NATIONAL ENERGY BOARD OFFICE NATIONAL DE L’ÉNERGIE
Hearing Order OH-002-2015 Ordonnance d’audience OH-002-2015
Enbridge Pipelines Inc. Line 3 Replacement Program
Pipelines Enbridge Inc. Programme de remplacement de la canalisation 3
VOLUME 9
Hearing held at L’audience tenue à
National Energy Board 2nd Floor, 517 Tenth Avenue S.W. Calgary, Alberta
December 14, 2015 Le 14 décembre 2015
International Reporting Inc. Ottawa, Ontario (613) 748-6043
© Her Majesty the Queen in Right of Canada 2015 © Sa Majesté du Chef du Canada 2015 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
HEARING ORDER/ORDONNANCE D’AUDIENCE OH-002-2015
IN THE MATTER OF Enbridge Pipelines Inc. Line 3 Replacement Program (L3RP) Application pursuant to sections 52 and 58 of the National Energy Board Act and section 45(1) of the Onshore Pipeline Regulations
HEARING LOCATION/LIEU DE L'AUDIENCE
Hearing held in Calgary, Alberta, Monday, December 14, 2015 Audience tenue à Calgary (Alberta), lundi, le 14 décembre 2015
BOARD PANEL/COMITÉ D'AUDIENCE DE L'OFFICE
J. Ballem Chairman/Président
P. Watson Member/Membre
M. Richmond Member/Membre
Transcript Hearing Order OH-002-2015
APPEARANCES/COMPARUTIONS
Applicant/Demandeur Enbridge Pipelines Inc. - Mr. Don Davies - Mr. Robert Bourne
Intervenors/Intervenants Assembly of Manitoba Chiefs - Ms. Allison Fenske - Ms. Joëlle Pastora Sala
Mr. Stewart Crone - Mr. Stewart Crone
George Gordon First Nation - Mr. Scott Barnes
Michel First Nation - Ms. Tracy Campbell
Pasqua First Nation - Chief M. Todd Peigan
Peguis First Nation - Mr. Jesse McCormick
White Bear First Nations - Mr. Jeff Howe
National Energy Board/Office national de l’énergie - Ms. Katherine Murphy - Ms. Diana Audino
Transcript Hearing Order OH-002-2015
TABLE OF CONTENTS/TABLE DES MATIÈRES (i) Description Paragraph No./No. de paragraphe
Opening remarks 3643
Final argument presented by Mr. Davies 3664 - Questions by the Board 3826
Final argument presented by Ms. Pastora Sala 3953 Final argument presented by Ms. Fenske 3996 - Questions by the Board 4067
Final argument presented by Mr. Crone 4085 - Questions by the Board 4103
Final argument presented by Mr. Barnes 4151 - Questions by the Board 4167
Final argument presented by Ms. Campbell 4183 - Questions by the Board 4220
Final argument presented by Chief Peigan 4255 - Questions by the Board 4314
Final argument presented by Mr. McCormick 4375 - Questions by the Board 4469
Final argument presented by Mr. Howe 4509
Reply by Mr. Davies 4544 - Questions by the Board 4599
Transcript Hearing Order OH-002-2015
LIST OF EXHIBITS/LISTE DES PIÈCES
No. Description Paragraph No./No. de paragraphe
C12-03 Aid to final argument - Maps - Stewart Crone 4135
Transcript Hearing Order OH-002-2015 Opening remarks
--- Upon commencing at 8:31 a.m./L’audience débute à 8h31
3643. THE CHAIRMAN: Good morning, everyone. Welcome to the continuation of the oral portion of the oral portion of the National Energy Board's OH-002-2015 hearing regarding the proposed Enbridge Pipelines Line 3 Replacement Program.
3644. My name is Jamie Ballem; I'm the Chair of this Panel. My Panel Members, to my left, Mr. Mike Richmond; to my right, Mr. Peter Watson.
3645. In addition the Panel, we have Board staff with us today who can be identified by their name tags. Should you require assistance with process during the day, please speak to one of our legal counsel, Diana Audino and Katherine Murphy. They're sitting to my right.
3646. You can speak with Shannon Britton, who is Hearing Manager today, for any other general inquiries or administrative.
3647. Once again, safety is an important priority and if, in the unlikely event we have to -- the evacuate the building order, there are two exits. Go out the exit that you came in, and there are two stairwells, one just as you go out in the hallway to the right and in the elevator lobby.
3648. The gathering area is in Central Memorial Park, which is two blocks south of this building.
3649. If you have any questions regarding safety, please check with any one of our staff.
3650. As well, for those of you who were here last week and we were in a separate -- the meeting room, the men's and women's washrooms past the elevator lobby are down that hallway.
3651. Live audio stream of the oral portion of this hearing is being broadcast on the Board's website, and we'd like to welcome all those who are listening in. An electronic transcript of the day's proceedings will be made available at the end of the day.
3652. It is important to the Board that we provide a safe and respectful environment for everyone attending our hearings. This orderly conduct will allow
Transcript Hearing Order OH-002-2015 Opening remarks
us to hear from all those scheduled to appear, while allowing other persons or media to observe or listen to the live broadcast.
3653. Today we will hear final argument. Final argument is an opportunity for Enbridge and intervenors to provide their views of the recommendation and decisions the Board should or should not make, and the reasons why the evidence supports those recommendations and decisions.
3654. Final argument is also an opportunity to provide comments on possible conditions, which some of you have done in your written arguments filed on December 11th. In presenting your views, you can only use the evidence on the record to support your position. You cannot present new evidence when making your final argument.
3655. The Panel encourages all panels to make -- all parties to make efficient use of their time in providing their argument and to avoid unnecessary repetition. The Panel can advise that it has read all of the written argument that parties have filed in advance.
3656. This morning, we will sit until approximately noon, or at a natural break around that time between presenters, at which time we'll take an hour for lunch. The Panel will take a break mid-morning and mid-afternoon at a convenient time between or during presentations.
3657. We plan to sit till approximately 4:30, but we'll see where we go by the end of the day. As the Panel indicated in Ruling Number 19, we may consider sitting into the evening if necessary so we may complete oral argument today, if possible.
3658. We'll hear first this morning from Enbridge, followed by intervenors in alphabetical order, then again from Enbridge in Reply. Based on information provided by parties to our staff, the Board has issued an order of appearances, copies of which are at the back of the room.
3659. If there are any intervenors in attendance who may wish to present oral argument but do not appear in the order of appearances, please speak to one of our Board counsel as soon as possible.
3660. Parties will be expected to monitor the proceedings to ensure that they
Transcript Hearing Order OH-002-2015 Final argument Mr. Davies are available when called upon to present their argument. The Panel may have questions of the presenters during or upon complete of their argument.
3661. Before we begin, are there any preliminary matters we need to address?
--- (No response/Aucune réponse)
3662. THE CHAIRMAN: Seeing none, we will start with the oral argument on behalf of Enbridge.
3663. Mr. Davies.
--- FINAL ARGUMENT BY/ARGUMENTATION FINALE PAR MR. DAVIES:
3664. MR. DAVIES: Thank you, Mr. Chairman and Members. Good morning. I’m pleased to present to you the final argument of Enbridge.
3665. I’ve provided a copy of my argument to the reporter, and I’d ask that the evidentiary references that are in square brackets be included in the transcript, please. That way, Mr. Chairman, you will be able to confirm that what I am about to tell you is grounded in the evidence.
3666. As you said, Mr. Chairman, the purpose of final argument is to persuade the Board to make certain decisions based on the evidence that has been presented. So let me start by telling you what decisions Enbridge would like the Board to make in this case. There are three main ones.
3667. First, Enbridge requests the Board recommend that a Certificate of Public Convenience and Necessity be issued under Section 52 of the National Energy Board Act for the construction and operation of the Line 3 Replacement Pipeline.
3668. Second, Enbridge requests that the Board approve the new Line 3 tanks, pump stations, and associated facilities under Section 58 of the National Energy Board Act and, in doing so, provide the exemptions permitted by Section 58.
3669. And third, Enbridge requests that the Board approve the decommissioning of segments of the existing Line 3 pipeline pursuant to Section
Transcript Hearing Order OH-002-2015 Final argument Mr. Davies 45.1 of the Onshore Pipeline Regulations.
3670. These three requests are supported by the extensive evidence that is on the record in this proceeding. That evidence, in my submission, demonstrates that it would be in the Canadian public interest for the Board to grant the requests.
3671. The Line 3 Replacement Program is a maintenance project. The existing Line 3 has been in service since 1968 and, while Enbridge could continue to safely operate the pipeline, there would be a need for ongoing integrity digs and repairs, and for ongoing pressure restrictions. So instead, the existing pipeline will be replaced with a new pipeline.
3672. This will enhance the safety and reliability of Line 3. It will eliminate the need for integrity digs and repairs over multiple years going forward. It will restore Line 3 to its original operating capability. This should be viewed as a good news story for all stakeholders. [Exhibit B1-05, p. 2-1]
3673. I mention safety. Included in the evidence is detailed information about the design, construction and operation of the new facilities and about the method of decommissioning the existing pipeline. The specifications and programs and procedures developed by Enbridge have been guided by two top priorities; ensuring the safety of the public and workers, and protecting the environment. [Exhibit B1-05, p. 2-1]
3674. I'm not going to dwell on the various safety, security and emergency response measures that Enbridge will implement. I would just note that only -- that the only intervenor evidence on the topic is the -- is in the report by Mr. Gerry Kruk filed on behalf of the Assembly of Manitoba Chiefs. [Exhibit C3-01-01]
3675. As Enbridge explains in its written reply evidence, most of the recommendations made by Mr. Kruk, respecting pipeline integrity and emergency response, are things that Enbridge is already doing as part of its standard practice. [Exhibit B35-02, pp. 10-19]
3676. Now, in assessing the public interest, the Board must consider the benefits and burdens of the project in front of it and decide whether the benefits outweigh the burdens. So let's look at what the evidence says about the benefits and burdens of the Line 3 Replacement Program.
Transcript Hearing Order OH-002-2015 Final argument Mr. Davies 3677. Let me start with the benefits. In the course of a hearing process, the benefits of a project often don't get much air time in comparison to the project burdens. That's the nature of the process. But that certainly doesn't mean that the benefits merit less consideration by the Board.
3678. The Line 3 Replacement Program will benefit western Canadian oil producers. Enbridge included in its application an expert report by Muse Stancil [Exhibit B4-48], which demonstrates that the oil supply and the market demand will ensure that the Line 3 replacement pipeline will be utilized in the future at a high level.
3679. This is also the view of Enbridge's shippers, as evidenced by the fact that they have agreed to pay a toll surcharge to allow Enbridge to recover the costs of the replacement program. [Exhibit B2-07] There is no doubt that the Line 3 replacement pipeline meets the Board's test of economic feasibility.
3680. The Line 3 Replacement Program will also have broader economic benefits for Canadians. There will be direct project expenditures of more than $4.3 billion during the construction phase, which will create significant contracting and employment opportunities for local businesses and workers. [Exhibit B5-08, pp. 5-269 - 5-271]
3681. This is why the Board has received numerous letters of support for the project from various municipalities, chambers of commerce, and construction, labour and manufacturing associations. [Exhibits C34-02, D3-02, D5-01-01, D9- 01-01, D12-01-01, D13-02, D14-02, D15-01-01, D17-01-01, D18-02, D19-02-01, D20-02-01, D21-02-01 D22-01-01, D23-01-01, D24-02-01, D25-02-01, D26-02- 01]
3682. There will also be in excess of $500 million in provincial and federal tax revenues generated during the project construction phase. [Exhibit B5-09, p. 5-269]
3683. The Line 3 Replacement Program will have economic benefits for First Nations and Métis people. Enbridge is committed to supporting employment and business opportunities for Aboriginal communities in proximity to the project.
3684. And Mr. Chairman and Members, these are not just words in a policy document. In the case of the Alberta Clipper pipeline project in 2008 and 2009,
Transcript Hearing Order OH-002-2015 Final argument Mr. Davies Aboriginal participation through employment ranged from 10 percent to more than 30 percent, varying on the section of the project. [Exhibit B18-02, Enbridge response to AMC IR 1.49 (b)]
3685. In 2014, Enbridge spent in excess of $52 million on the procurement of goods and services from Aboriginal businesses and suppliers. [Exhibit B18-07, Enbridge response to Nations IR 1.5(a)]
3686. During the oral traditional testimony, the Birdtail Sioux First Nation and the Moosomin First Nation expressed support for the Line 3 project, because of the economic opportunities that the project presents. [T. V3, 778, 947-951]
3687. And these two First Nations are not alone in supporting the project. George Gordon First Nation has expressed support for the project in its final written argument. The Board has also received letters of support from various other First Nations that want to pursue the benefits that the project will bring. [Exhibits C48-04-01, D16-01-01; Filings A4R6G2, ARQ9L5, A4L6Z0, A4L0W4, A4Q4A0]
3688. Let me turn, then, from the project benefits to the project burdens. I'm not going to stand here and suggest to you that there are no burdens. Pipeline construction can have adverse impacts on those that own and use the land that is crossed by the pipeline. Those impacts need to be addressed.
3689. The evidence is that approximately 95 percent of the lands on which the Line 3 replacement pipeline will be constructed and on which the existing Line 3 pipeline will be decommissioned are privately-owned lands. [Exhibit B2- 01, pp. 11-1, 11-6]
3690. As you know, Enbridge has entered into settlement agreements with the Canadian Association of Energy and Pipeline Landowners Associations, the Manitoba Pipeline Landowners Association and the Saskatchewan Association of Pipeline Landowners in respect of both the new construction and the decommissioning. [Exhibits C6-04-02 and C6-05-02]
3691. And let me emphasize, Mr. Chairman and Members, these are very comprehensive agreements. They deal with much more than just compensation.
3692. The Construction Settlement Agreement sets out numerous pipeline construction and operation requirements, and includes a wet soil shutdown
Transcript Hearing Order OH-002-2015 Final argument Mr. Davies procedure, a weed management program, and a very detailed clubroot biosecurity agreement.
3693. The Decommissioning Settlement Agreement addresses numerous decommissioning procedures, like depth of cover monitoring, restoration of subsidence, remediation of contamination, and an integrity dig process. The agreements are the result of significant engagement and negotiation with the landowner associations and their members.
3694. Enbridge has acquired approximately 98 percent of the lands required for the replacement pipeline [Exhibit B12-01], and of the 1,341 landowners affected by the decommissioning, 1,338 have either signed decommissioning agreements or have otherwise indicated that they have no outstanding concerns about the method of decommissioning. [Exhibit B30-02, Enbridge response to NEB IR 5.7]
3695. When you stop and think about it, this really is a remarkable achievement. The Line 3 Replacement Program affects about 1,900 private landowners in total, and virtually all of them have given their consent for the project to proceed. This is a testament to the very hard work that was done to resolve the various issues raised by private landowners.
3696. The potential effects of the project on Aboriginal land use also needs to be considered, but the fact is that about 99.5 percent of the land required for the project is either privately owned or is occupied Crown land. [Exhibit B35-02, p. 47]
3697. While Enbridge respects the historic and contemporary role and practise of traditional uses, there would seem to be very little opportunity for Aboriginal groups to practise their traditional activities on the lands affected by the project.
3698. During the oral traditional testimony, the Board did hear of some instances where Aboriginal people hunt on privately-owned land with the permission of the landowner.
3699. I would point out that, during its engagement program, Enbridge asked all 1,896 directly affected private landowners about allowing access to their lands for traditional use activities by members of First Nations. Only four of them advised that they grant such access. [Exhibit B18-02, Enbridge response to AMC
Transcript Hearing Order OH-002-2015 Final argument Mr. Davies IR 1.11(a)]
3700. Enbridge has conducted a comprehensive environmental and socioeconomic assessment for the project. While the evidence would suggest that there is very limited, if any, use by Aboriginal groups of the lands along the pipeline route for traditional activities, the ESA nevertheless assumes that such activities are being carried out, including on private land.
3701. An assessment is provided of the potential effects of the project on the use of trails and watercourse travel-ways, on plant harvesting, on hunting activities, on fishing activities and on sacred areas. Mitigation measures are set out to reduce the impacts of the new pipeline construction and operation on each of these activities; those mitigation measures apply to both Crown and private lands. And the conclusion in the ESA is that the potential residual effects of the project on traditional activities by Aboriginal groups will not be significant. [Exhibit B-5-09, pp. 6-219 - 6-222].
3702. As I mentioned at the outset, The Board needs to make its decisions based on the evidence that has been presented. What the ESA demonstrates is that with the implementation of Enbridge’s environmental protection procedures and mitigation, the Line 3 Replacement Program is not likely to cause significant adverse effects to the use of the lands along the project route be either private landowners or by Aboriginal groups.
3703. Absolutely no evidence has been presented to the Board to show that the proposed protection and mitigation measures are inadequate.
3704. The ESA of course addresses the potential effects of the project on many things other than just land use. Assessments are provided of the potential impacts on water, on air, on fish, on wetlands, on vegetation, on wildlife, on social and cultural wellbeing, on human health, and on infrastructure and services among other things. Hundreds of mitigation measures have been proposed.
3705. The conclusion of the experts that prepared the ESA is that there is no situation that meets the criteria of a significant adverse residual environmental or socioeconomic effect. [Exhibit B5-10 pp. xii-xiv]
3706. Mr. Chairman and Members, this conclusion is not surprising. Please keep in mind that as I said earlier, the Line 3 Replacement Program is a maintenance project. Approximately 94 percent of the replacement pipeline will
Transcript Hearing Order OH-002-2015 Final argument Mr. Davies be constructed adjacent to existing linear disturbances, including Enbridge’s existing pipeline corridor. [Exhibit B2-01, p. 11-1]
3707. This is a corridor with which Enbridge is very familiar having operated there for 68 years. The environmental issues are well understood, and the protection and mitigation measures are proven. [Exhibit B5-10, p. xiii]
3708. So to come back to the public interest determination that the Board must make in this case; while there are burdens associated with the Line 3 Replacement Program, the evidence demonstrates that those burdens can be mitigated to the point that they are significantly less than the benefits that will accrue from the project. That should therefore lead the Board to conclude that it would be in the Canadian public interest to grant the 3 request that Enbridge has made to the Board.
3709. Mr. Chairman and Members, Enbridge filed written Reply evidence to the evidence that was submitted in writing by the intervenors. That Reply evidence speaks for itself; I don’t propose to repeat what it says. What I would propose to do, though, is make some submissions to you in response to the oral traditional testimony that was presented.
3710. I’m going to go through the presentations in the order in which they were made, but before I do that I would observe that there were some common messages delivered over the past two weeks and I would refer to three of those messages.
3711. The first message is that Aboriginal people have a special connection to the land and they have important information to share on the topic of environmental protection. Enbridge acknowledges this message. This is one of the reasons why Enbridge has undertaken an extensive engagement program with Aboriginal groups.
3712. Through that engagement, as well as through its history of constructing and operating pipelines along this route, Enbridge has acquired Aboriginal traditional knowledge which has been used in the ESA to compile the environmental and socioeconomic setting and to assess the potential environmental and socioeconomic effects. [Exhibit B18-02, Enbridge response to AMC IR 1.22]
3713. The second message is that Aboriginal people want to be engaged
Transcript Hearing Order OH-002-2015 Final argument Mr. Davies about potential adverse effects of the project on the land and the water they use. Enbridge acknowledges this message too. Enbridge has been engaging with Aboriginal groups on environmental protection issues. That engagement will carry on throughout each phase in the lifecycle of the project.
3714. The third message is that Aboriginal people want to benefit from the Line 3 project. And in this regard, Mr. Chairman and Members, Enbridge certainly does not want to create unrealistic expectations.
3715. Enbridge has engaged with some 150 Aboriginal groups in relation to this project. Enbridge can’t hire 150 environmental or construction monitors. Enbridge can’t guarantee that every First Nation of Métis person that wants a construction job will get one, or that every First Nations or Métis business will be successful in bidding on supply and service contracts. [Exhibit B18-07, Enbridge response to Nations IR 1.3(c)]
3716. With that said, Enbridge is committed to ensuring that First Nations and Métis people will achieve benefits from the Line 3 project. I’d invite you, Mr. Chairman and Members, to review the Aboriginal engagement logs that have been filed by Enbridge. [Exhibits B8-03, B11-02, B19-02, B26-02]
3717. You will see references to engagement agreements, to capacity funding, to support for school programs, to employment training programs, to sponsorship of reverse trade shows, and to employment and contracting opportunities. The intent is not only to provide benefits, but to provide benefits that are sustainable.
3718. So with those general comments, let me turn to the specific presentations that were made.
3719. The Board heard first from the Assembly of Manitoba Chiefs. Elder Henry Skywater advised that the AMC believes in economic development, but not at the sake of destruction of the environment. [T. V1, 151]
3720. Enbridge does not disagree with this belief, but as I said already; the Line 3 Replacement Program can deliver economic benefits without causing any significant adverse environmental effects. That is what the evidence shows.
3721. The Board heard next from the Ochapowace First Nation. Ms. Shelley Bear stated that there is a need for the transportation of hydrocarbons, but that
Transcript Hearing Order OH-002-2015 Final argument Mr. Davies such a need must be balanced with respect, preservation and protection of the lands affected. [T. V1, 234]
3722. Enbridge agrees. That is why the ESA sets out measures to mitigate the effects of the Line 3 project on the environment.
3723. Elder Charles Pratt of the Ochapowace First Nation expressed a concern about who would be responsible to clean up a pipeline release. [T. V1, 311-312]
3724. I would observe that the purpose of the Line 3 Replacement Program is to enhance the safety and reliability of the Line 3 pipeline. I would also observe that the replacement pipeline will be designed, constructed and monitored with a view to preventing a release from occurring. But to respond directly to Elder Pratt's concern, if there were to be a release, it would be Enbridge’s responsibility to do the clean-up.
3725. Enbridge has provided information to the Board to demonstrate that it has robust emergency preparedness plans in place and that it has the financial capability to fund any clean-up costs. [Exhibit B30-02, Enbridge response to NEB IR 5.21]
3726. Next up was the Manitoba Métis Federation. Minister William Goodon stated that, with respect to the Line 3 project, the MMF hasn’t been consulted with or engaged with, and that Enbridge continues to not fully respect or deal with the MMF. [T. V2, 509]
3727. This statement by Minister Goodon is simply not correct. Just review the Aboriginal Engagement Logs. [Exhibits B8-03, B11-02, B19-02, B26-02]
3728. What the logs show are that discussions between Enbridge and the MMF about the Line 3 Replacement Program commenced in 2013, that the discussions have been ongoing since then, and that the discussions have actually led to two agreements between Enbridge and the MMF relating to a labour training program and to funding a traditional knowledge and land use study. Agreements don’t materialize in the absence of consultation and engagement.
3729. Minister Goodon made it clear that Resolution 8 provides the roadmap for how to consult with the Métis. [T. V2, 492]
Transcript Hearing Order OH-002-2015 Final argument Mr. Davies 3730. Resolution 8 establishes that the MMF Head Office is to take the lead and be the main contact on all consultations affecting the Métis community. [Exhibit C43-11-15]
3731. And again, if you review the Aboriginal Engagement Logs, you will see that on May 1, 2014, the MMF provided Enbridge with a copy of Resolution 8. And on August 11, 2014, Enbridge was advised that the MMF Head Office was to be the only point of contact for Enbridge. [Exhibit B8-03, pp. 92-93]
3732. So Mr. Chairman and Members, please keep this factual background in mind when assessing Minister Goodon’s suggestion that Enbridge should be required to consult with the Métis at the community level. [T. V2, 661]
3733. Minister Goodon also stated that the ESA for the Line 3 Project does not mention or consider the Métis. [T. V2, 514]
3734. This, too, is incorrect. The Métis Nations in Alberta, Saskatchewan and Manitoba are specifically identified in the ESA as potentially affected groups. [Exhibit B5-02, p. 3-14; Exhibit B3-09, p. 2-18]
3735. The assessment of the effects of the project on traditional activities like hunting, fishing and harvesting applies to all Aboriginal groups, including the Métis.
3736. The Board heard next from the Moosomin First Nation. Chief Bradley Swiftwolfe expressed support for the Line 3 Replacement Program and advised that Enbridge had been respectful, fair and reasonable in its dealings with his community. [T. V3, 778]
3737. His message to Enbridge was as follows:
“My message to Enbridge is to remain committed to your core values, which include integrity, safety, and respect. We expect you to build a pipeline that does not put the environment at risk. If a spill occurs, we expect you to do whatever is needed to correct the problem and repair the damage.” [T. V3, 777]
3738. Mr. Chairman and Members, Enbridge will ensure that it meets Chief Swiftwolfe's expectations.
Transcript Hearing Order OH-002-2015 Final argument Mr. Davies 3739. The next presenter was the Southern Chiefs Organization. The testimony of Chief Kenneth Chalmers of the Birdtail Sioux Dakota Nation, which is a member of the SCO, came across loud and clear. Chief Chalmers expressed strong support for the Line 3 Replacement Program because of the economic opportunities that the project presents for his community. [T. V3, 947-951]
3740. Chief Chalmers’ testimony is illustrative of how a mutually beneficial relationship can be developed between a company that is committed to providing business opportunities to First Nations and a First Nation that is intent on taking advantage of those business opportunities.
