Northern Gateway Project Preparing for the Panel
Smithers Workshop 27 June 2010 Tony Pearse
1 Outline of Presentation
• Panel ToR & Process • Consultation Framework • Strategies for Intervention
2 A L A S K A
Williston Lake Peace River Fort St. John Reach eace Utikuma P r Lake i ve Peace R Manson Creek Chetwynd P Rycroft a Dawson Creek r Lesser Slave Lake Aiyansh r e s v New Hazelton n i ip R
Kitwanga R y Mackenzie k High e a o Prairie c m
h Tumbler Ridge S r Grande B ive McLeod ti R r a api Prairie Valleyview e Smithers b W v Lake i Athabasca Prince Telkwa in A L B E R T A R e Terrace Rupert L Smoky River Swan Hills a a c k s r e KP 500 a ive r R Clearwater Tumbler R idge e b ena Houston Fort Cutba iv a Ske KP 750 nk R th Newbrook Houston St. James A Burns Lake KP 250 Kitimat Bear Lake KP 1000 Fort St. James Vimy KP 1172.2 Burns Lake Fraser Lake er Whitecourt or Riv Morice François McGreg er Bruderheim Kitimat Lake Vanderhoof iv Whitecourt Lake Fort Hutton R r Fraser e Bruderheim y Terminal v Ootsa Lake Fraser a i O Lake W Fr h ot as R sa i e d l r l d KP 0 La l R i Kemano ke o iv e o Hoult and W Prince w er Willmore cL Stony Plain M Clore Tunnels George R Wilderness Iv e e Park Edson ak r Edmonton Natalkuz L iver Hinton an R Tweedsmuir Hixon w r e Camrose McBride Pembin ive h Provincial Park a R c t Wells a Winfield k Quesnel s a S Jasper h ort
B R I T I S H F Valemount N Bashaw r
a Jasper National s
C O L U M B I A e Park of Canada r Alexandria R iv e r Wells Gray Rocky Mountain Provincial Park Red Deer Horsefly House
Kilometre Post
Pipeline Route
Pump Station Banff National Park of Canada National Park Calgary
Provincial Park/Protected Area
Urban Area 0 50 100 150
Kilometres Kamloops JWA-1038983-027-008-003 Reference: Pipeline Route R Projection Parameters: Lambert Conformal Conic Central Meridian: 120°E 1st Standard Parallel: 50°N Latitude of Origin: 40°N 2nd Standard Parallel: 70°N Kelowna Kootenay Lake
Okanagan 3 Lake Lower Arrow REFERENCES: NTDB Topographic Mapsheets provided by the Majesty the Queen in Right of Canada, Department of Natural Resources. All rights reserved. Lake CONTRACTOR: FIGURE NUMBER: DATE: Jacques Whitford AXYS Ltd. ENBRIDGE NORTHERN GATEWAY PROJECT 1-1 20100119 PREPARED BY: PREPARED FOR: SCALE: AUTHOR: APPROVED BY: Pipeline Route, Alberta and British Columbia 1:5,000,000 JP2 DC two 1170 km pipelines + rights-of-way (crude oil West; condensate East) PROJECTION: DATUM: LCC NAD 83 Associated pump stations, a pressure letdown station (oil) and a pressure initiation station (condensate) Z:\Clients\Enbridge\Gateway\Figures\MXD\JWA-CAL-027_Terminal_Overview\JWA-CAL-027-008_003.mxd All-weather road access and electrical power requirements for all facilities Block valves located at pump stations, watercourse crossings and other locations along route; pigging facilities at either end of the pipeline system and in selected intermediate locations; cathodic protection system for the pipelines and tanks along pipeline route Forest Service Road Clore River
TUNNEL
Permanent road proposed PORTAL along RoW, between tunnel portal and existing Nimbus forestry road Mountain KP 1080.2 Hoult Clore KP 1086.8 Permanent road proposed KP 1072.9 along RoW, between KP 1079.4 tunnel portals TUNNEL TUNNEL PORTAL PORTAL Hoult Creek
Hope Peak Kilometre Post for Tunnel Portal Staging Area
Pipeline Route Excess Cut Disposal Area
Tunnel Proposed Permanent Access Road
Project Effects Assessment Area Existing Access Road
Construction Camp 0 0.75 1.5 2.25
Kilometres Reference: Pipeline Route R JWA-1038983-036-003 4
