JOINT REVIEW PANEL FOR THE ENBRIDGE NORTHERN …- Mr. Keith Bergner - Mr. Lewis L. Manning Cenovus...

JOINT REVIEW PANEL FOR THE ENBRIDGE

NORTHERN GATEWAY PROJECT

COMMISSION D’EXAMEN CONJOINT DU PROJET

ENBRIDGE NORTHERN GATEWAY

Hearing Order OH-4-2011

Ordonnance d’audience OH-4-2011

Northern Gateway Pipelines Inc.

Enbridge Northern Gateway Project

Application of 27 May 2010

Demande de Northern Gateway Pipelines Inc.

du 27 mai 2010 relative au projet

Enbridge Northern Gateway

VOLUME 173

Hearing held at

Audience tenue à

Chances Prince Rupert

240 West, 1st Avenue

Prince Rupert, British Columbia

April 29, 2013

Le 29 avril 2013

International Reporting Inc.

Ottawa, Ontario

(613) 748-6043

© Her Majesty the Queen in Right of Canada 2013

as represented by the Minister of the Environment

and the National Energy Board

© Sa Majesté du Chef du Canada 2013

représentée par le Ministre de l’Environnement et

l’Office national de l’énergie

This publication is the recorded verbatim transcript

and, as such, is taped and transcribed in either of the

official languages, depending on the languages

spoken by the participant at the public hearing.

Cette publication est un compte rendu textuel des

délibérations et, en tant que tel, est enregistrée et

transcrite dans l’une ou l’autre des deux langues

officielles, compte tenu de la langue utilisée par le

participant à l’audience publique.

Printed in Canada Imprimé au Canada

Transcript Hearing Order OH-4-2011

HEARING /AUDIENCE

OH-4-2011

IN THE MATTER OF an application filed by the Northern Gateway Pipelines

Limited Partnership for a Certificate of Public Convenience and Necessity

pursuant to section 52 of the National Energy Board Act, for authorization

to construct and operate the Enbridge Northern Gateway Project.

HEARING LOCATION/LIEU DE L'AUDIENCE

Hearing held in Prince Rupert (British Columbia), Monday, April 29, 2013

Audience tenue à Prince Rupert (Colombie-Britannique), lundi, le 29 avril 2013

JOINT REVIEW PANEL/LA COMMISSION D’EXAMEN CONJOINT

S. Leggett Chairperson/Présidente

K. Bateman Member/Membre

H. Matthews Member/Membre


APPEARANCES/COMPARUTIONS (i)

APPLICANT/DEMANDEUR Northern Gateway Pipelines Inc. - Mr. Richard A. Neufeld, Q.C. - Mr. Ken MacDonald - Mr. Bernie Roth - Ms. Laura Estep - Ms. Kathleen Shannon - Mr. Dennis Langen - Mr. Douglas Crowther INTERVENORS/INTERVENANTS Alberta Federation of Labour - Ms. Leanne Chahley Alberta Lands Ltd. - Mr. Darryl Carter Alexander First Nation - Ms. Caroline O’Driscoll - Mr. Douglas Rae BC Nature and Nature Canada - Mr. Chris Tollefson - Mr. Anthony Ho - Ms. Natasha Gooch Doug Beckett Province of British Columbia - Ms. Elizabeth Graff - Mr. Christopher R. Jones Nathan Cullen C.J. Peter Associates Engineering - Mr. Chris Peter Canadian Association of Petroleum Producers (CAPP) - Mr. Keith Bergner - Mr. Lewis L. Manning Cenovus Energy Inc., Nexen Inc., Suncor Energy Marketing Inc., Total E&P Canada Ltd. - Mr. Don Davies Coastal First Nations - Ms. Brenda Gaertner - Mr. Art Sterritt


APPEARANCES/COMPARUTIONS (Continued/Suite)

(ii) INTERVENORS/INTERVENANTS Council of the Haida Nation - Ms. G.L. Terri-Lynn Williams-Davidson - Guujaaw Daiya-Mattess Keyoh - Mr. Kenny Sam - Mr. Jim Munroe Douglas Channel Watch - Mr. Murray Minchin - Ms. Cheryl Brown - Mr. Kelly Marsh - Mr. Manny Arruda - Mr. Dave Shannon Driftpile Cree Nation - Mr. Amyn F. Lalji Enoch Cree Nation, Ermineskin Cree Nation and Samson Cree Nation - Mr. Allan Stonhouse - Mr. Markel Chernenkoff - Mr. G. Rangi Jeerakathil ForestEthics Advocacy, Living Oceans Society and Raincoast Conservation Foundation - “The Coalition” - Mr. Barry Robinson - Mr. Tim Leadem, Q.C. - Ms. Sasha Russell - Ms. Karen Campbell Fort St. James, District of - Mr. Kevin Crook Fort St. James Sustainability Group - Mr. Lawrence Shute - Ms. Brenda Gouglas - Ms. Kandace Kerr Friends of Morice-Bulkley - Ms. Dawn Remington - Mr. Richard Overstall Gitga’at First Nation - Mr. Michael Ross - Ms. Krystle Tan



(iii) INTERVENORS/INTERVENANTS Gitxaala Nation - Ms. Rosanne M. Kyle - Ms. Virginia Mathers - Ms. Leslie Beckmann Government of Alberta - Mr. Evan W. Dixon - Mr. Ron Kruhlak Government of Canada - Mr. James Shaw - Ms. Dayna Anderson - Mr. Kirk Lambrecht - Mr. Brendan Friesen - Ms. Sarah Bird Haisla Nation - Ms. Jennifer Griffith - Ms. Hana Boye - Mr. Jesse McCormick - Mr. Allan Donovan - Mr. Michael Gordon - Ms. Gillian Bakker Heiltsuk Tribal Council - Ms. Carrie Humchitt - Mr. Benjamin Ralston - Ms. Lisa Fong Kelly Izzard Kitimat Valley Naturalists - Mr. Walter Thorne - Mr. Dennis Horwood - Ms. April MacLeod - Mr. Ken Maitland MEG Energy Corp. - Mr. Loyola Keough - Mr. David A. McGillivray Michel First Nation - Acting Chief Gil Goerz - Ms. Tracy Campbell



(iv) INTERVENORS/INTERVENANTS Northwest Institute of Bioregional Research - Ms. Patricia Moss Office of the Wet'suwet'en - Mr. Mike Ridsdale - Mr. David De Wit - Chief Namoks (John Ridsdale) Swan River First Nation - Mr. Jay Nelson - Ms. Dominique Nouvet United Fishermen and Allied Workers' Union - Ms. Joy Thorkelson - Mr. Hugh Kerr Terry Vulcano Dr. Josette Wier National Energy Board/Office national de l’énergie - Mr. Andrew Hudson - Ms. Carol Hales - Ms. Rebecca Brown - Mr. Asad Chaudhary - Mr. Neil Patterson


TABLE OF CONTENTS/TABLE DES MATIÈRES

(i)

Description Paragraph No./No. de paragraphe

Opening remarks by the Chairperson 25257

Preliminary matters brought forward by Ms. Bird 25260

Government of Canada Panel 2

Operations, Safety, Accident Prevention & Response,

and Submarine Slope Failure and Tsunami Potential

Mr. George Armstrong

Dr. Andrée Blais-Stevens

Dr. Carl Brown

Mr. Kevin Carrigan

Dr. John Cassidy

Dr. Caroline Caza

Dr. Josef Cherniawsky

Mr. John Clarke

Mr. Kim Conway

Dr. Heather Dettman

Mr. Chris Doyle

Mr. Wayne Dutchak

Mr. Michael Dwyer

Mr. Michael Engelsjord

Mr. Charles Hansen

Mr. Grant Hogg

Dr. Bruce Hollebone

Dr. Ali Khelifa

Mr. Erik Kidd

Dr. Gwyn Lintern

Ms. Laura Maclean

Mr. François Marier

Mr. Phil Murdock

Capt. Glenn Ormiston

Mr. Donald Roussel

Mr. Paul Topping

Mr. Rob Turner

Mr. Shane Walters

- Examination by Mr. Roth (continued) 25266

- Examination by Mr. Hudson 25551

- Examination by Member Matthews 25652

- Examination by the Chairperson 25687


TABLE OF CONTENTS/TABLE DES MATIÈRES

(ii)



Aboriginal Affairs & Northern Development Canada (AANDC)

Emergency Management, Evidence and IRs

Mr. Eric Magnuson

Ms. Sheila Craig

Ms. Jean Gauld

Ms. Lise Hamonic

Mr. John Wilson

- Introduction by Mr. Friesen 25726

- Examination by Ms. Mathers 25743

- Examination by Mr. McCormick 25803

- Examination by Mr. Rae 25856

- Examination by Member Matthews 26181


Aboriginal Engagement and Consultation Framework and Approach

Mr. Bruno Steinke

Mr. Dean Stinson O’Gorman

Mr. Terence Hubbard

- Examination by Mr. Lambrecht 26219

- Examination by Mr. Rae 26252

- Examination by Mr. McCormick 26384


LIST OF EXHIBITS/LISTE DES PIÈCES

(i)

No. Description Paragraph No./No. de paragraphe

AQ95-A Gitxaala Nation – Aboriginal Affairs and Northern

Development Canada (AANDC) National Emergency

Management Plan 25797


RULINGS/DÉCISIONS

(i)



UNDERTAKINGS/ENGAGEMENTS

No. Description Paragraph No./No. de paragraphe

U-87 For AANDC to inform the Alexander First Nation about

whether, in the case of the Alexander First Nation

Reserve lands (fee simple lands), legal title to those

Reserve lands include the beds of water bodies and the

waters within those Reserve lands. 26013


Examination by Mr. Roth


--- Upon commencing at 7:58 a.m./L’audience débute à 7h58

25257. THE CHAIRPERSON: Good morning, everyone.

25258. Are there any preliminary matters this morning?

25259. Ms. Bird.

25260. MS. BIRD: Good morning, Madam Chair.

25261. Just as a reminder -- and I think we already did hear it, but just for the

record -- we do have now appearing remotely Michael Engelsjord from DFO,

appearing remotely, as well as Mr. John Clarke from NRCan, Dr. Heather

Dettman also from NRCan and Mr. Gwyn Lintern also -- or Dr. Gwyn Lintern

from NRCan as well.

25262. THE CHAIRPERSON: Thank you, Ms. Bird.

25263. MS. BIRD: You're welcome.

25264. THE CHAIRPERSON: Seeing no other preliminary matters, good

morning, Mr. Roth. Please continue with your questions of this Panel.

25265. MR. ROTH: Thank you very much, Madam Chair.

GEORGE ARMSTRONG: Resumed

ANDRÉE BLAIS-STEVENS: Resumed

CARL BROWN: Resumed

KEVIN CARRIGAN: Resumed

JOHN CASSIDY: Resumed

CAROLINE CAZA: Resumed

JOSEF CHERNIAWSKY: Resumed

JOHN CLARKE: Resumed

KIM CONWAY: Resumed

HEATHER DETTMAN: Resumed

CHRIS DOYLE: Resumed

WAYNE DUTCHAK: Resumed

MICHAEL DWYER: Resumed

MICHAEL ENGELSJORD: Resumed

CHARLES HANSEN: Resumed




GRANT HOGG: Resumed

BRUCE HOLLEBONE: Resumed

ALI KHELIFA: Resumed

ERIK KIDD: Resumed

GWYN LINTERN: Resumed

LAURA MACLEAN: Resumed

FRANÇOIS MARIER: Resumed

PHIL MURDOCK: Resumed

GLENN ORMISTON: Resumed

DONALD ROUSSEL: Resumed

PAUL TOPPING: Resumed

ROB TURNER: Resumed

SHANE WALTERS: Resumed

--- EXAMINATION BY/INTERROGATOIRE PAR MR. ROTH:

(Continued/Suite)

25266. MR. ROTH: So where we left off on Saturday afternoon was we had

spoken about the effects on weathering, what had the greatest effects on

weathering and we discussed the thickness of oil and wind.

25267. And I should preface my remarks today by stating my cross-

examination or questions were based on an assumption that Dr. Short understood

what Environment Canada was doing to weather samples and calculate

evaporation rates.

25268. And Dr. Hollebone, when I was asking questions of you on your

methodology where you use heat and a rotary method to evaporate, I was

proceeding on the basis that that’s how the evaporation curves were being

developed. And the way I read Dr. Short's report and his criticisms of Northern

Gateway is that we didn’t have enough evaporation occurring quickly enough and

I thought that was because of your methodology.

25269. So, anyway, that's just to preface my remarks and you were telling me

on Friday: “No, Mr. Roth, we have two different methodologies for artificially

weathering oil. One is to get you to the ultimate fate that we think it eventually

gets to but we have another method for developing evaporation rates.”

25270. Is that essentially correct?




25271. DR. BRUCE HOLLEBONE: In fact, we have three and the -- to

feed into the models.

25272. The curve that you're talking about using pan evaporation but also I

would say the simulated distillation data is equally important for evaporation rate

modeling inputs.

25273. MR. ROTH: Okay.

25274. And the simulation data is derived through what type of testing?

25275. DR. BRUCE HOLLEBONE: It's a chromatographic technique to

simulate the evaporation in a -- or it's to simulate the boiling point fraction in a

refinery tower.

25276. Perhaps Dr. Dettman can talk more about this because this is her area

of expertise but it is a standard ASTM method used on a chromatograph to -- and

had been adopted by the spill modeling community as one of their inputs for

evaporation modeling.

25277. MR. ROTH: Right.

25278. And just before she does, it's not related to the testing you do with the

heat and the rotary device over a 48-hour period? It's not based on that?

25279. DR. BRUCE HOLLEBONE: I'm not sure what you're saying.

25280. We use them to check each other but -- and measuring things in

multiple ways, this allows to check our results and make sure they're internally

consistent.


25282. So, yeah, if Dr. Dettman had anything to add, by all means.

25283. DR. HEATHER DETTMAN: Hello.

25284. THE CHAIRPERSON: Hello, Dr. Dettman?

25285. DR. HEATHER DETTMAN: Okay, that’s good.




25286. THE CHAIRPERSON: Yeah.

25287. DR. HEATHER DETTMAN: I guess in terms of the simulated

distillation, that is a standard technique and it's -- and reports on the distribution

of the hydrocarbon boiling points of particular samples; and so is a standard

technique used in the industry.

25288. And so I don’t know if there's any other specific questions you have

about that?

25289. MR. ROTH: Sorry, a standard technique used in the -- for the

refining industry?

25290. DR. HEATHER DETTMAN: Yes, for characterizing crude oil

fractions, full crudes.

25291. In particular, for high temperature simulated distillation, that can be

used for full crudes like -- for instance, like the diluted bitumen products.


25293. And maybe Dr. Hollebone, if we could go to your presentation that

you produced by way of undertaking? Exhibit E9-70 at Adobe page 9.

25294. Now, as far as how these evaporation curves were developed -- maybe

if we could start with the green line on the very bottom which is a bitumen.

25295. Now, did you do that work to develop the evaporation curve for that

undiluted bitumen?

25296. DR. BRUCE HOLLEBONE: I would have to double-check my

notes, but I believe that’s a pan evaporation study that we did, yes.


25298. On what type of bitumen; do you recall?

25299. DR. BRUCE HOLLEBONE: That, in fact, I believe is a mostly

already weathered bitumen. So we didn’t expect it to evaporate very much nor




did it.

25300. MR. ROTH: But was that the Wabasca or was that a Cold Lake?

25301. DR. BRUCE HOLLEBONE: That was a Wabasca.


25303. So then -- actually if -- and there's two places, it was also in the IR that

you referenced, that Dr. Short relied on. But if we flip back to Adobe page 6 of

this presentation, there on the left-hand side, in the middle, we have the Wabasca

heavy.

25304. Now, there's no data in there, I assume that that was just omitted, it's

not the fact that everything became -- there was no end compounds in there;

correct?

25305. Why was -- why there no bars for the Wabasca heavy?

25306. DR. BRUCE HOLLEBONE: Well, those had been removed.

25307. As I said, this was already a weathered bitumen. So that -- that is, in

fact, the data we had.


25309. And then -- but up on the top corner -- and it's not on this slide, it's

actually -- Ms. Niro, if you could go to Adobe 27?

25310. There it says:

“Wabasca Heavy 10.7 percent weathered.”

25311. Now, what I think -- and you discussed this before -- is using the

rotary heat evaporation technique, you -- actually within 48 hours, you are getting

rid of 10.7 percent of the volume of that Wabasca heavy?

25312. DR. BRUCE HOLLEBONE: Under those conditions, yes.





25314. So if we go back to Adobe Slide 9, when we're projecting out using a

technique that is your Petri dish evaporation over the course of -- it appears to be

a month, approximately one month, it looks like we're getting 1 percent or less

evaporation?

25315. DR. BRUCE HOLLEBONE: Let me just -- you're putting this up --

let me just double-check that.

25316. That may be the Cold Lake bitumen, let me just double-check that for

you; okay?

25317. MR. ROTH: Is it going to be relevant whether it's Cold Lake

bitumen or the Wabasca?

25318. DR. BRUCE HOLLEBONE: I believe so because the Wabasca did

pan evaporate a little bit.

25319. I suspect that may be the original Cold Lake source bitumen data that

was in the Environment Canada database. So I think that actually is -- I may have

misspoken earlier, I think -- my recollection is that that’s the Cold Lake bitumen.


25321. I guess -- but for at least the undiluted bitumens -- like even if we're

talking months, is it -- it's not going to lose 10.7 percent of its volume; is it?

25322. DR. BRUCE HOLLEBONE: A pure bitumen I would not expect

that to happen, no.

25323. MR. ROTH: Okay. Okay.

25324. And then, the tests that Dr. Short was doing were premised on the

Wabasca that you had worked with and the evaporation and weathering of that to

lose 10.7 percent of the volume.

25325. Is that how you understand Dr. Short's report?

25326. DR. BRUCE HOLLEBONE: Yes.




25327. However, I would caution that that Wabasca that we had was from an

academic source. We couldn’t testify to the initial handling of this material. I

believe it was partially weathered when we looked at it, to begin with.


25329. And by “partially weathered” you mean that somebody removed the

overburden and either produced it from an in situ well and it was left out in the

sun or air to weather?

25330. DR. BRUCE HOLLEBONE: These things, as I -- as we’ve come to

understand, are very sensitive to handling and I think just normal laboratory use

from the original collector and then transferred to us as a favour because we were

looking for sources of these oils.

25331. During that time, the handling may not have been to the high quality

that’s necessary for handling these oils.


25333. And it’s also -- what you’re suggesting is as far as at least native

undiluted bitumen is concerned, the use of the rotary evaporation technique may

be overestimating the final state of weathering even after months?

25334. DR. BRUCE HOLLEBONE: I’m not sure where you’re getting that

from.

25335. MR. ROTH: Well, I’m just getting it from this line right here that, if

we project that out over a month, it is going -- it is unlikely to weather up to 10

percent.

25336. DR. BRUCE HOLLEBONE: Well, if that is the Cold Lake Bitumen

and I now do believe that that is ---


25338. DR. BRUCE HOLLEBONE: --- that’s an unrelated sample to the

Wabasca Heavy you’ve just been discussing.





25340. As far as the other products that you have evaporation curves for here,

are those -- what -- are those tests that you did at Environment Canada -- the

synthetic crude and the dilsynbit?

25341. DR. BRUCE HOLLEBONE: The dilsynbit is the Albian Heavy

Synthetic sample.

25342. The Alberta Sweet Medium Crude is one of our samples. I would

have to double-check the provenance of the synthetic crude. That may have been

taken from the SL Ross data.


25344. But the dilsynbit is the Albian that you worked with?

25345. DR. BRUCE HOLLEBONE: That’s right.


25347. And just as far as what’s it’s exhibiting for evaporation -- and we

discussed the other day -- it is exhibiting something fairly similar to what Dr.

Fingas was talking about: rapid evaporation over the first two days and then

gradually tapering off?

25348. DR. BRUCE HOLLEBONE: That’s right.


25350. Now, if we could go to Adobe slide 23? And I don’t know if you were

able to do this but we were talking about the fact that the …

--- (A short pause/Courte pause)

25351. MR. ROTH: Actually, if we -- Mr. McHugh just told me we should

make one more line of inquiry before we flip to slide 23, Ms. Niro.

25352. If we can go back to slide 29?

25353. Dr. Hollebone, how does -- you did do your evaporation rotary method




on the Albian Heavy Synthetic and the ultimate amount of weathering and the

amount of loss, your rotary evaporation method ended up with considerably more

evaporation loss than what’s shown here; correct?

25354. DR. BRUCE HOLLEBONE: That’s correct.


25356. So, in fact, you ended up with 22.58 percent evaporation loss from the

Albian Heavy Synthetic when you -- over 48 hours in your rotary evaporation

method?

25357. DR. BRUCE HOLLEBONE: That’s correct.


25359. And here you appear to have lost -- over the course of a month -- 15

percent.

25360. DR. BRUCE HOLLEBONE: As you say.


25362. So I take it what you’re saying -- and this is a point you were making -

- is the determination of the ultimate density and weathering is not really for

emergency response purposes, fate and effect, it would be if this product would

ever in the natural environment get to a 22.58 percent weathered state, at that

slope, it would be months, if not years off?

25363. DR. BRUCE HOLLEBONE: I think you’re over-interpreting what

you’re seeing.