3741. I'd also mention Chief Chalmers' evidence about the engagement that has occurred with Enbridge on environmental protection issues. Chief Chalmers confirmed that his people have been getting the information they need from Enbridge and that they are very well aware of the impacts of pipelines. As he put it, “I think everybody knows the issues on the environment, not only Aboriginal people, but non-Aboriginal people as well.” [T. V3, 1038]
3742. Next up was the Roseau River Anishinabe First Nation. Chief Alfred Hayden spoke primarily about the duty of the Crown to consult with his community in respect of the Line 3 Project. [T. V3, 1163-1182]
3743. This is an issue which, in our submission, is not for Enbridge or the Board to address, but is an issue for the Crown to address. And I'll say more about that later.
3744. The Board next heard from the Keeseekoose First Nation. Councillor Kevin Musqua expressed concern that the Line 3 Project might impact the traditional land uses practised by his people because of damage caused to waterways, plants and animals. [T. V4, 1332]
3745. In response, Enbridge would reiterate that there is no evidence that the Keeseekoose First Nation is currently using the lands that will be affected by the Line 3 Project for traditional activities. But regardless, Enbridge will implement mitigation measures to protect the waterways, plants and animals from the effects of the project.
3746. The ESA concludes that, even if the affected lands were being used for traditional activities, the impacts of the project on those activities would not be significant. [Exhibit B5-09, pp. 6-218 - 6-222]
Transcript Hearing Order OH-002-2015 Final argument Mr. Davies
3747. Next up was the Peguis First Nation. Mr. Jared Whelan presented a video and map showing the Line 3 replacement pipeline in relation to some traditional site -- traditional use sites. [Exhibits C47-08-02, C47-09-01]
3748. Mr. Whelan was very fair in pointing out that he was just reporting raw data that he collected in questionnaires and that his map does not reflect the official position of the Peguis First Nation. [T. V4, 1711]
3749. Let me, though, add two further observations.
3750. The first observation is that footprint for the Line 3 replacement pipeline will typically be 45 metres in width, 12 metres of permanent easement and 33 metres of temporary work space. [Exhibit B2-01, p. 11-1]
3751. So if the pipeline footprint were to be accurately plotted on Mr. Whelan's traditional use map, the line would be so thin that you wouldn't even be able to see it.
3752. The second observation is that the purple swath on Mr. Whelan's map, which is referred to as the Enbridge Line 3 Replacement Project Area, extends for 15 kilometres on either side of the pipeline. [T. V4, 1733]
3753. But in point of fact, for the purpose of assessing the potential impacts of the project on Aboriginal traditional uses, the study area selected by Enbridge extends from 55 metres to 1 kilometre on either side of the pipeline, depending on the biophysical element being assessed, because it is within that area that there is a reasonable potential for the project activities to have an effect. [Exhibit B5-08, p. 5-207]
3754. So the purple swath on Mr. Whelan's map is way too wide for locating traditional use sites that could be impacted by the project.
3755. I also want to refer to the testimony of Mr. Vincent Light of the Peguis First Nation. Mr. Light said this:
"...Now, the existing pipeline is there and, personally, I had no knowledge of it even being there. When I was down that way I never even noticed it. There might be some clearing in the bush but I never thought twice about it. If the existing pipeline
Transcript Hearing Order OH-002-2015 Final argument Mr. Davies has to be replaced I'd rather -- rather it be done before the pipeline breaks and destroys the land and wildlife around it. As long as it's done with the best interest of the environment and the wildlife and the people around it, I wouldn't be opposed to it. That's all I have to say about that." [T. V4, 1652]
3756. Now, Mr. Chairman and Members, there is no reason to expect that the existing Line 3 pipeline is going to break and destroy the land and wildlife around it. But to Mr. Light's point, why would anybody object to replacing the existing pipeline with a new pipeline in order to enhance safety and reliability?
3757. That is in the best interest of the environment. In fact, the ESA concludes that the multi-year integrity digs and repairs required by the existing pipeline would, in some instances, be more disruptive to the environment than the replacement itself. [Exhibit B-05, p. 2-1, 6-8]
3758. The next presenter was the Michel First Nation. Ms. Tracy Campbell presented a map showing that there is only one small parcel of unoccupied Crown land along the route of the Line 3 replacement pipeline between Hardisty and the Saskatchewan border. [Exhibit C-25-7]
3759. The suggestion was made that the pipeline not be permitted to cross this unoccupied Crown parcel because, notwithstanding that the Michel First Nation does not use that land for traditional activities, it is the restriction of access to the land that causes the impact. [T. V5, 2033-2040]
3760. In its written reply evidence, Enbridge provided a table and maps that set out the Crown lands, both occupied and unoccupied, along the entire Line 3 pipeline route. [Exhibit B35-02, p. 56; Exhibits B35-03 and B35-04]
3761. Enbridge has received no information to indicate that any of these Crown lands are being used by Aboriginal groups for traditional activities.
3762. But I want to again emphasize that, for the purpose of conducting the environmental assessment, it was assumed that traditional activities are being conducted on lands along the pipeline route. [Exhibit B5-09, p. 6-219]
3763. The ESA sets out measures to mitigate the effects of the pipeline construction on plant harvesting, hunting, fishing, trail use and sacred sites.
Transcript Hearing Order OH-002-2015 Final argument Mr. Davies [Exhibit B5-09, pp. 6-219 - 6-221]
3764. The conclusion of the ESA is that, with the implementation of these mitigation measures, the effects of the project on traditional uses would be short term and not significant. [Exhibit B5-09, p. 6-222]
3765. I would also emphasize that, once the construction is done and the new pipeline is in operation, Aboriginal groups would not be prevented from accessing the unoccupied Crown lands for traditional activities. The new pipeline will be buried underground with the existing pipelines and will not preclude hunting, fishing and harvesting on the land.
3766. The next appearance was by the Pasqua First Nation. Chief Todd Peigan emphasized the need to protect the water resources and described some of the management programs being undertaken in respect of the Qu'Appelle Valley drainage basin. [T. V5, 2287-2289, 2367-2370]
3767. As set out in the ESA, Enbridge will implement mitigation measures to ensure that objectives of watershed management plans will be met and that project impacts on water quality and quantity will not be significant. [Exhibit B5-09, 6- 45 - 6-72]
3768. As well, while not specifically related to the Line 3 Replacement Program, Enbridge is continuing to work with the Pasqua and other First Nations on potential approaches to enhance the sustainability of the Qu'Appelle Valley watershed. [Exhibit B31-02, Enbridge response to AMC IR 2.7]
3769. Next up was the Samson Cree Nation. Ms. Kyra Northwest discussed the cultural significance of locations like Sounding Lake, the Hardisty Bison Pound and Neutral Hills. [T. V6, 2597-2609]
3770. I would simply point out that, as detailed by Enbridge in its written reply evidence, none of these locations will be affected by the construction and operation of the Line 3 replacement pipeline. [Exhibit B35-2, pp. 58-59]
3771. The next presentation was made by George Gordon First Nation. It was nice to hear Mr. Scott Barnes speak of the spirit of partnership that George Gordon and Enbridge have cultivated. [T. V5, 2903]
3772. It was also interesting to hear Mr. Solomon Cyr describe a traditional
Transcript Hearing Order OH-002-2015 Final argument Mr. Davies knowledge and land use study as a legacy for his people. [T. V5, 2963-2965]
3773. The observation is made in the ESA that traditional land use studies are not necessary for most of the replacement pipeline route because the current land tenure and land use largely precludes the practise of traditional activities on the lands. [Exhibit B5-09, p. 6-210]
3774. So why is Enbridge funding a number of these studies?
3775. Not because they are required for the environmental assessment, but because they provide a benefit to the Aboriginal people that do them. It's part of the engagement.
3776. The next appearance was by the File Hills Qu'Appelle Tribal Council. The witnesses for the Tribal Council advised that they are not speaking against the Line 3 project. [T. V7, 3038, 3158]
3777. One of the concerns expressed, though, was about the potential impact of the project on plants that are used for medicinal purposes. [T. V7, 3213, 3219- 3234]
3778. Here again, there is no evidence that the specific lands along the pipeline route are being used by Aboriginal groups for plant harvesting. Sorry. While there is no evidence that the specific lands along the pipeline route are being used by Aboriginal groups for plant harvesting, that use was nevertheless assumed for the purpose of the environmental assessment.
3779. The ESA sets out mitigation measures, including measures to regenerate natural plant species, and concludes that the residual impacts on plant harvesting would not be significant. [Exhibit B5-09, p. 6-222].
3780. Lastly the Board heard from the Piikani First Nation. The Piikani seemed to acknowledge that they don't currently use the project area for traditional uses; in fact, Mr. Dustin Wolfe indicated that they hadn't been in that area in hundreds of years. [T, V8, 3525]
3781. Nevertheless, a concern was expressed about the need to protect sacred ceremonial sites. I would in response point out that Enbridge has a Heritage Resources Discovery Contingency Plan, which sets out specific procedures for the discovery and protection of archaeological, palaeontological, and historical sites
Transcript Hearing Order OH-002-2015 Final argument Mr. Davies during construction. [Exhibit B5-09, p. 6-218]
3782. That’s a big word like marmalade, Mr. Chairman.
3783. Mr. Chairman and Members, when you consider the oral traditional testimony that you have heard, combined with the written evidence that you have received, you should, in my submission, arrive at two conclusions with regard to the potential adverse impacts of the Line 3 Replacement Program on current Aboriginal traditional use.
3784. The first conclusion is that, while there were suggestions of current traditional use over the proposed route, no specific evidence was provided, which is not at all surprising. Ninety-nine point five (99.5) percent of the land required for the project is either privately owned or is occupied Crown land, and 94 percent of the length of the replacement pipeline will be adjacent to existing linear disturbances; most notably, other Enbridge pipelines. The reality is that there is virtually no opportunity in the project area for hunting, fishing, and gathering by Aboriginal groups.
3785. The second conclusion is that no significant adverse impacts on current traditional use have, in any event, been demonstrated, which is also not surprising. The large majority of the new facilities will be buried and completed within a short construction window. Mitigation measures will ensure that any impacts on hunting, fishing, and gathering would be short term and would be minimal.
3786. Now with that, I want to conclude with some submissions in response to the written arguments that were filed last Friday.
3787. Much of the argument submitted by the First Nations and Métis intervenors, notably the Peguis First Nation and the Manitoba Métis Federation, provide information about their rights to carry out traditional activities in their traditional territories. Enbridge does not dispute that these rights exist. The question, though, is whether these rights are being exercised in the Line 3 project area and, if they are, whether the project would have a significant impact on the exercise of those rights.
3788. On this question, what appears in the arguments are assertions for which there is no supporting evidence. The Peguis First Nation asserts that its rights to hunt, fish and gather may be adversely affected by the Line 3 project, but
Transcript Hearing Order OH-002-2015 Final argument Mr. Davies the testimony to which it refers only describes the traditional activities in general terms and expresses concerns about how those activities might be affected by contamination. There is no specific evidence to tie the traditional activities to the project area, or to demonstrate that the project is likely to cause any significant adverse effects to those activities.
3789. And again, please keep in mind that the purpose of the Line 3 project is to enhance the safety and reliability of the pipeline, to the benefit of the environment.
3790. On this issue of traditional land use, the MMF asserts that its traditional knowledge and land use study establishes the extensive use of the lands in the project area by Métis people. Well, no, it doesn't.
3791. The study identifies four Métis people that had hunted within one kilometre of the pipeline in the past 10 years, zero Métis people that had fished or trapped within one kilometre of the pipeline in the past 10 years, and one Métis person that had harvested plants within one kilometre of the pipeline in the past 10 years. [Exhibit C43-11-02, pp. 152, 156, 159, 163]
3792. With respect, this is hardly extensive use. Nor is there any evidence about any lack of efficacy of Enbridge’s mitigation measures.
3793. Mr. Chairman, Members, the arguments made by the Peguis First Nation and by the MMF are, frankly, difficult for Enbridge to accept. Enbridge has engaged with both of these groups and has made agreements with them. Both groups have advised Enbridge that, subject to satisfactory outcomes of the ongoing engagement process, they support the Line 3 project and they have no concerns about the project at this time. Their arguments now would seem to belie this advice.
3794. The argument has also been made by some of the Aboriginal intervenors that the Board needs to decide whether the Crown's duty to consult has been discharged before deciding on the Enbridge applications. This argument has no basis in law and it should be rejected.
3795. The decisions of the Federal Court of Appeal in the Standing Buffalo case and in the Chippewas case are determinative. They hold that this Board is not required to make a Haida determination before deciding upon a Section 52 or a Section 58 application made by a private-sector corporation like Enbridge.
Transcript Hearing Order OH-002-2015 Final argument Mr. Davies
3796. While National Resources Canada and Fisheries and Oceans Canada are intervenors in the current proceeding, this is much different than the Carrier Sekani situation, where the Crown itself was the Applicant and the Haida duty was squarely before the regulator.
3797. In the current proceeding, the Board has no evidentiary record from the Crown to make the factual findings required by the Haida determinations. The Board must therefore proceed to make a decision on the Enbridge applications. It cannot simply hold the applications in abeyance.
3798. I think I said National Resources Canada -- it should be Natural Resources Canada.
3799. Finally, Mr. Chairman, Members, with regard to the written arguments, I would observe that a number of conditions have been put forward for the Board's consideration. Let me just quickly run through those.
3800. The MMF wants the Board to recommend that the Minister refrain from making a Haida determination and from granting Enbridge's Section 52 application until the engagement process between Enbridge and the MMF has been completed and the Minister has received a report on the result of that engagement. This is clearly an inappropriate request.
3801. It is not for the Board to tell the Crown what information it needs in order to discharge its duty to consult. And moreover, as I mentioned earlier, Enbridge's engagement process will be ongoing throughout the entire lifecycle of the Line 3 project. The engagement will not be completed prior to construction.
3802. The MMF also requests that a condition be attached to the certificate and orders requiring Enbridge to file for Board approval, at least 90 days prior to commencing construction, a report on the results of its engagement process with the MMF, following which it would be open to the MMF to withdraw its letter of support for the project.
3803. This is a very peculiar request. Enbridge will be filing with the Board updates on its consultations with potentially affected Aboriginal groups, including the MMF. But there is no reason for the Board to be approving consultation reports and the MMF doesn’t need a condition to be able to withdraw its letter of support for the project.
Transcript Hearing Order OH-002-2015 Final argument Mr. Davies
3804. The Peguis First Nation requests a condition requiring that prior to the construction of the project, the Crown file for Board approval a report summarizing its consultation with the Peguis First Nation. This is an inappropriate request.
3805. As I said earlier, the Board can and must make its decisions in this case independent of a determination whether the Crown has discharged its duty to consult. There is no basis for the Board to be approving Crown consultation reports.
3806. The Peguis First Nation also requests that prior to commencing construction, Enbridge file with the Board for approval a report relating to the Land Use and Occupancy Study that will be conducted by the Peguis First Nation.
3807. This seems to be a Peguis-specific version of the Board’s draft condition respecting outstanding traditional land use investigations. We see no need for a separate condition for each Aboriginal group.
3808. The Stoney Tribal Administration requests that, as a condition of approval of the project, the Board order Enbridge to enter into an impact benefits agreement with the Council. This is an inappropriate request.
3809. Such a condition would effectively give the Council a veto over whether the project proceeds. The Board cannot, in any event, direct that Enbridge make a payment to an Aboriginal group.
3810. The Samson Cree Nation requests a number of conditions relating to, among other things, consultation and funding and employment.
3811. I would just observe that conditions to Board decisions are not intended to be a substitute for engagement. Enbridge will continue to engage with Samson on matters that are of concern to it.
3812. The Mosquito - Grizzly Bear’s Head - Lean Man Assiniboine Nation request a condition that Enbridge conduct a Traditional Use Study for it. Again, this is a matter that should be left to engagement.
3813. Finally, with respect to the argument of the Manitoba government, Enbridge confirms that it will adhere to the commitments that it has made in its
Transcript Hearing Order OH-002-2015 Final argument Mr. Davies application and subsequent filings. The Board’s standard Condition No. 2, will ensure such adherence.
3814. So Mr. Chairman and Members, that completes my response to the filed written arguments. It also brings me to the end of my argument in-chief.
3815. I’ve spent a lot of time talking about the impacts or non-impacts of the Line 3 Replacement Program on Aboriginal groups because that has been the focus of the hearing.
3816. I think that if one were to objectively weigh the evidence respecting the benefits and burdens of the project, one would conclude that, on balance, the project will have a positive impact on Aboriginal people. Some Aboriginal groups have arrived at that conclusion. It is a result that Enbridge is committed to achieving.
3817. But while Aboriginal interests are important, we need to be reminded that the Canadian public interest is inclusive of all Canadians, including construction workers, service suppliers, governments, municipalities, oil producers, and even pipeline companies and those employed by them.
3818. The evidence in this proceeding without doubt demonstrates that the Line 3 Replacement Program, which is aimed at enhancing pipeline safety, reliability, and capability is in the Canadian public interest.
3819. We would therefore respectfully request that the Board grant the relief that Enbridge has set out in its application, because such relief is in the Canadian public interest.
3820. So Mr. Chairman and Members, thank you very much for listening to me. I would be happy to respond to any questions that the Board may have.
3821. THE CHAIRMAN: Thank you, Mr. Davies.
3822. The Board is going to take some time before we proceed with questions. We will have some, but we’re going to take a break at this time and I’m not going to put a time on when we’ll be back. We’ll be back as quickly as we can.
--- Upon recessing at 9:36 a.m./L’audience est suspendue à 9h36
Transcript Hearing Order OH-002-2015 Final argument Mr. Davies --- Upon resuming at 10:15 a.m./L’audience est reprise à 10h15
3823. THE CHAIRMAN: I apologize, Mr. Davies and everyone else, for taking as much time as we did. That’s why I didn’t put a time limit on when we’re going.
3824. We do have some questions, and Mr. Watson will start.
3825. MEMBER WATSON: Thank you, Mr. Chair.
3826. MEMBER WATSON: Mr. Davies, we’ve heard that many TLU investigations may not be complete prior to construction. And just wondering if you can remind me or point me to where in your evidence you’ve indicated how you will take the TLU information into account as it comes forward?
3827. MR. DAVIES: Mr. Chairman, can I take a few minutes to do that? And maybe the easiest is when I get back up for reply, I’ll just direct you to where that evidence is on the record; if that would be satisfactory?
3828. THE CHAIRMAN: That’s fine, thank you.
3829. MEMBER WATSON: I have a few more questions.
3830. In referring, on page 3 of 35 in your written argument, you indicated -- you suggested the filing date for the plan to address outstanding TLU investigations should be reduced to 30 days prior to construction. And in the rationale that you provided, you didn’t address how the shorter timeframe would impact the ability of participating Aboriginal groups to review the plan as filed with the Board.
3831. So I’m just wondering if you could comment on that.
3832. MR. DAVIES: Just give me a minute, Mr. Chairman, please.
--- (A short pause/Courte pause)
3833. MR. DAVIES: Thank you.
3834. The condition to which you refer, Mr. Watson, Condition No. 9 relates to the section 58 facilities. And those section 58 facilities will all be on privately-
Transcript Hearing Order OH-002-2015 Final argument Mr. Davies owned Enbridge land.
3835. So we’re talking, for example, about pump stations behind what I’m told will be, or are, fences, and so we certainly don’t expect that there would be any traditional use activities being carried out on those specific lands.
3836. When I was referring to traditional use in my argument, I had in mind more of the replacement pipeline, which, of course, is a Section 52 Application.
3837. MEMBER WATSON: Thank you.
3838. My next question relates to page 8 of 35 in your written argument and I think it’s in reference to air quality monitoring at Hardisty. And in your argument, you suggest a change in the draft condition.
3839. And what I’m not clear about is, how will Enbridge identify whether there are any significant changes occurring in air quality if there isn’t a planning or assessment trigger identified in its plans prior to the ambient standards being exceeded? So I’m just wondering if you can clarify your rationale for that change in the condition the Board proposed?
3840. MR. DAVIES: That’s another one, Mr. Chairman, that I’ll have to take some instruction on. So if I could get back to you on that reply as well, please.
3841. MEMBER WATSON: Okay. I have just two more questions and they both relate to Aboriginal monitoring.
3842. And I’ll point you to page 23 and 24 in your written argument, and you’ve indicated that a revised approach to monitoring, from what the Board proposed in its draft conditions, addresses the express interests of aboriginal groups regarding monitoring.
3843. And I’m just wondering if you can point me to where in the evidentiary record there’s evidence that supports that conclusion?
3844. MR. DAVIES: Sorry, Mr. Chairman; the conclusion being which?
3845. MEMBER WATSON: At the revised approach to Aboriginal monitoring addresses the express interests of Aboriginal groups regarding
Transcript Hearing Order OH-002-2015 Final argument Mr. Davies monitoring. If I’m clear, I think that’s what you were indicating.
3846. MR. DAVIES: That’s another one I’ll get back to you, if I could.
3847. MEMBER WATSON: And related to that, again for clarity, I’m wondering if you can help me understand the rational that supports the change in intent proposed in the condition or in the program from the active involvement of Aboriginal groups to what appears to be a more passive involvement of Aboriginal groups. So again, I’m just looking for some clarity around that change.
3848. MR. DAVIES: Thank you, and I will get back to you on that as well.
3849. MEMBER WATSON: Thanks. Those are all my questions.
3850. THE CHAIRMAN: Mr. Richmond?
3851. MEMBER RICHMOND: Thank you.
3852. Mr. Davies, in your remarks this morning you made reference to assessments being done in a range between, I think you said 15 metres and one kilometre of the pipeline. I may have got that first number wrong but the one kilometre I definitely heard clearly.
3853. And I’m wondering if you could just clarify for me what that applied to? Is that all assessments of every kind were limited to a one kilometre maximum range on the pipeline, or were there other assessments done beyond one kilometre?
3854. MR. DAVIES: Yes, there were various study areas, Mr. Chairman, depending -- or Mr. Richmond, depending upon the effect that’s being examined. What I was referring to was the area that was thought to be reasonable in terms of assessing the impact of the project on traditional activities like hunting and fishing and plant gathering. But certainly -- and perhaps air quality, for example, is another example. There are study areas that certainly exceed beyond the one kilometre.
3855. MEMBER RICHMOND: So it was just related to traditional land use, then?
Transcript Hearing Order OH-002-2015 Final argument Mr. Davies 3856. MR. DAVIES: Yes, sir.
3857. MEMBER RICHMOND: So is the suggestion then that impacts beyond one kilometre on air, as you -- or to use your example, or other environmental factors wouldn’t affect, or we shouldn’t look at whether they would affect traditional land use beyond the one kilometre range?
3858. MR. DAVIES: Well, as I say, in terms of traditional activities, we were talking about things like hunting and fishing and plant gathering, and I’m not sure how -- I mean, certainly an assessment was done of things like air quality. But that sort of affects assessment applies to everybody, not just to Aboriginal people.
3859. So the conclusion in the ESA was that, for example, this project would not have a significant impact on air quality. But beyond that, of course, we look specifically at impacts on traditional activities by Aboriginal groups. And so we didn’t specifically relate air quality to traditional activities but there is an assessment of air quality and there also is an assessment of traditional activities.
3860. MEMBER RICHMOND: Thanks.
3861. In your remarks this morning, you went through and commented or replied to some of the recommended conditions that other intervenors had raised or had provided. There were a couple recommended conditions that you didn’t touch on from other intervenors I -- and that I’d be interested in getting your comments on specifically, if I can take you through those? There’s just three or four of them.
3862. MR. DAVIES: Yes. That would be good. I frankly thought I had caught them all, but if I missed some, by all means.
3863. MEMBER RICHMOND: So the Samson Cree had a suggestion that -- in paragraph 22 (i) of their submission, and if I can paraphrase what it was, it was essentially for I believe a rolling 14-day construction schedule to be disclosed. So I’ll read it to you. I’ll make it easier for you. The ---
3864. MR. DAVIES: Yes, I have it.
3865. MEMBER RICHMOND: It was at page 8, the very top line of page 8.
Transcript Hearing Order OH-002-2015 Final argument Mr. Davies
3866. MR. DAVIES: I have it.
3867. MEMBER RICHMOND: I just want to get your thoughts.
3868. MR. DAVIES: Yeah, I’m not 100 percent sure, Mr. Richmond. I can check on this as well, in terms of advising Aboriginal groups, for example, about the construction schedule. The evidence is what it is, but certainly this isn’t the sort of matter that you would normally see being addressed by the Board as a condition to an approval.
3869. But having said that, let me take that under advisement as well, because there may well be some evidence on that.
3870. I do know that in terms of the mitigation for traditional activities, there were commitments as part of that mitigation about notifying Aboriginal groups prior to the commencement of construction. So that, for example, if they were carrying on any activities in the area, they would know that construction was about to commence.
3871. But I -- whether it’s 14 days or not, I can’t recall of the top of my head, but I will check on that.
3872. MEMBER RICHMOND: Thank you.
3873. The next one, some of the conditions I wanted to go at was the Government of Manitoba’s submissions. You got those? You’re well prepared. Good.
3874. There are two in here that are of interest that I’d like to get your comments on. The first one was number 4, which is on page 2. And it relates sort of a two-parter or at least the dealing with emergency responses and also effects on notifications leading to groundwater wells.
3875. MR. DAVIES: I’ll have to consult with my client. I’ll get back to you on that, Mr. Richmond. But I take it your question is whether Enbridge is prepared to make these commitments.