REFERENCES: NTDB Topographic Mapsheets provided by the Majesty the Queen in Right of Canada, Department of Natural Resources. All rights reserved. CONTRACTOR: FIGURE NUMBER: DATE: Jacques Whitford AXYS Ltd. ENBRIDGE NORTHERN GATEWAY PROJECT 2-2 20100204 Tunnels through North Hope PeakPREPARED and BY: MountPREPARED FOR: Nimbus SCALE: AUTHOR: APPROVED BY: 1:80,000 JP2 DC Clore and Hoult Tunnels PROJECTION: DATUM: UTM 9 NAD 83 Z:\Clients\Enbridge\Gateway\Figures\MXD\JWA-CAL-036_Appendix\JWA-1038983-036-003.mxd KP 1156
KP 1157
KP 1158 KP 1159 KP 1160 Kitimat KP 1161
Kitimat River KP 1162
KP 1163 Minette Bay
KP 1164
KP 1165
KP 1166
KP 1167
KP 1168
Kitamaat KP 1169 Village
KP 1170
KP 1171 Kitimat Terminal KP 1172 Kitimat Arm KP 1172.2
200 m
Bish 100 m Cove
Kilometre Post
Pipeline Route
Emsley Terrestrial Project Development Area Cove 200 m Marine Project Development Area
Security Fence
Powerline
Kitimat Terminal Bypass Road
Bish Forest Service Road
Bathymetry (100 m) 01234
300 m Kilometres 100 m JWA-1038983-050-004JWA-1038983-035-001 5 Reference:Reference: PipelinePipeline Route Route P: November R 5, 2008
REFERENCES: SPOT CONTRACTOR: FIGURE NUMBER: DATE: Jacques Whitford AXYS Ltd. ENBRIDGE NORTHERN GATEWAY PROJECT 2-2 20091211
PREPARED BY: PREPARED FOR: SCALE: AUTHOR: APPROVED BY: 2-berth marine terminal at Kitimat with hydrocarbon tanks,Location pump of Kitimat Terminalfacilities and1:650,000 otherJP2 land DC facilities, adjacent to the terminal PROJECTION: DATUM: UTM 9 NAD 83 Tanker traffic in Confined Channel Assessment Area, Hecate Strait, + proposed routes w/i 12 Z:\Clients\Enbridge\Gateway\Figures\MXD\JWA-CAL-050...\JWA-1038983-050-004.mxdnautical mile limit ALASKA
U.S.A CANADA
Te rra ce Exstew Lakelse Langara Island Triple Prince Rupert Lake Dixon Entrance Islands Skeena Rose Point
Kitimat Porcher Kitimat Island Terminal Kitamaat
rm Village A t Kitkatla a Anger Browning itim Island el K Entrance n n a Ch las g
Graham Pri Pitt u o
Island n Island D c ipe Banks Hartley Bay Island Chan Wright Lewis ne Sound Passage l
S q Este u al l Hecate van yChann Otter Strait S Princess Royal Passage o u n e Island Queen Charlotte d l Islands Caamaño Sound
Aristazabal Island Laredo Klemtu Moresby Sound Island 6
Cape St. James
Queen Charlotte Sound
Cape Calvert
Pipeline Route Pine Island Tunnel Triangle Confined Channel Island Assessment Area
Territorial Sea - OceansAct Vancouver Territorial Sea - Interpreted Island
Northern Approach
Southern Approach (Direct) Southern Approach (via Principe Channel)
International Border
River / Stream
0 25 50 75
Kilometres JWA-1048334-2721
Reference: Pipeline Route R 8B l_ o _V y REFERENCES: NTDB Topographic Mapsheets provided by the Majesty the Queen in Right of Canada, Department of Natural Resources. All rights reserved. CONTRACTOR: FIGURE NUMBER: DATE: ENBRIDGE NORTHERN GATEWAY PROJECT thernGatewa
Jacques Whitford AXYS Ltd. 2-5 20100315 r
PREPARED BY: PREPARED FOR: SCALE: AUTHOR: APPROVED BY: 1:2,600,000 NP CM l\1048334_No
Territorial Sea of Canada a c
PROJECTION: DATUM: s
UTM 9 NAD 83 09Fi 20 R:\ Joint Review Panel Terms of Reference
• 3 NEB members (Kenneth Bateman, Sheila Leggett, Hans Mathews) • Panel conducts duties of both CEAA & NEB • Panel is to review project in “a careful and precautionary manner”. • Panel is to facilitate participation of public and Aboriginal peoples, and enable them to convey their views on the project to the Panel by various means, such as oral statements, letters of comment or participation as intervenors • Panel is to: • be fully informed about potential impacts of project on Aboriginal rights and interests: • require proponent to provide evidence regarding the concerns of Aboriginal groups; • carefully consider all evidence provided in this regard by all parties.