25364. The -- these tests are done in a shallow pan with a shallow amount of

oil with basically no wind at all in a controlled temperature environment and they

represent a sort of slowest possible evaporation rate at that temperature.

25365. When you look at the effects of other factors on evaporation, they may

come into play but this is a certain test designed to operate in a certain way and I

don’t think you can draw the inference that you’re drawing there or at least I

would not be willing to do so.





25367. And maybe what we’re getting back to then is the discussion we were

having with Dr. Khelifa when we were asking questions about Dr. Fingas’ work

and the degree to which the thickness of the oil and wind come into play, as far as

weathering or evaporation is concerned?


25368. DR. BRUCE HOLLEBONE: Could we just get you to state your

inquiry in the form of a question?

25369. We’re a little puzzled as to what to respond to.

25370. MR. ROTH: Well, we were talking about this on Friday and whether

the uncertainty regarding how products would weather and react in the

environment is common to all products, even conventional products, and you’d

have the same issue with that Alberta Sweet Medium; you’d have the same issue

with Alaskan Crude; you’d have the same issue with West Texas Intermediate as

to what the evaporation curves would look like. I think we confirmed that on

Saturday.


25371. DR. BRUCE HOLLEBONE: I think my -- my colleague, Dr.

Khelifa, is probably best suited to answer this.

25372. This is getting into modeling so we wanted to be sure we had the right

person talking about this.


25374. And maybe before we do -- and you can add this to the answer -- as far

as the effect that wind and thick slickness has, is that something, Dr. Hollebone,

that you have to provide to the modellers to do their modeling or are they the ones

making assumptions regarding the relative impact of these various weathering

factors: photo-oxidation, wind, thick slickness?

25375. How did you interrelate with the modellers as far as them being able to




make assumptions as to how big of an impact wind speed has on -- on evaporation

or how big of an effect the thickness of the slick has on evaporation?

25376. DR. BRUCE HOLLEBONE: Again, we’re getting into modeling

questions and Dr. Khelifa has a lot to say on that.

25377. I will say that the data we provide, currently, is primarily the simulated

distillation data. This kind of data is used as a sanity check and a sort of

understanding for what -- how the evaporation rate of the oil is occurring.

25378. And then, the rotary evaporated fractional data is used to prepare these

intermediates that we then use at that slice of the oil to assess the -- assess the

various properties in the oil to give to the modellers at that stage. So we look at

these slices of the oil to look -- to look at that.

25379. So if I have one that is a long way away from where it could possibly

end up, but one at the beginning, we can do interpolations using various methods

to get -- at those intermediate points and that’s what the modellers do with the

data.

25380. So the -- the fact that we’ve got a rotary evaporation that sent prepared

sample that is fairly weathered -- and, in fact, one of the complaints I get from the

models is I don’t weather them enough -- that the -- they use that as a sort of set

of data that they can use to interpolate the properties they need.

25381. But in terms of the thickness and the wind, I’ll let Dr. Khelifa answer

that.

25382. DR. ALI KHELIFA: Thank you. Ali Khelifa, Environment Canada.

25383. Madam Clerk, could you please display Exhibit 23-37? B23-37?

25384. So this is the technical report submitted as part of the application that

address the fate -- the fate and behaviour and the modeling site as well, Madam

Chair.

25385. And since we -- I’m glad that we -- we came back to the wind and

thickness question again which is an important question.

25386. So could you go to Page 14, please? Yes. Page 14, Adobe.




25387. THE CHAIRPERSON: Ms. Niro is saying that this Exhibit number

only has one page.

25388. DR. ALI KHELIFA: Madam Chair, ---

25389. DR. BRUCE HOLLEBONE: Yes. If -- if I might clarify a little bit?

25390. This was actually almost filed twice in some way. So, it’s on the

record under two different evidence numbers. The full report is -- it’s B16-31, I

believe.

25391. DR. ALI KHELIFA: Thanks, Bruce. But it’s the same report.

25392. DR. BRUCE HOLLEBONE: Yes.

25393. DR. ALI KHELIFA: It’s the same so, yes.

25394. Can you go to one page up? Okay, that’s called “Evaporation”. So we

are talking about evaporation there.

25395. So go down again. So in order to calculate the operation, the

Proponent is using in Equation 1: “xo”. And “xo”, it can say -- it shows that it’s

initial slick thickness, so the thickness is there.

25396. Could you go down one page, please? I think it’s there. No, up, up,

up. Up, up a bit. The end of the -- what -- here.

25397. And here we calculate the -- the evaporation itself, Equation No. 3.

25398. And if we move up slightly, the previous equation, Equation No. 1,

near Equation No. 2 -- that’s it. Excellent, very good, “K”.

25399. It says “K” in Equation 1 is the mass transfer coefficient. And it’s --

the Proponent used Equation No. 2 to calculate that and they bring your attention

that “U” in Equation 2 is the wind speed.

25400. So they use the wind speed then the thickness to calculate evaporation.

And now, here, we are questioning about the effect of wind and so on.




25401. Let’s go back to -- I’m here to provide some scientific background of

this -- the effect of this too, referring to Merv Fingas, that the wind does not have

big effect on the evaporation. It’s not exact statement that Merv was referring.

25402. Merv Fingas -- Dr. Merv Fingas, what he’s referring he said that the

wind has effect in a few moment in the -- in the beginning. When you increase

further -- and the -- the effect is important. When you increase further the wind

moving up does not have that much effect. That’s what he was saying. But he’s

not saying that the effect of wind is zero.

25403. Now, what we are trying to emphasize -- and I wish I had -- I had a

pointer here -- in Equation 2, that’s one of our concerns. Thanks a lot.

25404. In Equation 2, how this equation, for instance, apply for dilbit, that’s

our concern. That’s our concern from the -- one of our concerns: Is this applies

for -- was it validated for dilbit? Is this exponent proper? Is it -- is it good?

Maybe it applies for others and not here?

25405. That’s our concern is to -- we need to do more. We need to do some

science; we need to do some testing. Different winds, different thicknesses and to

show -- in order to show exactly what’s the relationship. And I hope this answer

the question.

25406. MR. ROTH: I believe it does, Dr. Khelifa, as far as confirming that

Northern Gateway, through the work done by SL Ross, did account for the effects

of wind and slick thickness on their modelling -- using their modelling work,

which they then used for their ecological and human health risk assessments

because it determined the fate and effects.

25407. And it appears that Dr. Short may not have known that because he was

going back to the -- to the same types of test that Dr. Hollebone was doing. SL

Ross did those in wind tunnelling tests and then, as far as the mesoscale testing,

now, that Dr. King is doing, SL Ross had done similar mesoscale tests.

25408. Dr. King is doing them with a few more details and a larger apparatus,

as I understand it, but it appeared that Dr. Short didn’t understand that, in fact, SL

Ross had taken into account wind speed and slick thickness in doing all its

modelling for fate and effects for environmental assessment purposes.

25409. Would you agree with that, Dr. Khelifa?





25410. DR. ALI KHELIFA: Madam Chair, we are not here to comment the

Jeff Short report. It’s not our -- our work.

25411. But I should -- I should bring the attention of the Panel that Jeff Short

used exactly the same model. The same parameters that were -- that were

obtained, proposed by the Proponent to predict the evaporation under different

conditions.


25413. But I’m talking about his report regarding the criticisms of the SL

Ross wind tunnelling work saying that it did not use enough of a thick -- or used

too much of a thick slickness and the mesoscale work that didn’t use enough

wind.

25414. That’s what I was referring to, Dr. Khelifa.

25415. DR. ALI KHELIFA: Again, we are not here to comment on Jeff

Short.

25416. The Proponent in its Application -- and that I can take you the page --

used this model again to predict the evaporation at 10 knots, at different wind

speed.


25418. DR. ALI KHELIFA: And even the Proponent used one millimetre

thickness.


25420. DR. ALI KHELIFA: To predict this evaporation stuff.

25421. I can take you to the right page if that necessary.

25422. MR. ROTH: No.




25423. Indeed, I understand that. Maybe, Dr. Khelifa, if we could go -- the

reason why I’m asking this question is if we could go to Dr. Short’s report which

is Exhibit D72-80-2 at Adobe page 9?

25424. And I guess this is what became apparent to me over the course of our

discussions on Saturday and today is Dr. Short is saying:

“However, without the details of [...] weathering procedure

used by Environment Canada to produce the density

measurements, it is not clear how likely spilled bitumen

products would weather to the densities measured under the

natural ambient conditions.”

25425. And I guess what you’re doing is confirming that Environment Canada

didn’t have any discussions with Dr. Short regarding how they were doing their

weathering and under what conditions and how you were developing evaporation

curves; correct?

25426. DR. BRUCE HOLLEBONE: The only communications I’ve had

with Dr. Short on this matter, since about 2009 or so, have been two

communications where I sent him the data on Albian Heavy Synthetic and on the

Wabasca Heavy just as data reports.

25427. No more or less than has been interred into evidence.


25429. DR. BRUCE HOLLEBONE: I provided him no commentary on

methods or any of that nature.

25430. MR. ROTH: Yeah, and I’m not suggesting it would have been wrong

for you to have done so if you would have done so, what it might have done is we

might not have had Dr. Short’s report if he had corresponded with you which

might have been a good thing. Then I wouldn’t have asked this Panel any

questions.

25431. But, in any event, we’re at where we’re at.

25432. If we could go to Adobe page 23 of your presentation and get to the --

one of the last difficulties I had with Dr. Short’s report regarding coefficients of




thermal expansion.

25433. And just for the Panel’s benefit -- and they may understand and be a

quicker study than I was -- but the relevance of the coefficients of thermal

expansion is that the density of a liquid product -- and I’m just stating my

understanding for you to confirm -- for water here and I take it brine at 3.3

percent is meant to be sea water or marine water; correct?

25434. DR. BRUCE HOLLEBONE: That’s a particularly -- that’s a fairly

high salt level salt brine but, yes, that’s supposed to be the open ocean.


25436. And my understanding is these coefficients of thermal expansion are

very well-known and really not in dispute as far as water is concerned.

25437. DR. BRUCE HOLLEBONE: Those were taken from standard

reference tables.


25439. And what it shows is, as a liquid product varies by temperature, there’s

not a linear function to the decrease in density as the liquid becomes cooler.

25440. That’s why there’s curvature to those water lines; correct?


25441. DR. BRUCE HOLLEBONE: Yeah, we need to keep in mind

water’s a fairly unique fluid in many ways and so the -- it has a very strange

relationship between -- compared to many other properties.

25442. It has a very strange relationship between the fluid and the solid. So it

does have this curvature particularly near its freezing point.

25443. Now, we’re not here to get into an academic discussion of this but,

yes, you’re right the water’s curves are -- the water curves -- the water thermal

expansion coefficients are curved. And they are curved somewhat uniquely for

water.




25444. There’s very -- there’s very few other substances that behave this way.


25446. And just so we know what we’re talking about and this gets back to, I

don’t know, my -- I don’t have a great deal of scientific knowledge of how

matters, different types of substances behave but my understanding is when things

are hot, molecules are very rapid and they’re moving around. So you get water

that’s warm and that decreases the density of the fluid.

25447. As you cool it down and it gets cooler, they tend to get closer to what

their eventual solid state would be and the density of the substance increases.

25448. Is that ---

25449. DR. BRUCE HOLLEBONE: Yeah, that’s a first-year science

approach.

25450. The problem is water doesn’t do that.

25451. MR. ROTH: Okay. Grade 9 science, actually.

--- (Laughter/Rires)


25453. But the point being made is these thermal coefficients are different for

different substances and what -- and we’ll go to a similar graph in Dr. Short’s

evidence but what we’re showing is where the density due to temperature effect,

where the density of oil products intersects with the density of the water due to

temperature changes this is what -- where there is susceptibility -- submergence at

those points of intersection between those lines; correct?

25454. DR. BRUCE HOLLEBONE: That’s one way of interpreting this

graph, yes.


25456. And, now, if we look at it, a lot of these have some -- some are

concave and some are convex. So Orinoco bitumen, for sake of example, is even




more concaved than -- is that concave or convex? Sorry, I’m -- if it goes like that

I think it’s concave; correct?

25457. The top line for Orinoco bitumen?

25458. DR. BRUCE HOLLEBONE: Yeah, you’re talking about, actually,

the fit lines that are on the data.

25459. The data themselves -- my measurements are the various points on that

graph.


25461. And you can -- but by connecting that, you’re getting a rough idea of

what the thermal coefficient of the liquid is.

25462. DR. BRUCE HOLLEBONE: There is no attempt to put a model on

this.

25463. So this was just a best fit curve taken in the graphing program I was

using.


25465. But when I -- you connected the dots and when you connect the dots

for your Cold Lake bitumen, it almost draws a straight line. If you connect the

first dot, the last dot, all the dots or the ‘x’s in between are right on a straight line

with hardly any variance.

25466. So you have a constant thermal expansion coefficient.

25467. DR. BRUCE HOLLEBONE: The data interpretation you’re trying

to draw here -- I think you’re -- there -- you’re trying to put an inference there that

may not be supportable in that there are many ways you could fit those curves.

25468. And particularly -- I know where you’re going in terms of the Short

interpretation -- he’s got two points. And it’s impossible to tell on the Short data,

based on two points either from my own lab or from the SL Ross work as well,

what the shape of those curves are.




25469. It’s very common to use linear interpretations because these ranges are

fairly narrow and, as you can see, most of those data would fit a straight line

reasonably well with some variation and scatter just because of experimental

difficulties.

25470. So it’s hard to say what the curve should be in that region if you want

to be very, very, very precise. And I think this is one of the areas where we have

to say, particularly because there’s so little data that we’re talking about here and

it’s under dispute, this is the example of -- of what gets to the heart of our

recommendation. We’re trying -- they’re -- we’re trying to have arguments here

over very tiny details that are lost in the -- potentially lost in the experimental

noise.

25471. And so it’s much more useful, I think, to think rather than trying to

work with such limited data on either side, we have two reports here that neither

or which have been subject to full peer-review yet, neither of which have been

published in a -- with the full scientific deliberation and process. And not to

criticize the work in either one of them but simply to say that there is -- this whole

issue highlights the idea that we don’t know enough yet, to me.

25472. If my reaction as a scientist is to look at these -- the combination of

these two reports and say: “We need to do some more work here.” And that’s the

conclusion I draw out of looking at both of these reports, that we don’t really have

enough data to make conclusions on either side, there are some suggested

conclusions on both papers; and some suggested data from the SL Ross study,

some suggested data from the -- from the Jeff Short study.

25473. And I will not that Dr. Short, as I understand it, is to be here later

anyway and I think many of these questions that you’re posing to me might be

better directed to him, so -- but that’s my take and that’s where I would go with

this.


25475. But you understand the reason I was posing the questions to you is

because Dr. Short was using your data, Environment Canada’s data, to do this --

specifically, he was using your Wabasca simulation where you evaporated

Wabasca using your thermal rotary technique and that’s how he drew his line of

thermal coefficients.




25476. But, Dr. Hollebone, just to your point that most of these are straight

lines, when I was connecting the dots, there is substantial variance on the heavy

fuel oil, the fuel oil, the -- all of these products. The only one that’s relatively

straight is the undiluted Athabasca bitumen. The rest of these have significant

curvature in them such that if you did Dr. Short’s technique and drew a straight

line, you would end up at a far different point where the intersection with water

and the potential sinking would occur.


25477. DR. BRUCE HOLLEBONE: The -- yeah, I mean, the -- the -- I

think the comment we have to make here is that there are many lines you could

draw on that graph.

25478. And again, we’re not trying to pretend that the lines on that graph are

particularly representative of a single model kind of approach, they’re mostly

used as a visual aid so that you can extrapolate between the various curves. The -

- the -- how that would -- how that -- lines could be drawn or could be done in

many ways.

25479. There’s a standard technique used by the -- and recommended by the

ASTM, for example, which, in this region, becomes very linear.

25480. So the -- the choice of one technique over another, I think we have to

talk about, you know, do we have enough data to do that in the case that you’re --

you’re talking about?


25482. But I’m talking about well-known products like heavy fuel oil and

Fuel Oil No. 5 and you’re suggesting to me that the curves that you have drawn --

there’s no -- unlike water, there’s no standard line for heavy fuel oil that’s

relatively indisputable.

25483. DR. BRUCE HOLLEBONE: For a particular product, no.

25484. I mean, the API does -- that’s what the purpose of the API tables is,

the -- the American Petroleum Institute tables are. They’re there to do that in a

general sense for petroleum products.




25485. MR. ROTH: But then, again, we’re getting back to the point that we

keep on saying “these products”, being Canadian oil sands products, and we don’t

have enough information and you’re suggesting to me that as far as the

coefficients of thermal expansion, the state of knowledge for well-known

products with high variability as we pointed out before, also you can’t plot exactly

with -- for their curvature.

25486. So I guess what I’m suggesting to you is the -- the lack of

understanding of these physical effects is equally applicable to all products, not

just Canadian oil sands products.

25487. DR. BRUCE HOLLEBONE: No, I wouldn’t agree with that

statement.

25488. MR. ROTH: Well then, are these the lines for heavy fuel oil?


25489. DR. BRUCE HOLLEBONE: Yeah, I’d have to say these are not

conclusive studies, this was taken out of one piece of work and we’re looking at a

few pieces of -- of data here to represent some measurements that we did with

regards to a spill in Edmonton a few years ago.

25490. So this is -- this slide, in fact, was being prepared for spill responders

so that they could see sort of typical ranges that we -- we’d expect to see in some

of these products. You know, I would not represent this as the sum total of

human knowledge on the subject.


25492. But it’s the knowledge you had to provide spill responders as best you

could to the Wabamun spill?

25493. DR. BRUCE HOLLEBONE: This, in addition to many other

measurements that we have for these things.

25494. These aren’t the only measurements we have for these things.





25496. Now, we did discuss -- and I don’t know if you did this, if you plotted

the results of evaporation based on the mesoscale modelling and the wind tunnel

testing -- I mean, the wind tunnel testing that SL Ross had done -- but is it fair to

say that all of them within the 15 degree radius didn’t come anywhere near to

sinking in freshwater, let alone sea water?

25497. DR. BRUCE HOLLEBONE: Sorry, you’re talking about the fresh --

the fresh ones?

25498. MR. ROTH: Well, the fresh samples and all the way up to weathered

because as high as we -- I could get on weathered was up to that 9.990 line at 0

degrees and it tapered back significantly to about 9.8 when it was at 15 degrees

and fully weathered.

25499. DR. BRUCE HOLLEBONE: This -- this data is in evidence.

25500. Can you pull that data up, please?

25501. MR. ROTH: Maybe -- we talked about -- I take it you haven’t -- did

you look at it over the weekend, Dr. Hollebone?

25502. DR. BRUCE HOLLEBONE: I had a brief look at it, but I did not

prepare the chart as you directed me to.

25503. MR. ROTH: I didn’t direct you to -- I did not direct you to prepare --

is that -- Dr. Hollebone, is that a fair characterization? I didn’t direct -- I

suggested.

25504. DR. BRUCE HOLLEBONE: Suggested.

25505. MR. ROTH: Suggested, okay, better. Okay.

25506. The evidence you looked at, do you have a reference for it?

25507. DR. BRUCE HOLLEBONE: It’s -- Madam Chair, it’s E9-2-1,

Adobe page 118, I believe.

25508. E9-2-1, 118, there you go.

25509. We may want the page -- we may want the page prior to this I think.




There.

25510. Is this the data to which you’re referring?

25511. MR. ROTH: Yes.

25512. So if we plot this weathered data for the dilbit and the synthetics on

that -- on the graph, we don’t come anywhere near the -- intersecting the line for

freshwater let alone for salt water.

25513. DR. BRUCE HOLLEBONE: I think you’ll find the Albian Heavy

Synthetic is 1.01.

25514. MR. ROTH: But that’s your -- that’s your test.

25515. I was talking about what we had done and that’s the Albian Heavy

Synthetic that you have used your evaporation technique with to heat it up and put

it in your rotary device; correct?

25516. DR. BRUCE HOLLEBONE: Correct.


25518. So that’s getting to the ultimate fate, many months if not years away,

not within the timeframe that a spill response will be occurring.

25519. DR. BRUCE HOLLEBONE: I disagree with that characterization

but, well, for the sake of argument, we can continue on that line.


25521. But I think we’re done on -- as far as the questions I had for -- for you.

25522. You didn’t plot them, but if we did, they would be well under that line

as far as the products -- the dilbit and the synthetics that SL Ross had -- had

weathered?


25523. DR. BRUCE HOLLEBONE: I guess our response to that is that,




again, to emphasize that we are seeing different interpretations of the same data

here essentially. And in our opinion, the -- we're not here to offer detailed

criticisms of either side. But the issue here is, as I stated earlier, the difference of

interpretation and that’s where I think we need to -- we need to look into some

more of this.

25524. I will also point out that evaporation is not the only thing going on

during a spill. And in fact, many of the other factors, such as emulsification, also

come into play which can also affect density and were not represented on the

pictures we've just seen. Evaporation -- many other -- many of the other factors

we've brought up, both in our evidence and in conversations with the Panel.

25525. So I think that’s where we'll leave it.

25526. MR. ROTH: Now, as far as Transport Canada is concerned, I take it

you've been listening to this discussion now for a while, your earlier evidence is

that Transport Canada has certified a response organization to respond to a

potential spill or release of all oil products, including oil sands products. So we

have enough information from Transport Canada's perspective to certify a

response organization to respond to a release of these products; correct?