3876. MEMBER RICHMOND: That would be a fair -- that would be a fair summary of the question or ---
Transcript Hearing Order OH-002-2015 Final argument Mr. Davies
3877. MR. DAVIES: Okay. I think ---
3878. MEMBER RICHMOND: --- or whether there are concerns with the reason that these are inappropriate.
3879. MR. DAVIES: Yeah, okay. Again, the reason I ask the question is because when you, of course, read through the application, there are lots of commitments.
3880. And normally, those are covered off by the Board -- well, first of all, I mean, the Applicant obviously intends to live up to the commitments. That’s why it’s made them. The Board also has a standard condition that says, “Applicant, you shall live up to your commitments”.
3881. So we certainly wouldn’t see these sort of details going into a condition to an approval. But your question is a fair one, are these commitments that Enbridge is prepared to make. I will find that out.
3882. My understanding is yes, but if that’s wrong, I’ll get back to you.
3883. MEMBER RICHMOND: And to be fair, if these are covered by commitments that are already made on the record, you can just point us to that, and that will answer the question.
3884. MR. DAVIES: Yes, thanks.
3885. MEMBER RICHMOND: The next one on the same document is 6b. And this relates to valve placements at water crossings.
3886. And I would -- wouldn’t ask you to comment on the specific water crossings, but this is one where you may be able to point to -- point me, just for my own edification, to something on the record already specifically, and that would be fine as well, if you are able to do that now or later.
3887. MR. DAVIES: I’ve got most of the IR responses memorized, Mr. Richmond, but this isn’t one of them. So I will get back to you.
3888. MEMBER RICHMOND: Okay. And the last -- excuse me. The last one was the Assembly of Manitoba Chiefs.
Transcript Hearing Order OH-002-2015 Final argument Mr. Davies
3889. On the very last page of their submissions, under paragraph 6, the third bullet discusses inclusion of First Nations in your emergency response training and exercises. Again, if that may already be covered in the evidence, you can just point us to that, or if not, if you could comment on it.
3890. MR. DAVIES: I’m sure that is covered in the evidence, and I will point you to that.
3891. MEMBER RICHMOND: I’m sorry. My colleague was surprised that I’ve got more.
3892. I want to turn now to your comments on our draft conditions.
3893. Under the conditions for section 58, at Condition 7a, which is on the second page of your written submissions, the first comment you make in your rationale is that inclusion of the word “site specific” is ambiguous.
3894. And I just wanted to ask you how it’s ambiguous or what we could do if, in fact, we wanted to keep that concept, how we could change that to make it clearer so it was no longer ambiguous?
3895. MR. DAVIES: Let me get back to you on that, Mr. Richmond, please.
3896. MEMBER RICHMOND: A point of clarification. In Condition -- under Section 52 Conditions, Condition No. 37 starts at page 22 of 35. So in the rationale -- in fact, sorry, on page 24 because it goes on for three pages.
3897. In the middle of page 24 in your rationale, you state that your preference is, in lieu of what we’ve proposed, to continue to engage on the concept of the potential role for an Elders Advisory Committee. You see that?
3898. And then later, two pages down, in response to Draft Condition No. 38, Enbridge states that -- essentially asserts that there shouldn’t be advisory committees.
3899. I’m just wondering if you could rationalize those what appears to be two competing concepts.
Transcript Hearing Order OH-002-2015 Final argument Mr. Davies 3900. MR. DAVIES: Sorry. Can you just give me the reference for the second one?
3901. MEMBER RICHMOND: Sorry. It’s Condition 38, which is on page 26 of 35.
3902. MR. DAVIES: Thank you.
3903. MEMBER RICHMOND: Thirty-eight (38) c where you’ve basically deleted -- asked us to delete the reference to advisory committees.
3904. MR. DAVIES: Again, Mr. Richmond, I’m going to take a minute to think about that. So if I can get back to you in reply.
3905. MEMBER RICHMOND: I think I’m down to two more.
3906. In the Draft Conditions, you’d asked us to remove the requirement for Aboriginal advisory committees and then, later on, you also made the same -- requested the same change with respect to landowner advisory committees. And the rationale was fairly brief, but was identical for the two. It just referred us to IR-6 -- your responses to IR-6.
3907. I just wanted to ask and give you an opportunity to tell us, are there any different rationales between your position that there shouldn’t be Aboriginal advisory committees and your position that there shouldn’t be landowner advisory committees, or is the rationale identical for the two of them?
3908. MR. DAVIES: Let me get back to you on that as well. But could you give me the reference, please, for the private landowners’ advisory committee?
3909. MEMBER RICHMOND: It’s on the very last page of -- page 35 of 35, the very -- in fact, the very last item where you’ve asked us to delete, under Condition 20, the reference to including a discussion with respect to advisory committees -- external advisory committees. And this is under a landowner engagement plan.
3910. MR. DAVIES: Thank you.
3911. MEMBER RICHMOND: My final question -- I think it’s my final question -- relates to your -- the reply evidence. No, not the conditions anymore.
Transcript Hearing Order OH-002-2015 Final argument Mr. Davies
3912. Page 57 -- I’m just going to find it myself -- H2. You mention that you’ve tabled a proposal to establish a roundtable with the Qu’Appelle Valley First Nations.
3913. I just wanted to ask you to -- if you can clarify the use of the phrase “tabled a proposal”? As you mentioned just a moment ago, we have our Draft Condition No. 2 which would -- sort of a global condition which would hold Enbridge to all of its commitments.
3914. When you use the phrase “tabled a proposal”, is this a commitment on Enbridge’s part that would fall under Draft Condition No. 2, or not?
3915. MR. DAVIES: I may be able to give you more information in reply, Mr. Richmond, but just let me say at this stage that my understanding is that these discussions that are going on with the Pasqua and other First Nations about the Qu’Appelle Valley watershed don’t specifically relate to the Line 3 Replacement Program. They are discussions that Enbridge is having as part of its environmental -- general environmental stewardship with these First Nations.
3916. And the Pasqua actually talked about the fact that, I think, the day after, two days after his appearance, they were meeting with Enbridge.
3917. So we wouldn't -- certainly wouldn't see, for example, the finalization of a plan with regard to the Qu'Appelle Valley watershed as being a condition for the Line 3 project, but if you're specifically asking me what's the status of those discussions or for further information about what this roundtable is, I can get back to you that -- on that.
3918. MEMBER RICHMOND: Thank you.
3919. Over to you.
3920. THE CHAIRMAN: I just have a couple of questions as well.
3921. This morning in your comments, you referenced the agreement with CAEPLA and others, and one of the comments that you made about -- on the decommissioning side was the fact that committed to depth of cover monitoring.
3922. And I'd like to refer you to page 27 of 35 in your written final
Transcript Hearing Order OH-002-2015 Final argument Mr. Davies argument, and I'm not clear on the terminology. In your rationale, in the last sentence:
"Enbridge has and will continue to maintain the depth of cover over the existing Line 3 through to Decommissioning pursuant to [your] OMM requirements."
3923. There's a difference between maintaining and monitoring. Is it your understanding that the depth of cover will be maintained throughout the lifetime of the pipe that's decommissioned?
--- (A short pause/Courte pause)
3924. MR. DAVIES: I was just looking in my notes, Mr. Chairman, for exactly what I said with respect to the agreements with the landowner associations because whatever I said was essentially my paraphrase based on -- it may have been based on a heading in the agreement or a review of the agreement.
3925. But if what you're looking for is some indication as to how what we've agreed with with the landowner associations relates to the draft condition and exactly what Enbridge is going to do on that, let me take that under advisement and I will get back to you.
3926. THE CHAIRMAN: Okay.
3927. MR. DAVIES: I wonder just before I can, though -- sorry. If you could just give me the reference for the draft condition?
3928. THE CHAIRMAN: It's on page 27 of 35, and it's the very top, Section 45.1, "Prior to and During Construction". And our definition of decommissioning activities, the proposed revision, and then your rationale is where -- the wording I'm looking for clarity.
3929. MR. DAVIES: Thank you very much.
3930. THE CHAIRMAN: The second question is on page 32 of 35, and again, this is clarity.
3931. In the rationale section, the very last paragraph:
Transcript Hearing Order OH-002-2015 Final argument Mr. Davies "Line 3 shares a right-of-way easement with up to 3 other active pipelines. Activities related to those other pipelines within that right-of-way should not be subject to this requirement."
3932. It was my understanding throughout the evidence and the application that there are more than three pipelines. And maybe I'm missing a definition or a terminology, but we always heard the number six, up to six pipelines in that right- of-way, but now you're suggesting that there's three active pipelines.
3933. MR. DAVIES: Let me check on that, Mr. Chairman. I expect the answer is that there may be different easement agreements for more than just the -- there may be different easement agreements for the six pipelines. In other words, they may not all be covered under one easement agreement, but let me check on that.
3934. THE CHAIRMAN: Okay. And my last question, which I'm pretty confident you're going to want to check as well.
3935. What evidence are you relying on to substantiate your position that the benefits of leaving all of the pipe in the ground for decommissioning outweigh the risks?
3936. MR. DAVIES: I know there is evidence on the record about that, and I will certainly give you the references.
3937. THE CHAIRMAN: And I just want to -- all of the pipes. All of the pipe. I want to emphasize that, as opposed to taking out all the pipe, what's the rationale for leaving all of the pipe in the ground as opposed to some out, some in.
3938. MR. DAVIES: With respect to simply the decommissioned pipeline, you're talking about.
3939. THE CHAIRMAN: Yeah. Yes.
3940. MR. DAVIES: Okay.
3941. THE CHAIRMAN: That's all the questions I have. I did have a question I was going to ask you later, will you be providing reply evidence, but I think I've got the answer to that question.
Transcript Hearing Order OH-002-2015 Final argument Ms. Pastora Sala
3942. So we have no more questions for you at this time, Mr. Davies, and thank you for your presentation.
3943. MR. DAVIES: Thank you very much, Mr. Chairman, and I will be back to you.
3944. THE CHAIRMAN: Okay. We are going to go right into our next -- the next presenter, which is the Assembly of Manitoba Chiefs. And rather than us leave, we'll just wait until you're ready and...
--- (A short pause/Courte pause)
3945. THE CHAIRMAN: Ms. -- before you start, don't feel rushed. Like make sure -- take your time.
3946. MS. FENSKE: We're ready. Thank you.
3947. THE CHAIRMAN: Okay.
--- FINAL ARGUMENT BY/ARGUMENTATION FINALE PAR MS. PASTORA SALA:
3948. MS. FENSKE: Good morning. My name is Allison Fenske, and I'm here with my colleague, Joelle Pastora Sala. We are appearing today, as you mentioned, on behalf of the Assembly of Manitoba Chiefs.
3949. We would like to first acknowledge that the land on which we're gathered is Treaty 7 territory and a traditional meeting ground for many indigenous peoples.
3950. AMC has filed their written argument in advance of today's hearing which contains the necessary references to the evidentiary record.
3951. Our intentions for this morning are that Ms. Pastora Sala will be leading the Board through Part 1 of our written argument relating to The Great Binding Law. I will then be taking the Board through Part 2 of our written argument and a discussion of the rationale behind AMC's recommendations in this process.
Transcript Hearing Order OH-002-2015 Final argument Ms. Pastora Sala 3952. And so with that, I'd like to turn things first to my colleague, Ms. Pastora Sala.
3953. MS. PASTORA SALA: Good morning Members of the Panel. As indicated by my colleague, Ms. Fenske, we are here today on behalf of the Assembly of Manitoba Chiefs.
3954. By way of background, the Assembly of Manitoba Chiefs represents 60 First Nation communities in Manitoba. The Chiefs who are part of the AMC represent in excess of 100,000 people, who include members of the Dakota, Cree, Anishinaabe, Oji-Cree, and Dene Nations. These nations have existed in Manitoba for thousands of years prior to the enactment of the Indian Act.
3955. The AMC begins by acknowledging the Dakota, Cree Anishinaabe and Oji-Cree and Dene Nations of Manitoba because it recognizes that when regulators, governments and proponents think of First Nations in Canada, they likely think in terms of the definitions within the Indian Act as well as Section 35 of the Constitution.
3956. In fact, while it is increasingly accepted that, prior to the arrival of settlers, First Nation peoples had their own laws and systems of governments -- governance, it is still a commonly held understanding that First Nations peoples and laws should fit within the Canadian legal system. We would ask you to put this understanding in abeyance for a moment, as this is not a commonly-shared understanding by all.
3957. In its recent Calls to Action, the Truth and Reconciliation Commission stated that First Nations laws and Canadian laws must be considered to be of equal value. However, for First Nation laws and Canadian laws to be considered of equal value, we must move away from thinking about First Nation laws fitting within the Canadian legal system. Rather, we ask that we think of how these systems of law can relate to one another while each of them remaining whole.
3958. This was the framework that was agreed upon in the time of treaty- making and treaty negotiation, that each of the canoes or systems of law would travel down the river of life together, parallel, but never touching. Acknowledging both of these systems of law as being equal requires an understanding of both.
3959. Now, before I move into discussing Part 1 of the AMC written closing
Transcript Hearing Order OH-002-2015 Final argument Ms. Pastora Sala arguments, I’d like to answer a question that perhaps many or most of you in the room are thinking, and that is, why should I care.
3960. So how is the discussion of First Nation laws relevant to the list of issues set out by the National Energy Board?
3961. To answer this question, we must think back to the time of treaty negotiation and treaty-making when First Nation and settler governments set out the terms of their relationships.
3962. At that time, First Nation and settler governments recognized that they would be linked together as they would be living side by side. For this reason, understandings had to be reached relating to access to land in order for settler governments to begin settlement, including the use of lands for agriculture purposes and building of railways for transportation.
3963. When the AMC looks at the list of issues relating to Enbridge Line 3, it observes that First Nation governments -- that the First Nation governments it represents are being asked once again to discuss questions relating to access to land. The AMC believes that the list of issues relating to the need for the project, the economic feasibility, the potential impacts of the project on Aboriginal interest and the list goes on, cannot be examined until the terms of the relationship are discussed once again.
3964. As many of you will already know, the new federal government has said it will work with indigenous people on a nation-to-nation basis in the spirit of reconciliation. As AMC reflects on how this work -- this may work in practice, it sees that relationships are badly out of balance, relationships between First Nations, governments, regulators, proponents and the general public.
3965. The legacy of cultural genocide of First Nations peoples in Canada have negatively impacted the relationships and left many questions and uncertainties. The AMC sees this hearing as an opportunity to examine some of these outstanding questions and to speak openly about these uncertainties.
3966. Recognizing that this is a challenging task, the AMC sought guidance from the true leaders in their communities. The AMC engaged with a group of eight highly-respected Anishinaabe, Cree and Dakota Elders.
3967. While AMC regularly seeks guidance from the Elders, this hearing
Transcript Hearing Order OH-002-2015 Final argument Ms. Pastora Sala represented the first time it worked so closely with the Elders from the beginning of its involvement in the hearing process.
3968. AMC staff and lawyers met with the Elders on multiple occasions at Turtle Lodge in Saugeen First Nation in Manitoba. Proper protocols were followed during each of the gatherings and work was done in ceremony.
3969. As true leaders, the Anishinaabe, Cree and Dakota Elders engage in teaching exercises for the AMC staff, lawyers in order to help us better understand First Nation laws.
3970. It is important to note that AMC does not speak for the Elders. AMC’s final position on this project was a political decision.
3971. From the beginning, the Elders were clear that they spoke from a strong, uncompromised position and that their role would be one of guidance rather than politics. The Elders drafted a statement, The Great Binding Law. The statement demonstrates that First Nation laws are not some relic of the past; rather, they continue to be very relevant today.
3972. The Elders told us that discussing First Nation laws requires time and should be done delicately which means it must be done in a balanced, inclusive and respectful manner. Given the rushed nature of the NEB hearing process, the NEB continues to have questions about how to best bring the spirit of First Nation laws into secular spaces such as this one.
3973. That said, the AMC’s humbled by the opportunity given by the Elders to present to you an introduction to some of the First Nation laws. As you would have read in our written argument, First Nation laws are all about relationships.
3974. Relationships are between all living beings, including humans, waters, plants, animals, birds, fish and rocks. But also, relationships are between governments, regulators, proponents and First Nations. First Nation laws are, therefore, representative of frameworks for how we all relate to one another.
3975. If we think of our own personal relationships for a moment, we know instinctively that relationships can be complicated. They are not always easy, and they require ongoing work.
3976. We also know that the best relationships are based in truthfulness,
Transcript Hearing Order OH-002-2015 Final argument Ms. Pastora Sala honesty and mutual respect. Relationships are uncertain and change over time. They cannot be one-way and they cannot be assumed.
3977. Relationships also involve a consideration of the others’ needs and individual gifts. It is only when the needs of all parties are met and each others’ gifts are acknowledged that relationships can be healthy.
3978. As relationships are uncertain, they must be renewed periodically. Just as silver must be polished before it becomes tarnished, relationships should be renewed before they become irreparable.
3979. Healthy relationships involve two-way communication or conversations. This encourages understanding because the more we know about one another, the less scary things become. Two-way dialogue must be done on an equal basis. When one party imposes itself on the other, relationships can become damaged.
3980. Understanding that First Nation laws are all about relationships can lead to many important lessons which are directly applicable to environmental decision-making and directly applicable to the National Energy Board.
3981. In keeping with this world view, renewing unbalanced relationships involves considering the needs and gifts of all living beings, including Mother Earth, in environmental decision-making.
3982. The Great Binding Law prepared by the Elders are fully -- is fully endorsed by the AMC. The Great Binding Law helps us further explain this world view and the AMC also hopes that it will assist governments and regulators in their deliberations.
3983. The Great Binding Law calls on everyone to stand in good relationships with all living beings. Now, for the purposes of explaining the Great Binding Law, we’ve divided it into four main movements. We’ve decided to call them movements to show that they’re all interconnected, rather than calling them separate sections.
3984. Now, the first movement, original instructions. The second is true leaders of our ancestral lands. Third, we are all connected. And fourth, living in balance and harmony.
Transcript Hearing Order OH-002-2015 Final argument Ms. Pastora Sala 3985. Original instructions. In the first movement, the Elders tell us that the Creator gave the original peoples the Great Binding Law through their songs, their languages, ceremonies, ways of life, teachings and stories.
3986. First Nations people were given their original instructions to be keepers of Mother Earth. As keepers of Mother Earth, First Nations speak for all living beings who may not be able to speak for themselves like the waters, birds, animals and fish.
3987. The original instructions also teach us that Mother Earth is alive and it gives us everything we need to survive. The Great Binding Law says that we do -- what we do to Mother Earth, we do to ourselves. These teachings are reflected in natural laws, which are learned by observing Mother Earth, including the ways the animals, the birds and the fish relate to one another.
3988. We are connected and we are all relatives. This is the second movement of the Great Binding Law. In this movement, the Elders remind us that we are all connected and related to one another, which includes all living beings.
3989. From this perspective, we cannot think of one living being without considering the impacts of the environment as a whole. If you look to the Great Binding Law, this is found in -- on the first -- on the left side of the Great Binding Law, sort of in the middle of the page where the Elders say, and I quote:
“In Nehetho, the word Waskaawe siweno...means “Everything around you” and describes how we are all connected.
In Dakota, Mitakuye Owasana means “All my relations – we are [all] related.” We are [all] related to the stars in the sky, the birds, the fish, the animals and the plant life.
In Anishinaabe, Nikanisitook acknowledges, “All my relatives...” [The Great Binding Law, supra note 12]
3990. Living in balance and harmony. In this third movement, the Elders point out that with the exception of human beings, all other beings have continued to follow their original instructions to live in balance and harmony with natural laws.
Transcript Hearing Order OH-002-2015 Final argument Ms. Fenske 3991. Taking more than what we need from Mother Earth for resource development purposes is one way humans have imbalanced natural laws. The Great Binding Law reminds us that our actions have consequences and Mother Earth is giving us signs that she is out of balance. These signs include climate change; it also includes the warming weather.
3992. True leaders of our ancestral lands. In the fourth movement, the Elders emphasize that the Original Peoples have lived on this land since the Creator placed them here. First Nations continue to live on their ancestral lands and the languages, songs, ceremonies, teachings, and ways of life that they were given first -- still exist today.
3993. Those who attended the Turtle Lodge in Saugeen First Nation Manitoba would have witnessed some of these ceremonies, songs, and teachings. You would also have felt some of the love and deep connection of First Nations’ people to Mother Earth. You would have witnessed the leadership role of Elders in bringing us all to a place of balance and harmony.
3994. Just as the Elders extended an invitation for the National Energy Board, Enbridge, and the general public to attend the Turtle Lodge, in the fourth movement, the Elders extend their invitation to all to join them in their teaching lodges and ceremonies to learn about the importance of good relationships with Mother Earth.
3995. Not only is this important for the survival of future generations, but it is also necessary for reconciliation between First Nations and non-First Nation governments and people within Canada.
--- FINAL ARGUMENT BY/ARGUMENTATION FINALE PAR MS. FENSKE:
3996. MS. FENSKE: We started our submissions here today looking at The Great Binding Law and relationships. Unless we begin to understand the way that both the Assembly of Manitoba Chiefs and First Nations think about the world in terms of these relationships, and the guidance offered by The Great Binding Law, we will not be able to truly embark on a path towards reconciliation.
3997. The National Energy Board public hearing process in relation to Enbridge’s Line 3 could have been a hallmark of building strong and healthy relationships between First Nations, governments, regulators, and resource developers. Instead, it was marred from the start by a flawed application from
Transcript Hearing Order OH-002-2015 Final argument Ms. Fenske Enbridge and a flawed process from the National Energy Board.
3998. In this way, we cannot separate substance from process; the AMC has serious concerns about each.
3999. The flaws that the AMC has encountered with this application and in this process run contrary to the idea of renewing relationships on a nation-to- nation basis. Enbridge’s Line 3 Expansion Project is the largest project in the company’s history. It should also be the safest and rooted in an enduring, resilient, and reciprocal relationship with First Nations. Instead, we’re left with a flawed application, a flawed process, and we are marching towards a flawed decision.
4000. In terms of the flaws in the application, this can be understood within three themes. First, the application is rooted in a relationship that is badly out of balance; secondly, the application is lacking in necessary details and information; and third, the application in its current form has forced an unlawful reversal of onus on the parties.
4001. In terms of the application being rooted in a relationship that is out of balance, in the initial development and construction of Line 3 in the 1960s, Enbridge and governments had little to no regard for First Nation voices, knowledge, and laws. Not only was there no consultation with First Nations, according to Enbridge’s own evidence, there was no specific assessment of any kind for the original pipeline.
4002. Enbridge continues to assert that this is merely a replacement program. We would suggest that a significant pipeline expansion and a change in the type of oil being transported cannot be construed as a simple replacement, especially so when the plan is to have the current line remain in the ground.
4003. Enbridge also continues to assert that there are no potential impacts on Aboriginal or Treaty rights that have been identified. We know this is not the case. Rights-holding First Nation intervenors have raised concerns about impacts on their Aboriginal and Treaty rights. Those concerns have been placed on the record through written evidence, information requests, oral traditional evidence, and argument. All of this has been done notwithstanding significant limitations on intervenor’s participation in this process.
4004. If Enbridge has not heard concerns about impacts to Aboriginal and
Transcript Hearing Order OH-002-2015 Final argument Ms. Fenske Treaty rights it’s because they are not listening, nor are they acting as though First Nations are equal parties in this relationship. Many of the traditional land use studies undertaken are not complete; this demonstrates Enbridge’s disinterest in hearing this evidence.
4005. Continuing to silence First Nations knowledge and laws sends a strong message to First Nations that their knowledge and expertise is less worthy to regulators and governments.
4006. As you’ve heard from my colleague, healthy relationships require listening to one another as equals. When engagement efforts are not part of an ongoing relationship built on mutual respect, a lack of trust can emerge. Relationships cannot be one way and they cannot be assumed.
4007. Continuing down a path of inequalities and assumptions leads to a lack of confidence that development will unfold in a responsible manner. This lack of trust and confidence is an impediment to building and continuing healthy relationships between First Nations and Proponents.
4008. Contributing to the lack of trust between First Nations and Enbridge, in particular, is Enbridge’s own safety record. In 2010 Enbridge was cited by the U.S. National Transportation Safety Board for pervasive organizational failures in relation to the 2010 Kalamazoo River spill.
4009. This was a spill where 80 percent of the release came as a result of Enbridge directly pumping additional oil into the line despite activated alarms. This line rupture and prolonged release happened because of deficient integrity management procedures, inadequate training of control centre personnel, insufficient public awareness and education, and a failure to identify and ensure the availability of well-trained emergency responders with sufficient response resources 4010. 4011. One would hope that a company would try to learn from its failures. But just this year, Enbridge was being fined on the existing Line 3 regarding its failure to ensure that construction activities did not create a hazard to the public, and its failure to follow through on environmental protection commitments.
4012. These funds levied by this Board amounted to $200,000, which does not include more than $115,000 in fines relating to other developments around failing to ensure their pipelines and storage tanks were dealt with as prescribed by
Transcript Hearing Order OH-002-2015 Final argument Ms. Fenske the NEB.
4013. Enbridge says that by implementing its environmental protection plan there will not be any significant effects as a result of this project. But they’re not currently fulfilling their environmental protection plan and commitments, as evidenced by the penalties that are being levied against them.
4014. Enbridge will say that safety is its number one priority. But why should First Nations trust this company? Just as in our relationships, actions and inactions often speak louder than words.
