporary workspace. So it actually is quite a bit of work.
1426. So I'd like to discuss it with my colleagues and get back to you after the break or in the next panel.
1427. MR. COX: Thank you.
1428. MR. SCHMUNK: Okay.
1429. MR. COX: Those are my questions.
1430. THE CHAIRPERSON: Thank you, Mr. Cox.
1431. That leaves me with questions, and you're the lucky one, Mr. Salahor.
---EXAMINATION BY/INTERROGATOIRE PAR THE CHAIRPERSON:
1432. THE CHAIRPERSON: Mr. Broening, you can add to that because it's also related to NOVA Chemical.
1433. I wonder, Mr. Salahor, if you can tell me the agreement that you have entered into with NOVA Chemical is a take or pay, i.e. for the 30,000 barrels that
Transcript Hearing Order OH-3-2011 Vantage Pipeline Canada Inc. Panel 1 Examination by the Chairperson they have to pay whether they ship or not.
1434. MR. SALAHOR: The 30,000 that's referred to in the documentation in the Application is the amount of capacity which is reserved for NOVA pursuant to ethane volumes originating from Tioga.
1435. The payment that they make for whatever happens to flow does contain a take or pay component, which is less than 30,000 barrels a day, but it's confidential.
1436. THE CHAIRPERSON: Oh, I see.
1437. So we're talking about a 30,000 barrel a day, which is the capacity of the line, but the agreement that you have with NOVA Chemical can be for anything less than that for which a take or pay is applicable.
1438. MR. SALAHOR: That's right.
1439. The capacity of the line actually, as we've said before, is near to 40; 40,000 barrels in the initial construction. And the contract that we have with NOVA is that they have reserved 30,000 pursuant to ethane originating from Tioga.
1440. And there is a take or pay portion of that 30, so that is something less than 30,000.
1441. THE CHAIRPERSON: Thank you for the clarification.
1442. Yes, I remember your Application talking about the 40,000.
1443. So -- but then over the 10-year contract, your Application says, then, 90 percent, almost, of the cost of the facilities would be recovered through this take or pay portion of the arrangement.
1444. And I don't need to know the details of the take or pay, but -- so the cost recovery is as a result of the take or pay portion of the up to 30,000?
1445. MR. SALAHOR: That's generally correct.
1446. Because there's a number of other risk factors in the agreement related to the operating toll and operating expense recovery related to the sliding scale on capital costs, you know, it could be slightly lower or higher than that, you know.
Transcript Hearing Order OH-3-2011 Vantage Pipeline Canada Inc. Panel 1 Examination by the Chairperson There are some other factors that we had to assume -- make an assumption about in order to get to that 90.
1447. THE CHAIRPERSON: But the cost recovery, the capital cost recovery is constant. The rate that you had negotiated with NOVA Chemical is constant. The only variable component would be the operating cost to recover your variable cost?
1448. MR. SALAHOR: That’s one of the variables. The other variable is that our sliding scale for the toll adjust depending on the final capital cost of the pipeline. So if -- and we share -- basically there’s a shared risk in that element of the toll.
1449. So if it was to cost more than we, you know, have projected it would make 90 percent -- it would result in a recovery less than 90 percent. So there is a risk factor in that as well.
1450. THE CHAIRPERSON: Yeah, that’s how I understood it, is that it varies depending on your final cost.
1451. MR. SALAHOR: And therefore the 90 percent varies as well, somewhat.
1452. THE CHAIRPERSON: That’s right, but the commitment is to recover 90 percent?
1453. MR. SALAHOR: That’s right, in the sense that under the most -- the expected case for the cost of the pipeline and the operating cost we should recover 90 percent, that’s right.
1454. THE CHAIRPERSON: So your risk -- the risk that you might be facing is how well NOVA Chemical would do in terms of so how risky is your pipeline it depends on the credit rating of NOVA Chemical? At this point we know it is triple B.
1455. MR. SALAHOR: Yes, that’s right, and to some extent, as I said before, the capital cost.
1456. THE CHAIRPERSON: Thank you very much. These are all the Board’s questions.
1457. Any redirect, Ms. Ho?
1458. MS. HO: No, thank you, Madam Chair.
Transcript Hearing Order OH-3-2011 Vantage Pipeline Canada Inc. Panel 1 Examination by the Chairperson
1459. THE CHAIRPERSON: Thank you.
1460. And with that, -- I don’t think you get twice.
1461. MR. CORE: No, I don’t want to ask a question. I want to make sure that I’m going to ask the right panel. Would this be the panel to ask questions about the routing or is that the next panel? Because I did have routing questions and I’m trying to figure out where we can ask them.
1462. MR. SCHMUNK: It will be the next panel.
1463. MR. CORE: Thank you very much.
1464. THE CHAIRPERSON: You’re lucky, Mr. Core.
--- (Laughter/Rires)
1465. THE CHAIRPERSON: If it was this panel there is no guarantee that you would have been allowed.
--- (Laughter/Rires)
1466. THE CHAIRPERSON: I’d like to thank the panel again for your valuable contribution to making the record clear for the Board, and with that, you are released.
--- (The witnesses are excused/Les témoins sont libérés)
1467. THE CHAIRPERSON: Well, were doing really good with respect to the timing. We’re only 10 minutes beyond the 4 o’clock when we committed to release everyone. So I think it will be a good point for us now to adjourn till tomorrow, and I would propose that we meet tomorrow at 8:30.
1468. Thank you and have a good night everyone.
--- Upon adjourning at 4:09 p.m./L’audience est ajourneé à 16h09
Transcript Hearing Order OH-3-2011