25527. MR. DONALD ROUSSEL: Madame Chair, if we can get back to

how we see the world when we're certifying an organizations for response that

will help. So AQ E-970-2 and the same page we've been looking at, which is

page 23, the graphic of the presentation.

25528. MR. ROTH: So that would be Exhibit E9-70 I think, Ms. Niro. I

think.

25529. MR. DONALD ROUSSEL: Yeah.

25530. MR. ROTH: Maybe I'm wrong, I shouldn’t ---

25531. MR. DONALD ROUSSEL: Can you rotate this 180 degrees?

25532. There it is. That’s how we see the world.


25533. MR. DONALD ROUSSEL: So for the purpose of certifying an




organizations we need a lot of science of course, we need biology and so forth.

But we need -- the main thing in the element regarding the response is the

physical characteristics of the product.

25534. And what we've been hearing for days there is nothing new to us. We

know that many of the information is available out there and we have treated

dilbit, synbit, dilsynbit, the same was as a product, as a dilute crude oil, a blended

crude oil, that’s how it's being treated.

25535. When we see the elements of informations that is available and it was

presented as evidence in crudemonitor.ca, we deal with the specific gravities of

these product, we also look at the -- and it was explained significantly by Madame

Heather -- Dr. Heather, on how fast these thing evaporate, the pentane, the butane

and so forth and you saw a lot of science on those curve moving from logarithm,

et cetera, et cetera.

25536. Our colleague of the science side of the government need a lot of

informations and we also need a lot of informations when it's come to the effect in

the ecological system, the effect on the biological impact and so forth.

25537. But for the purpose of our response, we're dealing on the first three

days of a response with moving in the asset so that you can start protecting the

shore. And it's been clear that on the shore side these products will accumulate

aggregate and will sink to the bottom and they need to be recovered mechanically.

25538. For the one in the water that are on the surface, the time to accumulate

particle it's been very clear, it will take a significant amount of time. The

weathering take place through emulsifications, but in general the certifications is

for the first 13 days. That mean overall deploying of the equipment, three days,

and then full recovery of what is being detected or -- well that -- visible but

detected for 10 days.

25539. And for the informations that we have at this juncture, it's clear that we

need a lot more informations to be able to have -- like we've been discussing, the

curve you were looking for -- well how actually dilbits, synbit fit in those curves,

that will be of interest for us to better do with this. But we can see that when we

start with the specific gravity of the product to crudemonitor.ca and you have

highlight those curve, they're still above that, they're still above -- above HFO in

the basic physic of the time of the response.




25540. So anything above the green line and the blue line, you will see where

the product going to land and we're deploying the asset. And we're making sure

that through the certifications of already existing organizations and the one in the

future will use as much information as possible to make sure that we're able to

recover this product.

25541. But the concerns we have at this juncture is that of course we're

dealing with product that is move already and we're -- the regime that we got, we

know they can recover it and they have demonstrate that.

25542. The other element is that these product can be moving as fast as this

summer somewhere else in the country on the water side. And we will ask the

response organizations to make sure that they have a good understanding of the

product that they will be -- have to respond on and they will use the information

that is available throughout the response organizations.

25543. So it might be grade nine, we’re sorry about that.


25544. MR. DONALD ROUSSEL: And we have a lot of respect for our

colleague of Environment Canada. There's still a lot of research to be done. I

think the committee of -- that’s being proposed need to continue its work. I agree

that we need to have good peer review, remove uncertainty and it will be of the

most importance for everyone so that we don’t end up with week-long debate on

“Is this thing is sinking or not sinking and how it will behave in time”. So that the

general population, at least out there, will have good confidence, Madame Chair,

of the regime that are out there is responding to the product that we could be

facing with the Coast Guard, ourself and Environment Canada.

25545. I would leave it to that, that’s all I can say.

25546. MR. ROTH: Mr. Roussel, you contemplated that I was going to ask

and captured it extremely well, so I don’t have any further questions of this panel.

25547. Thank you very much, everyone.

25548. THE CHAIRPERSON: Thank you, Mr. Roth.


Examination by Mr. Hudson


25549. We'll move next to questions from legal counsel to the JRP.

25550. Mr. Hudson.


--- EXAMINATION BY/INTERROGATOIRE PAR MR. HUDSON:

25551. MR. HUDSON: Good morning, witnesses. I have with me Kent Lien

to help me stay on the straight and narrow as I ask the few questions that I have.

25552. If I don’t ask Ms. Niro to bring up an exhibit that I’ve referred to but

you would like to see it, by all means ask that she do so and then we’ll -- and

we’ll see that it happens but I think that in a lot of instances it won’t be necessary

and so I’ll use that as my first approach as I go through.

25553. Within Volume 8C of Northern Gateway’s evidence, Northern

Gateway makes numerous commitments regarding follow-up and monitoring of

environmental resources in the event of a spill associated with marine shipping

related to the project.

25554. Northern Gateway also makes reference to the Canadian Coast Guard

as being the lead federal agency for all ship-source spills -- and I’ll slip on that

several times -- or pollution incidents in waters under Canadian jurisdiction. And

it notes that the Coast Guard would advise the responsible party, the ship owner,

regarding spill response. Once satisfied with the responsible party’s intentions

and plans, the Coast Guard would assume the role of the federal monitoring

officer on behalf of the Crown.

25555. It is my understanding that Northern Gateway would not be the

responsible party in the event of a spill from a marine tanker associated with the

project; however, Northern Gateway has made a number of commitments

regarding follow-up and monitoring activities in the event of such a spill. Some

of Northern Gateway’s commitments appear to go well beyond things such as

clean-up endpoints and extend to things ranging from monitoring long-term spill

effects on resources such as water, sediment, birds, invertebrates and marine

mammals to effects on fisheries and heritage resources.

25556. On February 26th, I questioned Northern Gateway regarding these

commitments, and in particular, who would be responsible for oversight of these




follow-up and monitoring activities. And in response, Mr. Greg Milne had short

statements -- I don’t think I need to bring them up -- he said at lines 8 -- 18145

and 47,

“Unified command would be involved with that. We also see

the REET [-- R-E-E-T --] as being the primary oversight of the

[…] follow up monitoring. And just to ensure my response was

clear, REET is the Regional Environmental Emergencies

Team.”

25557. Right after that, Dr. Owens went on to say that REET is:

“…a permanent body within Environment Canada and

Environment Canada acts as the chair […] [or he corrects it

to] co-chair […] of the Regional Environmental Emergency

Team and as such, their role would continue even after a

response. They would still be present after a response.”

25558. So based upon all of that here are my questions. Could you please

comment on Northern Gateway’s response? Does that make sense?

25559. MR. GRANT HOGG: Hi. Grant Hogg, Environment Canada. And

I’ll move this much more closely -- there we go.

25560. So the regional environmental emergency team is really a response

mechanism. It is not a permanent fixture in Environment Canada, it’s a forum

that’s brought together at the time of a response when the lead agency needs

consolidated identification of environmental protection priorities to then inform

the best response actions that can be taken to reduce the consequences of the spill.

25561. The collection of experts during the response can be fisheries experts,

can be habitat experts, can be bird experts, fate and behaviour modelling experts,

so and so forth, can also be representatives of First Nations who have traditional

knowledge and/or areas of important significance that may be impacted by the

spill.

25562. And so the conversation during the response can be fairly complicated

because you’ve got -- in fact we’ve had a little bit of it just recently -- you can

have differences of opinions on what’s more important related to this spill, what

factors should be considered, et cetera, et cetera.




25563. And so the mechanism of this REET is a way to -- it’s through a

process that tries to seek a consensus, identify clearly the environmental

protection priorities so that the, in this case, Coast Guard, can go cleanly to the

response corporation and say, “Here are the areas that you need to protect”.

25564. So it kind of takes that very complicated conversation outside of the

operations of responding to the spill, identify those priorities and then gets them

to the Coast Guard. So I just want to just clarify that part of it.

25565. As the response continues, this science table or this REET, depending

upon what we want to call it -- in B.C. by the way, it’s co-chaired by Environment

Canada and by the Government of British Columbia, their Ministry of

Environment -- they can be convened as needed throughout the course of that

response. And at some point in time, the active response is complete and there

may be some habitat, some parts of the ecosystem that are damaged. A spill’s

been contained essentially but now we’re into what’s called a recovery phase.

25566. The role of Environment Canada and maybe also B.C. Ministry of

Environment in that REET structure wouldn’t be the same. The concept might

still be there, i.e. how do we coordinate the recovery actions so that there’s

meaningful work that’s getting at the important endpoints that people have

established but we -- Environment Canada’s role for the recovery phase would be

focused on the areas for which we have sort of a mandate.

25567. So if there was a migratory bird monitoring aspect necessary as a

function of recovery, our scientists from the Canadian Wildlife Service would be

involved in that.

25568. If there was a fisheries habitat issue that where there was a recovery

aspect, it would be DFO that would oversee that work and the responsible party

would be responsible for the costs and a lot of the actions that were there and the

government bodies would play, depending upon the issue, oversight certainly, but

then also depending upon what needed to be happened, sometimes active

participation in the work that’s there.

25569. So the way that the REET is used in a recovery is slightly different

than the way that you just recounted there.

25570. I’m not sure if anyone else has anything else to add.




25571. MR. HUDSON: That was going to be my next question.

25572. Doesn’t look like there is.

25573. In general, how do you see these commitments that Northern Gateway

has made being incorporated into Canada’s overall requirements for follow-up

and monitoring activities in the event of a ship-source spill?

25574. MR. DONALD ROUSSEL: That’s -- Madame Chair, that’s a fairly

complicated question but based on some of the preliminary conditions for the

permitting, I think the Joint Review Panel already have enshrined in some of the

conditions regarding the permit some of those elements that are voluntary in

nature and a little bit more difficult to capture.

25575. However, on many -- it’s still always an evergreen environment as we

are moving forward and there are some of those elements that are in the

conditions that are under review, either through the Panel on tanker safety where

some of the element of governance, and you raise ICS for example, Unified

Command, that will be little bit more robust in the futures, amendment to the

party, some of the things that the Panel is looking at, which is also the tanker

escort review; that is one of the conditions.

25576. Those element -- so some of those elements will migrate to a formal

regulatory regime following proper consultations and Cabinet directive on

streamlining of regulations. The other element that are still in a voluntary phase

is from -- at this junctures, will -- I’m not here to say what the Panel need to do

but it will be of use if they are enshrined within the conditions of permit.

25577. MR. HUDSON: Do you see your federal departments -- the ones that

are represented here or any others -- being involved in this oversight of what

Northern Gateway has committed to do?


25578. MR. DONALD ROUSSEL: Okay, I can start but another fairly

complex question that deals with governance and oversight between the different

department, DFO, Coast Guard, ourselves, Environment Canada, NRCan, and any

of the conditions that potentially could be inside the permit.




25579. We have -- the department are autonomous so where we have

conditions in there that are enshrined by laws and regulations, we have

mechanism for oversight and we have also performance indicators to give

reassurance that those conditions that are part of the regulatory regime will be

met.

25580. The other element related to some of the element that are more of

recommendations in natures, which are not part of our regulatory regime but

could be part of a NEB permit requirement, it is then between the organizations --

and that will include NEB -- on how they -- they’re seeking our assistance for the

overall governance of that. Having the reassurance that if our help is needed on a

specific element -- and we have certain level of expertise in transport and the

same for my colleague in Environment and Coast Guard and NRCan -- how we

can via appropriate governance structures, appropriate MOU, have the

reassurance that all the element have been met, and of course, wishing the permit

of the NEB.

25581. I’m not a specialist on that but I am sure that they will have

mechanism related to the permitting, Madame Chair. That’s how I see it in pretty

well three elements; our own mandate where we are autonomous, the one related

to the permit where our help can be seeked, and a governance model with

appropriate MOU to give reassurance that all the box have been ticked and that

we have -- we’re collectively as a Government of Canada, in a position to say, all

condition have been met, it’s passed scrutiny of appropriate verification audit and

so forth.

25582. That’s how I would see it from our end and my colleague may add

other elements.

25583. DR. CAROLINE CAZA: Caroline Caza, Environment Canada.

25584. Yeah, the term “oversight” is a very broad term and so while I’m not

exactly sure what you might envision by that, I think there are three --there were

maybe three comments in terms of Environment Canada’s ongoing role with

respect to the project that may be captured under that.

25585. In one, we have made some specific recommendations to the Panel on

the project and in a number of those recommendations we have indicated the role

that we see Environment Canada potentially playing. And for example, the

Science Committee is one where we have indicated that we would be involved.




But I think if by oversight you’re meaning leading, I’m not sure that’s a role that,

at this point, we’ve identified for Environment with respect to that

recommendation.

25586. But we’ve definitely given indications in things like the marine

environmental effects monitoring plan, for example, we’ve indicated we would

provide advice and guidance on the marine bird component of it. So we’ve made

some recommendations that have indicated how we would see ourselves being

involved.

25587. Secondly, the primary legislation that will govern this project, as we

understand it, is not Environment Canada’s mandated legislation but there are

pieces of legislation that obviously we’ve identified that that we administer that

are relevant to various aspects of the project so the Migratory Birds Convention

Act, the Fisheries Act, Section 36, the Species At Risk Act.

25588. They represent pieces of legislation that may have some relevance to

how this project -- the terms and conditions under which the project is

implemented, and that is Environment Canada’s ongoing responsibility as part of

the oversight of major resource projects.

25589. And then thirdly, of course, we are looking to the terms and conditions

that are recommended by the Panel and the final Governor-in-Council decision on

this project to identify if there is -- are further roles that would be recommended

for the department to play. And we’ll be considering those going forward.

25590. So that’s perhaps a long answer. I apologize but “oversight” is a very

big word.

25591. MR. PHIL MURDOCK: Philip Murdock, Canadian Coast Guard.

25592. If I just might add to my colleague’s comments and this is sort of less

about oversight per see but on an ongoing basis, the Canadian Coast Guard would

participate in, assist and evaluate any sort of exercises to do with either the oil

handling facility and/or ship source oil spill that were to be done. And these are

required at various points by Transport Canada and so, again, we would be

participating in those exercises.

25593. MR. JOHN CLARKE: John Clarke for NRCan. Can you folks hear

me?




25594. THE CHAIRPERSON: Good morning, Mr. Clarke.

25595. You'll need to speak up just a little bit more, please.

25596. MR. JOHN CLARKE: All right. Is this okay, Madam Chair?

25597. THE CHAIRPERSON: That's terrific. Thank you, Mr. Clarke.

25598. MR. JOHN CLARKE: Thank you, Madam Chair.

25599. And sorry, just for completeness, in terms of NRCan's role in this

project, to date we've been providing science and technical advice to the Review

Panel. So moving forward, always exists the possibility that NRCan might

continue to provide that kind of scientific or technical advice to a regulatory

department, so seismic hazards, landslides. It's the same areas of expertise we've

been providing so far so, you know, trying to put a -- aware of where NRCan

might fit in that sort of grander scheme of oversight.

25600. And of course, minor, but just for completeness, the Proponent has

identified the potential need for an explosive magazine permit from NRCan under

the Explosives Act, so we would obviously have a very small regulatory role, but

with some oversight over the storage of explosives for this project.

25601. Thank you.

25602. MR. HUDSON: Are the longer term monitoring activities,

particularly in the event of a spill, as committed to by Northern Gateway typical

of the monitoring that has been undertaken in past spill events?


25603. DR. CAROLINE CAZA: From an Environment Canada perspective,

I think we look at monitoring requirements very much on a case-by-case basis.

The specifics of a project, for example, in terms of what wildlife values are

present, what information we have for decision-making, will determine our

perspective and then inform our recommendations with respect to the length of

time for monitoring.

25604. If we had -- still had our wildlife experts with you -- with us, we might




have been able to give you some specific examples related to specific projects, but

unfortunately, we don't, so we're not able to give you some examples of where

length of time of monitoring is directly related to specific kinds of wildlife values.

But in general, that's what I would say.

25605. I hope that answers your question.

25606. MR. HUDSON: Thank you. I can move on to my next question.

25607. In your discussion with Mr. Robinson, on Friday of last week, you

provided an update on the risk assessment of ship-source oil spills being

conducted in response to the Commissioner of the Environment's audit.

25608. The risk assessment mentioned there appears to be an overall risk

assessment that goes beyond a project-specific assessment. Am I correct in that

understanding?

25609. MR. DONALD ROUSSEL: Yes, Madame Chair, the -- one of the

element that was inside the CESD, which is Commissioner of the Environment

and Sustainability Development, one of the recommendations is that we have to

maintain Pan-Canadian full risk assessment -- up to date risk assessments.

25610. We mentioned to the Panel that the request for proposal for this was

done south of 60 parallel, and the report for this should be tabled by the end of the

year by the panel itself, Tanker Safety Panel, but using the information of the -- of

the study that would be done across the country.

25611. So that was one of the requests that an overall study be done, Pan-

Canadian. And we're committed to do also the north of 60 afterward in 2014.

25612. MR. HUDSON: So for off the west coast, it would include all

shipping traffic, not only traffic for one particular project?

25613. MR. DONALD ROUSSEL: All shipping traffic.

25614. MR. HUDSON: Now, the witness panel also made reference to the

Aleutian Islands and Cook Inlet risk assessments conducted in Alaska.

25615. Am I correct that those risk assessments were also broader and go

beyond any project-specific risk assessment?





25616. DR. BRUCE HOLLEBONE: Yes, both of those are -- Bruce

Hollebone for Environment Canada.

25617. Both of those are regional assessments for marine shipping traffic in

those regions. We recommended them mostly for the methodology, so this

methodology could be adapted to a specific project kind of approach and we've, in

fact, provided another example -- or we provided those two examples as sort of

state-of-the-art. They are complete regional assessments, but we provided them

as the state-of-the-art methodology that could be used for a specific kind of

project in a much more focused way.

25618. MR. HUDSON: So would the risk assessment that responds to the

CESD's audit report bear similarities to the -- these Aleutian Islands and Cook

Inlet assessments?


25619. MR. DONALD ROUSSEL: Madame Chair, the request for proposal,

it's up to the winner of the bid to present the methodology and inside the request

for proposal, and inside the overall tanker safety regime there is also a review -- a

review …of the different model around the world, including the different types of

risk methodology used.

25620. So this is all element that going to be taken into account from the

Panel on tanker safeties and their review of the oil spill response regime. That

include the risk assessment, the Pan-Canadian risk assessment south of 60 and

north of 60. So this is work that will take place up to January -- March 31st, 2015.

25621. MR. HUDSON: That may respond to my next question as well, but

I'll ask it in any event.

25622. Can you comment on how the risk assessment that would come out of

this process could contribute to overall safety of marine shipping and spill

response on the west coast, including the potential shipping associated with the

Northern Gateway Project, should it proceed?





25623. MR. DONALD ROUSSEL: Well, that's a crystal ball question,

Madame Chair.

25624. We just don't know how it will contribute until the final report is done,

at least for the portions related to south of 60 where we're going to have the report

by the end of -- well, not the report but the study should be finished by this fall

and the report -- we should have a report by the end of the year for the south of 60

Pan-Canadian.

25625. Now, the response for this report by the Ministers, because it's going

to the Minister of Transport, may take a few months to develop. We will be well

in winter 2014 by then.

25626. But it will be used for the overall enhancements and of the overall

Pan-Canadian response regime and its governance. It's pretty broad.

25627. MR. HUDSON: Thank you.

25628. Ms. Niro, can I get you to bring up Transport Canada's Response to

JRP IR 2, it’s Exhibit E9-34-2, Adobe page 15?

25629. Fifteen (15), there's no 15?

25630. THE CHAIRPERSON: Mr. Hudson, can we verify the exhibit

number please?

25631. MR. HUDSON: E9-34-2.

25632. THE REGULATORY OFFICER: There's only four pages.

25633. MR. HUDSON: E11-3-2, it's the TERMPOL Review Committee

Report; my apologies. It's the paragraph just before the recommendation, if you

could read that.

25634. And when you're finished looking at that, I would like you to look at

page 34, where it says: "The review has not identified". Just that first two

sentences.





25635. MR. HUDSON: Okay. And the reference that I put up before and I

won't put it up again just made mention of the fact that there are no provisions in

Canadian marine shipping legislation in place to make Northern Gateway's

voluntary risk reduction measures regarding marine shipping mandatory or

enforceable. I think we've commented on that before.

25636. So following from these references, it appears that the TERMPOL

Review Committee based, in large part, its findings and recommendations on

implementation of Northern Gateway's voluntary marine commitments, and it

identified them as important risk reduction measures.

25637. In light of this, can you comment on why the committee may have also

included that there was no need to consider any new regulatory requirements?

25638. MR. DONALD ROUSSEL: So I think we did comment on that at

the beginning of -- when we were on the stand, where we -- I made a comment

that a ship, at this juncture within the regulatory regime as we speak and it could

be a VLCC, an Aframax, can actually come from the sea, go up to Kitimat. And I

use the words, can take a "photoshop" and leave the area.

25639. So these comments mentions that within the actual regulatory regimes,

if the vessel is fully certify, he can engage in these types of voyages right up to

Kitimat and return. And I mention while he may not have a cargo, but he will

have done the trip.

25640. Now, when you put the cargo on, there is all the additional, of course,

permitting for the authorizations of having petroleum product.

25641. So what the TERMPOL does and doesn't, I think it's at the beginning

of the TERMPOL, we mentions that we did not deal with the environmental

response portions. That was part of the submissions of the department. And the

same people talked about TERMPOL and of course the transport submissions

because we're in charge under the Act.