4015. In terms of the second aspect that the application is lacking necessary details and information, it’s our submission that Enbridge’s initial project application was bereft of necessary details and entirely missing key components.
4016. As described in our written argument, much important work has not been done. When it has been done, it has often been done late in the process and in an overly narrow manner.
4017. For example, the ecological and human health report finally tendered was filed late in the hearing process and was really only a risk assessment related to potential spills or malfunctions. It was not a true ecological and human health assessment over the whole of the line in its lifetime.
4018. Any detailed information about matters like ecological and human health, emergency preparedness and response, and risk management were absent from the initial filing and appear to have been an afterthought. There also appears to have been a willful disregard for the concerns and issues raised by First Nations throughout the process.
4019. This leads us directly to our third point about the flawed nature of the application. The application in its current form has forced an unlawful reversal of onus. A Proponent who is concerned with making good-faith efforts to establish the public necessity of their own project would have filed a complete application at first instance. They would have reached out to First Nation Elders, knowledge keepers and representatives much earlier in the process. This would have shown a commitment to standing in good relationships, a commitment which should extend through the life of the project.
4020. Instead, we were left with an undue burden being placed on both the
Transcript Hearing Order OH-002-2015 Final argument Ms. Fenske Board and intervenors like the AMC, where they essentially had the onus of ensuring that Enbridge completed a -- submitted a completed project application, never mind a defensible one. Enbridge’s lackadaisical approach to completeness of the initial filing demonstrates a lack of caring about renewing relationships.
4021. All of this was compounded by the NEB’s own discretionary decision to deem the application complete on February 4th. With an entirely artificial timeline for a decision governing the process, parties have been significantly limited in their ability to raise issues and concerns related to Line 3. And this brings up to AMC’s concerns about the process that has unfolded.
4022. We can think of the flawed process in terms of four themes, starting first with a deficient regulatory framework. This leads us to an impoverished hearing process; the Crown in absentia; the duty to consult as an afterthought; and finally, a lack of space to deal appropriately with environmental concerns.
4023. First, in terms of the regulatory framework AMC recognizes that issues arising from this Board’s governing legislation is largely out of the Board’s own control. That said, it must be recognized that changes to the legislative landscape have resulted in a narrower regulatory reach for environmental assessments; limits on the factors that are to be considered; shorter timelines; and the reduction in participation. All of these changes unravel opportunities for the environmental process to be a way for affected parties to influence decisions.
4024. First Nations who are directly impacted by the regulators have their needs ignored. This damages relationships between the Board and First Nations in a way that undermines the public trust, legitimacy, and openness of the Federal Environmental Assessment process. But for all that might appear to be out of the hands of this Board, as we have been so frequently reminded in this process, the more -- the Board is a master of its own procedures.
4025. Even with a wide set of discretionary powers around hearing procedures the Board continues to create a public process that is seriously constrained. The NEB’s approach to public hearings is not in keeping with some of the more robust public processes available amongst comparatively sophisticated regulators around the country.
4026. This brings us to our second theme which is the impoverished hearing process.
Transcript Hearing Order OH-002-2015 Final argument Ms. Fenske 4027. It should be no secret that AMC has had significant concerns about the legitimacy of this public hearing process. Time and again AMC has sought to challenge the NEB to create a better process, one which would provide a forum for meaningful participation of First Nations, opportunities to learn about First Nation’s worldviews and laws, and opportunities to renew relationships. Instead, the AMC was rebuffed at nearly every turn.
4028. What we’re left with is a process that has left Enbridge immunized from cross-examination; intervenors unable to respond to the whole of Enbridge’s filings; and unnecessary limits on the oral hearing process on the whole. Without the analytical rigour of cross-examinations there is no incentive for Enbridge to appropriately and fully answer information requests. They do not face further scrutiny.
4029. We saw that on multiple occasions when Enbridge’s responses to were vague, evasive, or inadequate. For example, Enbridge has yet to state the actual probability of a spill. This is despite being asked to do so directly and in quantifiable terms in each of the two information requests rounds available. To the AMC this is unacceptable.
4030. When asked about the use of acoustic inline leak detection technology, Enbridge committed to doing so where appropriate. This reliance on “where appropriate” comes with no discussion of what Enbridge’s views are in terms of what is appropriate, or examples of specific high-consequence areas where this could be deployed. This is evasive and unresponsive. Enbridge has failed to run any consequence modelling associated with portions of the new line that deviate from the existing line.
4031. When asked numerous detailed questions by both the NEB and AMC, on the consequence modelling that was done, Enbridge did little more than provide an unreadable diagram. This kind of vague response does nothing to clarify actual risks or alleviate AMCs concerns about the potential for spills and other significant environmental damages.
4032. Also concerning to the AMC were the limitations placed on the oral hearing. Expert evidence outside of the expertise offered by those giving the Board’s version of Oral Traditional Evidence was not presented orally. This is particularly troubling when you consider that expert written evidence was required to be filed prior to Enbridge’s own filings being complete. Independent experts could not respond to the whole of the record, and the value of their
Transcript Hearing Order OH-002-2015 Final argument Ms. Fenske evidence was unnecessarily limited through a lack of testing of the evidence.
4033. On the portion of the oral hearing that was held, AMC remains concerned about the Board’s articulation of Oral Traditional Evidence. While the AMC appreciated the Board’s agreement that the Elders invited by AMC to participate in the hearing would not be required to agree with the unnecessary limitations placed on their testimony, the AMC is left to wonder; what kind of chilling effect did the initial requirements have? And what justifies the uneven application of the restriction on Oral Traditional Evidence?
4034. Elders have expertise into the holistic worldview of First Nations peoples, including the environment, spiritual, and traditional laws and relationships. Their experience is fundamentally shaped by their languages, spirituality, and value system. And in acknowledgement of the relationship between First Nations and Mother Earth, Elders and traditional land users should be recognized as expert.
4035. Traditional knowledge should be given equal weight, importance, and value as to western science. AMC is faced -- to coming -- faced with coming to the NEB when its underlying relationship with Enbridge, the NEB, and governments is largely out of balance. This places an even greater burden on the NEB in terms of dealing with the public interest. A burden which we say the NEB has not yet lived up to.
4036. In terms of the Crown’s actions and the Crown in absentia; the duty to consult as an afterthought. First Nations concerns must be fully addressed before any decision by the NEB is made in this process. This means that resource developers and regulators alike cannot ignore the reality of the requirement for First Nations free, prior, and informed consent in relation to resource development projects.
4037. But by dictating a rigid and prescriptive process, the NEB has frustrated the ability for concerns of affected AMC member Nations to be heard. This limited public hearing process cannot be used to fully discharge the Crown’s duty to consult and accommodate directly with First Nations as rights holders.
4038. While AMC is not itself a rights-holding nation and has never suggested that it was, it is a political organization that takes serious its mandate to defend Aboriginal and Treaty rights. The NEB cannot approve the project without serious consideration of whether the Crown has discharged its duties of
Transcript Hearing Order OH-002-2015 Final argument Ms. Fenske consultation and accommodation.
4039. Consultation with these First Nations cannot be an afterthought to the general public consultation. If regulators are going to be delegated certain aspects of the Crown’s duty of consultation, at a bare minimum the regulator must conduct its activities in accordance with the honour of the Crown.
4040. Recall that meaningful Section 35 consultations require early and equal discussions with First Nations about the parameters of consultation. First Nations should have the opportunity to inform the Crown how they wish to engage in consultation activities instead of having a process dictated to them. Yet, in this process, the Crown has been entirely absent in this respect. The NEB cannot ignore the fundamental constitutional duties meant to be grounded in the honour of the Crown that have not been discharged in this case.
4041. All of this, the flawed application, an impoverished hearing process and a complete lack of Crown actions on the duty to consult lead to a place of imbalance where First Nations' needs and gifts are not considered.
4042. In this process, there has also been a lack of space made to deal appropriately with First Nations' environmental concerns. This starts with the absence of a holistic consideration of environmental effects. A holistic worldview comes from the natural laws which teach First Nations everything that needs to be known about living a good life. These laws must be understood if legitimate environmental decision-making is to occur.
4043. This holistic worldview also places equal value between western scientific knowledge and traditional knowledge. An undervaluing of traditional ecological knowledge permeates Enbridge's filing with respect to this project.
4044. There also needs to be an appropriate assessment of cumulative and downstream effects. The Great Binding Law speaks to the imbalance the world is in. It speaks to climate change as a symptom of that imbalance. Without consideration of cumulative effects, including upstream and downstream effects on the whole of the line, greenhouse gas emissions, and the impact on climate change, there is little hope in restoring balance to the environment.
4045. There also needs to be an understanding that environmental effects do not end at international or other borders. To think so is offensive to the First Nations' holistic worldview of the environment.
Transcript Hearing Order OH-002-2015 Final argument Ms. Fenske
4046. Relationships between the land, water, air, plants, animals, and others do not end because a Proponent has drawn a study boundary, a government has implemented land tenure, or a nation has drawn borders. In order to have a complete cumulative effects assessment, the upstream and downstream effects of the Line 3 must be considered across jurisdictions.
4047. In terms of recommendations proposed by the Assembly of Manitoba Chiefs, as was indicated in our written closing arguments, AMC's participation in the Enbridge Line 3 hearings before the NEB was not about opposition; rather, it was about and remains about balancing relationships between First Nations, governments, regulators, resource developers, and Mother Earth.
4048. Instead of being oppositional, the Elders guiding AMC have invited us to pause and reflect on our own actions. In the Great Binding Law, we hear the Elders say, and I quote:
"…human beings are behaving out of balance, and Mother Earth is reflecting that imbalance through climate change. Our ancestors prophesized of this time -- a time of climate change, a time of crossroads, [a] time of self-examination, and a time of choice."
4049. We are at that crossroads. With the change in Federal Government and the recent climate change conference in Paris, two things are becoming increasingly clear: Mother Earth is crying out and needs a voice, and First Nations people have a leading role to play in being that voice and bringing all of us to a place of balance and harmony.
4050. Issuing a Certificate of Public Necessity and Convenience and other associated approvals at this time would send a strong message that NEB accepts the status quo of imbalanced relationships.
4051. The flaws in the underlying application and in the NEB’s treatment of the Line 3 project have made it impossible for AMC to support the issuance of a Certificate of Public Convenience and Necessity and other associated approvals. Before consideration of any specific project application, a renewed and balanced relationship between First Nations, governments, regulators, and resource developers must be achieved.
Transcript Hearing Order OH-002-2015 Final argument Ms. Fenske 4052. In its written evidence, AMC provided some recommendations related to best practice environmental assessments in the hypothetical. You will note that AMC deliberately did not provide any specific recommendations relating to Enbridge's Line 3 Project Application in its written argument.
4053. Had the process been fair, meaningful, and analytically rigorous, AMC would have had the necessary information to give thoughtful consideration to this project. For a full list of recommendations we refer you to the AMC's written closing arguments.
4054. We would, however, like to highlight for you that, practically speaking, achieving more balanced relationship requires a recognition by governments and Proponents that the needs of Mother Earth and all living beings must be considered in a holistic way in environmental decision-making. First Nations people are the original peoples of these lands and they have a unique relationship to their ancestral lands.
4055. Elders and traditional land users are experts. Further, equal weight must be attributed to western scientific knowledge and traditional knowledge. Two-way engagement and consultation is needed where First Nations have the opportunity to drive the process in their environment and on their terms. First Nations peoples and governments must be involved at all stages of environmental decision-making, planning, monitoring and follow up on their ancestral lands.
4056. Continuing on its current path will only lead the Board further astray. AMC calls on the NEB to meaningfully address its ongoing legitimacy crisis. This can be done by refusing to condone deficient applications. You can recommend against the issuance of a Certificate of Public Convenience and Necessity and other regulatory approvals in issue. This course of action would be a step towards renewing relationships that are badly out of balance. It would also be in line with the government's commitment to reconciliation with First Nations.
4057. Healthy relationships require open communication, reciprocal dialogue and parties who speak as equals. The NEB does not have to accept the status quo of unbalanced relationships, and nor does it have to hold firm to a process that effectively silences First Nations.
4058. Thank you. This concludes the closing arguments of the Assembly of Manitoba Chiefs.
Transcript Hearing Order OH-002-2015 Final argument Ms. Fenske 4059. THE CHAIRMAN: Thank you very much.
4060. I'm just going to confer with my colleagues.
--- (A short pause/Courte pause)
4061. THE CHAIRMAN: We're going to take a 10-minute break just to confer.
4062. MS. FENSKE: Okay, thank you.
--- Upon recessing at 11:25 a.m./L'audience est suspendue à 11h25 --- Upon resuming at 11:37 a.m./L'audience est reprise à 11h37
4063. THE CHAIRMAN: You didn't stay standing the whole time we were...
4064. MS. FENSKE: No, Chair.
4065. THE CHAIRMAN: We do have some questions.
4066. Mr. Richmond's first.
4067. MEMBER RICHMOND: Thank you, Ms. Fenske.
4068. I don't have any questions on the Aboriginal Treaty rights and relationships. I think you were very detailed in that, and so I don't have any questions on those remarks.
4069. But at the very beginning of your personal opening remarks, you made a comment that this is Enbridge's largest project and so it should also be its safest.
4070. I just wanted to get clarity or confirmation for the record. Is it AMC's position that it's not the safest; is that what you're telling us?
4071. MS. FENSKE: Just a moment, Member Richmond.
--- (A short pause/Courte pause)
4072. MS. FENSKE: I think in answer to your question, Chair -- or
Transcript Hearing Order OH-002-2015 Final argument Ms. Fenske Member Richmond, is that AMC did not have what it views as the necessary information to fully assess the safety issues around development such as this.
4073. You can look to some of our commentary around examples from the information requests, questions that AMC asked aimed at trying to come to an understanding of the safety of the project in relative terms to its -- it being the largest in history. And many of those questions were left unanswered and so AMC is left in a position of not being confident that it would be the safest project.
4074. MEMBER RICHMOND: Thank you. That’s clear.
4075. THE CHAIRMAN: Mr. Watson?
4076. MEMBER WATSON: Thanks very much, Mr. Chair.
4077. And I just have one question, Ms. Fenske.
4078. In Enbridge’s argument earlier this morning -- and I’m paraphrasing here. I don’t think I have the exact words, but they said something like they indicated that maintaining the current Line 3 through multi-year integrity digs would be more disruptive to the environment than proceeding with the replacement project. And I’m just wondering if AMC’s position takes this into account.
4079. MS. FENSKE: What AMC has been focused on is on a holistic understanding of the environmental effects. And so while we recognize that there were statements made around, you know, the alternatives, we did not have enough information about the decommissioning plans and the gamut of opportunities for addressing developments such as this.
4080. And I’m also reminded by the call from the Elders guiding AMC that this really is an opportunity for us to pause and reflect on those relationships, and so it’s necessary for those types of discussions to occur before we could arrive at a position that looks one way or another at that as an alternative plan.
4081. THE CHAIRMAN: That’s all the questions we have. The Panel would like to thank AMC for their presentation and their written evidence and their participation throughout this process and we ---
Transcript Hearing Order OH-002-2015 Final argument Mr. Crone 4082. MS. FENSKE: Thank you.
4083. THE CHAIRMAN: --- appreciate it. Thank you.
4084. Looking at the clock, we would like to call Mr. Crone next. And in discussions with staff, Mr. Crone gave us an indication of the amount of time he would take. So it may be longer than we have until 12:00 but we’re going to continue to complete Mr. Crone’s evidence this morning before we break for lunch.
--- FINAL ARGUMENT BY/ARGUMENTATION FINALE PAR MR. CRONE:
4085. MR. CRONE: Thank you. Good morning.
4086. I guess I’ll just get right into this. In Enbridge’s response to the Information Request No. 5.7, they continue to dodge the issues I have and revert to the rhetoric about leaving the decommissioned pipe in place to be the safest and most responsible approach.
4087. I felt throughout their consultations with me that they were just going through the motions, they never really did seriously consider removing the line. Not once have they ever put on paper the real reason, which they told me was that it was too expensive to remove.
4088. They also use a play on words in their closing that it has no impact on the current land use. My issue is not with the current land use; it’s with the restrictions the abandoned line will place on future use.
4089. As stated before, Enbridge purchased the two quarter sections directly south of my property some time ago. Two years ago, Inter Pipeline Fund purchased the corridor directly north of mine for $2 million. Very recently this year, Gibson Energy purchased the quarter directly west of mine for another $2 million. The directly east of mine is currently listed with a realtor for commercial/industrial development.
4090. Due to the growth and development and the zoning of our land, I find it ridiculous that Enbridge thinks they can lump my land in with all the other agricultural land. The zoning I referred to -- I did bring a map of it with me but I’m not sure if it can be admissible since I referred to zoning in my initial. But if anyone wants to look up the MD of Provost Number 52, the raw site area
Transcript Hearing Order OH-002-2015 Final argument Mr. Crone structure plan, it pulls up that map on their computer that shows where my land sites in relation to all the existing land there and the existing tank farm at Hardisty.
4091. When they tried to tell me it didn’t devalue our land to leave the decommissioned line, I asked them why they didn’t buy it at the same time they bought the other two as it would have given them direct access to their right-of- way. I received no response to that question. Enbridge refuses to acknowledge the unique and -- uniqueness and value of my property due to its location.
4092. In the last Information Request No. 6 and Enbridge’s response, I understand it is the intent after decommissioning to move on to abandonment of the line. If this happens, I see very little chance of ever having it removed, and therefore, our land will be undesirable for industry forever.
4093. Other landowners have been bought out and relocated as the Hardisty facility has grown. We also would like to get away from this facility and its pollution and potential risks, but unless these lines are removed, the reality is that our land is not appealing. We are getting surrounded by industry because of the caveat of the Enbridge lines.
4094. I also have not seen any response from anyone regarding my objection to the rerouting of the new line in order to avoid all of my properties and objections. As stated in my initial filing, the addition of approximately three miles of new right-of-way and its environmental footprint should not be allowed just to get around me.
4095. Even though I rent most of the land where the proposed new line will go, I have not been approached for approval as an occupant, nor have I ever been shown a map of the new route. In the past, I’ve always been pestered with phone calls and looking for my signature as an occupant, but in this case, Enbridge has just decided to ignore me.
4096. In Enbridge’s own argument today, they referred to how much they parallel the existing right-of-way. I don’t understand why they’re not doing that now. This is the first time I have not received any notification regarding the addition of additional tankage at the Hardisty facility, also.
4097. Once again, I find it extremely frustrating to have to fight with faceless executives in big offices to protect our rights and maintain our way of life. This
Transcript Hearing Order OH-002-2015 Final argument Mr. Crone takes so much time away from my ranch. I don’t have the resources and hired professionals that industry has. My wife and I are probably the only two people in the room not being paid today. I have never dealt with the same people twice on different projects in all my years.
4098. At the end of the day, the decisions made by the NEB affect me and my family for generations. The people I am fighting have no personal stake and get to leave the fight at the office come 4 o’clock. They may not even work for Enbridge tomorrow or they may get moved to a different project or position.
4099. Finally, in closing, I would like to restate that I have lived 34 years at our current home and before that, three-quarters of a mile south. I was employed in the oil industry at the Hardisty facility for over 20 years. Enbridge’s first air monitoring trailer was in my yard for three years while they assessed the amount of pollution in the area before floating roofs were even installed.
4100. I have been involved in numerous hearings over the years. I try to be a good neighbour to the industry and recognize its importance. I also want them to recognize my rights and think they should consider what they would want if they were in my place.
4101. So to summarize, my two requests for the Board are to make Enbridge remove the decommissioned pipe from the south half of 21429 west of the 4th, and to make them parallel their existing pipe from that point east as it was in their initial proposal.
4102. And that’s basically all I have unless you have any questions.
4103. THE CHAIRMAN: I have a couple of questions.
4104. I wasn’t clear when I read your initial filing, and I’m still not 100 percent clear, where the proposed -- where the existing Line 3 goes through your property.
4105. MR. CRONE: Yes.
4106. THE CHAIRMAN: Is that the only pipe on that property?
4107. MR. CRONE: No, I think there’s four pipes in that line -- or in that right-of-way. Starting with the Clipper; due to the congestion getting out of the
Transcript Hearing Order OH-002-2015 Final argument Mr. Crone Hardisty facility they couldn’t find or couldn’t route that way anymore so they switched to a new route directly on my south property. So that’s when we started getting, I guess, cut out of it. All we have is the old ones. And as they get replaced, my concern is that they will not be removed to allow for expansion of the tank farm.
4108. I really recommend everybody look at the land locations of what I’m talking about. Mine is the first privately owned land touching the Hardisty tank farm facility, and it is also zoned for industrial use in the MD of Provost.
4109. THE CHAIRMAN: You made reference to another -- a number of other properties that have been sold in recent ---
4110. MR. CRONE: Yes.
4111. THE CHAIRMAN: --- months or years.
4112. MR. CRONE: Yes.
4113. THE CHAIRMAN: Do any of those properties or do all of those properties have pipes going through them?
4114. MR. CRONE: Well, Enbridge has placed pipes on the property they bought to the south of me. The property to the north has pipes going through them. Not of Enbridge's, but of other companies.
4115. And I don't think there's any -- if there is, it would just be small diameter natural gas on the property to the west. I'm not sure about that.
4116. I wanted to look at an actual map of the proposed right-of-way and the new routing, but I'm not real computer good, and through this whole process, like I say, they have not brought me any additional paperwork since I refused to sign the initial one.
4117. So I haven't even seen the new route, and I don't -- I just don't have the patience or the time to hunt through the computer process to try and find that. I'm trusting you people to take care of that.
4118. THE CHAIRMAN: I think it's my last question. I'm not sure.
Transcript Hearing Order OH-002-2015 Final argument Mr. Crone 4119. You talk about the right-of-way where the pipes are going through is in the south part of -- southern part of your property.
4120. MR. CRONE: That's actually just the land location. I own the south half section of Section 21.42.9. The pipe just about perfectly dissects the southwest quarter from the northwest corner to the southeast corner, so it cuts the full quarter right in half, basically.
4121. THE CHAIRMAN: And that's the right-of-way where there's more than one pipe going through.
4122. MR. CRONE: Yes. And then it just barely touches the southeast quarter, which is where my home actually is located.
4123. THE CHAIRMAN: I wish you did have the map with you.
4124. MR. CRONE: I do have one with me. If any -- that's printed off of the MD of Provost's site.
4125. THE CHAIRMAN: No, I'm getting looks from my legal counsel.
4126. MR. CRONE: Right. Well, I discussed this with legal counsel before I came today, and they said since it was referenced in my initial letter that it would be admissible.
4127. That -- it's just the zoning of the area structure plan and shows my land in location to the rest of the industry. And I actually do know -- in consultation with the Enbridge land man, I brought this up, and I know he referenced it at my table also.
4128. THE CHAIRMAN: Give us one minute.
4129. MR. CRONE: Yeah.
4130. THE CHAIRMAN: A question for Enbridge.
4131. Do you have any objection to this being admitted as an aid to his presentation?
4132. MR. BOURNE: No, we don't have an issue with that. Thank you.
Transcript Hearing Order OH-002-2015 Final argument Mr. Crone
4133. THE CHAIRMAN: Okay. We will require a number, and Ms. Wong will have it filed.
4134. MR. CRONE: Okay. Now, there's two maps printed. That is the one off the web site. This one, the outlined areas in black is owned by industry, and this -- the numbers clearly show this is my property.
4135. THE REGULATORY OFFICER: There's two maps, and they'll be labelled C12-03.
---EXHIBIT NO./PIÈCE NO. C12-03:
Aide to final argument - Maps - Stewart Crone
4136. THE CHAIRMAN: Okay. That's all the questions I have, but Mr. Richmond has a question.
4137. MR. CRONE: Certainly.
4138. MEMBER RICHMOND: I just want to make sure I fully understand what you're asking today.
4139. So I heard you say that you want the existing pipe removed from your property. That was fairly clear.
4140. MR. CRONE: The decommissioned portion ---
4141. MEMBER RICHMOND: Yes.
4142. MR. CRONE: --- of Line 3, yes.
4143. MEMBER RICHMOND: Did I also hear you say that the new Line 3 pipeline, that you would like that on your property as opposed to ---
4144. MR. CRONE: No. I own some more property farther east that I-- in my initial objection if you read it, I refused to sign on that property as a way to bring them to the table about this decommissioned portion. When I refused to sign and, in negotiations, instead of using right of entry legislation or any other way they just re-routed around me to miss my other property.
Transcript Hearing Order OH-002-2015 Final argument Mr. Barnes
4145. And I feel this is terribly wrong in that it increases the environmental imprint and three more miles of new right-of-way that is not necessary. They could follow the old right-of-way and they could use right of legislation -- or right of entry legislation on my land and follow their existing corridor rather than ruin more land, in my opinion, by changing the route.
4146. And I don't -- I -- like I say, I've never seen this route. I rent the land it's going across, but I've not been approached for occupant consent and I've never seen a map of the actual route of it. I don't know whether it's been approved or anything about it. I guess that's why I'm here asking a question on that route right now.
4147. THE CHAIRMAN: That's all the questions we have, Mr. Crone. Thank you very much for taking the time to come and present to us.
4148. MR. CRONE: Okay, thank you.
4149. THE CHAIRMAN: In discussion with staff, the George Gordon First Nation indicated that they would -- their presentation would not take very long if George Gordon would like to present at this time.
4150. Don't feel -- don't look at the clock when you're -- we're not rushing you. We just thought that it's an opportunity if you could come this morning.