7 Joint Review Panel Mandate 1. examine environmental effects of proposed project and their significance
2. consider measures that are technically and economically feasible to mitigate any adverse environmental effects + the need for and the requirements of any follow-up programs
3. consider comments from public and Aboriginal peoples
4. conduct public hearings to receive relevant information about project;
5. provide ways in which interested organizations and people including members of the public and Aboriginal groups may participate the hearing process;
6. submit to the federal government an environmental assessment report with recommendations about the project; and
7. issue Reasons for Decision on the application for a certificate of public convenience and necessity pursuant to the National Energy Board Act.
8 Joint Review Panel Factors to be Considered
• environmental effects, including accidents • significance of effects • comments from Aboriginal peoples & public • technically & economically viable measures to mitigate impacts • purpose & need for the project • alternative means of carrying out the proeject and alternatives to the project • need for, and requirements of, any follow-up programs • effects of the project on renewable resources to meet needs of present and future • community and TK • measures to enhance beneficial environmental effects • env protection plans, monitoring & contingency plans 9 Joint Review Panel Environmental Assessment Report
Panel’s Environmental Assessment Report is to: • describe rationale, conclusions and recommendations relating to the environmental assessment of the project • any mitigation measures and follow-up programs • summarize comments received from public and Aboriginal peoples • “reference” information provided by Aboriginal peoples regarding [a] the manner in which the Project may affect potential or established Aboriginal and treaty rights; and [b] the Aboriginal groups’ strength of claim respecting Aboriginal rights • be submitted to the Minister of the Environment who will make it available to the public and Aboriginal peoples
10 11 Joint Review Panel Process Hearing Order
• a description of the methods for public and Aboriginal peoples’ participation • draft list of issues for review • how and when intervenors can issue information requests • distribution of and access to information, including public registry; • timetable of events for the joint review, including the deadlines for filing evidence and information requests as well as the date when the oral hearings will commence • how motions or questions of procedure or substance can be raised 12 Joint Review Panel Process Aboriginal Participation
3 Ways to Participate
1. filing a letter of comment
2. Providing an oral statement
3. Intervention in Oral Hearings (90 days between deadline for requesting intervenor status and Oral Hearings)
13 Joint Review Panel Aboriginal Consultation
Panel is to: • receive information from Aboriginal peoples related to: • nature and scope of potential or established Aboriginal and treaty rights that may be affected by the project ; and, • impacts or infringements that the project may have on such rights. • recommend appropriate measures to avoid or mitigate potential adverse impacts or infringements on Aboriginal and treaty rights and interests.
14 Aboriginal Consultation CEAA’s View
• Federal Crown has duty to consult Aboriginal Peoples • Crown will rely on JRP & Enbridge to fulfill as much of the Crown’s duty as possible • JRP to consider information from FNs on how project may affect potential or established Aboriginal and treaty rights • CEAA to conduct consultation on issues not addressed or resolved by JRP & Enbridge
15 Aboriginal Consultation Framework
• “overall goal is to ensure that the requirements for environmental assessment and regulatory review under the CEAA and the NEBA are met” • also “seeks” to address the Crown’s obligation to consult about potential adverse impacts on potential or established Aboriginal and treaty rights • JRP process to be the “primary mechanism” for Aboriginal groups to learn about the project and present their views to government • consultation issues outside JRP mandate to be handled by government directly with potentially affected Aboriginal groups at any time • Crown Consultation Coordinator to ensure that consultation activities are carried out and Aboriginal groups are well informed
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CROWN CONSULTATION COORDINATOR provides information on CEAA, NEB and the JRP processes and mandates answers questions about integration of the consultation and JRP processes discusses importance of being involved in the JRP process and how Aboriginal groups can participate, including importance of providing relevant information on Aboriginal rights and interests and how these may be affected monitors or participates in public information sessions monitors Aboriginal engagement activities conducted by the proponent liaises with proponent to gain information on their Aboriginal engagement activities attends oral hearings to hear and understand rights issues raised in order to prepare for Phase IV consultations discusses consultation process re JRPʼs Assessment Report coordinates federal departments consultation on Assessment Report discusses Aboriginal participation in consultation during regulatory phase describes funding available to in consultation activities as well as assist Aboriginal groups with the application for funding process; and prepares a report to Cabinet, in consultation with federal departments, on the adequacy of consultation Aboriginal Consultation Framework Consultation Phases
Phase I - Initial engagement and consultation on the draft JRP agreement (COMPLETED)
Phase II - JRP process leading to oral hearings
Phase III - Oral hearing and preparation of the JRP reports
Phase IV - Consultation on the JRP Environmental Assessment Report
Phase V - Regulatory permitting
17 Aboriginal Consultation Framework Phase IV
Crown Consultation Coordinator, w/ fed departments, consults with Aboriginal groups to: • establish whether concerns about project impacts on potential or established Aboriginal and treaty rights have been characterized accurately
• determine manner and extent to which any recommended mitigation measures might serve to accommodate these concerns, and
• determine whether there remain any outstanding issues.