25642. So there's two different things; the TERMPOL did deal with the

elements related to the safety of navigations, and the TERMPOL it its findings,

say that if the Proponent want to put all those additional element, it will reduce

the risk.


Examination by Member Matthews


25643. Now, what is the -- what’s that mean, is that the risk -- the actual risk

for us in shipping and navigations, using these types of vessels, is a risk that is

acceptable within the regime that we got.

25644. Now, you want to enhance it and you want to put all those different

additional elements, well, it's -- those element will definitely reduce the risk. So

all those element have -- reduce the mitigating factor related to the risk; better

navigational aid, tug escort, tethered tugs, and everything that goes with it.

25645. So it's not within the TERMPOL process or me on the stand to make a

decision regarding making regulations. Regulations has its own process, and we

have underway now, like I mentioned, the Tanker Safety Panel that's going

around the risk assessment -- Pan-Canadian risk assessments. Out of those

elements and decisions of the government, there can be regulatory regulations

emerging from that.

25646. But at the time of writing the TERMPOL and making the submissions,

there were no commitment that we will make additional regulations.

25647. So that's our answers on that. It doesn't mean we will not make

regulation.

25648. MR. HUDSON: Thank you. Those are all of my questions, and I

appreciate your responses.

25649. THE CHAIRPERSON: Thank you, Mr. Hudson.

25650. We'll proceed with the questions from the Panel.

25651. Mr. Matthews?

--- EXAMINATION BY/INTERROGATOIRE PAR MEMBER MATTHEWS:

25652. MEMBER MATTHEWS: Good morning. You guys must be

relieved that this is your last day.


25653. MR. MATTHEWS: Okay, I have just one basic question. On the




25th, the Haisla Nation brought up a newspaper article as an AQ and I was just --

for our own information, what’s the difference between a public port and a

designated port or are they totally different?

25654. MR. DONALD ROUSSEL: Mr. Marier, in Ottawa, answer that.

25655. MEMBER MATTHEWS: Okay.

25656. MR. FRANÇOIS MARIER: Yes, hello. Good afternoon here in

Ottawa anyways.

25657. The -- the difference is under the Canada Shipping Act, a designated

port is to do with a spill response capability whereas under the Canada Marine

Act, a public port has to do with whether or not it is designated public and

therefore falls under the purview of the Ministry of Transport. So then, as a

public port, it would be subject to certain regulations under the Canada Marine

Act that have to do with vessel traffic controls within the port itself.

25658. So that would mean that there would be some sort of authority that

would be set up. They would -- the Minister would designate someone that could

-- that could monitor that traffic so this is usually a harbour master and there

would be port dues or harbour dues that would be charged to the users of -- of the

port. So that’s the basic difference. One is for spill response and the other is for

controlling the traffic in -- in the port itself.

25659. MEMBER MATTHEWS: Okay. That -- earlier in evidence we

heard that Northern Gateway was going to have terminal regulations. So

obviously the terminal regulations would be restricted to the terminal and what

you’re telling us now is that this would complement that by taking care of the

navigation. Is that -- that’s what our understanding is?

25660. MR. FRANÇOIS MARIER: Yes, you’re correct. I just wanted to --

one final point on that I would point out is that, in Kitimat as you know there are

no significant federal lands or any lands that fall under the Minister of Transport,

so here we’re talking about the waters. So the navigable waters of the Port of

Kitimat is what would be designated as a -- as the public port under the Canada

Marine Act.

25661. MEMBER MATTHEWS: Okay, thanks a lot.




25662. Now with regard to marine spills in the confined channel area or in the

open water area, what -- from Transport Canada’s perspective would be a -- I

guess I have two questions here. One is what’s an acceptable recovery rate of

spilled oil in a response?

25663. MR. ERIK KIDD: Erik Kidd, Transport Canada.

25664. I guess you’re going with the open water recovery rates that are world-

known for between 10 and 15 percent.


25666. MR. ERIK KIDD: So those are the recovery rates that we work with,

but the intention of the regime is to respond as quickly as possible, source control

and protection booms in place, 1,700 metres every six hours for a cap of 5,000

metres in the first 24 hours to protect the shoreline so the product is dealt with on

water.

25667. So you’re trying to get there as soon as possible on water within the

response times and this will speak to a designated port situation. I can elaborate

on that if you’d like too, which will increase response times and bring a certain

amount of capability and put it in place permanently within a designated port.

And you can’t move that equipment. You can’t cascade it out of the -- the port

without the permission of Transport Canada. So it stays there.

25668. It identifies -- the equipment is related to the risk that’s involved what

with the shipping activity and the loading and unloading of products in that area

and the convergence of vessels and the types of vessels that are operating within

the designated port.

25669. So if we get down into the percentage recovery -- if I were doing a

minimum standard situation with response organizations, they’re identifying the

types of oil in the port and building their inventory accordingly. The skimmers,

per se, when you’re calculating 10,000 tonnes of capability is based on the rated

capability of the skimmer and its throughput.

25670. And of course there is extraneous types of things that happen here with

a spill response and you have to have a specific encounter rate of the product to

the skimmer. And this can change over time, but there’s -- you can adjust this as

well.




25671. So it’s a 20 percent derate. We derate the equipment back to 20

percent of its full nameplate recovery. So what you’re looking at is 20 percent oil

recovery with an 80 percent recovery of water and oil mixture. This allows you to

plan, at a minimum standard I’m saying, so you can -- you can better these results,

most definitely, and this is -- we have continuous improvement in this area is

always part of certification.

25672. So that’s the basic minimum standard. So you’re -- that will determine

your waste stream reduction or your -- your amount of waste stream through to

your primary and secondary barge recovery and what you -- what you’re required

to put into those barges, what you’re going to have at the end of the day, so to

speak. So this is the 10 day on-water recovery situation.

25673. So you’re looking at different operating environments, talking about

your question on open water or confined channel recovery. The way we do it is

when we’re doing certification is we have shoreline, sheltered and unsheltered

water operating environments and during a spill response, the -- the response

organization is supposed to have -- be able to do simultaneous responses in both

operating -- in all operating environments. So unsheltered shoreline and sheltered

water environments.

25674. And when you designate a port, you assign percentages to each values

of one of those. And then you can calculate the amount of equipment, as a

minimum, to be in the inventory of the RO and then you take that and you

specifically address the types of oils in the environment.

25675. So I can keep going on and on about this. Does that satisfy your

question?

25676. MEMBER MATTHEWS: Yeah, it -- I just wanted to know, you

know we’ve also heard about -- you know, we’ve obviously heard a lot about the

science around dilbit and all this other stuff but is there an ongoing research or

committee or any group that you’re aware of that’s doing ongoing research in

recovery equipment or techniques or leading-edge processes.

25677. MR. ERIK KIDD: I can pass this on to -- Environment Canada can

answer that more accurately than myself.

25678. DR. BRUCE HOLLEBONE: Yeah, the U.S. Coast Guard has an




active program right now. They’ve just completed -- they are just completing, I

believe, a phase on detection of submerged oil and they’re just starting up a new

active component on recovery of submerged oil. I believe that’s just in the

contracting phase now and just getting going, but they are actively looking at this

issue as well.

25679. MEMBER MATTHEWS: Okay, that helps me out quite a bit.

25680. Thanks a lot for answering my questions, unless you had something

else to add, sorry.

25681. MR. ERIK KIDD: I just wanted to add, when we’re talking about

recovery percentages, we’re recovering 100 percent of the oil that we see. And

whatever impacts the -- the shoreline, there’s calculations around that too as to

determining what they are. So what we’re looking at for that is when it impacts

the shoreline, and this is a minimum standard approach, is that 90 percent of that

oil that hits the shoreline is recovered manually.


25683. MR. ERIK KIDD: Okay, and there’s 10 percent of that oil is reduced

back into -- into the water for skimmer systems and -- and boom systems that are

made for recovering oil, reintroduced back into shoreline by shoreline flushing.

25684. MEMBER MATTHEWS: Okay. That’s great, thanks a lot.

25685. THE CHAIRPERSON: Thank you.

25686. Down to one last questioner and I don’t have a lot of questions, so you

will -- it will finish today.


--- EXAMINATION BY/INTERROGATOIRE PAR THE CHAIRPERSON:

25687. THE CHAIRPERSON: Monsieur Roussel, I thought I heard you say

this morning, and I -- correct me if I’ve got this wrong, that you said that the

regime currently being used has proven that it can recover dilbit product. Did you

say that?


Examination by the Chairperson


25688. MR. DONALD ROUSSEL: Yes, well -- yes, in accordance with the

informations that we got regarding the -- for us, it’s a blend crude oil like dilbit,

dilsynbit and synbit and we’re dealing with the informations that we got using

crudemonitor.ca, all the other information that’s been presented to us, which were

not strange for us in any point.

25689. Understanding that we have to have a lot more science and the famous

-- the famous chart we had in front of us would have been very useful if we have

it almost in 3D where you have evaporations rate, you have the fate and effect and

throughout the density deteriorate over time, and then we can plot over it, the

actual response time where you get -- you have reassurance that within those

period the product that’s in the water is recoverable.

25690. So at this juncture, for the one that we got in Kinder Morgan and

WMRC is certified for that, we know it can be recovered.

25691. THE CHAIRPERSON: So that was what I was interested in learning

more about. Can you speak to the recovery operations that Trans Canada and

Coast Guard had been involved with in terms of bitumen-based products?

25692. MR. PHIL MURDOCK: Philip Murdock, Canadian Coast Guard.

25693. Well in the case of the Burnaby spill, which I think we’re referring to,

the Canadian Coast Guard was not the lead because this was a shore-based event,

it was a pipeline ruptured due to some activities in the area of the pipeline and that

the product ended up in the -- in the water.

25694. So in the case of that particular spill, the Canadian Coast Guard was a

resource agency and we assisted, I believe, NEB who was the lead in terms of

providing on-water monitoring. The actual spill recovery in the water was

undertaken by the RO Western Canada Marine Response Corp.

25695. And I’ll let – I’ll let Mr. Kidd add to that.

25696. MR. ERIK KIDD: Erik Kidd, Transport Canada.

25697. Can you ask the question again please, Madam Chair?

25698. THE CHAIRPERSON: Absolutely.




25699. I was wanting to understand more your experience with recovery

operations that Trans Canada’s been involved with, specifically in terms of

bitumen-based products.

25700. MR. ERIK KIDD: Okay. So it’s limited experience but the

experience that we have with the response organization WCMRC back in the

pipeline spill, Burnaby pipeline spill in 2006, we had what’s called shoreline and

sheltered water environment successful operation in the recovery of dilsynbit.

25701. I know we’ve read the Transportation Safety Board report on that but

it -- and they talk about the amount of oil that was recovered. I don’t know if you

can recall the number but it’s that amount of oil that they’re talking about

recovered is -- includes land and water.

25702. So our jurisdictional scope is just for the marine environment here.

So the amount of oil that was recovered from the shoreline and sheltered water

operation was close to 80 percent. So we’re not talking about the evaporation rate

in the water there either. We’re talking about recovered product.

25703. THE CHAIRPERSON: And Mr. Kidd, can you speak to what that

product was?

25704. MR. ERIK KIDD: Yes, it was dilsynbit.

25705. THE CHAIRPERSON: And so that’s been the only experience to

date that you at Transport Canada or Coast Guard have had with bitumen-based

products, is that correct?

25706. MR. ERIK KIDD: That is correct, yes.

25707. MR. PHIL MURDOCK: Yes, I would agree.

25708. THE CHAIRPERSON: Thank you very much.

25709. I have no further questions.

25710. Ms. Anderson, do you have any redirect?

25711. MS. ANDERSON: No, Madam Chair, no redirect.




25712. THE CHAIRPERSON: Thank you very much.

25713. The Panel thanks all the witnesses who’ve participated, the ones who

are physically present here in front of us as well as those who’ve joined us

remotely.

25714. As I mentioned earlier, we recognize that those of you who’ve joined

remotely have been dealing with reasonably large time differences and we

appreciate the working through lunches and dinners that we know that you’ve

done.

25715. Thank you very much to everybody for the -- for the evidence that

you’ve provided and for your participation in this proceeding.

25716. One minute please.

25717. I just want to confirm that we will be getting responses to

Undertakings U-82 and U-83 in due course.

25718. MS. ANDERSON: Yes, Madam Chair, I believe we’re working on

those now.


25720. So with that, thank you very much to all the panel members, you’re

released.

--- (The witnesses are excused/Les témoins sont libérés)

25721. THE CHAIRPERSON: Let’s take our morning break and we will

come back with the start of Panel 3 at 10 after 10, please.

--- Upon recessing at 9:52 a.m./L’audience est suspendue à 9h52

--- Upon resuming at 10:07 a.m./L’audience est reprise à 10h07

25722. THE CHAIRPERSON: If we can get everyone to take their seats

we’ll get ready to be underway please.


Introduction by Mr. Friesen


25723. Welcome to the witnesses on the next panel. Thank you for being

here.

25724. Mr. Friesen?

25725. MR. FRIESEN: Good morning, Madam Chair.

25726. I’m pleased to present Canada’s third witness panel. The witnesses are

here to speak this morning to the evidence filed by Aboriginal Affairs and

Northern Development Canada.

25727. I can advise that Mr. Eric Magnuson, sitting just in the centre there,

has appeared before you before, back in November in Prince George. The rest of

our folks are -- are new here. So if I could ask Ms. Niro to swear them in, I’ll

proceed with introductions after that.

JEAN GAULD: Affirmed

SHEILA CRAIG: Sworn

LISE HAMONIC: Sworn

JOHN WILSON: Affirmed

25728. THE CHAIRPERSON: Thank you, Ms. Niro.

25729. Mr. Magnuson, do you confirm that you remain under oath from your

previous testimony?

25730. MR. ERIC MAGNUSON: Yes, I can confirm that.

ERIC MAGNUSON: Resumed


25732. MR. FRIESEN: Madam Chair, I can advise that an affidavit adopting

the witnesses’ evidence that have not appeared before the Panel before have all

been filed on April the 18th, 2013, as part of Exhibit E9-64-6.

25733. Beginning on my right Ms. Jean Gauld is a Senior Negotiator in the

north region with Aboriginal Affairs and Northern Development Canada. She is

here to speak to the role and participation of AANDC as I’ll refer to it, in the

British Columbia Treaty process, including topics of negotiation, geographic


Introduction by Mr. Friesen


areas subject to negotiations and status of British Columbia Treaty negotiations.

25734. Ms. Sheila Craig is the Manager for Lands Team 2 with Aboriginal

Affairs and Northern Development Canada. She is here this morning to speak to

the issues of procedures and policy expertise in relation to reserve land

management in British Columbia on behalf of AANDC.

25735. Mr. Eric Magnuson is the Regional Director General of the British

Columbia region with AANDC. He is here to speak to the role of AANDC in

emergency management in B.C.

25736. Ms. Lise Hamonic is the Manager with Environmental and Natural

Resources with AANDC. She is here to speak to federal government policies and

processes related to land tenure on reserve lands in Alberta.

25737. Mr. John Wilson is a Senior Claims Analyst with Negotiation Support

within AANDC and he is here to speak to the addition of land to reserve, as part

of the Alexander First Nation Treaty of Land Entitlement Settlement Agreement.

25738. And finally but certainly not leastly, Ms. Donna Maher is sitting in the

back row. She’s here in a supporting capacity this morning.

25739. THE CHAIRPERSON: Thank you, Mr. Friesen.

25740. Good morning, Ms. Mathers.

25741. MS. MATHERS: Good morning.

25742. THE CHAIRPERSON: Please begin with your questions.

--- EXAMINATION BY/INTERROGATOIRE PAR MS. MATHERS:

25743. MS. MATHERS: Thank you. Good morning. Good morning,

witnesses.

25744. My name is Virginia Mathers. I’m here this morning on behalf of the

Gitxaala First Nation. And I just -- I don’t have very many questions for you this

morning.


Examination by Ms. Mathers


25745. But one point I wanted to ask about was: As I understand it AANDC

is responsible for ensuring that there's appropriate emergency response

management in place on Reserve; is that correct?

25746. MR. ERIC MAGNUSON: Yeah, Eric Magnuson.

25747. We have a responsibility to support emergency management and

response on Reserve.

25748. MS. MATHERS: It might be helpful to pull up -- we filed an AQ,

this is AQ Number 1, if we could pull it up, Ms. Niro?

25749. So this is a copy of AANDC’s National Emergency Management Plan.

I believe it's dated 2011. If we could turn to page 5, please? Adobe page 5?

25750. And just by way of background, from what I understand, this plan

describes the roles and responsibilities that AANDC has in terms of planning for

emergency response in First Nations communities; is that right?

25751. MR. ERIC MAGNUSON: It speaks to the roles and responsibilities

not only of Aboriginal Affairs but of our partners.

25752. MS. MATHERS: Okay.

25753. So am I right in understanding that this is a sort of a general plan and

that there'll be more specific plans put in place for individual communities?

25754. MR. ERIC MAGNUSON: I would say it goes beyond that.

25755. It's a general overarching plan for the Department and there's more

specific plans specific to a hazard, specific to other partners like the Alberta

Provincial Emergency Preparedness Program or the British Columbia Provincial

Emergency Preparedness Program as well as other federal departments that play a

lead or have a partnered role, including First Nations on Reserve.

25756. MS. MATHERS: So under the definition of “all hazards”, I notice

that shipping accidents, including oil tanker spills, are recognized under this plan

as the type of hazard that might possibly affect First Nations communities.

25757. Is that the Department's understanding as well?




25758. MR. ERIC MAGNUSON: I think the area of the plan that you're

referring to is a definition of “all hazards”, so it's potential, I guess.

25759. MS. MATHERS: So it is contemplated that it's the kind of

emergency that could potentially affect First Nations communities for which

planning -- emergency response planning might be appropriate?

25760. MR. ERIC MAGNUSON: Yeah, I think we'd have to look at the

specifics that you're referring to, but it's contemplated. I mean it's an approach to

“all hazards”.

25761. So typically, when you take an “all hazards” approach to emergency

preparedness and planning, the first thing you do as a community on a specific

basis by geographical region is assess your hazards and the likelihood of when or

if those hazards could hit you and then you plan from there.

25762. So not a lot of, you know, communities say -- like Prince George,

would be doing ship or oil spill response on a marine environment. So it's

specific to the area.

25763. MS. MATHERS: Yeah.

25764. Yeah, so as this is a general plan, this plan doesn’t contain any sort of

specific procedures in terms of responding to oil spills and that might affect First

Nations communities; is that right?

25765. MR. ERIC MAGNUSON: That’s correct.

25766. MS. MATHERS: In one of its Information Requests, the Gitxaala

Nation asked the Federal Government participants whether they intended to

conduct an assessment of the capacity of First Nations communities to respond to

emergencies in their -- that might affect their communities.

25767. And in their response, AANDC said it had worked with the Gitxaala

Nation to develop a plan in 2009.

25768. Are you familiar with that plan?

25769. MR. ERIC MAGNUSON: I don’t have specific -- the specific plan




in front of me but I'm aware of the generalities of the plan.

25770. MS. MATHERS: To your knowledge, does this plan contain

procedures for responding to an oil spill?

25771. MR. ERIC MAGNUSON: As I said, I don’t have that specific plan

in front of me, so I couldn’t comment on that.

25772. MS. MATHERS: Would you be willing to undertake to see if you

can find out whether that plan has any procedures in it for responding to oil spills?

25773. MR. ERIC MAGNUSON: We're -- we're not like -- our role is not to

determine if their plan is appropriate or not. We don’t gage their plans, we don’t

assess their plans.

25774. We're working in a continuum with First Nations and we encourage

First Nations to take a planning approach themselves and to become capable of

identifying hazards and responding to those types of hazards.

25775. We support specifically with the hazards like fire in communities and

we provide fire equipment and specific planning around fire equipment. We

provide support for planning around medical emergencies and the most common

types of emergencies. We have arrangements and contracts with other service

providers to provide support for those types of things but we don’t directly assess

individual plans to see if they've planned for every particular hazard.

25776. So I don’t think it would be appropriate for me to ask or to accept that

undertaking.


25778. So you're not aware at this point whether there is a plan in place for

Gitxaala to -- in terms of planning for responding to an oil spill that might affect

their community?

25779. MR. ERIC MAGNUSON: I guess my short answer to that question

is ‘no’.

25780. We'd have to look at what specifically you would need, what your

anticipated hazard would be there, what would be the needs of the community,




you know, is there a community -- how it would be effected is unclear to me at

this point in time.

25781. MS. MATHERS: And to your knowledge, does that plan apply to all

of Gitxaala Reserves or just to the community at Dolphin Island?

25782. Do you know?

25783. MR. ERIC MAGNUSON: I don’t know specifically about their plan.

25784. I can tell you that emergency planning is typically done on a priority

basis. So the first priorities protect life, property and then the environment.

25785. So probably it doesn’t speak to all of their reserves.


25787. So is it -- is it correct -- is my understanding correct that the onus is on

individual communities to ensure that they have a plan in place that is capable of

responding to the type of emergency, say like an oil spill, it's -- the onus is on

them to ensure that the appropriate kind of plan is in place?

25788. MR. ERIC MAGNUSON: That’s correct.

25789. We have an arrangement with the provincial emergency preparedness

programs to provide support. And, on an actual response, they will support us in

coordinating that response. As you can imagine, most of the emergency-type

capacity in the provinces are within provincial jurisdiction like police, fire and

ambulance.