--- FINAL ARGUMENT BY/ARGUMENTATION FINALE PAR MR. BARNES:
4151. MR. BARNES: Yeah, we intend to be brief, but anyways.
4152. I'm Scott Barnes. I'm representing George Gordon First Nation today. I am their lead liaison to the Line 3 Replacement Program, and I'm also the senior environmental scientist that acts for George Gordon First Nation with regards to these sorts of development.
4153. And what I'm going to do is just basically read a fairly brief statement, of course, welcome questions after, but it's always good to go right before lunch because people are motivated to eat.
4154. So here we go. George Gordon First Nation has a policy of engaging any proponent, regulator or stakeholder with regard to development within or
Transcript Hearing Order OH-002-2015 Final argument Mr. Barnes proximal to areas over which stewardship is asserted. This would include reserve, traditional -- sorry, TLE and freehold lands and traditional territories as documented in Traditional Knowledge, Traditional Land Use Studies and Community Impact Assessments.
4155. Traditional knowledge studies specific to Line 3 Replacement Program are under way and are anticipated to be completed prior to the end of Q1 2016. Our plan is to share this work with the proponent and any other interested stakeholders to ensure appropriate engagement and consultation continues.
4156. George Gordon First Nation asserts stewardship over different types of territories. These include reserve lands held individually or jointly with other bands, treaty land entitlement lands, freehold lands acquired by George Gordon First Nation, and traditional territory. As such, it is the right and responsibility of George Gordon First Nation to assess and comment on developments that could impact any of these territories over which George Gordon First Nation asserts stewardship.
4157. George Gordon First Nation has engaged with Enbridge on a bilateral basis and has also chosen to intervene in the Line 3 Replacement Program application to ensure that the knowledge and perspectives of the community are heard and recorded. George Gordon First Nation would like to acknowledge both the proponent and the National Energy Board for the respect shown to George Gordon First Nation, and their consideration of our perspective.
4158. The view of George Gordon First Nation is that stewardship of the environment is a right and responsibility and is to be asserted in all locations where there is present or historical occupation. As such, George Gordon First Nation has spent considerable time and effort developing expertise to participate in exercising stewardship, especially in key tasks that have the potential to introduce environmental liability.
4159. One of the challenges to exercising stewardship is the dichotomy that exists in the view of environment from the point of view of First Nations and the regulatory regime which requires environmental compliance for specific activities.
4160. As previously mentioned, George Gordon First has committed significant resources to ensuring that, rather than just commenting on stewardship, we can actively participate in executing stewardship in key areas on large projects
Transcript Hearing Order OH-002-2015 Final argument Mr. Barnes such as Line 3 replacement. By participating, we are not -- we not only ensure that stewardship is promoted, but we can reassure our members that the work being completed by the proponent is being done in a fashion that’ll allow George Gordon First Nation to continue using lands for traditional purposes.
4161. Enbridge has shown a willingness to engage George Gordon First Nation, and we had -- we have entered into discussions regarding the role George Gordon First Nations will play in executing stewardship during the construction, decommissioning and operations of Line 3 replacement program.
4162. Enbridge has helped develop a meaningful partnership and, as such, George Gordon First Nation supports the proponent’s application to the National Energy Board.
4163. We would like to thank the National Energy Board for allowing George Gordon First Nation to meaningfully participate in Line 3 placement program hearing process and for their due consideration of our position.
4164. And that’s the statement.
4165. THE CHAIRMAN: I just have one question.
4166. MR. BARNES: Sure.
4167. THE CHAIRMAN: In your presentation in the oral traditional evidence and in your written evidence, you identified two areas of potential opportunity ---
4168. MR. BARNES: Yes.
4169. THE CHAIRMAN: --- waste management and biosecurity.
4170. MR. BARNES: Yes.
4171. THE CHAIRMAN: Are there other areas that you’re having discussions on?
4172. MR. BARNES: Yeah, there’s a pretty broad range right now.
Transcript Hearing Order OH-002-2015 Final argument Ms. Campbell 4173. I think when I speak about the dichotomy between the First Nations’ idea of stewardship and then how environmental practices operate on the ground, we’re at that beginning stage.
4174. So George Gordon First Nation has a very good idea about what they think is important, but that has to be operationalized within sort of the construct of the project, which requires more back and forth with Enbridge itself.
4175. So there’s a dichotomy there but I think, you know, I can be pretty blunt when saying that Enbridge is trying to bridge this, and that’s obviously the goal of George Gordon also.
4176. THE CHAIRMAN: Okay. Thank you very much, Mr. Barnes.
4177. MR. BARNES: Thanks.
4178. THE CHAIRMAN: And -- our expression of gratitude for George Gordon for participating in the oral traditional evidence and in this process.
4179. MR. BARNES: Thank you.
4180. THE CHAIRMAN: Thank you.
4181. We will now break for lunch and be back by 1 o’clock.
--- Upon recessing at 12:01 p.m./L’audience est suspendue à 12h01 --- Upon resuming at 1:02 p.m./L’audience est reprise à 13h02
4182. THE CHAIRMAN: Welcome back, everyone. We’ll continue with our presentations, and our next presenter is Michel First Nation.
--- FINAL ARGUMENT BY/ARGUMENTATION FINALE PAR MS. CAMPBELL:
4183. MS. CAMPBELL: Hello, my name is Tracy Campbell. I’m here representing the Michel First Nation.
4184. I’d like to draw your attention to two numbers or two figures that Enbridge used in their final argument this morning. One was 99.5 percent, and the other number is four, which I’ll get to in a second.
Transcript Hearing Order OH-002-2015 Final argument Ms. Campbell
4185. I also like the theme of Enbridge’s final argument of benefits versus burdens. How do you balance those things, whether the benefit to the public outweighs the burden that it places on other competing interests and Enbridge’s conclusion that the project should go ahead because the public interest is -- would result in an overall benefit to the public versus any of those burdens.
4186. So in order to come to that conclusion, the environmental -- the ESA was meant to show the negative effects to things so you can put those things in context, the benefits and the burdens.
4187. And to understand the positives and the negatives resulting from the project, you pick different things to measure so that you can understand how to balance those things.
4188. How do you balance benefits? How do you balance burdens or positives and negatives?
4189. So, for example, what are the positive effects or negative effects to wildlife? Are they significant? Do we have to do anything to offset those negative impacts?
4190. What are the positive or negative effects to water? What are those impacts, and do we have to do anything to offset those impacts?
4191. Same goes for air. How do we measure the impact from the project on air? Are they significant and do we have to do anything in order for the project to go forward?
4192. Private land. That’s kind of an easy one to get your head around because how do you identify impacts to private land?
4193. Well, you sit down with private landowners, except for Mr. Crown, but you sit down with private landowners and you negotiate what is an acceptable agreement between Enbridge and that private landowner for letting that piece of property change hands.
4194. How you negotiate and arrive at an agreement with a private landowner is easily understood. It’s recognizing that interest in land that can be offset through compensation or an agreement. There’s an agreement between the
Transcript Hearing Order OH-002-2015 Final argument Ms. Campbell company and the landowner on how to move forward.
4195. So when it comes to negative effects to First Nation interests, what’s the metric that’s used to identify if there’s an effect and what do we do about that? How do we move forward?
4196. For Enbridge, it’s traditional land use, and that’s where that first figure comes in, 99.5 percent. According to Enbridge’s own understanding, 99.5 percent of the right-of-way, the proposed right-of-way, is owned by private landowners.
4197. So if you look at the map up on the board, that’s -- the Enbridge Line 3 Project is like a cross-section of western Canada from Winnipeg to Edmonton. It’s like a cross-section of the historic relationship between First Nations and the government of Canada and the provinces.
4198. It covers Treaty 1, Treaty 2, Treaty 4 and Treaty 6. And if you asked a person on the street to look at that cross-section of Canada and ask them are there -- are there lots of places along this cross-section of Canada where treaty rights exist, and I would bet that the response that you get from the public is, sure, that’s -- there’s lots of places left for treaty rights to be exercised.
4199. But according to Enbridge’s own analysis, 99.5 percent of that entire right-of-way is owned by somebody else, and that land tenure of private land precludes First Nations from accessing, without permission, that land.
4200. So that brings me to that other number, four. Only four private landowners -- and Enbridge took the time to ask the landowners along the easement, along the proposed right-of-way, how many of them allowed First Nation access onto their land. Four. Four (4) out of over 1,300 landowners allowed access for treaty purposes.
4201. So if you know that going in, if you know that only four landowners allow access and you know that 99.5 percent of that entire right-of-way is already gone for the exercise of treaty right, choosing traditional use as a metric to measure impacts to treaty rights is a false dialogue to have because it precludes the outcome and it -- there’s an undercurrent in the -- in the presentation of Enbridge that Aboriginal people must be lying about their use of that right-of-way or that you have to prove use in order for there to be an impact to your treaty right.
Transcript Hearing Order OH-002-2015 Final argument Ms. Campbell 4202. I would note that in that entire presentation this morning, Enbridge didn’t use the words "treaty rights". They always use the words "traditional land use".
4203. It’s a euphemism for -- for something, but it’s not treaty rights. Treaty rights exist on unoccupied Crown land and other lands on which Indians have a right of access. And that’s not -- the -- for 99.5 percent of the right-of-way, treaty rights are not able to be exercised without permission from the landowner.
4204. So let’s go back to that .5 percent, then. If this project intends to take up the last .5 percent of that entire cross-section of Canada, I don’t know how you can arrive at a determination that that’s not significant.
4205. And if you understand “significant”, it’s not big but publicly unacceptable because when an arrival at significance determination is made in an ESA, it’s not whether it’s big or little; it’s whether the public can swallow that effect or not. Is it publicly acceptable or not publicly acceptable?
4206. And in Canada, there hasn’t been a larger societal discussion around how much treaty -- how -- how much land should be preserved for the exercise of treaty rights in that larger public discussion. That -- it’s never happened before and I would argue that the Board -- this is the first time that the Board has been faced with this -- with this situation where there is a recognition that treaty rights are not be able to be exercised along that right-of-way. It’s -- it always is described in terms of traditional use.
4207. So I thought we did an awesome job with this report. We filed it with Enbridge. We filed it with the Board. I thought it did a really great job of explaining why lands taken up is an important issue and should be considered further by Enbridge or be responded to by the Board.
4208. But we must have not done a great job because Enbridge didn’t file -- follow up with this report. They didn’t ask any questions. They didn’t ask for a meeting to talk about it, what it meant, what we -- how to move forward with this information. It was ignored. The results were ignored.
4209. And unless the Board takes this issue and includes it in a recommendation to the Minister for it to be examined further, what does it mean for -- across western Canada for there to be very little land left for the exercise of treaty rights without permission, if you’re not going to raise it with the Minister,
Transcript Hearing Order OH-002-2015 Final argument Ms. Campbell this issue will get buried again.
4210. So coming back to that benefits and burdens argument that Enbridge used to frame their final argument this morning, the benefits to Aboriginal people were framed in a way that capacity agreements were shown as a benefit, and that’s capacity to be consulted or the completion of a traditional land use study would be somehow a benefit to a nation.
4211. It’s not a benefit in the same way that negotiating an agreement with a landowner would be a benefit as compensation. A traditional land use study or a lands-taken-up study is not a benefit of the project going forward. It’s a necessary piece of information that the Board and Enbridge requires to do its job. It’s not a benefit.
4212. Monitoring. Monitoring as a benefit to Aboriginal communities is a sad place where nations have to fight for the economic crumbs that Enbridge and other proponents throw out post-approval that somehow participating on environmental monitoring or some other type of monitoring, which I’m sure they’re going to argue that, without training, people aren’t allowed to participate in, that that’s somehow a benefit to the project going forward.
4213. It may provide some comfort to First Nations to have confidence that the decision for the project to move forward occurred in an environmentally acceptable way, but there’s strong legislation under Alberta legislation and federal legislation of -- during construction if something is found like a archaeological artifact or heritage artifact that that artifact is -- the project stops, that artifact is isolated, dug up and preserved and sent to a museum.
4214. So monitoring may provide confidence to Aboriginal nations who don’t believe that the project will proceed in an environmentally acceptable manner, but to couch it as a benefit of the project going forward and an acceptable offset for the loss of treaty rights for that last five percent, I think, is a false discussion.
4215. I’ve been thinking a lot about what, if anything, we could recommend to the Board going forward. And the only think I can come up with is that this issue of lands taken up, if it’s not highlighted by the Board in their report to the Minister or if it’s not captured and used as an impetus to get Enbridge to do something else before you give that recommendation, Michel First Nation only understands lands taken up from the narrow -- the narrow point of view that we
Transcript Hearing Order OH-002-2015 Final argument Ms. Campbell had between Hardisty and the -- and the border of Saskatchewan.
4216. It would be lovely -- it would be wonderful if Enbridge could sit down with Michel and understand how much unoccupied Crown land is in the RSA for the -- for -- at least within Treaty 6 to understand if the situation is as bad as they -- as they fear because, without that information, the Board will have no information about what the effect is to treaty rights, which is -- which is a necessary part of this process. Not traditional use; to treaty rights.
4217. The last point I’ll make is about Crown consultation. The only information being gathered about his project is in this process. There’s no other parallel process where the Crown is engaging with Michel First Nation or any other nation about what the effects are of this project or is on their rights. So if the information isn’t identified in this process, it’s not being identified at all.
4218. So I would implore the Board to ensure that the -- all the information that the Crown needs in order to discharge its duty to consult is properly identified prior to making your recommendation because if you don’t do it, it won’t get done.
4219. Thank you.
--- (A short pause/Courte pause)
4220. THE CHAIRMAN: In your submission in -- when you said that you wanted the Board to make a recommendation to the Minister to say the fact that there’s very little land left to allow for treaty rights, in -- in what -- what recommendation would you, you know, like make it as a statement?
4221. But you said a recommendation, and you pointed out in your words and based on what we heard from Enbridge, the -- how little land there is in that unoccupied or unoccupied Crown land within the right-of-way.
4222. But how do you put it in a recommendation as opposed to stating a fact?
4223. MS. CAMPBELL: I don’t think that that gets stated very often. I’ve never heard it -- I’ve never heard it identified by the Crown that virtually all land south of Edmonton, Prince Albert and The Pas is occupied or taken up.
Transcript Hearing Order OH-002-2015 Final argument Ms. Campbell 4224. I think if that -- I think if First Nations across western Canada understood how much land required permission to access, there -- maybe going forward, environmental assessments would have to consider that as a metric to measure because right now, if you use traditional use and you can’t show traditional use, there is no effect to Aboriginal people and so treaty rights become a use-it or lose-it exercise and the treaty means nothing.
4225. So I probably didn’t articulate it very well in a recommendation form, but all I know is that the information in front of this Board isn’t complete until an understanding of how much unoccupied Crown land along the easement and within the RSA is fully understood.
4226. We tried to get Enbridge to have that conversation. Last Monday we asked again; no response.
4227. So I would implore the Board to have that information identified before the project is recommended for approval because if we just talk about traditional land use, there will never be an effect in the bottom half of the Western Prairie Provinces. There will never be an effect to Aboriginal people.
4228. And I would -- I would ask to read the report.
4229. THE CHAIRMAN: Maybe I didn’t hear you correctly the first time because maybe I heard something different just with your last answer.
4230. When you talk about how much unoccupied Crown land there is in the RSA in Alberta, do you mean there’s a lot or there’s not much in the RSA? Like, not on the -- in the right-of-way, but the RSA.
4231. MS. CAMPBELL: The only information we could get from Enbridge was the unoccupied parcels along the right-of-way. We asked -- in Alberta. We asked for the unoccupied Crown lands in the RSA in Alberta. We also asked for the unoccupied parcels in Saskatchewan in the RSA or along the right-of-way. Those three pieces of information weren’t provided.
4232. So we only got unoccupied Crown land parcels and occupied Crown land parcels along the right-of-way in Alberta provided by Enbridge. Those we could examine and come to conclusion about. But when you’re trying to put impacts in context, you have to understand impacts at different geographic scales and their ESA is -- every ESA is organized this way.
Transcript Hearing Order OH-002-2015 Final argument Ms. Campbell
4233. You figure out, is there an impact exactly where the footprint is going? Then you go a little farther out. Is there an impact along the footprint as well as the temporary work stations? That’s the LSA. And then you go farther out and say, in the RSA, what’s the context, what’s the scale of impact of that thing you’re measuring in the RSA? So you know what it is at the small scale, the medium scale, and the RSA.
4234. So we were only provided information about unoccupied Crown land along the right-of-way in Alberta. It stopped at the border. We asked for information on the other side of the border on the long -- along the right-of-way and within the RSA in both provincial jurisdictions, and we were ignored.
4235. It’s to understand how big of a deal the taking up of unoccupied Crown land is.
4236. THE CHAIRMAN: When you say you asked for the question and, forgive me if I should know this, did you ask it in an IR?
4237. MS. CAMPBELL: I think we asked it in an IR and in our report.
4238. THE CHAIRMAN: So you did ---
4239. MS. CAMPBELL: And in our -- when we submitted our application review.
4240. THE CHAIRMAN: Okay.
4241. MEMBER RICHMOND: I just want to make sure I’m not inferring something from your remarks that you didn’t intend so...
4242. MS. CAMPBELL: I probably said it three different ways ---
4243. MEMBER RICHMOND: I’m just asking.
4244. MS. CAMPBELL: --- already so...
4245. MEMBER RICHMOND: So this is slightly different. So I hear you talking about what you told us last week was the .7 hectares. You’re referring today is the .5 percent, which on its face, is a small piece of land. But -- pardon
Transcript Hearing Order OH-002-2015 Final argument Ms. Campbell me?
4246. MS. CAMPBELL: Sorry. Or if you flip it around, it’s big.
4247. MEMBER RICHMOND: Okay. So -- sorry, I didn’t mean to -- that wasn’t -- forget that. That’s not what I was going at but it’s just the one parcel. But I think what I hear you talking about is in context of all the other lands that were taken up previously. Is it essentially a cumulative effects argument that you’re bringing to us?
4248. MS. CAMPBELL: Cumulative -- the word “cumulative effects” has too much baggage to use cumulative effects. So what I’ll say is the size and the scope of the effect of taking up the very last unoccupied Crown land parcel, what is the size and the scope of that?
4249. In order to understand whether it’s a big deal or a little deal, you need to measure it against something. So if there’s one parcel left along that right-of- way in Alberta, is that a big deal or a little deal? I would argue because it’s the very last unoccupied Crown land parcel left it’s a very big deal.
4250. THE CHAIRMAN: You started off your presentation, and I’m going to try to look this way, by bringing up two numbers that was in Enbridge presentation this morning, 99.5 and the number 4. Do you agree with those numbers?
4251. MS. CAMPBELL: Yeah, absolutely. After the work that we’ve been doing on behalf of Michel to see how much unoccupied Crown land is left, yeah, I’m not shocked by those numbers.
4252. I -- given the fear of private landowners giving access to First Nations to go on their property to be Aboriginal, I would have guessed it’s all 1,300’ish. I’m surprised there are four. I’m surprised the number is as high as four. Because that correlates to everything that our clients have been telling us that when it’s private land you don’t go on it. You get charged with trespassing or you get shot. You -- that land is -- your Treaty rights are underneath that private land that you can no longer get to. And the restrictions on occupied Crown land make it such that it discourages people from being Aboriginal on occupied Crown land.
4253. THE CHAIRMAN: Thank you very much. We have no more
Transcript Hearing Order OH-002-2015 Final argument Chief Peigan questions. And our appreciation of Michel First Nations for taking part in the process, not just today but last week as well. Thank you.
4254. Our next presenter is Pasqua First Nation. See the Chief is getting ready.
--- FINAL ARGUMENT BY/ARGUMENTATION FINALE PAR CHIEF PEIGAN:
4255. CHIEF PEIGAN: I thank you, Mr. Chairman. Again, it’s good to be back here. I opposed to being back here. I wish I -- we would have done this on a Friday.
4256. I want to thank you first off for allowing us to participation, accepting our application to participate, also to approving the resources that the project allowed to provide to Pasqua First Nation.
4257. Part of our application to participate and also plan for the funding, we identified that we won’t be seeking legal counsel and we wouldn’t be seeking consultants to do our work for us. If we’re to talk about Treaty, I shouldn’t have a lawyer to talk about Treaty for me. If I’m talking about traditional lands, I shouldn’t have a consultant to talk about traditional lands.
4258. What I want to talk about today, what I want to submit is regards to what is traditional lands, how are traditional lands determined. Because the National Energy Board is directed by legislation and policy that does not take into consideration that -- legislation and policy does not take into consideration the views and ideology and the history from First Nations’ people.
4259. When you talk about traditional land, traditional land in my neck of the woods from the Province of Saskatchewan -- now known as Province of Saskatchewan, is the Treaty 4 territory, some 74 to 75,000 square miles. And that traditional territory, when the Crown’s representative, in this case Alexander Morris, attended Fort Qu’Appelle on September 15th, 1974 [sic], they recognized that. And Natural Resources Canada issues mapping of the Treaty 4 territory and the number 1 to 11’s territory, the Robinson-Huron, the Lake Superior territory. So it’s there.
4260. But we don’t depend on traditional knowledge. As I stated in my comments last week on last Monday was, my Elders are not here and I wouldn’t bring them to do this presentation because this is not their process. Their process
Transcript Hearing Order OH-002-2015 Final argument Chief Peigan is somewhat of spirituality. And to attend here would take away what they’ve taught us.
4261. So in our application, I mentioned that we will be doing it ourselves. And saying that, there is concerns that we have with L3RP, but I think concerns that could be resolved.
4262. We know L3RP has to happen. The existing line’s built in 1968. It’s not a matter of if they’re going to be a breach or a rupture, it’s a matter of when, when you’re dealing with lines that are 47 years old.
4263. So my submission last week, the oral submission we did was not in opposing the project but to be how do First Nations get involved? And in this case, how does Pasqua First Nation get involved?
4264. And in saying that, the process that the National Energy Board has established on all the filings that had to happen, all the technical issues, all the geology reports, the environmental reports, the survey reports, the rerouting reports, the thousands of pages that’s filed, I apologize because I couldn’t get through all of them. I got through about 99 percent of them.
4265. In saying that, Mr. Chairman, we’re -- Pasqua is asking the Board for your assistance. Pasqua filed information request, our file C50-05-01. And that pertained to the Qu’Appelle River crossing, which also relates to your file and to -- on the -- I’ll just pull it up here -- on your Draft Conditions and also on Enbridge’s response.
4266. But anyway, getting back to the IR request, Pasqua submitted a request to potential impacts of the Hatfield Valley aquifer and/or other aquifers below the Qu’Appelle River crossing, depth of approximately 50 to 60 metres. Other crossing at the Qu’Appelle River are at 30 metres, the existing lands are at 30, and the new line is going to be at 50 to 60 metres because of the instability of the ground, so that’s why they’re going to be going under 60 metres.
4267. The concern we expressed was that the Hatfield Valley is what Pasqua draws its water from, and there’s other aquifers within the area.
4268. And Enbridge provide their reply, B33-02, at Section 1.1 on page 1 that the Hatfield Aquifer is 50 kilometres away from the Qu’Appelle River. But:
Transcript Hearing Order OH-002-2015 Final argument Chief Peigan “Enbridge does not anticipate impacts to the Hatfield Aquifer and/or other aquifers below the Qu'Appelle River Crossing in the event of a rupture.”
4269. So what we request of the National Energy Board is that if you could review through your technicians is to review the National Energy Board’s response and, with your technicians, to determine the distance from the 60 metres to potential aquifers, if any, in the Qu’Appelle River because, as I mentioned earlier, we do not have that technology or that -- the technical support.
4270. I also ask the National Energy Board to assist us, assist the Pasqua First Nation, in regards to our other information request was filed, C50-05-01. And that pertained to the K+S Potash.
4271. In the right-of-way for the line, for L3RP, it’s going to be going through the footprint of the K+S Potash -- potash mine. That mine is currently under construction and probably by 2016, mid-2016, it’ll be -- 2017, it’ll be operational.
4272. The only other greenfield potash mine in Saskatchewan is the Belle Plaine mine. And that have been operation since, I believe, 1964.
4273. Belle Plaine has experienced ground settling and it’s in footprint. And a footprint takes in the 40 to 70,000 acres once at -- when they’re fully mined. And we requested the pipeline design going through the K+S footprint area.
4274. And Enbridge respond by -- with their file B33-02 that Enbridge recognizes that the grounds subsidence or settling will not occur for approximately 35 to 40 years. So there’s -- they agree that there’s going to be settling, but not for 35 to 40 years.
4275. So when I look in this room, 35 to 40 years, I’m going to be pretty darn old, Mr. Chairman. So the answer and response we received doesn’t sit well because it appears that they realize that’s going to happen, but it’s not for our issue to address. So we’ll leave it for whoever is working for Enbridge in 35 to 40 years.
4276. What we would like is -- the request is that your technicians to take a look at the pipeline design going through the K+S footprint area and apply, if necessary, mitigating measures through the pipeline design, during construction,
Transcript Hearing Order OH-002-2015 Final argument Chief Peigan rather than wait until the ground subsidence or settling occurs.
4277. I’m going to refer to our written evidence that we filed. It is C50-03- 01, where it’s -- our submission was that:
“NEB requires proponents to engage in Aboriginal Consultation and when [the] National Energy Board is satisfied Aboriginal Consultation is fulfilled; NEB uses the information presented by the proponent in regards to its Aboriginal Consultation contact and information when determining the approval of the project (among other regulatory issues).