3. CCC writes ‘Adequacy of Consultation Report’ to Cabinet
18 Aboriginal Consultation Framework Phase IV
“The JRP’s environmental assessment report and the record established through the JRP process will be the primary source of information to support the federal government’s assessment of the project’s potential impacts on potential or established Aboriginal and treaty rights.
It is therefore essential that Aboriginal groups provide all relevant information to the JRP in Phases II and III.
New or additional information about the nature and scope of potential or established Aboriginal and treaty rights that may be affected by the project or about the impacts of the project on these rights may not be considered during consultation on the JRP’s environmental assessment report.”
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The CCʼs Report is about “adequacy of consultation”...ʻconsultationʼ not defined, and relationship to ʻaccommodationʼ is unknown. Aboriginal Consultation Framework Phase V
1. RAs assume consultation duty defined as “...will continue to be available to discuss regulatory matters directly with Aboriginal groups”
2. RAs to consider: • consultation record • mitigation, compensation, accommodation measures to address outstanding concerns not addressed through the EA • CCC’s Consultation Report • MOE Response to JRP Env Assessment Report • Any direction provided by Cabinet.
20 Responsible Authorities
• National Energy Board (certificate under section 52 of the National Energy Board Act)
• Transport Canada (grant leave under the National Energy Board Act; permit under the Navigable Waters Protection Act)
• Fisheries and Oceans Canada (authorization under the Fisheries Act)
• Indian and Northern Affairs Canada (access to federal lands for the purpose of project)
• Canadian Transportation Agency (permit under the Transportation Safety Act)
• Environment Canada (permit under the Canadian Environmental Protection Act)
21 Aboriginal Consultation Framework The Problems
1. ACF states “JRP agreement has been developed following consultation with Aboriginal groups. Each proposal put forward by Aboriginal groups was carefully considered.”
No transparency as to how this was done; no Reasons issued Consultation Framework unilaterally developed 2. views ‘post-JRP’ consultation as ‘residual’; no new issues 3. no transparent or formal accommodation process 4. accommodation made unilaterally (JRP or regulators); no Aboriginal engagement process for regulatory stage
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1] The courts have held that “the first step in the consultation process is to discuss the process itself.” 2] CEAAʼs view is that consultation post-hearing will focus on the JRP report; no new or additional information can be considered. How will any ʻoutstandingʼ issues get resolved? This view is not consistent with the Courtʼs view. 3] Nothing is established for how accommodation gets done; 4] JRP process does not allow any negotiation of accommodation measures; donʼt have to be acceptable to Aboriginal groups; no established process for post-JRP engagement in regulatory phase 5] CEA Act limits EA to impacts on current First Nations land uses and cultural heritage, not full scope of potentially affected Aboriginal rights & title, or future considerations; NEB similarly restrictive to economic considerations, not Aboriginal interests; courtʼs say the duty is to focus on ʻissues relevant to Aboriginal peoples 6] no consultation on this high level issue which Haida says duty to consult includes high level of strategic planning for utilization of resources Aboriginal Consultation Framework The Problems cont’d
5. JRP has no mandate to conduct First Nations consultation or to fully assess potential impacts on Aboriginal Title and Rights; neither CEA Act or NEB Act are expansive enough 6. Strategic issue of whether project should proceed not addressed; Aboriginal decision-making authority ignored
23 Strategic Thinking About Interventions
24 Priority Areas for Effectiveness
25 Allocating Dollars Functions
• Developing/managing the workplan & team • Organizing/attending internal community & leadership meetings • Attending JRP community sessions • Identifying/managing experts • Preparing written submissions to JRP • Attending Oral Hearings
26 Allocating $
8% 19%
14% 4% 2%
16% Management Community Mtgs JRP Publ Sessions 38% Oral Hearings Written Submissions Experts Legal
T.D. Pearse Resource Consulting 27 Tips & Tricks
• pick few key issues and focus; be strategic; focus on show-stoppers • don’t spend a lot of effort on IRs and preliminary skirmishes; Oral Hearing is key • x-examination can be effective as written submissions; maintain resources ($ + experts) for this • x-examination of government officials also effective • prepare good x-examination & follow through on answers • minimize use of legal counsel; reserve legal counsel for Oral Hearings
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