25790. So the bulk of the responsibility -- and this is general throughout the

Canadian approach to emergency management -- lies on the local community,

whether it's an unincorporated or a municipal or a First Nation. And they need to

have a certain amount of planning and a certain amount of capacity to provide for

themselves until there is support available through a higher jurisdiction or a

bigger body.

25791. MS. MATHERS: So are you aware if there's been any follow-up

since -- it's AANDC's evidence that there was -- a plan was worked on in 2009,


Examination by Mr. McCormick


are you aware of any work that has happened since 2009 with Gitxaala in terms of

working on their emergency response plan?

25792. MR. ERIC MAGNUSON: I don’t have that specific information, no.

25793. MS. MATHERS: Okay. Those are all of my questions.

25794. Thank you.

25795. THE CHAIRPERSON: Thank you, Ms. Mathers.

25796. Yes, can we get an AQ number, Ms. Niro?

25797. THE REGULATORY OFFICER: That will be AQ95.

---AID TO CROSS-EXAMINATION NO./AIDE AU CONTRE-

INTERROGATOIRE No. AQ95-A:

Gitxaala Nation – Aboriginal Affairs and Northern Development Canada

(AANDC) National Emergency Management Plan

25798. THE CHAIRPERSON: I'll call next the Haisla Nation.

25799. Good morning, Mr. McCormick.

25800. Please begin with your questions of this Panel.

25801. MR. McCORMICK: Good morning, Madame Chair, Members of

the Panel, NEB staff and witnesses and my friends at the counsel table.

25802. My name is Jesse McCormick, I'm legal counsel to the Haisla Nation.

We have just a few short questions for you today.

--- EXAMINATION BY/INTERROGATOIRE PAR MR. McCORMICK:

25803. MR. McCORMICK: If we could begin, Madame Clerk, by calling

up Exhibit E9-21-12, page 4?

25804. I'll direct the attention of the witness panel to Response 1.1d.




25805. If you'd like to see the question -- the question itself was: “Provide all

correspondence and records of communication between Canada and Northern

Gateway concerning consultation with the Haisla Nation”.

25806. We see here a reference to the Joint Review Panel and the role of the

Joint Review Panel in assessing or considering adverse impacts that the project

may have on potential or established Aboriginal Treaty rights.

25807. Do you agree that in order for the Joint Review Panel to fulfil this

assessment, it must have an access to a full record of information regarding

potential or established Aboriginal and Treaty rights?

25808. MS. ANDERSON: Madam Chair, just before the witnesses answer, I

think this question may be best directed to Panel 4, although it does sound as

though my friend is asking for a legal opinion on what the JRP needs in order to

assess the impacts upon First Nations. I'm not entirely clear. But perhaps with

that in mind, we could maybe rephrase the question to be a little bit more relevant

to the evidence for which this panel is responsible.

25809. MR. McCORMICK: Certainly, Madame Chair.

25810. It's our understanding that this exhibit is assigned to this panel and has

been assigned by Canada to this panel. The question itself does not reflect -- it's

not a legal question, it relates more to the role of Canada in these proceedings.

25811. And having identified here that Canada is looking to the Joint Review

Panel to satisfy certain assessments and considerations, the question seeks to

understand whether Canada considers a full record of information regarding

potential or established Aboriginal or Treaty rights to be important to the

fulfilment of that assessment.

25812. MS. ANDERSON: I would just point out at the bottom of the

response of 1.1d, I believe it's Adobe page 5, the answer is attributed to the

federal government participants, and those answers are assigned to Panel 4 under

the witness panel responsibility chart that we filed.

25813. MR. McCORMICK: Certainly if it is the preference of my friend,

we can bring that question back on a later panel.

25814. Perhaps we could take a look at Exhibit -- or the same exhibit,




Madame Regulatory Officer, if -- however, page 26. And I'll direct the attention

of the witness panel to response 1.12a. Sorry, it may be on the next page. We see

here the question and then the response is there. Thank you.

25815. Now, before asking the question, I'll confirm with my friend, is this

response before the present panel or should it be something directed to the next

panel?

25816. MS. ANDERSON: Yes, you'll see in the square brackets at the

bottom that this answer is attributed to AANDC.

25817. MR. McCORMICK: Okay, thank you.

25818. So in Haisla Nation IR Number 112, the Haisla Nation asked AANDC

to verify the process by which comprehensive claims were validated prior to the

current B.C. Treaty process and asked for copies of documentation relating to the

Crown assessment of the Haisla Nation's comprehensive claim. And we see the

response on the screen.

25819. Does AANDC acknowledge that the comprehensive claims process

was different from the current B.C. Treaty process?

25820. MS. JEAN GAULD: The B.C. Treaty process is different from

Canada's comprehensive claims process, in that it is an interest-based process, and

there are some other differences as well.

25821. MR. McCORMICK: Thank you, Ms. Gauld.

25822. Does AANDC acknowledge that the comprehensive claims process

entailed validating a claim on a legal and historical basis?

25823. MS. JEAN GAULD: Canada, in its evidence for this assessment

process, did not file any evidence with respect to the comprehensive claims

process. We filed evidence on B.C. Treaty process.

25824. MR. McCORMICK: Does AANDC acknowledge that the Haisla

Nation's comprehensive claim was accepted for negotiation?

25825. MS. JEAN GAULD: I don't know the answer to that.




25826. MR. McCORMICK: Would you agree that a federal government

decision validating Haisla Nation's comprehensive claim would be relevant to an

assessment of the Haisla Nation's strength of claim?

25827. MS. ANDERSON: I'm sorry, Madam Chair. I didn't quite catch the

end of that question. I wonder if my friend could repeat it.

25828. MR. McCORMICK: Certainly.

25829. Would you agree that a federal government decision validating the

Haisla Nation comprehensive claim would be relevant to an assessment of the

Haisla Nation's strength of claim?

25830. MS. JEAN GAULD: I don't know the answer to that.

25831. THE CHAIRPERSON: Could we ask you to pull your microphone

closer, please. Thank you very much.

25832. MR. McCORMICK: Is it the federal government's position that

information relating to the Haisla Nation comprehensive claim is not relevant to

this review process?

25833. MS. ANDERSON: Madam Chair, I think the witness has already

pointed out that AANDC did not file any evidence with respect to the

comprehensive claim process, so I'm not sure that this is relevant to the issues

before the Panel or of use to you.

25834. MR. McCORMICK: Madame Chair, the question goes to not the

specific -- not the federal government's response to the request for the information

relating specifically to the comprehensive claim but, rather, to the broader

understanding of comprehensive claims and whether they are relevant to this

particular proceeding when assessing and providing information to the Joint

Review Panel in relation to Aboriginal and Treaty rights, is the Government of

Canada -- does the Government of Canada consider comprehensive claim

information to be relevant.


25835. MS. JEAN GAULD: With respect to the B.C. Treaty process, which

is interest based, we do not -- Canada does not assess the asserted title and rights




of any particular First Nation that's in that process.

25836. The First Nation Haisla, when it submitted its claim to the B.C. Treaty

process, it's the B.C. Treaty Commission, which is an independent body, that

accepted them into the process and once we commenced negotiations, it is all

interest based. We do not do an assessment of any title and rights that the First

Nation brings to the table, we negotiate Treaty rights.

25837. Those rights may or may not be based on Aboriginal rights, and if

Canada felt that the comprehensive claim that the Haisla filed with Canada prior

to the B.C. Treaty process beginning was relevant, we would have filed that in our

evidence.

25838. MR. McCORMICK: Thank you, Ms. Gauld.

25839. So I'm safe in my understanding that Canada considers that

information not to be relevant to these current proceedings; is that correct?

25840. MS. JEAN GAULD: That's correct.


25841. MR. McCORMICK: Does AANDC possess information relating to

Haisla Nation Aboriginal and Treaty rights and has the federal government

assessed that information for strength-of-claim purposes?

25842. MS. JEAN GAULD: To my knowledge, Canada has not prepared a

strength-of-claim for Haisla.

25843. MR. McCORMICK: Thank you, witnesses.

25844. Those are my questions, Madame Chair.

25845. THE CHAIRPERSON: Thank you, Mr. McCormick.

25846. We'll go next to Alexander First Nation, who I believe are joining us

remotely.

25847. I believe that Alexander First Nation are going to be represented by

Mr. Rae.


Examination by Mr. Rae


25848. Mr. Rae, are you there?

25849. MR. RAE: Madam Chair, yes, I can hear you. Can you hear and see

me?

25850. THE CHAIRPERSON: I can, we can. The modern technology.

25851. Are you joined by Chief Arcand?

25852. MR. RAE: No, unfortunately, Madam Chair, Chief Arcand, as you

know, would have very much liked to participate in this questioning but due to the

scheduling situation, he was unable to be with us this morning.

25853. THE CHAIRPERSON: Thank you very much. And so you're

representing the Alexander First Nation on your own, this morning; is that

correct?

25854. MR. RAE: Yes, Madam Chair. Douglas Rae, with Rae and

Company, and I am representing the Alexander First Nation this morning.

25855. THE CHAIRPERSON: Thank you very much, Mr. Rae, please

proceed with your questions of this panel.

--- EXAMINATION BY/INTERROGATOIRE PAR MR. RAE:

25856. MR. RAE: Panel, I'd like you to turn to Exhibit B83-2, which is the

written reply evidence of Northern Gateway Pipelines, at Adobe page 6, Madam

Clerk, if that's available.

25857. THE CHAIRPERSON: Are you able to see the screen, Mr. Rae?

25858. MR. RAE: Yes, I can, thank you, Madam Chair.

25859. Now, panel, my questions will mostly be directed to Ms. Hamonic,

however, I will accept responses from any of the panel.

25860. At Adobe page 6 of that exhibit, starting at line 23, reference is made

to the pipeline oil spill response plan of Northern Gateway.




25861. My question is, have the Department of Indian and Northern Affairs

Canada made efforts to ascertain whether the Proponent will make jobs available

as part of that plan, available to members of the Alexander First Nation?

25862. MS. LISE HAMONIC: Not to my knowledge.

25863. MR. RAE: And as part of the objectives under the net environmental

benefits analysis, has the department ascertained what jobs might be available to

Alexander First Nation members?

25864. MS. LISE HAMONIC: Again, we have not, not to my knowledge.

25865. MR. RAE: If the panel could now turn to Adobe page 29 of that same

exhibit, and at the top of Adobe page 9 (sic), reference is made to compensation

payable based on residual wetland function effects. Who would that

compensation be payable to?

25866. MS. LISE HAMONIC: I'm sorry; I can't say that I would know who

that compensation would be paid to.

25867. MR. RAE: Would you be able to undertake to ascertain the answer to

that question?

25868. MS. ANDERSON: Madam Chair, just for the record, this particular

reply evidence is in response to a recommendation made by Environment Canada

and not by AANDC. So I think perhaps this would have been a question best

posed to the previous panels.

25869. MR. RAE: Well, Madam Chair, perhaps I can defer the question to

the next panel, Panel Number 4.

25870. MS. ANDERSON: I don't know that Panel 4 would be in a position

to answer this question either. Again, it's in relation to a recommendation made

by Environment Canada.

25871. MR. RAE: Well, Madam Chair, perhaps I could simply ask what type

of compensation was Environment Canada recommending in regard to this

particular issue?

25872. MS. ANDERSON: Again, there's nobody from Environment Canada




on this panel. This is an AANDC panel and under the witness panel

responsibilities list that would not be an issue for this panel to answer. It appears

to me that they're not in any way prepared to answer this question. It's not

something they would be aware of.

25873. MR. RAE: Madam Chair, perhaps the panel then could turn to Adobe

page 34 of that same exhibit.

25874. And Madam Chair, perhaps I should first of all enquire whether the

counsel for Canada would advise whether perhaps questions in regard to that

particular page, Adobe page 34, might more appropriately be posed to Panel

Number 4.

25875. MS. ANDERSON: Madam Chair, I'm afraid I'm not in a position to

answer that. This appears to be reply evidence of Northern Gateway, and not in

relation to a recommendation of the Government of Canada.

25876. Perhaps I could suggest that my friend pose his question and we see if

it's relevant and if this panel is able to answer.

25877. MR. RAE: Thank you, I'll do that.

25878. Panel, could you advise whether Canada has considered mandating

that the Proponent employ Alexander First Nation members in either its pipeline

oil spill response plan or its environmental effects monitoring plan?

25879. MR. ERIC MAGNUSON: Yeah, Eric Magnuson. I can respond to

that.

25880. We don't have the authority to mandate those types of things that

people must employ certain folks. Usually those are entered into through

business arrangements or partnership.

25881. MR. RAE: What about in regard to mitigation measures for the

southern mountain caribou herd; was any consideration given by any department

of Canada in regard to mandating that the Proponent employ Alexander First

Nation members as part of that?

25882. MR. ERIC MAGNUSON: It's Eric Magnuson.




25883. I can't answer of course on behalf of any department, but generally

from the perspective of Aboriginal Affairs, again we would encourage

partnerships. And I think that -- you know, for work that's specifically

advantageous to have First Nation folks engaged, we're always supportive of

providing assistance with economic or business arrangements to get First Nations

the maximum benefit of either projects or job opportunities in their local area.

25884. MR. RAE: And if the First Nation is unsuccessful in negotiating any

such benefits does the department offer any further assistance?

25885. MR. ERIC MAGNUSON: Well, there are other departments that

provide support with regards to training and employment opportunities, like

HRSDC, but we don’t have a mandate to -- to force specific companies to hire

First Nations.

25886. MR. RAE: Just so I’m clear in regard to your answer in that regard, is

it your evidence, sir, that Canada has no mandate to force the Proponent to

employ Alexander First Nation members as part of Canada’s duty to mitigate and

accommodate and compensate the Alexander First Nation for any loss of its rights

resulting from the project?

25887. MS. ANDERSON: Madam Chair, there were quite a few

assumptions built into that question. I wonder if the question could be rephrased

without the assumption so that we could just get to the -- the answer itself?

25888. MR. RAE: Well, Madam Chair, I’d be pleased to do that if counsel

could point out the assumptions that she is referring to.

25889. MS. ANDERSON: The assumptions were with respect to whether or

not compensation is due from the government.

25890. MR. RAE: Well, that’s not an assumption, that’s the starting premise

that any project that negatively impacts the Alexander First Nation, the

Government of Canada has an obligation to mitigate, accommodate and

compensate.

25891. And I’m simply asking as part of that obligation, does Canada consider

mandating employment of Alexander First Nations in regard to the various areas

that I’ve cited, does Canada consider that part of its obligation?




25892. MR. ERIC MAGNUSON: Perhaps I can attempt to offer a bit of

clarity here. Aboriginal Affairs has a few programs within our economic

development mandate but I’m a little bit uncertain of your use of the term

“mandate” relative to authority which is what might be required here.

25893. But I do believe there is -- you know -- a process that’s underway

where we have a panel that will make recommendations on -- on mitigation and

accommodation and -- and conditions on the project proceedings.

25894. So it may not be our place to -- to comment on that at this point in time

but we’re always interested in supporting First Nations to become engaged and to

benefit from economic development that occurs either in their traditional territory

or on their specific reserve or Treaty lands.

25895. MR. RAE: Does Canada consider it part of its mandate to make

recommendations to this Panel in this regard, and specifically does Canada

consider it within its mandate to propose or suggest conditions in regard to

employment of Aboriginal -- of Alexander First Nation member on this project?

25896. MR. ERIC MAGNUSON: I -- I can’t speak on behalf of the mandate

of the Government of Canada. Cabinet would make final decisions, and

ministerial authorities, but I think there are recommendations that -- that this

panel might make that influence that.

25897. MR. RAE: But sir, there are presently proposed conditions on the

table. Does Canada consider it within its mandate to make suggestions in regard

to those proposed conditions that deal with compulsory employment of Alexander

First Nation members should that be appropriate?

25898. MS. ANDERSON: Madam Chair, I -- I think that the questions

respecting the terms and conditions really are a matter for final argument.

25899. The drafts have been released and the departments are all reviewing

those but they’re not in a position to provide their comments on -- on the

adequacy of those draft terms and conditions at this point.

25900. MR. RAE: Madam Chair, I quite agree. I’m not talking about the

adequacy of the proposed conditions or any omissions in those conditions. I’m

just simply trying to ascertain from the Government of Canada’s point of view,

what falls within the parameters of what those possible conditions might be,




especially when it comes to Canada’s obligations to the Alexander First Nation.

25901. MS. ANDERSON: Madam Chair, I’m afraid I’m having difficulty

understanding the question.

25902. MR. RAE: Would Canada consider advising the Joint Review Panel

that mandatory employment conditions be part of the conditions were this project

to be approved?

25903. MS. ANDERSON: Again, that’s a matter for final argument.

25904. MR. RAE: Well, Madam Chair, I disagree. Perhaps I could have a

ruling on whether my question is appropriate or not?


25905. THE CHAIRPERSON: The Panel would invite the witnesses to

answer the question posed by Mr. Rae to the best of their abilities.

25906. MR. ERIC MAGNUSON: Thank you, Madam Chair.

25907. So first off, let me be very clear, I don’t speak on behalf of Canada. I

am Regional Director General for -- for Aboriginal Affair Northern Development

and this type of decision would have to go much higher than me in terms of --

specifically the way it’s has been worded by the representative of Alexander.

25908. But I would restate that we have a mandate as a department to support

and partner and train, and to assist with training for all First Nations to -- to

maximize their benefits from economic development. Thank you.

25909. MR. RAE: Thank you.

25910. Could I ask the witnesses now to turn to Exhibit A31-1, which is the

submission from Aboriginal Affairs and Northern Development Canada?

25911. And if you could turn to Adobe page 2. At the top of Adobe page 2,

under the heading “2.1 Reserve Lands” of that exhibit ---

25912. THE CHAIRPERSON: Mr. Rae, could you confirm the exhibit

number again please?




25913. MR. RAE: My apologies, Madam Chair. It’s Exhibit A31-1, is my

information.

25914. THE CHAIRPERSON: So A31-1 is the Hearing Order that the Joint

Review Panel published. Is that what you’re looking for?

25915. MR. RAE: No, my apologies, Madam Chair. I’m looking for the

submission from Aboriginal Affairs and Northern Development Canada.

25916. THE CHAIRPERSON: And so the witnesses are just looking to -- to

confirm. Does -- do the witnesses have an exhibit number for that please?

25917. MR. ERIC MAGNUSON: It appears to me, Madam Chair, that it’s

E9-6-24.

25918. THE CHAIRPERSON: E9-6-24?

25919. MR. ERIC MAGNUSON: That’s correct. I think that’s the start of

our evidence, yes.

25920. THE CHAIRPERSON: Mr. Rae, what page were you looking for?

25921. MR. RAE: It would be Adobe page 2.

25922. THE CHAIRPERSON: Which is the table of contents?

25923. MR. RAE: No, Madam Chair, that would be -- the second page of the

substance -- perhaps it’s Adobe page 4. One more page. Yes. Thank you,

Madam Chair, Madam Clerk, my apologies for that.

25924. Just for the record, what is that Adobe page we’re looking at now?

25925. THE CHAIRPERSON: It’s page 5, Mr. Rae.

25926. MR. RAE: Okay.

25927. So as I say, as I was mentioning, if the witnesses could examine

Adobe page 5 of Exhibit E9-6-24?




25928. A description at the top of the page is set out as to the rights of Indian

bands and First Nations in regard to Reserve lands and the statement is made at

the end of the first paragraph on that page:

“The right of non-members to [the] use [not to use] and

occupy reserve lands is subject to strict statutory provisions.”

25929. My question is: Does the Department of Aboriginal Affairs and

Northern Development Canada also have jurisdiction in regard to the taking up of

additional unoccupied Crown lands within the Province of Alberta above and

beyond the Reserve lands that are described on this page?


25930. MR. ERIC MAGNUSON: So just for clarification, you referred to

“Crown land”. Can you clarify if you’re talking about provincial Crown land or

federal Crown land?

25931. MR. RAE: I’m referring to both provincial and federal Crown land

and, more specifically, unoccupied Crown land.

25932. MR. ERIC MAGNUSON: Well, that land would be the

responsibility of the -- either the province or the federal department that would

have responsibility for that land.

25933. So it wouldn’t fall to Aboriginal Affairs.

25934. MR. RAE: So, sir, is it your evidence that the Department has no

jurisdiction in regard to unoccupied provincial Crown lands?

25935. MR. ERIC MAGNUSON: That would seem reasonable to me.

25936. MR. RAE: Now, under the terms of Treaty 6 to which the Alexander

First Nation is an adherent, Canada and perhaps the Province of Alberta have the

right to take up unoccupied Crown land.

25937. Given your previous answer, does the Department take the position it

has any role in ascertaining whether the taking-up of that land has been carried

out in accordance with Treaty 6?




25938. MR. ERIC MAGNUSON: So we’re not a hundred percent clear of

where -- what you’re trying to get at with the question.

25939. Could you potentially rephrase it or repeat it for us, please?

25940. MR. RAE: Yes, I’ll try.

25941. In your exhibit, the Department has purported and set out in general

terms its jurisdiction in regard to Reserve and other lands. I’m simply asking:

Does the Department have any jurisdiction outside of the Reserve land and,

particularly, in regard to unoccupied provincial Crown land?