4278. In considering this, National Energy Board also has to consider:
“Supreme Court of Canada has determined [that] Governments and Industry has a Duty to Consult and Accommodate. The consultation by government [which] (NEB is a quasi jurisdiction) has to be held at the highest level/regards when addressing Aboriginal issues. [And] where there is a proven impact, the Governments and Industry has to accommodate the issues identified by the aboriginal group(s). National Energy Board must, in determining project approval for L3RP, consider the impacts to [the] Pasqua First Nation[‘s] Treaty, Inherent and Aboriginal Rights.
4279. In stating that, Pasqua Lake has done an agreement with the Province of Saskatchewan called the Pasqua Lake Water Management Agreement, which is filed C50-03-05. That agreement received approval by Order in Council of Saskatchewan, OC640/2013.
4280. The principles of that agreement in section 7 -- section 3 at page 7:
“The Parties are committed to the protection, enhancement, conservation and sustainable use of the Waters in the Pasqua Lake Drainage basin in order to maintain the well-being and integrity of the Water and Aquatic Environment within the Pasqua Lake Water Management Area.
The Parties are committed to achieving certain Water Quantity
Transcript Hearing Order OH-002-2015 Final argument Chief Peigan and Quality objectives for the Waters in the Pasqua Lake Water Management area.
The Parties are committed to sharing Waters in accordance with this agreement.”
4281. Section 4 at page 7 and 8. Objectives of the agreement was:
“To monitor the Water Quantity Objectives.
To develop, implement and monitor the site specific surface Water Quality Objectives and related total loading objectives.
To enhance the quality of the Water in the Pasqua Lake Water Management Area to ensure that, with reasonable appropriate treatment, this water can be used [for] a source of drinking water.
To promote Source Water Protection to safeguard the Aquatic Environment within the Pasqua Lake Water Management Area.
To establish an effective and permanent forum for consultation between Saskatchewan and the First Nations relating to those [developments] planning processes where human activity may have an impact on the Water and [the] Aquatic Environment within the Pasqua Lake Drainage Basin and, in [the] particular, within the Pasqua Lake Water Management Area.
To identify the impacts of proposed Developments on the Water and Aquatic Environment within the Pasqua Lake Drainage Basin and, where necessary, to take or promote such Source Water Protection Measures as are necessary to protect [the] Water and Aquatic Environment.
To foster scientific research and the use of the First Nations Traditional Knowledge to understand and resolve issues relating to the Water and the Aquatic Environment in the Pasqua Lake Drainage Basin.
To promote through consultation and the exchange of
Transcript Hearing Order OH-002-2015 Final argument Chief Peigan information: (a) a proactive and preventative approach to protecting and enhancing the Water and Aquatic Environment within the Pasqua Lake Drainage Basin; (b) a recognition of the interdependence of Water quality and quantity and the protection and enhancement of that Aquatic Environment; and (c) a recognition of the interrelation between ground and surface water.
To ensure, to the extent possible, that all Water users within the Lower Qu’Appelle Basin, including First Nations, have secure access to Water to meet their on-going needs and opportunities.
To prohibit Water transfer out of the Qu’Appelle River Basin where the transfer could affect the integrity of the Water and the Aquatic Environment within the Pasqua Lake Drainage Basin or the supply of Water necessary to meet the on-going needs and opportunities of Water users, including First Nations.
To encourage and promote Water management-related education and capacity building initiatives within the First Nations.
To identify, promote and facilitate Water related economic development opportunities for the First Nations.”
4282. Notification and consultation, Section 7.3 at page 14 of that agreement states:
“Where any other proposed development or activity might, in the opinion of the party within whose jurisdiction the development or activity is proposed, have a material impact on the Water or Aquatic Environment within the [Qu’Appelle] Lake Drainage Basin, that party should inform the Board and provide relevant information […] or activity. Where the Board is of the opinion that the proposed development or activity might have a material impact on Water or Aquatic Environment within the Pasqua Lake Drainage Basin, the Parties shall make best efforts to agree on reasonable
Transcript Hearing Order OH-002-2015 Final argument Chief Peigan measures to address the impacts and the Party within whose jurisdiction the development or activity is proposed shall then [be] implement[ed] [and] agreed upon [in regards to those] measures.”
4283. What we ask is one of the conditions that the National Energy Board place on approving L3RP is that the PFN and Enbridge establish an environmental monitoring and protection plan for the Qu’Appelle Valley; the environmental monitoring and protection plan be satisfactory to both PFN and Enbridge Pipelines. And that request was part of our written evidence that was submitted in September.
4284. Enbridge replied at file B35-02 at Section H at 57, Section 2 states -- or Enbridge stated:
“Enbridge has entered an engagement agreement with Pasqua First Nation. Enbridge has also tabled a proposal to establish a roundtable with Pasqua First Nation and several other First Nations in the Lower Qu’Appelle River Watershed to facilitate exchanges of information about current and projected water conditions and potential approaches for enhanced sustainability planning in the Lower Qu’Appelle River Watershed, though the terms are still being negotiated. Additionally, Enbridge remains committed to implementing appropriate environmental protection during the construction of the Line 3 Replacement Pipeline and to the ongoing safe operation of the replacement pipeline to protect water resources in the Lower Qu’Appelle River Watershed.
Enbridge disputes that any condition should be imposed on the certificate requiring Enbridge to ‘satisfy’ Pasqua First Nation (or any party other than the NEB). Such a condition would make Pasqua First Nation a de facto regulator, which is inappropriate.”
4285. We developed a table called the roundtable water monitoring -- the Qu’Appelle Valley water protection and stewardship discussions. On December 7th when I presented my Oral Traditional Evidence, the National Energy Board asked the question on the status of negotiations with First Nations in the Qu’Appelle Valley. At that time I mentioned that I could not provide where
Transcript Hearing Order OH-002-2015 Final argument Chief Peigan we’re at as I had a meeting on Wednesday with Enbridge.
4286. I had that meeting on Wednesday and our request to have the National Energy Board and Enbridge establish an environmental monitoring plan is still in effect -- are still our request, because I feel that the current -- our current timeframe, our duration on the current agreement we’re negotiating is inadequate.
4287. If the current pipeline that’s in the ground and being replaced is around 47, 48 years old and the Qu’Appelle Valley is going to be there for a pretty damn long time that three years is not suffice to have a water monitoring program where the Line 3 crosses the Qu’Appelle Valley.
4288. The intent of that is what brought the table was Line 3 but what we included in there is also is 1, 2, 4 -- 1, 2, 4, 5, I think it’s 13 and 67. I think those are the ones that are in there. So we also included those in there because if we’re monitoring Line 3 they’re within the right-of-way for the other lines that are going through, which are owned by Enbridge, so Enbridge said “Well, we’ll do them all.” Okay, but we’re not satisfied with three years. That’s why we want a condition in place on that Pasqua.
4289. If other First Nations wants to be involved, that’s their prerogative, but that’s one of the conditions we would like at Pasqua is the Board to consider is putting that condition that Pasqua and Enbridge will develop and finalize that agreement.
4290. The current draft has Enbridge committed to a three-year monitoring program and PFN condition is that the monitoring program has to exist during the life of L3RP and further Enbridge should fully pay for such a monitoring program.
4291. Why should they fully pay for such a monitoring program? Enbridge’s submission this morning was that the clients that are going to be using the new L3RP have agreed -- all agreed to pay a higher fee to pay for it. So the way in which I interpreted Enbridge this morning was that it’s not costing them anything because their clients agreed to pay for the whole line by an increased surcharge, or increased toll or increased levy or whatever you want to call it.
4292. I’m going to refer to file C50-03 -- or -03-03, Pasqua First Nation letter of support dated March 31st, 2015. And this was part of our written evidence. That letter of March 31st identifies -- supports the project until -- at its
Transcript Hearing Order OH-002-2015 Final argument Chief Peigan current state until we resolve a number of issues and then we would submit further documentation in regards to Pasqua support for L3RP.
4293. That correspondence in regards to the support letter for L3RP also addresses issues that PFN and Enbridge will engage further discussion and resolution. Today, PFN and Enbridge have established a process to address number one, capacity funding; number two, procurements in business development; number three, training and employment; and number four, environmental monitoring during construction and for a period of five years after L3RP becomes operational.
4294. That letter was also followed up with an agreement called the Line 3 Replacement Program/Engagement Agreement dated March 31st, 2015. Pasqua’s Condition, our Request No. 4, for the National Energy Board to consider and place on the approving L3RP is that the National Energy Board have Enbridge and Pasqua First Nation Number 79 to address and conclude or resolve the issues identified in the letter of support date March 31st, 2015.
4295. Our Condition Request No. 5, is that Enbridge -- National Energy Board direct Enbridge Pipelines and the Pasqua First Nation to resolve/implement the terms and conditions of the L3 Replacement Program/Enbridge Agreement.
4296. The rationale to have this done is because of -- if I could use the term or the word because it was not part of our filing, but the Enbridge submission this morning by Mr. Davies referenced the Alberta Clipper and the Alberta Clipper, there was issues with the treaty for First Nations. That Alberta Clipper project came to an agreement with 34 First Nations in the Treaty 4 area.
4297. So if the Alberta Clipper could bring to an agreement with 34 First Nations, I think L3RP can also bring an agreement between Enbridge and the Pasqua First Nation, hence coming to the letter of support of March 31st and the engagement agreement of March 31st, as well, 2015.
4298. Pasqua First Nation condition or request number 6, NEB filed -- NEB filing A58-01, that Pasqua First Nation supports the National Energy Board in implementing the conditions with emphasis on the Section 15 facility support at number 9 at page 4 and 5 of 25, outstanding traditional use investigations, number 11 at page 5 and 6 of 25, Aboriginal consultation reports. Section 52, pipeline and related facilities support.
Transcript Hearing Order OH-002-2015 Final argument Chief Peigan 4299. Item number 6 at page 13 and 14 of 25, finalized watercourse crossings designs. Item number 10 at page 15 and 16 of 25, outstanding traditional land use investigation. Item number 12 at page 17 of 25, Aboriginal consultation reports. Item 17 at page 18 and 19 of 25, depth of coverage at watercourse crossings. And also, Appendix 2 to National Energy Board’s regulatory oversight verifying compliance throughout the lifecycle of the project.
4300. Pasqua First Nation also would like the National Energy Board to consider for a condition request number 7 -- or Condition No. 7, which is NEB’s filing -- National Energy Board filing A62-01.
4301. Pasqua First Nation supports the National Energy Board in implementing the conditions with emphasis on Section 58 facilities. Number 30, Aboriginal monitoring plan, which is page 2 and 3 of 16. Item number 31, operational plan for Aboriginal groups, page 3 and 4 of 13. Item number 35, operational engagement report page 6 of 13.
4302. Also, the Section 52, pipeline and related facilities, item number 37, Aboriginal monitoring plan, page 17 of 13 (sic).
4303. Why the Aboriginal monitoring plan is -- well, the emphasis on that is Pasqua has submitted -- through the procurement and through the agreement, we have submitted a proposal to do the traditional and sacred site monitoring plan for Enbridge, which would be part of that agreement.
4304. Item number 38, operational plan for Aboriginal groups, page 8 of 13. Item number 40, operational engagement report, page 9 and 10 of 13. And the Section 4 -- 45.1 of the OPR, number 18, Aboriginal monitoring plan, page 10 of 11 [sic] of 13.
4305. Also, number 19, which is the decommissioning and engagement plan for Aboriginal groups at page 11 and 12 of 13 and a decommissioning and engagement report, which is page 13 of 13.
4306. The reason why we support the National Energy Board’s submission in regards to draft conditions is we reviewed Enbridge’s reply, which is file B37- 02, where either Enbridge opposes or minimizes Aboriginal involvement.
4307. I want to reference Enbridge’s file B28-01, which is a letter of October 13th, 2015 to the National Energy Board in regards to the Notice of Motion from
Transcript Hearing Order OH-002-2015 Final argument Chief Peigan the Assembly of Manitoba Chiefs. It was titled, “There’s no requirement for the Board to permit cross-examination on the written evidence filed by Enbridge.”
4308. In that correspondence, Enbridge directed to the National Energy Board that the Board of the National Energy Board is the master of its own procedures, and that's in relation to your draft conditions, that you are the masters of your own procedure and you could enforce that and implement that.
4309. And also further, at B36, Enbridge's filing at B36-02 for the Manitoba Métis Federation request regarding final argument, at page 3, the general comments, Enbridge stated again that the Board is the master of its own procedure.
4310. Mr. Chairman, I thank you for those submissions that Pasqua First Nation would like National Energy Board to take into serious consideration when making your decision or, in this case, approving L3RP.
4311. Thank you.
4312. THE CHAIRMAN: Thank you, Chief. We do have some questions for you.
4313. First, Peter.
4314. MEMBER WATSON: I just wanted to clarify to make sure that I was following what you were suggesting.
4315. In the listing of the conditions that you referenced or the draft conditions that the Board proposed, again, can you just clarify for me? My assumption was that you were speaking in support of all of those conditions that you listed. I just wanted to clarify that.
4316. CHIEF PEIGAN: Thank you for the question.
4317. Yes, the submissions that the National Energy Board submitted -- the two documents, one on oversight and one on draft conditions, our submission is that the National Energy Board to use those conditions when approving L3RP rather than the submission submitted by Enbridge.
4318. Their submission, in our view, removes and/or minimizes First
Transcript Hearing Order OH-002-2015 Final argument Chief Peigan Nations’ involvement.
4319. MEMBER WATSON: Thank you for clarifying that for me.
4320. MEMBER RICHMOND: I’m not sure if you were here this morning, but I asked Mr. Davies on behalf of Enbridge a question specifically on the agreement that you discussed that’s been negotiated on the Lower Qu’Appelle watershed. And I asked him to comment on their use of the phrase “table a proposal” and asked whether that was a -- there was a commitment in there somewhere or some assurance that we could have that they wouldn’t walk away from a potential agreement.
4321. To be fair, I want to ask you the same -- a question on the other side of the same issue. If the condition you’ve just asked us to implement to make it a condition that this agreement be in place, if we were to include that condition in our ruling; would that not give Pasqua an essential veto over the entire project as you've described the condition? And if so, is that, in your view, what we should be doing?
4322. CHIEF PEIGAN: I thank you for the question.
4323. No, I don’t believe it gives Pasqua a veto over the project because you asked me the question last week about where that negotiation or discussion were at, and I said I could not respond to that until my -- following Wednesday’s meeting.
4324. We know what we’re doing in regards to that agreement. The only thing that is holding up is the timeframe on the length -- or the duration of the agreement.
4325. It doesn’t sit well that three years has been proposed, and although the proponent makes mention that they want -- would like to extend it after three years, the wording of the agreement provides too many outs for the proponent.
4326. Now, in the draft submissions or in your draft conditions for the National Energy Board place, if Enbridge or the proponent wanted First Nations involvement, they would have never either asked or recommended a removal or minimized First Nations’ involvement, which also stems to that agreement.
4327. Everything else in the agreement is -- in my view, is -- it has been
Transcript Hearing Order OH-002-2015 Final argument Chief Peigan established. It’s just the duration.
4328. And if Enbridge -- or the National Energy Board, I’m sorry. If the National Energy Board puts a condition that we get that done, then we could do the report to you every three, every five years, and we’re rocking.
4329. MEMBER RICHMOND: When you say get that done, just so I’m clear, you mean condition -- impose a condition that the agreement be for a term of construction plus five years. Is that what you’re seeking?
4330. CHIEF PEIGAN: Well, what we agreed on is construction plus five years. And being true to what we’re agreeing on is, instead of extending that because we already put that as our written evidence to the National Energy Board, that we would have to stay with the five years, but we’re committed to as long as the project is required, the line is required.
4331. We’re not going anywhere and to -- further to that, why the request and why the Pasqua Lake Water Management Agreement, is that I believe we have proven that, as a government -- which pertains to my oral traditional evidence, as a government we made an agreement with another government, which in this case was the Province of Saskatchewan.
4332. And that agreement, approved by the people of Pasqua and approved by Order in Council from the provincial government, established the process to protect a certain area.
4333. And as I mentioned in my oral traditional evidence, Bill C-38 gave National Energy Board certain authority and obligations and duties, but Bill C-45 removed certain Department of Fisheries and Oceans protection and removed the navigability of the Qu’Appelle Valley.
4334. Now, if they remove the navigability of the Qu’Appelle Valley and remove the protection of Department of Fisheries and Ocean, and you have two other governments, which is the Saskatchewan government and a First Nation government, which is in this case Pasqua, have an agreement on protecting that valley, protecting those waterways, it’s only right that the proponent ask those two governments to come through their territory or their crossing.
4335. The other rationale also is that when that agreement was made, it was on the understanding that -- and it’s also identified and I made mention to it at
Transcript Hearing Order OH-002-2015 Final argument Chief Peigan Section 7, when there is a potential impact coming through the Qu’Appelle Valley, that First Nations are involved.
4336. We’re not here to veto, as your question is. We’re not here to veto L3RP. My submission was we know it’s going to get approved, but we want to be involved with that.
4337. I made mention in 1968, when it was done, when it was built, we couldn’t be involved because of past systems, because of the way in which Indian and Northern Affairs administered First Nations. And I also made mention in my oral traditional evidence that the obligation for lands and lands reserved for Indians, that those have to be considered in approving L3RP.
4338. And when those waters come through the territory of Pasqua -- and I can only mention Pasqua because that’s who I’m representing here today, but there’s other First Nations. But in terms of Pasqua, that we should be consulted, and that was one of the issues I raised in my oral traditional evidence.
4339. If approved, how does the approval agent, which is the National Energy Board, confer with Pasqua in setting aside our inherent rights, our Aboriginal rights and maybe, in some cases, our treaty rights that were infringed in the 1982 Constitution?
4340. So how do you put those aside and don’t pay no mind to those, and then don’t take into consideration numerous case law by the Supreme Court of Canada in approving the proponent under one request, that there be a monitoring agreement?
4341. We have the basis for the monitoring agreement. We’re just set on the term.
4342. MEMBER RICHMOND: Thanks, and that’s the point I just wanted to get clarification on.
4343. If the only outstanding issue is the duration, what are the two positions? Is it three years versus five years? Is that the -- or is it five years versus forever?
4344. Like I’m just -- I just want to understand what the -- what your position is, the disagreement. Is it three years versus five years? Is that where we
Transcript Hearing Order OH-002-2015 Final argument Chief Peigan are?
4345. CHIEF PEIGAN: It’s three years. We didn’t discuss five years. We were discussing the life of the mine -- of -- the mine -- the pipeline.
4346. MEMBER RICHMOND: Okay. Thank you.
4347. THE CHAIRMAN: I have a couple of questions.
4348. When you spoke and you gave -- you quoted a couple of passages from the Pasqua Lake Watershed Agreement and the roles and responsibilities of the various parties, I’m not sure why you need another agreement.
4349. If you have -- I'm assuming -- and correct me if I’m wrong -- and it's my understanding from your comments that that covers the Qu’Appelle River to the Pasqua Lake and that’s your area of monitoring. And so would that not cover this project as well because it’s -- it’s in the area of your agreement?
4350. CHIEF PEIGAN: In Enbridge’s filings of Quarter 2 on their engagement, that report identified in discussion with the water security agency and Enbridge’s report is no issues were raised by the water security agency.
4351. And I couldn’t find my email. I sent that email off to Enbridge asking at -- on that specific Quarter 2 filing or at page -- I forget what it was -- and entry whatever it was, did the water security agency have any concerns, and Enbridge responded negative. They had no concerns at this time.
4352. They’re the one party to the agreement, so they have no concerns. We’re the other party. We have concerns. 4353. So the province failed in that agreement on notifying us, so we have an obligation to step up on that agreement, to come and bring it to the Enbridge’s and to the National Energy Board’s attention.
4354. So that agreement would monitor that, but what we’re calling for in regards to specifically on the agreement that Mr. Richmond referred to was a process terms of reference on monitoring more -- and more specifically, water sampling.
4355. Fifty (50) to 75 metre upstream, 50 to 75 metres downstream and a
Transcript Hearing Order OH-002-2015 Final argument Chief Peigan time -- timeframe set out when those monitoring done and submission of those reports.
4356. That’s all in our Water Management Agreement, that we don’t go to each specific project and monitor there.
4357. THE CHAIRMAN: Okay, that clarifies that for me. Thank you very much.
4358. The other one which I’m -- early in your presentation, you talked about the depth of the crossing, the Qu’Appelle River being 50 metres and at -- at the Hatfield aquifer, it’s only 30 metres or the existing pipe is 30.
4359. I’m -- I would think deeper is better, but I’m not sure what your -- what your issue is with the depth at the Qu’Appelle River crossing.
4360. CHIEF PEIGAN: The IR request was that it was based on a response to the National Energy Board. I think it was your number 5.
4361. And the -- Enbridge responded in regards to the crossing at 60 metres rather than 30 metres, because of the instability and shifting -- ground shifting.
4362. So now if they're going at 60 metres and you’re at the bottom of the valley already, so many aquifers are shallow, so if they’re 60 metres -- if they’re 30 more metres down, are they closer to the aquifer?
4363. And not only the Hatfield. If they’re close to an aquifer and there’s a breach or a rupture, things kind of tend to go down.
4364. And that’s why we requested National Energy Board to review Enbridge’s response to Pasqua with your technical people.
4365. Thank you.
4366. THE CHAIRMAN: That’s all the questions that the Panel has.
4367. Same as last Monday, thank you very much, Chief, for your presentation and for being an intervenor in this project. We appreciate all that you’ve provided for us. Thank you.
Transcript Hearing Order OH-002-2015 Final argument Mr. McCormick
4368. CHIEF PEIGAN: I thank you, Mr. Chairman, and to the Board. Thank you.
4369. THE CHAIRMAN: Our next presenter is Peguis First Nation.
4370. I hear some noise. Can we take a 10-minute break before we start with that First Nation, and we’ll be back?
--- Upon recessing at 2:10 a.m./L’audience est suspendue à 14h10 --- Upon resuming at 2:18 p.m./L’audience est reprise à 14h18
4371. THE CHAIRMAN: Thank you, everyone, for your patience.
4372. Mr. McCormick from Peguis, I understand you’re on the line.
4373. MR. McCORMICK: That is correct, Mr. Chairman. Jesse McCormick here for Peguis First Nation.
4374. THE CHAIRMAN: Go ahead.
--- FINAL ARGUMENT BY/ARGUMENTATION FINALE PAR MR. McCORMICK:
4375. MR. McCORMICK: Members of the Board, Board staff, opposing counsel and intervenors, my name is Jesse McCormick, and I am legal counsel for Peguis First Nation for the Line 3 Replacement Program hearings before the National Energy Board, my position in relation to the draft conditions circulated by the Board and the final arguments of Enbridge.
4376. Please note that, pursuant to Ruling Number 19 of the Board released on December 4th, 2015 and filed as Exhibit A61-01, Peguis First Nation has also filed written final argument with the Board on December 11, 2015, and that filing is available on the record as Exhibit C47-10-02.
4377. The submissions of Peguis First Nation in both its oral and written final argument express the environmental, cultural and rights-based concerns of Peguis First Nation as they relate to the present proceedings.
4378. Peguis First Nation has also filed written evidence with the Board, and
Transcript Hearing Order OH-002-2015 Final argument Mr. McCormick those filing may be accessed at Exhibit C47-02-01 to Exhibit C47-02-14.
4379. Peguis First Nation has also presented evidence to the Board through a panel of witnesses during the oral traditional evidence hearings in Winnipeg on December 3rd, 2015, and that evidence may be accessed in Volume 4 of the transcript of the present proceedings, beginning at line 1364.
4380. Prior to proceeding with submissions, I would like to clarify a few terms that will be used during these submissions for the record.
4381. All references to Enbridge are references to Enbridge Pipeline Incorporated, the proponent and Applicant for the Line 3 Replacement Program.
4382. All references to the Crown are references to Her Majesty in Right of Canada unless stated otherwise.
4383. All references to the project are references to the Line 3 Replacement Program Project unless indicated otherwise by context or express statement.
4384. And all references to conditions refer to the conditions that may be imposed by the Board as part of the approvals for the project unless indicated otherwise by context or express statements.
4385. As a preliminary point, Peguis First Nation would like to take issue with the failure of Enbridge to reference citations for its evidence on the record during oral final argument. The choice of Enbridge not to orally identify the evidence relied upon by Enbridge during the oral final argument denies intervenors the opportunity to fully and fairly assess and respond to Enbridge’s submissions.
4386. Enbridge has provided its evidentiary references to the Board for insertion into the transcript, but they have not been made available to other participants in the hearing. Peguis First Nation submits that this approach prejudices Peguis First Nation by preventing Peguis First Nation from being able to identify and respond to submissions made in reliance on the record.
4387. Intervenors will not have access to the evidentiary references of Enbridge until the transcript is published, and by that time, it will be too late to make comments -- informed comments about those evidentiary submissions.
Transcript Hearing Order OH-002-2015 Final argument Mr. McCormick 4388. Peguis First Nation does not attribute to Mr. Davies or Enbridge any untoward purpose in choosing to present its evidence in this fashion. However, the prejudice exists nonetheless, and Peguis First Nation requests that the Board take into consideration limitations on the opportunity for Peguis First Nation to respond to specific evidentiary submissions made by Enbridge during final argument when assessing the weight that should be attributed to those submissions.