25942. MR. ERIC MAGNUSON: So just to be clear, there are categories of

land where the Department does have some jurisdiction when it’s federal land that

we’re holding and it’s not formally been made Reserve yet.

25943. But we don’t have jurisdiction on provincial land.

25944. MR. RAE: I am talking about provincial land, I’m not talking about

any proposed TLE additions for the Alexander First Nation.

25945. I’m simply asking whether the Department considers whether it has

the mandate to examine whether the taking-up of this provincial Crown land, in

this case for the Northern Gateway Project, is an appropriate taking-up of that

land under the terms of Treaty 6.

25946. MR. ERIC MAGNUSON: Okay, so that’s a bit different question

when you use the word “mandate” versus “jurisdiction”.

25947. We do have a mandate, when it’s appropriate, to participate in the

adding of Reserve land or making land Reserve or marking it as part of a treaty

arrangement. There’s various tools that we use there. So we have a mandate and,

often, the province will participate in those discussions but we do not have

jurisdiction.

25948. MR. RAE: My apologies, sir, I’m not asking questions in regard to

the addition of lands to Reserve lands, I’m asking about the taking-up of Crown

land and I’m suggesting that, if the taking-up of that provincial Crown land were

not being carried out for a valid purpose or in accordance with Treaty 6, does the

Government of Canada through the Department of Aboriginal Affairs and




Northern Development, does it consider it has -- and to use your words -- a

“mandate” or jurisdiction to deal with the taking-up of that Crown land?

25949. MR. JOHN WILSON: John Wilson here.

25950. I would say that we do not have the jurisdiction to intervene in the

taking-up of provincial Crown land.


25952. Now, is it also the Department’s position that the provisions of the

National Energy Board Act in regard to compensation from the taking of land and

the provisions in regard to arbitration in regard to that compensation do not apply

to lands taking -- taken for the present Project proposal lands that currently lie

within provincial Crown jurisdiction or, put another way, presently unoccupied

provincial Crown land?

25953. MS. ANDERSON: Madam Chair, I stand to be corrected, but I don’t

believe that the Department has filed any evidence on that point.

25954. I wonder if my friend might be able to point us out to where that was

filed.

25955. MR. RAE: Well, Madam Chair, the exhibit that I’m reference -- that

I’ve referenced, goes on in some detail as to the Department’s position in regard

to Reserve and other lands.

25956. I’m simply seeking elaboration of the Department’s position in regard

to the evidence that they’ve filed.

25957. MS. ANDERSON: I may be mistaken but I think he’s requesting a

legal view of the Department with respect to the provisions of the National

Energy Board Act.

25958. I don’t think these witnesses are in a position to answer that but, to the

extent that the Panel thinks it’s relevant and that the witnesses are in a position to

answer, that’s certainly within your purview to ask for that.

25959. MR. RAE: Madam Chair, I’m not seeking legal opinions in regard to

the Act, I’m simply seeking an elaboration on the evidence that the Department




has put before you.

25960. THE CHAIRPERSON: Mr. Rae, could you restate your question,

please?

25961. MR. RAE: Well, I was afraid you were going to ask that. Perhaps I

can restate it or state it a little bit differently.

25962. Given the answer to the previous questions in regard to what the

Department sees as its role or its mandate or its jurisdiction in regard to

unoccupied Crown -- provincial Crown land, does the Department of Aboriginal

Affairs and Northern Development Canada take the position that the provisions of

the National Energy Board Act in regard to compensation for the taking of this

unoccupied provincial Crown land do not apply in the present instance?

25963. MR. ERIC MAGNUSON: It’s Eric Magnuson here.

25964. I’m sorry, I really -- I’m having a challenge trying to give a response

to your question that's meaningful, and I apologize for that. But we wouldn't take

a position relative to some other department's legislation.

25965. And unoccupied Crown land, as we've already kind of confirmed, we

don't have jurisdiction over, so our mandate is specific to reserve land and land

that we're holding in abeyance to add to reserve.

25966. MR. RAE: So, sir, if the Alexander First Nation were to seek to apply

the provisions of the National Energy Board Act in regard to compensation in

regard to lands taken for this project, and specifically for compensation for loss of

their interests or loss of their rights on unoccupied Crown land that was taken for

this project, is it your evidence, sir, that the Department of Aboriginal Affairs and

Northern Development Canada would not have any mandate or jurisdiction in

regard -- in regard to that?

25967. MR. ERIC MAGNUSON: So I don't think the department would be

-- would have a role in the example that you're laying out here. I don't think

Aboriginal Affairs would have a role in that.

25968. MR. RAE: And sir, if the Alexander First Nation sought the

assistance or a role for the department in that regard, would the department

decline to assist the Alexander First Nation?




25969. MS. ANDERSON: Madam Chair, we're getting into quite a

hypothetical situation here. I don't know if this is of benefit to the Joint Review

Panel or not, and I don't know that the department is in a position to answer

something that hypothetical.

25970. MR. RAE: Well, Madam Chair, I do have some sympathy with the

objection to my question, but unfortunately, Canada and the Department of

Aboriginal Affairs and Northern Development has submitted a fairly lengthy

treatise on how it sees its jurisdiction in regard to lands reserved for Indians.

25971. Perhaps I could try and solve or deal with the objection by, once again,

attempting to rephrase the question and simply put to the witness panel, is it the

department's position that the provisions of the National Energy Board Act do not

apply to the Aboriginal title and Treaty interests of the Alexander First Nation?


25972. MR. ERIC MAGNUSON: So I think, again, we're somewhat

challenged by the way the question is framed relative to the NEB Act. It's not an

area of familiarity or expertise of members of my department that are here with

me today.

25973. There is, you know, a very singular small amount of evidence on page

9, which is hardcopy, which would probably be, I guess, Adobe page 11 or 12,

that might be helpful for the Alexander First Nation to look at.

25974. Aboriginal Affairs does have a role in interpreting historic Treaties and

their extent of application, but I don't know that I can say any more than that at

this point.

25975. It's paragraph 3.0, if that's helpful.

25976. MR. RAE: Well, Madam Chair, could I ask the witness panel

whether they might be prepared to undertake to ascertain the answer to my

question?

25977. MS. ANDERSON: Madam Chair, I think, once again, that my friend

is asking for a legal opinion on behalf of the department that they are not in a

position to give.




25978. MR. RAE: Well, Madam Chair, I'm not asking for a legal opinion at

all. I'm asking for an elaboration of the department's position, an elaboration from

the evidence that they've already proffered to the Joint Review Panel.

25979. I'm simply seeking clarification and elaboration on evidence that's

already been given.

25980. MS. ANDERSON: If I understand the question correctly, it's whether

or not the provisions of the National Energy Board Act apply, and that is not a

question that these witnesses can answer.

25981. MR. RAE: Madam Chair, I'm prepared to move on.

25982. If I could ask the witness panel to again look at Adobe page 5 of that

same exhibit. And in the second paragraph, the statement there is made in regard

to the underlying legal title to reserves. And in spite of my friend's comments that

the evidence Canada is giving in this regard is not a legal opinion, that looks

pretty close to it.

25983. My question is, does that underlying legal title in case of the reserve

lands of the Alexander First Nation include legal title to the beds of water bodies

in the waters within those reserve lands?


25985. That would depend if those waters had been included in the reserve

when they were set apart as a reserve.

25986. MR. RAE: And I guess my question then is, were all waters within

the Alexander reserve lands included in the reserves when they were set aside?

25987. MR. JOHN WILSON: Could you be specific about which waters

those might be?

25988. MR. RAE: Unfortunately, I can't.

25989. MR. JOHN WILSON: Okay. I wouldn't know then. Sorry.

25990. MR. RAE: Would you be prepared to undertake to ascertain the




answer to my question?

25991. MS. ANDERSON: Madam Chair, is that something that you feel

would be of use to the Joint Review Panel?

25992. THE CHAIRPERSON: Mr. Rae, can you help the Panel understand

the relevance of this request to the proceedings that are ongoing?

25993. MR. RAE: Well, the current Route V of the Proponent's proposed

right-of-way crosses two of the Alexander First Nations reserves, and I am

simply, once again, seeking clarification of the department's mandate in regard to

those reserve lands.

25994. MR. JOHN WILSON: I guess we could look at it, but I'd like to

point out that Alexander should be fully aware of what their legal description of

their reserve is.

25995. MR. RAE: That's quite true, Madam Chair, but legal title to the

reserve lands rests with Her Majesty and Right of Canada, and the management of

these lands rests with the department, the witnesses for which are currently giving

evidence.

25996. THE CHAIRPERSON: Mr. Rae, could you clarify the undertaking

request that you're making, please?

25997. MR. RAE: Yes, I can, Madam Chair.

25998. The question is whether in the case of the Alexander First Nation

Reserve lands does legal title to those Reserve lands include the beds of water

bodies and the waters within those Reserve lands?


25999. THE CHAIRPERSON: Is the Department able to provide this

information as an undertaking?

26000. Mr. Magnuson?

26001. MR. ERIC MAGNUSON: I want to be clear that Alexander has

three Reserves. They have designated responsibility to manage some -- the land




on part of those -- one of those reserves.

26002. And they're -- at this point in time, without having more detail of the

kind of analysis in front of me, this could be a significant undertaking and may

involve the support of NRCan and it may involve a fair bit of on-the-ground type

of work.

26003. We don’t typically do the full detailed survey and registration because

we have such a large responsibility and we're always kind of struggling for

resources.

26004. So if we could get a more specific, you know, piece of description of

the land or the area that we're looking at vis-à-vis the question, perhaps we could

narrow it down. But there's some risk that we're going to come back and --

without a complete or definitive answer on this.

26005. MR. RAE: Madam Chair, it's Mr. Rae.

26006. If I might, if the question were posed in regard to fee simple lands that

were off the Reserve, I would suggest and submit that this would be pretty basic

information that the Joint Review Panel would consider necessary at some point

in time in terms of the approval process.

26007. So I think the question is quite appropriate and I think a request for the

undertaking is quite appropriate from this Department.

26008. THE CHAIRPERSON: The Panel would be interested in the

undertaking to the extent that the Department is able to respond to the question.

26009. Does the Panel need further clarification on the undertaking?


26011. Given your qualification, I think we can proceed.

26012. THE CHAIRPERSON: Ms. Niro, could we get an undertaking

number, please?

26013. THE REGULATORY OFFICER: And that will be U87.




---UNDERTAKING NO./ENGAGEMENT No. U-87:

For AANDC to inform the Alexander First Nation about whether, in the case

of the Alexander First Nation Reserve lands (fee simple lands), legal title to

those Reserve lands include the beds of water bodies and the waters within

those Reserve lands.

26014. MR. RAE: Thank you, Madam Chair.

26015. If I could ask the witness panel to now turn to Adobe page 6 of that

same exhibit?

26016. And under the Section 2.2, “Permits,” the paragraph numbered 17,

there is there a narrative in regard to the issuance of permits under the Indian Act,

specifically pursuant to Section 28.

26017. My question of the witness panel is: If the Project were to be

approved, is it the intention of the Department to issue Northern Gateway

Pipelines Limited Partnership a Section 28 sub 2 permit?

26018. MS. LISE HAMONIC: Madam Chair, as part of our normal course

of business, the only time the Department would ever issue any form of a land

tenure is with a Band Council Resolution and at the request of the Chief and

Council.

26019. MR. RAE: And if such a resolution and request were forthcoming,

would it then be the Department's intention to issue a Section 28 permit?

26020. MS. LISE HAMONIC: If the Chief and Council were to request that

we issue a permit, yes, we would do so.

26021. MR. RAE: Madam Chair, this is not a trick question, I’m simply

trying to narrow down the statutory legislative authority of the land tenure which

will be required for the Project.

26022. So if a Section 28 permit is issued, what else would be required prior

to the issuance of that permit?

26023. In other words, what else besides the request and resolution from the

Alexander First Nation?




26024. MS. LISE HAMONIC: Mr. Rae, prior to issuing any form of land

tenure, the Department always requires that (a) we have request and authority

from the Chief and Council to do so.

26025. We also require that a full status report be done on the land to

determine what other interests may be already issued for that particular parcel of

land. It's a requirement that the specific permit area or the leased area were

surveyed so that we know exactly the amount of land and the direction where the

land lies on the Reserve. We require an environmental land-specific

environmental assessment report for that parcel, an appraisal report.

26026. So there are a number of requirements that we do insist upon from the

Proponent. We do the course of least impairment.

26027. MR. RAE: And included in that list of requirements, I presume

would be a determination whether any water bodies were crossed by any portion

of the right-of-way?

26028. MS. LISE HAMONIC: That would be part of the Parcel Abstract

Report to determine what is in the parcel of land.

26029. MR. RAE: Now, if these pre-requisites for the issuance of such a

permit pursuant to the Indian Act were not met or could not be met, would the

Proponent be able to obtain its right-of-way for the Project?

26030. MR. ERIC MAGNUSON: So -- it's Eric Magnuson here.

26031. I'd just like to, first off, point out that our land policies and procedures

and processes are fully available on our public website and Alexander should be

fairly or fully familiar with them.

26032. But I would also say that, under our current regime, it would be a

requirement that our processes be followed and the obligations under the Act

fulfilled prior to the issuance of a permit.

26033. MR. RAE: But if for whatever reasons a permit could not or the

Department would not be prepared to issue a permit, is there alternative land

tenure available to the Proponent for the right-of-way as it crosses the Alexander

Reserves?




26034. MR. ERIC MAGNUSON: So I think I've answered the question and

I can't comment on land that the Proponent might be able to find off-Reserve to

satisfy his need.

26035. MR. RAE: My apologies, sir, I wasn’t talking about alternative routes

or rights-of-way off the Reserve, I'm simply seeking clarification on the forms of

land tenure available to the Proponent.

26036. Is the Proponent restricted to obtaining a permit pursuant to Section 28

or is there alternative tenure methods that the Proponent could avail itself of?

26037. MR. ERIC MAGNUSON: So if the explicit requirements were there

to proceed without all of the components of our process being met -- i.e. Chief

and Council request and agreement -- there is also available under the Indian Act

a process of expropriation.


26039. When will the Department make a decision to grant the Proponent the

right-of-way through the Alexander Reserves on the assumption that the

Proponent receives the approval of the Governor in Council for the Project?

26040. MR. ERIC MAGNUSON: I can’t speak to the exact timing of that. I

mean, this is still somewhat hypothetical for us but I can say that we would, of

course, exercise the normal course of business to issue a permit and go through

that process in conjunction with the First Nation as this unfolds.

26041. MR. RAE: It’s my understanding that the National Energy Board

Act, I believe in section 78, requires the consent of the Governor-in-Council for

the Proponent to take possession or occupy reserve lands.

26042. Would that consent of the Governor-in-Council be separate and apart

from the approval of the Governor-in-Council for the overall project?

26043. MR. ERIC MAGNUSON: So at this point in time, Madam Chair,

this council -- this panel doesn’t know the answer to that question. We’d have to

wait and see what the Order-in-Council stipulates.

26044. My understanding is that there is flexibility within the area that’s been




identified by Enbridge and there is some ability to -- like specific routing will be

decided at a later stage in the project approval process. So I can’t speak

specifically or respond specifically to that question.

26045. MR. RAE: Madam Chair, perhaps I could simply ask the witness

panel whether it’s presently contemplated that the Order-in-Council about which I

just spoke would be separate and apart from the overall Order-in-Council for the

project?

26046. MS. ANDERSON: Madam Chair, I wonder if my friend could just

clarify the question. I’m not sure which Order-in-Council came first in that

question.

26047. MR. RAE: Well I guess that’s my question; will there be one or will

there be two Orders-in-Council?

26048. MR. ANDERSON: Is the question with respect to an Order-in-

Council giving expropriation under the National Energy Board Act? I’m just a

little lost here.

26049. MR. RAE: Madam Chair, the premise was that an Order-in-Council

is necessary under the National Energy Board Act if the evidence of the panel --

the witness panel that simply the grant of a permit under the Indian Act would

suffice, then that would preclude and answer my question.

26050. MR. ERIC MAGNUSON: So I think you have answered the

question. If the OIC from -- you know, approving the project to go ahead and we

simply needed to issue a permit, that would not require another OIC.

26051. MR. RAE: So a separate Order-in-Council under the NEB Act would

not, in that circumstance, be required?

26052. MR. ERIC MAGNUSON: Well, I don’t know the NEB Act and I’m

not an expert on Parliamentary affairs and sometimes there are nuances to the

process for issuing the OICs and the like. So I’d hate to give an opinion on that

but my understanding, and specifically to our responsibility on the reserve land is

we have a very well defined, clear process to issue permits or land tenures with a

clear process. So with a willing band, I don’t think there would be a requirement

for another OIC.




26053. MR. RAE: Madam Chair, if I might, I’m not seeking to go anywhere

with this question and I’m not seeking a particular answer, I’m just seeking

clarification as to the technical details of the process so I’ll leave it at that.

26054. If I could ask the witness panel to now to turn exhibit -- and I hope I

have the number right this time -- Exhibit E9-21-03, which I hope is the response

to Information Request Number 3 from the Alexander First Nation.

26055. Yes, that’s the correct page. Thank you, Madam Clerk.

26056. I’d ask the witness panel to review the sentence at the end of the very

first paragraph on that Adobe page 3.

26057. And my question is, if an Aboriginal group did not or does not raise a

particular concern, is it the department’s position that that concern is not relevant

to the Joint Review Panel’s proceedings and the role of the Joint Review Panel in

general?

26058. MR. ERIC MAGNUSON: That’s pretty wide open and calls for a lot

of speculation. I mean, there’s a whole raft of concerns, I think, that have been

raised by other folks beyond the Aboriginal concerns that are being considered by

the Panel. So I don’t know what you’re -- what exactly I could answer there.

26059. MR. RAE: If the department is of the view that there is a concern to a

particular Aboriginal group but that Aboriginal group does not raise that concern,

does that mean that concern does not exist?

26060. MR. ERIC MAGNUSON: I don’t know that I could say

unequivocally that means that concern doesn’t exist. I think under our normal

process, if we had some concerns that we were aware of and -- we’d want to have

a conversation with the First Nation. I mean that’s first and foremost our

approach to working with First Nations. It’s in partnership and we very much --

you know -- try to do that to the extent we can.


26062. You say you wish to have a conversation with the First Nation but

would you wish to have a conversation with the Joint Review Panel?

26063. MR. ERIC MAGNUSON: Well, we’ve submitted evidence from our




department relative to how our department works but we are one of a variety of

departments with the Government of Canada that are involved in this process. So

I think the majority of issues with respect to the pipeline are being -- you know --

examined by other departments. Our mandate is pretty specific and limited to

Aboriginal affairs.

26064. MR. RAE: Yes, but suppose there were -- there was an issue on

reserve that was not raised by the First Nation, given that Canada has title to those

reserve lands, does the department feel it’s an obligation to raise that concern with

the Joint Review Panel?

26065. MR. ERIC MAGNUSON: It sounds like you’re talking about

potentially an internal governance issue with the First Nation and suggesting

perhaps that there wouldn’t be an absolute agreement of views with -- within the

First Nation itself.

26066. And where possible, we always leave a -- the governance of a First

Nation to the First Nation government there and -- but where necessary -- I mean,

we work with them on engagement within the community and try to help them

resolve the issue internally.

26067. MR. RAE: Well, sir, actually with respect, I’m not talking about an

internal governance issue, the basis and the premise for my question is that

regardless of the rights and obligations of the First Nations, the fact remains that

the reserve lands are federal lands. The titles of those lands rest with the federal

Crown and it’s your department that looks after them.

26068. So I’m simply trying to ascertain how your department feels its

obligations in regard to the present project in terms of its impacts on reserve

lands. In other words, are you simply going to rely on the First Nation to raise

issues or do you feel it’s your responsibility to raise issues on your own?

26069. MR. ERIC MAGNUSON: So I think earlier in this line of

questioning we spoke to our process for issuing a permit or land tenure, which

includes an environmental assessment and a variety of other requirements. So we

have a responsibility to exercise our jurisdiction and to protect against liability to

the department, specifically to land that we hold in trust for First Nations, and we

I think have explained that process as best we can.

26070. Now, I guess beyond that, we're relying significantly on the work of




this Panel and this process to inform the department.


26072. And if I could ask the witness panel to turn to subparagraph (a) on that

same Adobe page 3 of that exhibit, where reference is made to the requirement of

a parcel abstract report.

26073. Now, the Alexander Indian Reserve is, I presume, similar to other

Indian reserves in terms of how it was set aside and surveyed. Has either

Alexander Indian Reserve Number 134 or Number 134A, have they been

surveyed in terms of township and section lines, pursuant to the cadastral system

of land survey, which I believe is the system of land survey that the remainder of

the Provinces of Alberta and Saskatchewan have been surveyed under?


26075. I believe Alexander 134 is surveyed in the township grid and 134A is

not. It's surveyed as a parcel.

26076. MR. RAE: Now, when you say that Reserve Number 134 has been

surveyed, have the individual sections within that reserve been surveyed?

26077. MR. JOHN WILSON: I don't believe they've actually been

surveyed.

26078. MR. RAE: So is it fair to say that the legal descriptions using

sections townships and ranges on both Alexander Indian Reserves are theoretical

legal descriptions and not actual ones?

26079. MR. JOHN WILSON: I would agree with that, yes, theoretical.

26080. MR. RAE: And is it correct as well that the Government of Canada

has recently made the decision that Natural Resources Canada would no longer be

updating existing survey maps of Indian reserve lands?

26081. MS. LISE HAMONIC: I can't answer that question, unfortunately,

I'm not aware of that.

26082. MR. RAE: Would you be willing to undertake to ascertain the answer




to that question?

26083. MR. ERIC MAGNUSON: We, in Aboriginal Affairs, don't have an

ability to comment on NRCan's policies with respect to regular updating of

surveys. NRCan provides service to us on a cost-recovery basis to do survey

work where it's required to action specific land transactions on reserve.

26084. MR. RAE: As part of the total process for the present project, would

the Department of Aboriginal Affairs and Northern Development be willing to

consider conducting a section line survey of the two Alexander Indian Reserves

that are impacted directly by the proposed project?

26085. MR. ERIC MAGNUSON: We typically wouldn't do a survey unless

there was a specific requirement to do it. We can't -- we have a very large number

of reserves across the country and resources need to be prioritized in terms of

survey work. So we prioritize those specific to approved actions.

26086. MR. RAE: So is it your evidence, sir, that at the present time, your

department does not intend to conduct a survey of the two reserves in question,

even if the proposed project is approved and the right-of-way for the project runs

through the two reserves?

26087. MR. ERIC MAGNUSON: I don't think that's what I said. If there

was an approval and the project was going forward, typically though those

surveys are done on a Proponent-based responsibility.

26088. MR. RAE: And sir, by referring to the Proponent-based

responsibility, I presume you're talking about a survey of the right-of-way itself.

But I'm talking about a survey of section lines within those two reserves which,

correct me if I'm wrong, would not be part of the Proponent survey of the right-

of-way.

26089. MR. ERIC MAGNUSON: Yeah, I think you're right and I think that

is our answer.

26090. MR. RAE: Now, in that same paragraph of that same exhibit,

reference is made to the regulatory phase. Could you explain to me what your

department's view of the regulatory phase is, as it pertains to this project?

26091. MR. ERIC MAGNUSON: So our specific regulatory phrase -- or




phase, pardon me, for permitting has already been described in our responses to

you just a little while back, and we wouldn't get to that of course until the

overarching regulatory authorities have been issued.

26092. MR. RAE: So does that include the survey and parcel abstract, which

you're referring to? Those would not be undertaken until the overall approval of

the project has been dealt with?

26093. MR. ERIC MAGNUSON: Well, as I indicated, we wouldn't survey

the whole parcel, we'd survey what's required specifically for the lands transaction

and that would be Proponent based. And I can't see any way that that would go

ahead of actually all of the approvals being in place.

26094. MR. RAE: On that same Adobe page 3 of that same exhibit, in

subparagraph (b), can I interpret from subparagraph (b) that there has been no

specific environmental impact assessment done for the Alexander reserve lands

impacted by the proposed project?

26095. MR. ERIC MAGNUSON: So I think the environmental work that's

been done in preparation for this application would be the extent of the

environmental assessment work that's been done. We haven't done anything over

and above that ourselves at this point in time.

26096. MR. RAE: And is it the department's intention to carry out such an

impact assessment for the specific reserve lands that are presently contemplated

for the portion of the Proponent's right-of-way?

26097. MR. ERIC MAGNUSON: So as I mentioned earlier, we do require a

specific environmental assessment be done prior to the issuance of the permit.

26098. MR. RAE: If I could ask you to turn to subparagraph (e) on that same

page, the land status report that is referenced in subparagraph (e). Again, is that

something that will be done prior to any issuance of a section 28 permit?

26099. MR. ERIC MAGNUSON: Correct.

26100. MR. RAE: And finally, if you turn to subparagraph (f) on that same

page, Adobe page 3 of that same exhibit, reference is made to a land appraisal

report.




26101. When will that land appraisal report be carried out?

26102. MR. ERIC MAGNUSON: That will be done as part of the

permitting process post-approval by the more senior process and confirmation of

the Project.

26103. MR. RAE: And for the purpose of determining the fair market value

that is to be used in that appraisal, are you able to advise me what the highest and

best use of the proposed Alexander Reserve lands through which the right-of-way

will run -- what the highest and best use of those lands is?

26104. MR. ERIC MAGNUSON: That would be something that would be

done by the qualified appraiser that does that work at the time.

26105. MR. RAE: And that appraisal will be done in accordance with the

professional factors that the appraisal uses. Is that -- the appraiser uses?

26106. Is that correct?

26107. MR. ERIC MAGNUSON: We require an approved appraiser.

26108. MR. RAE: And do you know whether injurious affection, as that

term is technically used, will be one of the factors that the appraiser will take into

consideration?

26109. MR. ERIC MAGNUSON: I'm going to have to suggest that you're

into a level of technical detail on land appraisal that's not appropriate for us to

ask.

26110. We require a qualified appraiser to do this work as part of the process,

and they subscribe to their own professional standards.

26111. MR. RAE: Sir, the basis of my question is, again, not to do anything

other than to seek clarification of the Department's process.

26112. Perhaps I could phrase the question a different way: Is injurious

affection one of the factors that the Department would use to determine fair

market value or is it a category of compensation in addition to the loss of fair

market value?





26113. MR. ERIC MAGNUSON: So the appraisal follows a standard

process for the ascertaining of the value of the highest and best use, but there is an

opportunity for Chief and Council to negotiate the land value or the compensation

they receive during that process that could be above the established appraiser's

report.

26114. MR. RAE: I appreciate that, sir, but I'm wondering how the

Department, for the purposes of issuing a Section 28 permit under the Indian Act,

how it determines fair market value or how it will determine fair market value for

this particular project.

26115. MR. ERIC MAGNUSON: We require a certified appraisal from a

certified appraiser.

26116. MR. RAE: And is that certified appraiser professionally capable of

ascertaining the value of loss of Treaty and Aboriginal rights?

26117. MR. ERIC MAGNUSON: I'm not ---

26118. MS. ANDERSON: Madam Chair, the evidence that AANDC has

filed is that an appraisal would be required from Northern Gateway. They would

have to get it from a certified appraiser. That's the evidence we've heard today.

26119. I don't know the relevance of continuing down this line of questioning

with respect to what the appraiser will do. That is not something that these

witnesses would know.

26120. MR. RAE: Well, given that, Madam Chair, perhaps the witnesses

would undertake to ascertain the answer to my questions?

26121. MS. ANDERSON: I think that's a matter for Northern Gateway and

not for this Panel.

26122. MR. RAE: Well, with respect, Madam Chair, the witness panel

before us right now is responsible for managing Federal Indian Reserve lands, and

this is an issue that goes to compensation and, sooner or later, will fall under the

jurisdiction of the National Energy Board and I'm simply trying to get an

elaboration on the parameters that will apply to the determination of those issues.





26123. THE CHAIRPERSON: Would the witnesses please answer this

question to the best of their abilities?


26125. So when we get to that point, we will require a certified appraisal by a

certified appraiser and that will be the responsibility of the Proponent, potentially

in consultation or discussion with the First Nation, to select that appraiser.

26126. However, I mean, if it's helpful to Alexander's question, there are

situations where we've seen multiple appraisers used or comparatives to that

extent. But we don't employ appraisers, we're not appraisers. We rely on that

profession to inform us.

26127. MR. RAE: Madame Chair, that response is perfectly acceptable but I

don't wish to mislead the Joint Review Panel and I must make it clear that the

Alexander First Nation is and will continue to be interested in the methods

utilized for losses of its rights, both on Reserve and off-Reserve, and any losses in

regard to its Aboriginal and Treaty rights.

26128. Could I ask the Panel to turn now to Adobe page 4 of that same

exhibit?

26129. And Madam Chair, I can advise that my questions on this page will be

the last of my questions.

26130. In sub-paragraph (g) at the top of that Adobe page 4, reference is made

to the uniform standards of professional appraisal practice. And I appreciate the

evidence that has just been given, but I'd like the witness panel to advise me

whether these standards referred to include a methodology to factor in the loss of

Aboriginal and Treaty rights in order to determine the fair market value of these

traditional lands.

26131. MR. ERIC MAGNUSON: So I'd like to clarify just kind of in

response to the last statement by the questioner, previous to his question, all of my

answers have been -- regards to appraisal have been in reference to the issuance of

permits which, in my mind, would include a process that would involve and have




consent of the First Nation.

26132. And the appraisal process in that, there's an assessment of land values.

26133. MR. RAE: Well, Madam Chair, I'm not sure that whether the consent

of the Alexander First Nation is applicable to the issue of the compensation

payable for the loss of -- on Reserve land, which, of course, is Federal Crown

land. And that's the basis and the nature of my question.

26134. Canada owns these lands. I'm simply trying to delineate what they

consider to be applicable factors in terms of the value of these lands and the

compensation for the loss of these lands.

26135. So I think my question is appropriate.


26136. MR. ERIC MAGNUSON: So I don't know really how to answer any

further. This line of questioning is specific to our process in the appraisal process.

26137. I will say though that, you know, outside of this specific evidence on

how we conduct our lands processes, there are other factors at play and there are

other methodologies for the First Nations to have negotiations relative to a variety

of things.

26138. But I can't presuppose what those negotiations may be without even

knowing the specifics and they may not actually even lose the use of the land;

they may be able to continue to use the land after the pipeline is gone -- you

know, has been put in.

26139. I don't know that kind of stuff. So until we actually get to that point, it

would be, I think, inappropriate and I'm unable to comment any further on that.

26140. MR. RAE: Madam Chair, perhaps I could rephrase the question to

simply ask whether the Canadian Uniform Standards of Professional Appraisal

Practice included the relevant factor and the value of Treaty and Aboriginal

rights?

26141. MR. ERIC MAGNUSON: So I just want to be clear, again, I'm not

an appraiser. I don't belong to that group and I'm not qualified to answer this




question.

26142. MR. RAE: Well, Madam Chair, could I ask for an undertaking, given

that this question is directly applicable to evidence proffered by the Government

of Canada?

26143. MS. ANDERSON: Madam Chair, is the undertaking to provide a

copy of the Uniform Standards? I'm not sure what the request is.

26144. MR. RAE: Madam Chair, that could certainly be a part of any

response to an undertaking request, but, no, that's not an answer to my question.

26145. THE CHAIRPERSON: Mr. Rae, can you help the Panel understand

the relevance of this requested undertaking to the application that's currently

under review?

26146. MR. RAE: Yes, Madam Chair, I'll try.

26147. The relevance is two-fold. First of all, the Alexander First Nation has

presented evidence as to its Aboriginal and Treaty rights and title in the Treaty 6

area. If the project will impact adversely those rights to the effect they cannot be

accommodated or mitigated, then it's our position the Alexander First Nation is

entitled to compensation therefore.

26148. Secondly, the current proposed route for the project crosses Alexander

First Nation reserve lands and those reserve lands, the fee simple title is held by

the Government of Canada, and I'm simply seeking to ascertain the basis on

which compensation for any taking, voluntary or otherwise, of those reserve

lands, how that compensation will be determined.

26149. THE CHAIRPERSON: With the clarification that's been provided,

do the witnesses have anything further to add than their answer?

26150. MR. ERIC MAGNUSON: I'd just like to clarify again, kind of my

earlier answer, that the land value is determined by an appraisal. It's not our

intention to have that land value appraisal deal with title or rights.

26151. And as I had said earlier, there is opportunity for negotiation, and I

think the First Nation would have to be involved in that discussion to ascertain

and to clarify what exactly their loss would be, over and above the land value.




26152. THE CHAIRPERSON: Mr. Rae, the Panel has what it needs in

terms of this and so we don't require this undertaking.


26154. I would like to add that compensation issues are within the National

Energy Board's mandate and at some point in time the Alexander First Nation

may wish to pursue that issue pursuant to those provisions.

26155. Madam Chair, that concludes my questions. Thank you and thank you

to the witness panel.

26156. THE CHAIRPERSON: Thank you, Mr. Rae.

26157. We will break now for lunch and come back at 1 o'clock please.

26158. Thank you.


--- Upon resuming at 1:02 p.m./L’audience est reprise à 13h02

ERIC MAGNUSON: Resumed

SHEILA CRAIG: Resumed

JEAN GAULD: Resumed

LISE HAMONIC: Resumed

JOHN WILSON: Resumed

26159. THE CHAIRPERSON: Good afternoon, everyone.

26160. Are there any preliminary matters that parties wish to raise?

26161. Mr. Patterson -- oh sorry, Ms. Bird, sorry, go ahead.

26162. MS. BIRD: I was just going to answer no. Thank you.

26163. THE CHAIRPERSON: Okay.

26164. Mr. Patterson?




26165. MR. PATTERSON: Thank you.

26166. All right, just as an update on some of the parties that we're going to

question on Panel Number 4. Coastal First Nation will not be here to ask

questions. Daiya-Matess Keyoh will not be here to ask questions of that Panel 4.

And at this point, neither will the Douglas Channel Watch will be asking

questions on Panel 4. That's what I have.

26167. THE CHAIRPERSON: Just for clarification, Mr. Patterson, did you

say that Douglas Channel Watch is not asking questions of Panel Number 4?

26168. MR. PATTERSON: At this point, yes. Just been told.

26169. THE CHAIRPERSON: We've been advised of that?

26170. MR. PATTERSON: Yes.

26171. THE CHAIRPERSON: Okay, thank you.

26172. Mr. McCormick?

26173. MR. McCORMICK: Good afternoon, Madame Chair.

26174. One additional change in relation to Panel 4. Gitxaala has graciously

offered to let the Haisla Nation proceed before them, so a switch in order of

appearance from Gitxaala Haisla Nation to Haisla Nation Gitxaala.

26175. THE CHAIRPERSON: Thank you, Mr. McCormick.

26176. MR. McCORMICK: Thank you.

26177. THE CHAIRPERSON: We'll continue with questions of Panel

Number 3. I understand that Northern Gateway has no questions of this panel nor

does legal counsel for the Joint Review Panel.

26178. I see nobody jumping up at the Northern Gateway table, so I'm going

to continue on.

26179. So we will proceed to the questions from the Panel Members now.




26180. Mr. Matthews?

--- EXAMINATION BY/INTERROGATOIRE PAR MEMBER MATTHEWS:

26181. MEMBER MATTHEWS: Good afternoon. I just have a question

with regard to the on-reserve emergency response.

26182. As we know, many of the communities, especially marine

communities could be potentially affected if there was an oil spill and there are

obviously communities near or in the vicinity of the pipeline project.

26183. So with that context, what -- and also with the other context that the

Crown has a jurisdiction or statutory obligation to reserve lands, and I gather

these are spelled out in the Indian Act. In pairing further with the Haisla question,

what -- I understand that you don't really have a direct responsibility for

emergency response on reserve.

26184. Can you elaborate, how is that structured again? Let's say, for

example, if there was a community who was -- which was impacted by a spill,

what would be the role of the AANDC?

26185. MR. ERIC MAGNUSON: Thank you for the question.

26186. Perhaps it would be best if I just clarified a little bit that -- you know,

in British Columbia for example, .4 percent of the land mass is reserve relative to,

you know, 99.6 percent of the land mass. So we have a very small amount of

direct jurisdiction that we're responsible for, so we enter into MOUs or Letter of

Understanding or Agreements with the provinces to provide their response

capability.

26187. We also of course participate in a broader Government of Canada

Emergency Response Coordination Committee and our departments -- other

departments within the Government of Canada, for example Transport Canada,

have responsibility for marine safety. So we partner with both other federal

departments as well as the province to deliver those services.

26188. We also encourage, specifically to First Nation reserves, their

individual planning and protection of infrastructure -- lives and infrastructure and

property on reserve. It's our general assessment that through -- if we take, for




example, an oil spill -- a marine oil spill, there probably would be limited impact

on reserve. Most reserves start above the ordinary high water mark.

26189. But there will incidental effects of course to areas where they may be

harvesting, aquaculture, they have other activities in the marine environment. But

those would be addressed, you know, coincidentally with addressing that spill on

behalf of all Canadians.

26190. So that’s kind of the general premise that we look at this from.

26191. MR. MATTHEWS: In answering that you've answered one of my

other questions, was do you see yourself entering into a Memorandum of

Understanding with other agencies? So you would consider entering into an

MOU with a provincial agency or government body; right?

26192. MR. ERIC MAGNUSON: That’s correct. In fact we have right now

a Letter of Understanding with the Province of British Columbia and the Province

of Alberta, the two jurisdictions where this project resides. And we regularly

refund them costs associated with responses that are incidental to First Nations or

directly on First Nations and they have the resources. Our agency is primarily a

funding agency and a regulatory permitting kind of land registry kind of function

is our primary efforts.

26193. So we work in partnership and we defer where we have partners that

are willing and have resources to support us. And of course all of those

arrangements are facilitated by the department on behalf of First Nations and we

try to involve the Chief and Council and the First Nations to the extent possible.

26194. I would say additionally we're also a member if the REET Committee

that was talked about by Transport Canada and we do coordinate under the

Government of Canada Emergency Response Plan. We are a department that has

a number of responsibilities under that plan and there's a quite effective

coordination effect that’s led by Public Safety Canada.

26195. MR. MATTHEWS: Great, I like that answer. I mean it's -- I wanted

to see where -- I wanted to get some teeth behind who -- the role of your

department, you know, in addressing the spills.

26196. And then this is -- I don’t think this is a legal question but it's in a grey

area. When we're talking about additions to reserve and we're talking about lands




that may be selected to be attached or is part of an Indian reserve, does your

authority go to that extent, to areas that are being selected or is it only purely

those parcels that have been designated or -- I’m using the wrong word

“designated” -- but have been described as Indian reserves?

26197. And I’m thinking of the -- perhaps maybe some of the -- like the

Alexander type reserves where they may have land but there's other maybe --

others who maybe not have selected lands.

26198. MR. ERIC MAGNUSON: So we have categories of lands, there are

areas where there are lands set aside for First Nations that we would have some

responsibility for, but those typically aren’t located within provinces per se.

26199. We have -- in the case of specifically this project -- we have some land

that we currently hold as a federal Crown on -- as we move through an ATR

process. So it's -- and there are situations where First Nations actually purchase

or get title to land that they want to have added to ATR. So that -- there's a --

once they get through an agreement in principle in the ATR process, we can

actually take on that land.

26200. There are also, I would say, we should remember that the province is

also a party to the discussions and often the province will hold land with the intent

of some sort of settlement. But until it's formally given some designation to us,

we don’t have a responsibility.

26201. MR. MATTHEWS: That’s great, thanks a lot. I was trying to avoid

using the word “designation”. But anyways, thanks a lot for those answers.

26202. THE CHAIRPERSON: Those are the Panel questions.

26203. Ms. Anderson, do you have any redirect?

26204. MS. ANDERSON: No, Madam Chair, no redirect.

26205. THE CHAIRPERSON: The Panel would like to thank the witnesses

for making themselves available to be here today and to provide the evidence that

you provided.

26206. You're released. Thank you very much.


Examination by Mr. Lambrecht


--- (Witnesses are excused/Les témoins sont libérés)

26207. MS. ANDERSON: Madam Chair, I'll now be turning you to the

capable hands of my colleague, Mr. Kirk Lambrecht who'll be representing Panel

4.

26208. THE CHAIRPERSON: And just while we're doing that change out

in the witnesses, I was remiss -- well I suppose now that we've had further

updates, we will sit this afternoon till 3:30.

26209. Thank you.


26210. THE CHAIRPERSON: Good afternoon, Mr. Lambrecht.

26211. MR. LAMBRECHT: Good afternoon, Madam Chair, Panel

Members.

26212. I'd like to thank my colleagues, Ms. Anderson and Ms. Bird, for

providing assistance to the first three panels. As you can see we've made a

change in counsel, we've divided the responsibilities amongst themselves.

26213. My name is Kirk Lambrecht and I'm joined here by Brandon Friesen

and we're here to represent Panel 4, and the panel members are there before you.

26214. What I would propose to do in order -- in the interests of saving time,

is to largely lead these witnesses so that we can go as quickly and expeditiously as

possible into time for cross-examination and questioning.

26215. Now, have the witnesses been sworn?

26216. THE CHAIRPERSON: They haven’t, so let's that have done first.

26217. MR. LAMBRECHT: Great.

26218. THE CHAIRPERSON: Ms. Niro?




TERENCE HUBBARD: Sworn

DEAN STINSON O'GORMAN: Affirmed

BRUNO STEINKE: Affirmed

--- EXAMINATION BY/INTERROGATOIRE PAR MR. LAMBRECHT:

26219. MR. LAMBRECHT: Mr. Hubbard, could I invite you to introduce

yourself to the Panel, please?

26220. MR. TERENCE HUBBARD: My name is Terry Hubbard. I’m the

Director General with the Strategic Policy and Planning at the Major Projects

Managements Office within Natural Resources Canada.

26221. My evidence that I’ll be here to speak to today is with respect to

evidence filed on the Cabinet directive and MOU on improving the performance

of the regulatory system for major natural resource projects as well as the project

agreement, the Northern Gateway’s Pipeline Project, as well as the implications

of Bill C-38 on the Government’s approach to consultation for this Project.

26222. MR. LAMBRECHT: Mr. Stinson O’Gorman, could I invite you,

please, to introduce yourself to the Panel?

26223. MR. DEAN STINSON O’GORMAN: Thank you. My name is

Dean Stinson O’Gorman. I’m the Director of the Review Panels Division at the

Canadian Environmental Assessment Agency and I’ll be speaking to the

integration of Aboriginal consultation into the environmental assessment process.

26224. MR. LAMBRECHT: And, Mr. Steinke, could I invite you to do the

same, please?