4389. Enbridge has referred to various agreements and documents in its final argument. For the reasons previously stated, it is not possible for Peguis First Nation to independently confirm whether those materials have been filed on the record or whether they are otherwise referenced on the record.
4390. Peguis First Nation notes that the Board stressed in its opening statement that the information presented to the Board must be based in the factual record. On that basis, Peguis First Nation submits that any references to agreements and documents in the Enbridge final argument that are not present within the evidence or otherwise described in the evidence should be disregarded by the Board.
4391. Peguis First Nation would like to draw the attention of the Panel to Exhibit B35-02 at PDF page 4, paragraph 2. And I’d ask that that be shown on the screen in the hearing room.
4392. This is the reply evidence of Enbridge filed on November 27, 2015. In this paragraph, Enbridge has informed the Board that it has not provided direct responses to written evidence of Peguis First Nation.
4393. Peguis First Nation also notes that Enbridge declined the opportunity to provide a reply panel to the oral traditional evidence presented by indigenous participants in the present proceedings at line 3636 of Volume 8 of the transcript.
4394. It should be noted that Enbridge does indicate in paragraph 4 of its reply evidence that its silence should not be construed as agreement to the written evidence filed by Peguis First Nation.
4395. I imagine that it would be fair to presume that Enbridge would take the same position in relation to concerns raised by Peguis First Nation in oral traditional evidence, although Enbridge has not expressly taken that position during the evidentiary portion of the hearings.
Transcript Hearing Order OH-002-2015 Final argument Mr. McCormick
4396. Peguis First Nation also notes that the Crown has not provided direct responses to any of the filings of Peguis First Nation in the present proceedings or to the oral traditional evidence of Peguis First Nation.
4397. Peguis First Nation does not contest Enbridge’s position that silence does not denote agreement. However, the absence of response to the evidence of Peguis First Nation by either the Crown or Enbridge in their evidence does raise concerns for Peguis First Nation.
4398. Peguis First Nation has made submissions in its written final argument relating to the jurisdiction and capacity of the Board to fully address Peguis First Nation concerns as they relate to the project. The absence of an evidentiary reply from Enbridge or the Crown to the evidence of Peguis First Nation diminishes the effectiveness of these proceedings to address the concerns of Peguis First Nation.
4399. Peguis First Nation requests that the Board consider the absence of a response to Peguis First Nation evidence when assessing whether the environmental, cultural and rights-based concerns of Peguis First Nation have been effectively addressed by Enbridge and whether the duty to consult and accommodate Peguis First Nation has been fulfilled by the Crown.
4400. Peguis First Nation disagrees with Enbridge’s characterization of the project as a maintenance project. The application seeks authorization to decommission one pipeline and a separate authorization to construct a new pipeline.
4401. The use of carefully-selected terms such as replacement, maintenance and use of Line 3 to refer to both pipelines obscures the fact that Enbridge seeks to close one pipe and build another. The presence of an existing pipeline does not diminish the fact that the construction of the new pipeline will have adverse effects.
4402. Peguis First Nation also disagrees with Enbridge’s submission that the adverse effects of the project are limited to those individuals that use and own the land traversed by the proposed pipeline.
4403. Peguis First Nation has provided initial evidence to the Board of Peguis First Nation use of the right-of-way and the indirect effects on surrounding areas arising from the construction and operation of the project. Further, in the
Transcript Hearing Order OH-002-2015 Final argument Mr. McCormick event of a spill, the geographic scope and intensity of the adverse effects of the project will be much larger and more severe.
4404. I’d like to speak briefly to Enbridge’s submissions regarding Peguis First Nation Oral Traditional Evidence provided in Enbridge’s final argument.
4405. Enbridge has taken issue with the map presented by Peguis First Nation to the Board during Oral Traditional Evidence on December 3rd, 2015. We assume, without confirmation, that Enbridge refers to Exhibit C47-08-01, Peguis NEB Line 3 Hearing Draft TLUO Map, 24 November 2015. We’d like to ask Ms. Wong to pull up Exhibit C47-08-01 for the reference of the Board.
4406. THE CHAIRMAN: We have that, Mr. McCormick. If you could -- when you’re asking for a specific reference, and we didn’t have it on the first one in time, give us a second to bring it up and I’ll let you know when we have it.
4407. MR. McCORMICK: That sounds like a good plan. That works for me.
4408. THE CHAIRMAN: Okay. We do have the ---
4409. MR. McCORMICK: Do you now have Exhibit C47-08-01 on the screen?
4410. THE CHAIRMAN: Yes, we do. Carry on.
4411. MR. McCORMICK: Thank you.
4412. Enbridge, in its final argument, has made comments on the appropriateness of the width of the assessment area in this map. However, as noted earlier in these submissions, Enbridge declined the opportunity to seat a reply panel to the Oral Traditional Evidence. Accordingly, the submissions made by legal counsel do not form evidence before the Board and those submissions are not supported by technical analysis.
4413. With all due respect to Mr. Davies, technical opinions should be provided through evidence, not argument. Enbridge chose to forego the opportunity to seat a reply panel. In doing so, Enbridge has chosen to leave the evidence of Peguis First Nation uncontested and it should be accepted as such by the Board.
Transcript Hearing Order OH-002-2015 Final argument Mr. McCormick
4414. Transcript Volume 4, line 1501 establishes that, “Peguis First Nation is comprised of 10,000 members”. The results displayed in the map are from consultations with only 13 members of Peguis First Nation. Despite the small sample size, the map shows a fairly distinctive utilization of land on, and adjacent to, areas that will be impacted by the project.
4415. The Board is presented only a small sample of Peguis First Nation traditional land use in the area in question. And this has presently only a small sample of Peguis First Nation traditional land use in the area in question and a strong basis upon which to presume that if further information were to be made available, it would display further and greater traditional land use intensity in the areas in question.
4416. Enbridge has also selected the referenced evidence provided by Peguis First Nation witnesses during Oral Traditional Evidence. Peguis First Nation encourages Peguis First Nation members to conduct their own personal evaluation projects. And those assessments inform the decisions of Peguis First Nation, but they are not necessarily the official position of Peguis First Nation. Peguis First Nation invites the Board to refer to Peguis First Nation written final argument for the official position of Peguis First Nation.
4417. Peguis First Nation disagrees with the characterization of Enbridge of effects of the pipeline on Aboriginal peoples as short term and not significant. In the opinion of Peguis First Nation, the Board lacks the necessary information to make an informed assessment of the project effects on traditional land use by Peguis First Nation.
4418. Enbridge has submitted that there would seem to be very little opportunity for First Nations to practice Aboriginal and Treaty rights in the areas that may be affected by the project. It has also submitted that impacts on Aboriginal groups will not be significant and the Board must base its assessment only on the evidence before the Board.
4419. Peguis First Nation has presented argument to the Board in its written final argument that the Aboriginal engagement program undertaken by Enbridge has failed to present the Board with the necessary information to make an informed decision about the effects of the project on Peguis First Nation.
4420. In light of the lack of sufficient information before the Board, Peguis
Transcript Hearing Order OH-002-2015 Final argument Mr. McCormick First Nation has proposed Condition No. 2 from the Peguis First Nation written final argument to ensure that the information to be provided by Peguis First Nation in the Peguis First Nation Traditional Land Use Study will not be disregarded due to the deferral of the Traditional Land Use Study to a post- approval timeframe due to lack of funding.
4421. Peguis First Nation submits the Proponent, such as Enbridge, exercise great influence over the timing of the gathering of traditional land use information by controlling when information is presented to First Nations and when capacity funding will be made available to First Nations to conduct studies.
4422. Enbridge has exercised that influence in such a way that Enbridge is now able to come before the Board and inform the Board that engagement is underway but not complete. Enbridge has argued before the Board that there is no specific evidence of traditional land use over the current route and that no significant adverse effects have been demonstrated.
4423. Enbridge has also described the Oral Traditional Evidence of Peguis First Nation as assertion without supporting evidence, and states that the activity of the Peguis First Nation members are only described in general terms.
4424. Peguis First Nation submits that Enbridge has failed to take the necessary measures to ensure that the Traditional Land Use Study information of Peguis First Nation would be available to the Board to consider at the approval stage. As a result, Peguis First Nation values, along with the project route, remain unidentified and subject to potential harm or damage because they have not been considered as part of the project evaluation by the Board. Peguis First Nation invites the Board to consider the Peguis First Nation Condition 2 as an effective means of addressing these concerns.
4425. I’d now like to share a few comments on Enbridge’s comments on the Draft Conditions circulated by the Board.
4426. I’d like to ask Ms. Wong to please pull up Exhibit B37-2, PDF page 13.
4427. THE CHAIRMAN: Okay. We have it.
4428. MR. McCORMICK: Thank you, Ms. Wong.
Transcript Hearing Order OH-002-2015 Final argument Mr. McCormick 4429. This is the written final argument of Enbridge and includes Enbridge’s comments on the Draft Conditions circulated by the Board. I ask for it to be displayed for the benefit of the Board and anyone in attendance in the hearing room.
4430. I refer to the authorization under paragraph 35(2)(b) of the Fisheries Act. Enbridge has asked that contingency crossings be accepted from the four- month advanced filing requirement. Enbridge has justified this request based on potential failed crossings.
4431. Peguis First Nation submits that contingency crossing methods may be broader in scope than failed crossings. And if the reason for the exception is failed crossings, the conditions should be limited to failed crossings, and the language proposed by Enbridge should be modified to ensure that the purpose of the requested exemption accords with the scope of the exemption.
4432. We’d now ask Ms. Wong to please turn to PDF page 33, the section titled “Additional Draft Conditions for any Approval under Section 45.1 of the OPR”. And specifically, Draft Condition 18, Aboriginal Monitoring Plan.
4433. THE CHAIRMAN: We have it up now, Mr. McCormick.
4434. MR. McCORMICK: Thank you.
4435. Enbridge has requested that this condition be removed. Peguis First Nation disagrees with the position put forward by Enbridge.
4436. Enbridge submits that an Aboriginal monitoring plan is of limited or no value. The weakness in the Enbridge position resides in the assumption that Aboriginal groups will evaluate the potential effects of decommissioning using the same criteria and methods utilized by Enbridge. If that were the case, there would be limited value in any Aboriginal monitoring.
4437. Peguis First Nation submits that a condition proposed by the Board is suitable and should be maintained by the Board despite the position put forward by Enbridge.
4438. Peguis First Nation would also like to offer a brief statement on the distinction between Peguis First Nation Condition 2 and Draft Condition 10 on Outstanding Traditional Land Use Investigations.
Transcript Hearing Order OH-002-2015 Final argument Mr. McCormick
4439. I’d like to ask Ms. Wong to please pull up Exhibit A58-1 at PDF page 17.
4440. THE CHAIRMAN: Okay.
4441. MR. McCORMICK: Thank you.
4442. We’re looking at the bottom of the page, Condition 10, Outstanding Traditional Land Use Investigations. We direct the attention of the Board to the second and third lines of the Draft Condition, which requires Enbridge or would require Enbridge to file a plan to address outstanding traditional land use investigations.
4443. Peguis First Nation submits that the development of a plan of this nature is useful, but insufficient.
4444. I would now ask Ms. Wong to please turn to the Peguis First Nation final argument filed at Exhibit C47-10-02. And I would like to look at PDF page 76.
--- (A short pause/Courte pause)
4445. THE CHAIRMAN: We have it now, Mr. McCormick.
4446. MR. McCORMICK: Thank you.
4447. This is Peguis First Nation Condition 2, Peguis First Nation Traditional Land Use Study.
4448. The Board will note that paragraph (a) of the condition proposed by Peguis First Nation requires the filing of a summary of the results of the detailed land use and occupancy study conducted by Peguis First Nation.
4449. The difference between the conditions proposed by the Board and the conditions proposed by Peguis First Nation is subtle, but important.
4450. The Board has proposed a plan that is forward looking and anticipates the receipt of further traditional land use information.
Transcript Hearing Order OH-002-2015 Final argument Mr. McCormick 4451. Peguis First Nation Condition No. 2 proposes that Enbridge be required to report all the results of the detailed land use and occupancy study conducted by Peguis First Nation. Peguis First Nation conditions would ensure that the information is available to Enbridge and the Board prior to construction of the project, and it would motivate Enbridge to engage with Peguis First Nation to ensure completion of the study in a timely fashion.
4452. If Enbridge is only subject to a forward looking plan, it is possible that Peguis First Nation traditional land use information may be not be utilized during important stages of the project planning. Peguis First Nation submits that the Board should seek results of the detailed land use and occupancy study rather than solely a plan which may or may not permit that information to be incorporated into project planning and development.
4453. Also, as a general matter relating to forward looking Aboriginal engagement conditions proposed by the Board, Peguis First Nation submits that any such condition should include a requirement for adequate funding, permit Aboriginal groups to participate and support those conditions without diverting resources from other community priorities.
4454. These conclude Peguis First Nation’s comments on the Draft Conditions presently before the Board.
4455. Peguis First Nation would like to offer a brief comment on the position put forward by Enbridge in response to the Peguis First Nation submissions that the Board is required to assess whether the Crown has discharged its duty to consult and accommodate Peguis First Nation prior to issuing approvals for the project.
4456. Enbridge has contested this position and relies on two Federal Court of Appeal decisions.
4457. The first decision is that of Chippewas of the Thames First Nation v. Enbridge Pipelines Incorporated 25th F.C.A. 222. This case has been filed by Peguis First Nation as Exhibit C47-10-08. Excuse me. I will refer to it as Chippewas of the Thames.
4458. The second decision is that of Standing Buffalo Dakota First Nation v. Enbridge Pipelines Incorporated 2009 F.C.A. 308. Neither Peguis First Nation nor Enbridge has filed this case with the Board. I will refer to it as Standing
Transcript Hearing Order OH-002-2015 Final argument Mr. McCormick Buffalo.
4459. Enbridge submits that these cases are a complete answer to the positions put forward by Peguis First Nation. Peguis First Nation contests this position on the basis that both cases are distinguishable.
4460. Chippewas of the Thames dealt with an approval under section 58 of the National Energy Board Act, and the Crown did not participate in the proceedings. Standing Buffalo addressed a section 52 authorization, and the Crown did not participate in those proceedings.
4461. In the present hearing, the Crown is a participant and entitled to exercise the full procedural rights accorded to all intervenors. The application before the Board requires activities which may adversely affect asserted Aboriginal inherent and treaty rights of Peguis First Nation.
4462. As a result, the duty to consult and accommodate Peguis First Nation is engaged, and the Board must exercise its jurisdiction to assess whether that duty has been fulfilled prior to issuing the approval sought by Enbridge.
4463. As noted by Justice Rennie in his dissenting opinion in Chippewas of the Thames at paragraph 123, judicial review would be a hollow remedy. The relevant powers and decision-making are housed within the Board’s jurisdiction, and it is in this forum that the assessment of the duty should take place.
4464. Lastly, please note that, as of today, carriage of this matter has been transferred exclusively to my co-counsel, Hana Boye, of Donavan and Company and I will no longer serve as counsel of record in the present proceedings.
4465. Ms. Boye’s contact information has been filed with the Board in Exhibit C47-06-01.
4466. In closing, I’d like to thank the Board on behalf of Peguis First Nation for the opportunity to make submissions in relation to this project. We wish you well in your deliberation.
4467. Thank you very much.
4468. THE CHAIRMAN: Thank you, Mr. McCormick. We do have a couple of questions for you at this time.
Transcript Hearing Order OH-002-2015 Final argument Mr. McCormick
4469. MEMBER RICHMOND: Mr. McCormick, I want to refer you to your written argument and it’s relative to the discussion on lands for Treaty land entitlement selection and ---
4470. MR. McCORMICK: May I ask you the page number you're referring to?
4471. MEMBER RICHMOND: I believe it begins on page 34 in your written submission.
4472. MR. McCORMICK: Sorry, Section 7?
4473. MEMBER RICHMOND: Section 7, correct. And one of the points that was raised in section 7 indicates that Line 3 exposes a wide range of lands to a risk of a spill or contamination making them unsuitable for Treaty land selection purposes.
4474. And I’m just seeking some clarification from you in terms of, you know, how the -- how the evidence in front of this Panel, you know, supports that those risks are significant and that the lands would be unsuitable if certain lands were selected for Treaty land entitlement?
4475. MR. McCORMICK: First of all, thank you very much for the question.
4476. So the position taken by Peguis First Nation is that the harms inherent in an oil spill given the product that has been proposed to travel through the project, would contaminate the lands and impair their use for the purposes that Peguis First Nation would like to use them for.
4477. In relation to the assessment of the significance, I could understand that to have two components. There would be the significance of the effects or the significance of the likelihood of risk. To which do you refer?
4478. MEMBER RICHMOND: Can you rephrase that for me, just so I can be clear?
4479. MR. McCORMICK: We’re -- in relation to significance, I was uncertain whether you referred to the significance of the potential for a spill, or
Transcript Hearing Order OH-002-2015 Final argument Mr. McCormick the significance of the effects that might arise from a spill.
4480. MEMBER RICHMOND: Well, why don’t you actually deal with both of those?
4481. MR. McCORMICK: Certainly. I have not had the opportunity to become well-conversant with the risk assessments filed by Enbridge; however, I do recall seeing within the Enbridge evidence an assessment of the potential harms that may be associated with the rupture of the pipeline, or another type of failure of the pipeline.
4482. In past proceedings that I have worked on before the Board, I understand that if released into the environment, the oil can have persistent lasting effects that will impair vegetation, wildlife use, and if it enters into the water may result in sinking and/or contamination of waterways, including toxicological effects on water (unintelligible).
4483. In terms of the significance of a potential spill, Peguis First Nations has not had the resources necessary to conduct technical analysis of the integrity measures proposed by Enbridge and I would not be able to offer a comment on those at this time.
4484. MEMBER RICHMOND: I have one additional follow-up and this relates -- and I note your earlier comments about the statement made by Enbridge’s counsel with respect to the notion of maintaining the current Line 3 would be more disruptive to the environment than proceeding with a replacement project. You did ask us to consider the weight we give that, and so I note that.
4485. I would, however, like you to comment for me whether you have any comment on that statement from Enbridge as it relates to the issues that you’ve raised in this section of your written argument regarding the suitability of Treaty land entitlement selection
4486. MR. McCORMICK: Certainly. So if I may confirm my understanding of the question. Your question is: What would be the potential trade-off or impacts of maintaining the current pipeline versus constructing a new pipeline in relation to potential Treaty land entitlement selection by Peguis First Nation? Is that a fair characterization?
4487. MEMBER RICHMOND: Yeah, generally.
Transcript Hearing Order OH-002-2015 Final argument Mr. McCormick
4488. MR. McCORMICK: Certainly. Peguis First Nation would submit that there’s a false dichotomy in the question; that being that the only two options are to maintain the current pipeline or to construct a new one. In certain instances where the effects of the project being proved to be greater than the benefits, there is always the option of not constructing a new pipeline.
4489. In this instance, the concern in relation to potential contamination of land exists in relation to both pipelines. Both new and old pipelines have had failures and have resulted in contamination of the environment in various locations.
4490. As I’ve mentioned previously, Peguis First Nation did not have the resources available to conduct a technical analysis of the integrity of the pipeline, either the pipeline to be decommissioned or the pipeline to be constructed, and I would not be able to provide an assessment of what impact either option might have on the likelihood of contamination.
4491. MEMBER RICHMOND: Thank you for those comments.
4492. THE CHAIRMAN: I have a question on page 42 of your written evidence. It’s on the same topic of your land acquisition.
4493. Your submission says that you’re entitled to acquire close to 167,000 acres either through unoccupied Crown land or purchase of private land. On part 2 on page 42, your request is that the Board delay the determination for six months to allow PFN to complete its land selection in Southern Manitoba and allow PFN to come back to the Board and make further submissions.
4494. Do you anticipate completing the acquisition of 167,000 acres in six months?
4495. MR. McCORMICK: No, I -- well, I must first offer a caveat. The legal work for Peguis First Nation relating to the Treaty land entitlement was conducted by Mr. Michael McDonald of McDonald Duncan. That is indicated in Exhibit C47-10-01, the cover letter to the Peguis First Nation final argument.
4496. And I’m not personally involved in those matters. However, I would expect, and I would feel safe to say, that Peguis First Nation does not anticipate completing the full selection of its land under the Treaty Land Entitlement
Transcript Hearing Order OH-002-2015 Final argument Mr. McCormick Agreement within the next six months.
4497. THE CHAIRMAN: Okay, that’s -- that’s all the questions the Panel has for Peguis First Nations.
4498. And just before we conclude, Mr. McCormick, on a personal note, I wish you all the best in your future endeavours. You’ve appeared before the Board a number of times and represented your clients well and I think you’ll do just as well in your next career move.
4499. Thank you.
4500. MR. McCORMICK: Mr. Chairman, I appreciate those comments. It’s always a pleasure to come before the Board. I’d like to acknowledge that we been extended courtesies and been treated with respect by our opposing counsel, and I’d like to express my appreciation to the staff as well and to the Board Members for the time taken today.
4501. So thank you very much.
4502. THE CHAIRMAN: So the last presenter we have today is White Bear First Nations. Is Mr. Howe on the line?
4503. We’ll take a five-minute break.
4504. We’ll take a five-minute break to get Mr. Howe on the line. Thank you.
--- Upon recessing at 2:57 p.m./L’audience est suspendue à 14h57 --- Upon resuming at 3:00 p.m./L’audience est reprise à 15h00
4505. THE CHAIRMAN: Mr. Howe, my name is ---
4506. MR. HOWE: Hello.
4507. THE CHAIRMAN: My name is Jaime Ballem, and I’m the Chair of the Panel. Mike Richmond and Peter Wallis -- Wallis, yeah -- Peter Watson are the other two Members of the Panel.
Transcript Hearing Order OH-002-2015 Final argument Mr. Howe 4508. But please, go ahead.
--- FINAL ARGUMENT BY/ARGUMENTATION FINALE PAR MR. HOWE:
4509. MR. HOWE: Thank you. My name is Jeff Howe. I’m legal counsel for White Bear First Nations. Good afternoon, Mr. Chairman and Members of the Board.
4510. White Bear calls itself White Bear First Nations in the plural. Chief White Bear adhered to Treaty Number 4 at Fort Ellis on September 9th, 1875. At that time, Ocean Man First Nation and Pheasants Rump First Nation also adhered to Treaty 4.
4511. White Bear’s “band of Indians” at the time was a mix of Cree and Saulteaux people. Ocean Man and Pheasants Rump were Dakota and Nakota peoples, respectively.
4512. All three Chiefs chose reserves near to each other in the Moose Mountains in southeast Saskatchewan. Then, in the winter of 1901, the Ocean Man and Pheasants Rump reserves were surrendered and sold and the people were amalgamated onto White Bear.
4513. The three distinct First Nations were treated by Canada as one, White Bear, until a settlement agreement with Canada attempted to reverse the historic purported amalgamation in 1989. Members of White Bear who were descendants of the historic Ocean Man or Pheasants Rump who wanted to could and did leave White Bear to join the “re-established” reserves in 1990.
4514. Some left but, in fact, many chose to stay. The result being, and after 90 years of living together on White Bear, today White Bear is a blend of the historic treaty Cree, Saulteaux, Dakota and Nakota that agreed to treaty at Fort Ellis in 1875.
4515. And the result being that White Bear self-identifies as a form of confederacy, if you will, of four distinct indigenous groups today, thus, White Bear First Nations, with an “s”. And importantly, that same history resulted in White Bear having a comparatively large traditional land use area, both historically and today.
4516. You can see this to be the case on several of the maps within the White
Transcript Hearing Order OH-002-2015 Final argument Mr. Howe Bear First Nations historical and current traditional land use study that was filed. For example, page 12 shows a snapshot of current land use. And you can determine that the project corridor traverses right through White Bear’s current treaty harvesting, being its hunting, fishing, trapping and gathering areas.
4517. The old ways of doing business in Canada are over. Generally, native nations used to sit on the sideline and watch while, all around them, major industrial and economic players pursued development projects. Today, that is no longer acceptable.
4518. Meaningful consultation and accommodation are required, and that doesn’t just mean sharing information and listening. It means actually hearing and taking action in the form of accommodation. Reconciliation between the Crown’s assertion of sovereignty and pre-existing Aboriginal rights is the goal today.
4519. Involving indigenous communities like White Bear in large development projects like this through their business organizations and partnerships is the goal today.
4520. We heard Prime Minister-Elect Justin Trudeau’s victory speech after the election. We read his Ministerial mandate letters. We listened to him address the Assembly of First Nations about a week ago. And in all of these places, we are hearing the Prime Minister talk of a renewed nation-to-nation relationship between the Government of Canada and the indigenous nations.
4521. White Bear acknowledges that the project, if approved, will contribute positively to the Canadian economy, including the White Bear economy.
4522. At the height of World War II, White Bear was asked to, by Canada, and did, surrender its minerals beneath its reserve for His Majesty the King to exploit for the benefit of White Bear. And thus, White Bear was involved in the upstream side of the oil and gas industry since the 1950s. Today, it has a number of members with training and experience in the oil and gas sector.
4523. White Bear believes the project will contribute positively to White Bear as it relates to transportation, oil and gas resources going through its traditional territory to the global market. White Bear also believes the project will help White Bear in creating increased demand and opportunities for more of its people to seek and secure related employment and business opportunities.
Transcript Hearing Order OH-002-2015 Final argument Mr. Howe
4524. White Bear wishes to also state that Enbridge has demonstrated in recent years its ongoing social commitment by providing support for some of White Bear’s underfunded programs and initiatives on reserves.
4525. White Bear wishes to acknowledge the Enbridge representatives' efforts, as they have demonstrated a willingness to negotiate with White Bear representatives in initial and ongoing engagement on the project.
4526. Further, the supply chain representatives have demonstrated commitment to Enbridge’s Aboriginal procurement policy by working with White Bear’s business partner, Tecumseh Energy Services Inc., toward bidding on and securing Line 3 replacement related work for White Bear’s and White Bear affiliated Aboriginal-owned companies.
4527. In short, White Bear’s expectations regarding the project are four-fold.
4528. One, White Bear expects that its land use study will be reviewed carefully and taken into account during the Board’s decision making and, if approved, project oversight.
4529. Two, White Bear expects meaningful consultation and accommodation on a nation-to-nation basis, and it expects consultation and accommodation will continue. No doubt, many will be interested to see how the NEB’s processes and procedures are adapted and perhaps changed beyond this hearing in the wake of the new Liberal government’s stunning declarations and directives regarding indigenous peoples.
4530. Three, White Bear’s expectation is that the project will be built, if approved, with the best and highest of standards that exists, as safely and environmentally responsible as possible and in accordance to all applicable environmental and regulatory law and under strict monitoring by the National Energy Board.
4531. And Mr. Chair, finally, number four. White Bear expects that its relationship with Enbridge will continue to grow positively, that the company will continue to engage with and accommodate White Bear and its business partners beyond this hearing, and that there will be socio-economic benefits flowing to White Bear from the project.
Transcript Hearing Order OH-002-2015 Final argument Mr. Howe 4532. Mr. Chair, Members of the Board, White Bear supports the application by Enbridge to the NEB for Line 3 Replacement Program approval.
4533. I thank you for this opportunity on behalf of my client. Unless there are any questions from the hearing Panel, those are the submissions with respect of the White Bear First Nations.
4534. THE CHAIRMAN: Thank you very much, Mr. Howe. The Panel has no questions at this time.
4535. We thank you and your client, White Bear First Nations, for participating in this application hearing. Thank you.
4536. That is all the intervenors that have been identified.
4537. And next up will be Enbridge’s opportunity to present reply evidence, and we’ll take a break for 15 minutes and then we’ll hear from Enbridge.
4538. Mr. Davies?
4539. MR. DAVIES: Mr. Chairman, you left us with a number of -- or left me with a number of undertakings. I am compiling those, but I would be appreciative if maybe we could take a little bit longer break, perhaps come back about quarter to 4:00. And I don’t expect that I’ll be longer than 10 minutes.
4540. THE CHAIRMAN: Okay. We’ll be back at 3:45.
4541. MR. DAVIES: I appreciate that.
4542. THE CHAIRMAN: Thank you.
--- Upon recessing at 3:11 p.m./L’audience est suspendue à 15h11 --- Upon resuming at 3:49 p.m./L’audience est reprise à 15h49
4543. THE CHAIRMAN: Go ahead, Mr. Davies.
--- REPLY BY/RÉPLIQUE PAR MR. DAVIES:
4544. MR. DAVIES: Thank you, Mr. Chairman. I appreciate the extra time.
Transcript Hearing Order OH-002-2015 Reply Mr. Davies
4545. I don’t have any specific submissions to make in response to oral arguments made by intervenors.
4546. I would just observe, with regard to Mr. McCormick’s admonition to me about not reading all of the evidentiary references into the record, that has been and remains, as far as I know, the standard practice in providing oral arguments to the Board.
4547. And one of the reasons that it is standard practice is that the Board relies on counsel to ensure that the statements made in argument are properly reflective of the evidence. And I believe that I have done that, and I will leave it to the Board to look at my submissions and look at the evidentiary references and confirm that that is so.
4548. So to get to my homework. Mr. Watson, you asked me to point out where, in the evidence, it addresses how Enbridge will take TLU information into account as it comes forward.
4549. As I said in my argument this morning, the position of Enbridge is that TUL [sic] studies are not required for the purpose of the environmental assessment because, for the purpose of that assessment, TLU was assumed to be occurring and mitigation measures were developed based on that assumption.
4550. But having said that, I can direct you to, first of all, the environmental impact assessment, the ESA, Exhibit B05-08, Appendix 6, page 2 dash -- sorry, page 5-210, which talks about how Enbridge will take into account information as it comes forward. And there’s reference in there, Mr. Watson, to a TLRU site discovery contingency plan which will be implemented.
4551. I’d also, to respond to your question, refer you to Exhibit B8-02, which is Enbridge’s response to National Energy Board Information Request 1.2(a)(iii), which also talks about the resource use sites discovery contingency plan that has been developed.
4552. Mr. Watson, you also had a question with respect to air quality monitoring arising from the comments made by Enbridge at page 8 of 35 of its reply evidence.
4553. The Draft Condition had referred to mitigation that Enbridge would
Transcript Hearing Order OH-002-2015 Reply Mr. Davies take in the event that ambient concentrations were greater than predicted in the air quality assessments that have been filed with the Board as part of the ESA.
4554. What the response was driving at was the fact that, in Enbridge’s view, it wouldn’t be appropriate to use those air quality predictions to trigger mitigation because the -- if those predictions were achieved or were met, the -- it would still be at a threshold that would be way below what would cause an impact -- an adverse impact on air.
4555. And so the point Enbridge was trying to make in its response was that it will meet not the predictions in the ESA but, rather, the Alberta ambient air quality objectives. And so the commitment of Enbridge is that it will, with mitigation, ensure that the Alberta ambient air quality objectives are being met.
4556. I hope that answers your question.
4557. And obviously, just to add to that, Mr. Watson, if mitigation is required to ensure that the ambient air quality objectives are not being exceeded, then that mitigation will be taken.
4558. Mr. Watson, you also asked two questions about the Aboriginal monitoring draft condition and Enbridge’s response to it at -- well, I guess commencing at page 22 of 35, and it goes on.
4559. And what you were asking, I think, is will that -- you were referring to the fact that the response essentially takes the condition from being, as you put it, active involvement to more passive involvement and whether -- essentially asking me the question whether I thought or Enbridge thought that was satisfactory.
4560. And I just want to point out that environmental and construction monitoring positions perform a very important role, obviously, on the construction of the pipeline. The monitors need to be qualified to act as monitors. They need training. In some cases, they need expert scientific training. They’re really there to ensure that the commitments -- all of the commitments in the environmental protection plan are being met.
4561. Now, there may be some Aboriginal monitors on the Line 3 Replacement Project. If you review the logs, you’ll see that there’s discussion about training Aboriginals for some of those positions. But the reality is, as I said in my argument this morning, we just can’t have 150 construction and
Transcript Hearing Order OH-002-2015 Reply Mr. Davies environmental monitors on the project, particularly if those monitors don’t have the appropriate training and qualifications to act as monitors.
4562. So what we were trying to do in the response was to suggest that there may be a way to accommodate the requests that you heard from some Aboriginal people that they want to see what’s going on. They want to look at the area before the pipeline construction and look at the area after the pipeline construction and see for themselves what’s happening.
4563. And you asked me, Mr. Watson, to point where -- in the evidence where we might see some of that. And I just refer you, for example, to the testimony of Elder Charles Pratt, and this is -- well, it starts at page 345 of the transcript, and I don’t propose to read it. You can obviously do that for yourself. And he was talking about this in the context of oil releases and wanting to see that -- wanting to see the cleanup and what’s being done. And he made the point -- he said “I guess for our people some of it is visual.”
4564. So we understand that, and so what Enbridge has proposed is a plan that will allow people -- allow Aboriginal people to see what’s going on in the project. But what we were reacting to in responding to the condition was a suggestion that somehow we should be hiring Aboriginal people for monitoring even though they may not be qualified to do the monitoring that this pipeline requires.
4565. And by all means, if you have any further questions as I’m going through these please interject.
4566. I mean, the bottom line, Mr. Watson, is we can’t hire people just for the sake of hiring people.
4567. Mr. Richmond, you had asked me about the study area for traditional activities. I had indicated to you that there were different study areas for -- depending on the project effect being studied. There are, in fact, local study areas, there are regional study areas. And the different study areas are identified throughout sections 5 and 6 of the ESA.
4568. I was hoping there might be one nice little table that set them out but unfortunately I couldn’t find one.
4569. But if you do look at whether it be the effects on fish or air or wildlife
Transcript Hearing Order OH-002-2015 Reply Mr. Davies or whatever, the ESA does set out the study area that was being used to assess the affects.
4570. Mr. Richmond, you asked me a question about paragraph 22(i) of the Samson Creek Nation requiring the Proponent to provide a construction schedule at least 14 days prior to carrying out construction activities. I would just refer you to the ESA itself where mitigation measures are being set out in respect of potential effects of the pipeline construction on traditional uses. And in section 6.2.14.3, there is a discussion of potential effects and mitigation measures. That starts at page 16-219 of the ESA.
4571. And one of the mitigation measures identified -- I’ll just read it into the record. It says:
“Contact Aboriginal groups a minimum of 2 weeks prior to commencing clearing and construction activities, and provide maps of the replacement pipeline route and construction schedules to enable them to select alternate areas for activity and ensure the communities are informed of any changes in the construction schedule.”
4572. So I believe that commitment has been met. I guess it’s been made; we haven’t met it yet.
4573. You also, Mr. Richmond, asked a couple of questions about the Manitoba written argument first of all with regard to paragraph 4 of that argument. And I can confirm to you that that is a commitment that Enbridge is prepared to give.
4574. In fact, if you read through the Environmental Protection Plan, which is lengthy, Exhibit B5-11 through B5-13 you will see that there is a discussion of pre- and post-monitoring of water wells.
4575. You’d also asked, sir, about paragraph 6 of the Manitoba argument, specifically 6B which talks about ensuring strategic valve placement. And, in fact, Enbridge is committed to ensuring that. One reference I have for you is the response of Enbridge to National Energy Board Information Request 5.8, which is part of Exhibit B30-02. But certainly Enbridge is committed to ensuring strategic valve placement to minimize the potential volume of any spill.
Transcript Hearing Order OH-002-2015 Reply Mr. Davies 4576. You also asked, Mr. Richmond, about the AMC final argument at page 41 which refers to a requirement that all training and emergency response exercises must be extended to affected First Nation governments and nations. Certainly to the extent that there are First Nations in proximity to the pipeline, they will be involved and invited in respect of those exercises.
4577. Mr. Richmond, you also asked a question about the alleged ambiguity of the words, “site-specific plans” with respect to Enbridge’s response to Draft Condition 7 with respect to the section 58, “Facilities Application.” And the point that Enbridge -- the simple point that Enbridge was making in its response was that there will not be a separate environmental protection plan for each facility site.
4578. There will be one environmental protection plan, which will be applied to all facility sites, and that plan will contain mitigation measures that may vary from site to site, depending on the conditions found at the time of construction.
4579. So that was the simple point that we were trying to make there, was that the Board ought not be expecting environmental protection plans that apply to each and every -- well, they -- the plan -- the one plan will apply to all sites but there won’t be separate plans for each and every site.
4580. Mr. Richmond, you also asked me about the fact that Enbridge appeared to be prepared to engage about a potential role for an Elder advisory committee, but didn’t seem very keen on advisory committees in general as indicated in the response to Condition 38.
4581. And I just want to, I guess, to re-emphasize that Enbridge has been -- continues to consult with more than 150 Aboriginal groups here. Some of which, as you’ve heard, have divergent interests.
4582. And what we were reacting to was the suggestion that we should somehow try to establish a committee among all of those stakeholders with their divergent interests, and the experience of Enbridge is that that would not be terribly productive or efficient. Enbridge is prepared to engage with committees on a regional basis for issues that can be defined in scope.
4583. And actually the Elders committee is an example of that. The aim of Enbridge in suggesting the Elders committee was to identify sites of cultural and historic significance, and the proposal was regional base committees made up of
Transcript Hearing Order OH-002-2015 Reply Mr. Davies eight to 12 Elders. Now that Elders committee, as you know, hasn’t gotten much traction among the Aboriginal groups but -- those sort of committees may have a place but some overarching committee to oversee the operation of the pipeline, as I say, is probably not going to achieve a very satisfactory result.
4584. You also asked me whether the rationale was the same for Enbridge’s position about removing the requirement for Aboriginal advisory committees and removing the requirement for land owner advisory committees. And the answer is, yes, the rationale is generally the same. In terms of landowners, the focus tends to be on individual property-specific issues.
4585. And, again, trying to put forward one committee with -- representing 1,896 landowners, all who may not have the same interests, is probably not going to lead to a very efficient and productive result.
4586. I would note, though, that with regard to private landowners, there is, if you read the construction settlement agreement, provision for a committee and certainly Enbridge will -- with some pretty defined parameters, and Enbridge will be proceeding with such a committee.
4587. I don’t think, Mr. Richmond, there was an outstanding question with regard to the Qu’Appelle Valley Watershed. I tried to answer it the best as I could this morning.
4588. Let me just re-emphasize that we don’t see that it would be appropriate to condition your approvals with regard to the Line 3 Replacement Program, in terms of coming up with some agreement with respect to the Qu’Appelle Valley Watershed. The issues that are being discussed in that context are much larger than the Line 3 Replacement Program.
4589. Mr. Chairman, you had asked me a question with regard to depth of cover and, in particular, whether there’s a difference between maintaining and maintaining the depth of cover and monitoring.
4590. Yes, there is a difference, but the Enbridge filed by Enbridge addresses both and in that regard I would just refer you to the Engineering Decommissioning Report, Exhibit B4-29, Section 7.5.2. And as well to the Decommissioning Agreement that Enbridge has reached with CAEPLA and the Manitoba and Saskatchewan Landowners Association, Exhibit B6-05-02, and Section 2.2 of that agreement discusses both monitoring and maintaining depth of
Transcript Hearing Order OH-002-2015 Reply Mr. Davies cover.
--- (A short pause/Courte pause)
4591. MR. DAVIES: You asked a question Mr. Chairman, with regard to the comments made by Enbridge at page 32 of its Reply evidence with respect to Line 3 sharing a right of way easement with up to three other active pipelines and asked whether there were indeed three as opposed to six.
4592. Enbridge went out and counted them at the break. There are six. The -- I’m kidding. There are six pipelines. They are all in, essentially, the same corridor. They aren’t all necessarily covered by the same easement agreement.
4593. The point that we were making in response to this requirement for a decommissioning period action plan was that we thought it appropriate that the condition apply to the decommissioned pipeline but not to the existing operating pipelines, and that was the simple point we were trying to make in the rationale.
4594. You asked, Mr. Chairman, about evidence on the record demonstrating why some sections of the decommissioned pipeline need not and should not be removed.
4595. I would refer you to the Engineering Decommissioning Report, Exhibit B4-29 and in particular Section 7.1.4, which discusses the rationale for leaving the pipeline in place and discusses the risks that would be involved in moving -- removing sections of it.
4596. I’d also refer you, sir, to the response of Enbridge to National Energy Board Information Request 5.6, Exhibit B-30-02. And I would point out that that is the evidence before you, and you have no evidence to the contrary.
4597. And to the extent that there is a concern about land use, it would not seem sense -- seem to make sense to remove a section of an existing pipeline when there remain five other existing pipelines in the corridor.
4598. And I think, with that, I’ve covered all of the questions that were left with me. Happy to try to answer any remaining questions that the Board has.
4599. MEMBER RICHMOND: Thank you, Mr. Davies. I appreciate you going through each of my -- well, listening to you say them now, appears to be
Transcript Hearing Order OH-002-2015 Reply Mr. Davies my many questions that I hear back ---
4600. MR. DAVIES: The thought occurred ---
4601. MEMBER RICHMOND: --- read back to me.
4602. MR. DAVIES: --- to me, too, Mr. Richmond.
4603. MEMBER RICHMOND: I think you did answer all of them with one exception. I’m just going to hole up on one, and that was the question on Condition -- Draft Condition 7a, the site specific environmental protection plan. It’s at page 2 of 35. Yeah.
4604. So I think I heard you explain just now in your response that Enbridge doesn’t -- what I took from it, you said we won’t be receiving site specific procedures for each specific site. But what I take from that is you don’t want to provide or you feel there shouldn’t be provided site specific procedures and plans, although that’s probably a determination that the Panel will make at some point.
4605. And my question was, really, if the Panel goes -- and decides to go in another direction, I just want to be cautious that if Enbridge found the word “site specific plans” to be ambiguous and didn’t understand what that meant, are there words that would help you to understand what we mean or what is the ambiguity, if there is one? If there’s not -- if the words are clear and you just think we shouldn’t -- if your argument is we just shouldn’t do it, then that’s fine.
4606. MR. DAVIES: Well, I guess part of the problem is we didn’t know what the Board had in mind by site specific plans and we didn’t want, at the time of compliance with this condition, the Board to be saying, “Well, we told Enbridge in this condition to provide us with a plan for each specific site, a separate plan for each specific site, and that’s not what they’ve provided”.
4607. So we simply wanted to let the Board know that wasn’t our intention. There will be an environmental protection plan which will be applicable to all of the sites and which will set out mitigation measures that will be applied to all of the sites where appropriate.
4608. And frankly, we don’t see any reason why the Board -- realize you’re the decision maker, but we don’t see any reason why the Board would require any different.
Transcript Hearing Order OH-002-2015 Reply Mr. Davies
4609. MEMBER WATSON: Thanks, Mr. Chair.
4610. I just -- Mr. Davies, I think -- and I’m not sure if I missed it or if you missed it, but in either case, I will ask again.
4611. I thought I had asked the question earlier around the change in the filing date for the plan to address outstanding TLU investigations as proposed by the Board condition. I think we had specified 60 days prior to construction, and Enbridge was proposing to reduce it to 30 days.
4612. And I was just wondering if Enbridge had a comment on whether that would impact the ability of participating Aboriginal groups to review the plans as filed.
4613. MR. DAVIES: And Mr. Chairman, I think what I said this morning -- I actually have the benefit of having a draft copy of the transcript in front of me, and you don’t -- or may not.
4614. What I indicated this morning was that the particular condition that you were referring to related to the Section 58 facilities application and that these are Enbridge facilities on Enbridge land which are behind fences. And we certainly don’t think there’s much chance of Aboriginal groups being in those areas hunting and fishing and harvesting plants.
4615. MEMBER WATSON: Thank you for refreshing my memory. I don’t have the transcript here, and I do recall that.
4616. So then my last question is just coming back to your response on the Aboriginal monitoring issue. Are you -- or is Enbridge taking the position that for an Aboriginal person to monitor that they must be hired?
4617. And I’m just seeking clarity if it’s not possible that a useful role could be fulfilled without the person being hired.
4618. MR. DAVIES: Do you have in mind, Mr. Watson -- and I realize this may be a bit of an exaggeration, but do you have in mind that, as this construction is going on, we’re going to have Aboriginal people along the right-of-way looking into the trench or endeavouring to monitor what’s being done by a construction -- or from a construction perspective?
Transcript Hearing Order OH-002-2015 Reply Mr. Davies
4619. I mean, I can see -- I take your point that perhaps Aboriginal people don’t need to be hired to actually see what’s going on, but depending on when they were seeing -- when they were out there seeing what’s going on, I could certainly see some issues with that.
4620. Once this pipeline is built, and there’s a very short construction window, but once the pipeline is built, it’s going to be underground and certainly on those parcels of land that Aboriginal people have access to, they would be able to walk across the right-of-way just like anybody else.
4621. So to the extent that they have an interest in going out themselves and either before the construction starts or after it’s done and taking a look at what’s out there, I don’t think that would be a problem. If they’re unoccupied Crown lands, I think they probably have the right to do that.
4622. Obviously, it would be a different issue if we had a bunch of people walking around during construction.
4623. MEMBER WATSON: I guess what I was trying to understand, Mr. Davies, in your original response, you know, you noted the challenges you may have with a -- you know, a large number of monitors. I’m not sure if the Board knows yet whether that’s -- I think that was one of the things we were trying to sort out in terms of getting you to provide a plan for us that would indicate the level of interest.
4624. But your response spoke to, you know, some of the issues arising regarding training and a concern that these individuals would have to be hired.
4625. So I was really just trying to get a handle on what are the -- you know, what are the constraints that you face regarding a useful role that could be fulfilled by monitors and was it dependent on hiring or not, and could there be some useful training that’s provided that might facilitate a useful role? So I was just really trying to get a handle on that.
4626. MR. DAVIES: And as I said, I think the record does talk about the training programs that Enbridge is undertaking. And some of that training may relate to construction monitoring, certainly.
4627. But I must confess, when we looked at this condition and it was
Transcript Hearing Order OH-002-2015 Reply Mr. Davies talking about monitoring during construction, what we had taken away from that is that these people would actually be doing the sort of monitoring that we have in mind when we talk about construction and environmental monitoring. And that’s why we really -- and there -- you know, that’s problematic for the reasons that I went through. And that’s why we were trying to come up with something that recognizes the desire of Aboriginal people to see what’s going on.
4628. And we haven’t said we won’t file a plan but we wanted to make the Board aware of the fact that the plan that we would have in mind would be significantly different than what we thought at least the Board was driving at in terms of construction and environmental monitoring.
4629. MEMBER WATSON: Okay. Thank you.
4630. MEMBER RICHMOND: Can I just ask a brief follow up to that point and to your response. You said just a moment ago -- I’ll paraphrase I think, but basically, if Aboriginal peoples want to voluntarily monitor the right-of-way on unoccupied Crown lands, either before construction or and/or after construction they’re free to do that, just as anyone else would, I think is what -- if I can paraphrase, that’s correct.
4631. MR. DAVIES: I mean, I was talking about the issue of access, Mr. Richmond. And, obviously, Enbridge would have different views with regard to access if the pipeline construction is ongoing as opposed to before the construction starts or after it’s over.
4632. MEMBER RICHMOND: Right. So the reference to pre- construction or post-.
4633. Would the same apply on privately held Enbridge-owned lands? Would access be granted with Enbridge being the only one who could grant access to those lands?
4634. MR. DAVIES: Is your question if somebody wanted to come in and take a look around the Enbridge sites within these fences would Enbridge accommodate that, other than during construction?
4635. MEMBER RICHMOND: Obviously.
4636. MR. DAVIES: I don’t -- you know, again, it’s not -- I don’t want to
Transcript Hearing Order OH-002-2015 Reply Mr. Davies leave the Board with the impression that I’m here railing back against trying to have Aboriginal people engaged in this project because I’m not. All I’m endeavouring to get across to the Board is that there are some practical issues that we need to have in mind here.
4637. Now, if somebody was interested in having a tour of the Enbridge site facilities, you know, their pump stations or their tanks, I’m sure that Enbridge would be very accommodating in terms of arranging that.
4638. Again, we’re trying to be as helpful as we can in terms of engagement, at the same time recognizing limitations.
4639. THE CHAIRMAN: Thank you, Mr. Davies. I have one question I think.
4640. You heard Mr. Crone in his argument when he made reference to the evidence that he had submitted earlier in the process, and I’m going to be very specific. He mentions in his evidence that his concern was that Enbridge rerouted the pipe to miss his properties which created three miles of new right-of-way. I wonder if Enbridge would like to comment on that assertion from Mr. Crone.
4641. MR. DAVIES: Well, I think the assertion, as far as it goes, is correct. Enbridge did reroute the pipeline around Mr. Crone’s property. The reason was that Mr. Crone wasn’t prepared to enter into an arrangement with Enbridge on terms that were satisfactory to both parties to have the pipeline routed through his property. And one mitigation measure, Mr. Chairman, is to avoid properties where the landowners don’t want you.
4642. Now what we hear Mr. Crone saying is, even though he couldn’t enter into satisfactory arrangements, he wants the Board to direct that the pipe go across his property. So that’s number one.
4643. But number two, the -- but putting aside all that, the issue for the Board is, yes, the line is being rerouted around Mr. Crone’s property. But the question for the Board is; are there any significant adverse environmental effects by doing that? And the answer is no, there isn’t. That’s what the evidence shows you. That’s what the ESA says.
4644. So unless the Board is going to have a hard and fast rule that you can never deviate from an existing right-of-way, I think what Enbridge did in this case
Transcript Hearing Order OH-002-2015 Reply Mr. Davies was perfectly appropriate. And as I say, there’s no basis for concluding that the route that is followed isn’t a satisfactory route, and with mitigation would not have significant adverse environmental effects.
4645. THE CHAIRMAN: Thank you, Mr. Davies. That’s concludes the questions from the Panel.
4646. And that concludes the Board’s OH-002-2015 hearing regarding the Line 3 Replacement Program.
4647. Throughout this proceeding, the Board has been assisted by the submissions and participations of all the parties and their representatives. And the Board would like to thank everyone for participating in this hearing. We also appreciate the efforts, times, and flexibilities of everyone throughout the hearing process.
4648. I’d like to take this time, acknowledge the work of our court reporters, the sound technicians, the Board’s own staff and those who work behind the scenes to ensure the smooth functioning of this hearing.
4649. The Board will release its decisions and its recommendations report on the project in due course and within the legislative time limit.
4650. I’d like to thank everyone again. If you are travelling, please have a safe journey. The record is now closed and this hearing is adjourned.
--- Upon adjourning at 4:34 p.m./L’audience est ajournée à 16h34
Transcript Hearing Order OH-002-2015