26225. MR. BRUNO STEINKE: Good afternoon. My name is Bruno

Steinke. I’m the Director of the Consultation Accommodation Unit.

26226. I’ll be here to speak to the evidence with respect to the guidelines --

updated guidelines for federal officials on consultation and accommodation.

26227. MR. LAMBRECHT: Panel, we’re introducing these witnesses as lay

witnesses, so there’s no question of qualification as experts.

26228. And Mr. Hubbard’s CV can be found at Exhibit E9-53-4, PDF page




195. Mr. Steinke’s CV is the same exhibit number, E9-53-4 and his appears at

PDF page 11. And Mr. Stinson O’Gorman’s CV is in Exhibit E9-58-3 at PDF

page 6.

26229. Now, if it’s possible, I would like to ask the registry staff to display

Exhibit E9-64-2 at PDF page 10 -- E9-58-4 and I believe it’s PDF page 10 -- it’s

page 2. I’m sorry about that.

26230. This is a convenient summary of the evidence that was filed in relation

to the subject matter of this Panel and it provides all the exhibit numbers in that

document.

26231. So I thought I would present that to the Panel for assistance and then

move on to say, Madam Chair, that in Panel Ruling No. 157, the Panel invited Mr.

Hubbard to describe the administrative corrections required to the evidence as a

result of legislative amendment and what I would propose to do -- subject, of

course, to the Panel’s approval -- is to invite Mr. Hubbard to do that now, to make

those administrative corrections now and I will then ask him to adopt the

corrected evidence.

26232. THE CHAIRPERSON: Thank you, Mr. Lambrecht. Let’s proceed

on that basis.

26233. MR. LAMBRECHT: Mr. Hubbard, could I invite you, please, to

describe the administrative corrections required to the evidence that was filed as a

result of legislative amendment?

26234. MR. TERENCE HUBBARD: Thank you, Madam Chair.

26235. So the evidence that was filed -- and that’s under consideration this

afternoon -- was filed on December 22nd

, 2011. As you’re aware, since that point

in time there were several legislative changes made to the Canadian

Environmental Assessment Act and the National Energy Board Act that required

and resulted in an update to the Joint Review Panel Agreement for this Project.

26236. Given those updates, with respect to -- have required as well some

updates to the evidence that were filed under consideration.

26237. In particular, while the Government’s approach to Aboriginal

consultation for this Project remains very much the same approach that was




described in the evidence, some of the terminology with respect to reporting has

changed to reflect the Joint Review Panel Agreement and the requirements in

there.

26238. So throughout Canada’s evidence that was outlined on the screen here

-- so the process for decision-making outlined in the amended JRP Agreement

should be replaced with, instead of the NEB as decision-maker, the Governor in

Council as the decision-maker with respect to the evidence that was filed.

26239. And all references to the JRP Environmental Assessment Report and

JRP EA Report in our evidence are replaced with the words “JRP Final Report” to

reflect the consolidation of reporting responsibilities under the new JRP

Agreement.

26240. MR. LAMBRECHT: Have you completed your work, Mr. Hubbard?

26241. MR. TERENCE HUBBARD: Yes.

26242. MR. LAMBRECHT: All right, then let me ask you: With reference

to the evidence that is displayed on the screen and has the exhibits numbers there,

was this evidence prepared under your direction and control and is it accurate to

the best of your knowledge?

26243. MR. TERENCE HUBBARD: Yes, the evidence was prepared under

my direction and control and is accurate, with the updates that I provided, to the

best of my knowledge.

26244. MR. LAMBRECHT: All right.

26245. Panel members, I’m prepared to turn this witness panel over now for

questioning by the other parties.

26246. THE CHAIRPERSON: Thank you, Mr. Lambrecht.

26247. I’ll call first the Alexander First Nation. Mr. Rae, are you on the line?

26248. MR. RAE: Yes, I am, Madam Chair.

26249. THE CHAIRPERSON: Good afternoon.




26250. MR. RAE: Good afternoon again.

26251. THE CHAIRPERSON: Please proceed with your questions of this

Panel.

--- EXAMINATION BY/INTERROGATOIRE PAR MR. RAE:

26252. MR. RAE: Hello, my name is Douglas Rae. I’m legal counsel for the

Alexander First Nation and I have a few questions of you starting with questions

on some evidence submitted by the Proponent.

26253. Madam Clerk, if you could call up Exhibit B83-2 at Adobe page 34, I

would appreciate that.

26254. Now, with evidence at -- in the response to Question 52, this evidence

of the Proponent at the end of that response talks about a net social benefit

associated with the Northern Gateway Project of some:

“…$23.5 billion, equating to a social rate of return of almost

33%.”

26255. Has the Government of Canada calculated what portion of this net

social benefit will accrue to First Nations in general?

26256. MR. LAMBRECHT: Madam Chair, before we begin -- and I don’t

want to leave anyone with the appearance that I intend to be interventionist here,

far from it -- but I’m not sure how this relates to the evidence that was filed that

this Panel has presented to you.

26257. This is a question directed to evidence filed by Enbridge and I was

wondering if my friend could help by connecting this in some way to the

documents that were filed that this Panel is here to speak to.

26258. MR. RAE: Madam Chair, I’d be pleased to rephrase the question.

26259. And I’d ask the witness panel whether, in the evidence that has been

filed by Canada, is there any calculation of what portion of the estimated in net

social benefit will accrue to First Nations?




26260. MR. DEAN STINSON O’GORMAN: It’s Dean Stinson O’Gorman.

26261. Madam Chair, that certainly isn’t a calculation that was in the evidence

submitted relevant to this Panel.

26262. MR. RAE: In the evidence submitted by Canada, is there any

calculation of what portion of this estimated net social benefit will accrue to the


26263. MR. DEAN STINSON O’GORMAN: Again, acknowledging first

that we’re not an expert in the entire body of evidence submitted on behalf of all

the Government of Canada, only the evidence relevant to this Panel, those sort of

calculations aren’t the sort of thing that were submitted as part of our evidence.

26264. MR. RAE: Has Canada submitted any evidence whatsoever in regard

to the estimated net social benefit of the Project?

26265. MR. DEAN STINSON O’GORMAN: My answer remains that, as

far as the information and evidence submitted relevant to this Panel, that’s not the

nature of the evidence we submitted.

26266. MR. RAE: So, sir, I take it the answer is “no” to my question?

26267. MR. DEAN STINSON O’GORMAN: Again, I’m not familiar with

the entire body of evidence that other departments may have submitted and

whether that calculation could be found somewhere else.

26268. It’s not an element of what evidence we submitted on behalf of this

Panel.

26269. MR. RAE: I’d ask the witness panel to then turn to, on that same

PDF page 34 of that exhibit, the response of the Proponent to Question 53.

26270. And the response to that questions deal -- to that question deals with

the loss of ecological goods and services.

26271. In the evidence submitted by Canada, has Canada attempted to

ascertain what portion of these ecological losses will occur in the traditional lands

of the Alexander First Nation?




26272. MR. DEAN STINSON O’GORMAN: I would point out that, of

course, by using the Joint Review Panel process as a way to gather information

from groups about their concerns, this is the sort of information that we may

expect to be seen submitted by Alexander First Nation or others.

26273. But it’s not an element of what we have submitted as part of

Government of Canada evidence related to -- to this Panel.

26274. MR. RAE: Given that approximately 40 percent of the proposed

project right-of-way travels through Treaty 6 territory, would it be an appropriate

assumption that approximately the same portion -- that is, 40 percent -- of these

ecological losses identified by Enbridge -- or by Northern Gateway, 40 percent of

these losses will occur on the traditional lands of the Alexander First Nation?

26275. MR. DEAN STINSON O’GORMAN: Again, we’re not in a position

to respond to that, I’m sorry.

26276. MR. RAE: I’d ask the witness panel to turn to, Madam Clerk, Exhibit

E9-21-03 which is the response of the Federal Government’s -- of the Federal

Government to Information Request No. 3 from the Alexander First Nation.

26277. Does the Panel have that -- does the witness panel have that Exhibit in

front of you?


26278. MR. RAE: Madam Clerk, I’m looking at what I thought was page 7

of that exhibit. Yes, that’s the correct one. Thank you.

26279. Now, in this response to questions labelled a) through k) of the

Alexander First Nation, Canada refers to the Alexander First Nation’s Treaty

rights. Treaty 6 to which the Alexander First Nation is an adherent includes

provisions in regard to the taking-up of Crown land.

26280. Does Canada, as part of its evidence, intend to rely upon the Joint

Review Panel’s assessments in regard to the taking-up of Crown land for the

purposes of the Northern Gateway Project?





26281. MR. DEAN STINSON O’GORMAN: So, Madam Chair, the point

of the use of the Joint Review Panel process is that it provides an opportunity for

Alexander First Nation to bring to the attention of the Panel -- and through that

process to the attention of the Government of Canada -- the information that it has

concerning potential impacts of the -- of the Project on their Aboriginal or Treaty

rights.

26282. And that’s exactly the process we’re engaged in is trying to observe

what -- what’s being presented and then considering all that information at the

end before any decisions are made.

26283. So we certainly are looking to the information presented to the Joint

Review Panel and the Joint Review Panel’s assessment of that information as a

part of the decision-making process.

26284. MR. RAE: So if I may, sir, if evidence was presented to the Joint

Review Panel in regard to other uses of the land through which the proposed

project will run then Canada will consider those other uses?

26285. Is that your evidence?

26286. MR. DEAN STINSON O’GORMAN: What Canada will consider is

all of the information that’s brought forward and put in front of the Joint Review

Panel through this process about potential impacts from the Project on Aboriginal

or Treaty rights and that information will certainly all be considered in the final --

before the final decisions are made.

26287. MR. RAE: Is Canada interested in the Joint Review Panel’s views on

impacts on the Aboriginal -- on the Alexander First Nation on uses that are not

treaty rights of the Alexander First Nation?

26288. In other words, if they were uses that were not protected by Treaty?


26289. MR. DEAN STINSON O’GORMAN: Actually, could you repeat

that question one more time, please?

26290. MR. RAE: Is Canada interested in the Joint Review Panel’s views on

impacts on the Alexander First Nation that are not Treaty rights?




26291. In other words, impacts on uses that are not protected by Treaty 6?

26292. MR. DEAN STINSON O’GORMAN: What the Government of

Canada is interested in hearing is all the information that’s been brought forward

by groups about potential impacts of the Project and that’ll all go into

consideration in the final decision-making stage.

26293. And information that they have about their rights and all -- using the

JRP process as a way to bring all that information forward so it can be considered.

26294. MR. RAE: So if, for example, the Alexander First Nation wished to

use portions of its traditional territory in Treaty 6 for purposes of, for example, an

upgrader project and a refined products pipeline, is that something that Canada

will take into consideration as a result of the Joint Review Panel process?

26295. MR. DEAN STINSON O’GORMAN: It -- it’s -- given that I’m not

an expert on every piece of information that’s been presented to the Panel but if

that information has been presented by Alexander First Nation to the panel then

we certainly will look to -- we’ll be evaluating all the information that comes

forward and also looking at what the Joint Review Panel thinks about it in its final

report.

26296. MR. RAE: So if Canada accepts the Joint Review Panel process as an

effective means of addressing the impacts of the proposed project, will Canada

also accept any finding by the Joint Review Panel as to the existence or non-

existence of rights of the Alexander First Nation?

26297. MR. LAMBRECHT: Madam Chair, I think this question is

something that ultimately might find its way into argument rather than

questioning of -- of this Panel.

26298. MR. RAE: Well, Madam Chair, the -- Canada’s evidence is to the

effect that it sees the Panel process as an effective means of addressing the

impacts, surely, it’s appropriate then to also ask whether the Government of

Canada will accept findings of the Joint Review Panel in regard to what those

impacts are on and whether they’re on rights of -- in our case, the Alexander First

Nation -- or on something else.

26299. THE CHAIRPERSON: Mr. Lambrecht, any further comments?




26300. MR. LAMBRECHT: Only, Madam Chair, that the -- the Panel has

displayed at the outset of the hearing on the screen for everyone to see the Prince

Rupert issues and this includes, quote:

“The potential impacts of the project on Aboriginal rights and

interests (asserted and proven Aboriginal and treaty rights

including Aboriginal title)”. (As read)

26301. I can’t think of any more that could be added to that description by this

panel.

26302. THE CHAIRPERSON: Do the witnesses have anything further to

add to the question that’s been posed?

26303. MR. DEAN STINSON O'GORMAN: No. Unless you require us to

provide more. It’s up to you, Madam Chair.

26304. THE CHAIRPERSON: Mr. Rae, the Panel invites you to move on to

your next question.


26306. Does Canada intend to accept any findings of the Joint Review Panel

as to the existence of any rights, Aboriginal, Treaty or otherwise, of the Alexander

First Nation?

26307. And Madam Chair, I might elaborate on that, including for example

property rights. The breadth of the question includes that as well.

26308. MR. LAMBRECHT: The Treaty rights of the Alexander First

Nation are not in dispute. Whether the Alexander Band enjoys Aboriginal rights

beyond Treaty rights that may be a matter of legal dispute.

26309. My understanding of the position of the Crown is that the historical

numbered Treaties have extinguished Aboriginal rights and titles and replaced

them with Treaty rights.

26310. I don’t know if that helps my friend but that would be my position in

relation to the question as it was framed.




26311. MR. RAE: I gather then that counsel for the witness panel is advising

the -- the panel not to answer the question beyond his comments that he’s put on

record?

26312. MR. LAMBRECHT: No, I’m simply stating that -- that preamble to

the question involved a legal question. This panel is here to speak to factual

issues arising from the evidence.

26313. I appreciate that there may be a grey area of overlap in those matters

but I wanted to try to state my understanding of the legal situation for you, Mr.

Rae. If you wish to pursue the question please feel free.

26314. MR. RAE: Well, Madam Chair, perhaps I could rephrase the question

slightly and that is, is Canada interested in the views of the Joint Review Panel on

impacts on the Alexander First Nation if those impacts do not affect a right of the


26315. MR. DEAN STINSON O'GORMAN: Madam Chair, two things.

One is it’s premature to at this point to say whether that Canada -- whether

Canada in the final decision making stage would accept any of the particular

findings of the Joint Review Panel. We’re certainly interested in looking at them

all and considering them when we get to that point.

26316. That being said, we certainly, as I’ve said, expect that through this

process any of the potential concerns of the Alexander First Nation about

potential impacts of the project are brought forward and put on the record.

26317. MR. RAE: I guess, Madam Chair, I would appreciate an answer to

the question or perhaps your ruling on whether the question is appropriate?

26318. THE CHAIRPERSON: Mr. Rae, I -- I was under the impression that

the answer to the question had been given. Do you wish to -- why don’t you ask

the question that you’re seeking the ruling on, please?

26319. MR. RAE: Well, Madam Chair, I appreciate what you’ve just said.

Let me try it a third way -- come around it a third way, and please stop me if you

feel that I’m going beyond the questions for this panel.

26320. But as we heard this morning, as we discussed this morning, the panel




has proposed certain draft conditions. If those conditions are premised on an

impact on the Alexander First Nation that is something less than an impact on a

right of the Alexander First Nation, I am simply seeking Canada’s position as to

whether it feels, in my example, those conditions are appropriate for the Joint

Review Panel to be making?

26321. THE CHAIRPERSON: Mr. Rae, that would be the subject of final

argument and so I’d invite you to move along to your next question.


26323. And I do appreciate that is the subject of final argument and I

undoubtedly will but, as I say, my question was directed towards the position of

Canada in relation to the evidence that they’ve put before the Joint Review Panel.

Nevertheless, I accept your ruling, Madam Chair.

26324. If the impact on the rights -- and again I emphasize that word -- of the

Alexander First Nation cannot be mitigated or accommodated will the Joint

Review Panel process be used by Canada to assist in determining any

compensation payable to the Alexander First Nation for the loss of those rights?

26325. MR. DEAN STINSON O'GORMAN: Madam Chair, I’d venture

that the question is hypothetical, about what may or may not come out at the very

end of the process once all the information has been considered, once your Panel

has produced its report.

26326. In the final Phase 4 of the consultation process we’re certainly going to

look at the report that the JRP produces. We plan to consult with groups on

whether the information, the potential impacts and the ability of recommended

mitigation measures to address those impacts is accurate from the perspective of

the groups, whether they have any outstanding concerns.

26327. At this point to speculate about that that may be an outstanding

concern, that may require various forms of accommodation is just premature.

We’ll be looking to figure that out with -- through consulting in Phase 4 of the

process.


26329. The evidence submitted by Canada, and correct me if I’m wrong in




this regard, does not address the issue of the need for bitumen upgrading within

the Province of Alberta.

26330. Is there a reason why Canada did not propose any such evidence given

the efforts of the Treaty 6 First Nations to establish such an upgraded project?

26331. MR. LAMBRECHT: Mr. Rae, could you restate that question,

please?

26332. MR. RAE: I shall try. The Government of Canada, to the best of my

knowledge, has not submitted any evidence in regard to the need for the project,

in terms of an -- the alternative of potential bitumen upgrading within the

Province of Alberta.

26333. Did the Government of Canada consider the proposed Treaty 6 First

Nations upgrader project in deciding not to include any such evidence before the

Joint Review Panel?

26334. MR. LAMBRECHT: Madam Chair, if I recall the scope of the

factors that this panel was going to consider was determined at an early stage of

the process.

26335. And it seems to me that the matter that my friend is questioning on

falls outside the scope of what the panel was asked to look at. If I understand his

question correctly and perhaps I’m mistaken in how I’m understanding it.

26336. MR. RAE: Well, Madam Chair, I perhaps could ask you whether it’s

your and your fellow Panel Members understanding of my -- my friend’s

understanding of what’s before the Panel or not, specifically the issue of the need

for upgrading or the question of upgrading and the need for the project.


26337. THE CHAIRPERSON: Mr. Rae, the Panel would ask you to clarify

the question that you’re asking for the ruling on, as well as the evidence that

you’re basing that on.

26338. MR. RAE: The question pertains to the basis for which Canada has

not submitted evidence in regard to the proposed Treaty 6 upgrader project.




26339. MR. LAMBRECHT: And the evidence respecting the proposed

Treaty 6 upgrader project that you refer to is found where, Mr. Rae?

26340. MR. RAE: Well, if my friend is suggesting that he’s not aware of --

of that project, then he can say so and that would be the end of my question.

26341. THE CHAIRPERSON: Mr. Rae, we’re asking you to take us to the

evidence where this is referred to please?

26342. MR. RAE: Madam Chair, I’m not able to do so.

26343. THE CHAIRPERSON: Well, if you’re not able to point us to where

it is in the evidence, then I would suggest that you move on to your next question.


26345. Now, the response on the -- on page 7 of the exhibit to which I’m

referring, contemplates the possibility of the Joint Review Panel making findings

and/or recommendations in regard to Aboriginal consultation. If this Panel finds

that consultation with the Alexander First Nation has not yet been adequate, what

is Canada’s position as to what steps it would then take?

26346. MR. DEAN STINSON O'GORMAN: Madam Chair, it’s not

Canada’s perspective that the JRP is making the determination about whether the

consultation process has been adequate. Canada will make that determination

before making final decisions in Phase 4 of the consultation process.

26347. MR. RAE: So sir, is it your evidence that while Canada may rely on

the Joint Review Panel as part of the broader consultation efforts, that reliance is

limited to Canada reserving the right to totally ignore and disregard any findings

of the Panel in regard to Aboriginal consultation?

26348. MR. DEAN STINSON O'GORMAN: Once again, Madam Chair,

sorry, the -- it’s strictly -- I believe he’s hypothesizing that the JRP might make a

determination about adequacy of consultation and then project -- you know,

suggesting, would Canada ignore it?

26349. It’s not our -- if I understood that to be the question, once again I

would -- my previous answer still holds that it’s our understanding that the JRP is

not making a determination of the adequacy of consultation, hence the




hypothetical question of would we then ignore it is irrelevant.

26350. MR. RAE: Given that response, sir, then how will the Government of

Canada be relying on the Joint Review Panel and that Panel’s process as part of

the broader consultation efforts if you’re saying that you haven’t contemplated the

JRP making any rulings in that regard, what does Canada contemplate the JRP

will be doing in that regard?

26351. MR. DEAN STINSON O'GORMAN: Madam Chair, the

consultation process that the Government of Canada has adopted in making use of

the JRP process to the extent possible, I think explains very clearly that we’re

using the current phases up until this point and through the hearing process and

finally to receiving your JRP report to collect all the information about potential

impacts on rights and other broad -- potential impacts of the project in general,

also using your process to gather information from groups about their asserted or

established rights.

26352. And in Phase 4 of the consultation process, we’re going to look to, you

know, validate that information and make -- considering all the information that’s

been accumulated, make a final determination, both on the substantive and the

procedural elements of the consultation process that we’ve -- we’ve conducted

and been engaged in and satisfy the -- you know, the government will satisfy

itself that consultation has been adequate before making final decisions of the

project in what we -- what we call Phase 4 of our consultation process.


26354. My next question for the witness panel is whether Canada considers

that given the sizable length of the proposed project that runs through the

Province of Alberta, does Canada consider that the Province of Alberta has

consultation obligations with the Treaty 6 First Nations?

26355. MR. LAMBRECHT: Madam Chair, I’m unaware of any passage in

our evidence that this question relates to.

26356. MR. RAE: Well, Madam Chair, it relates to, once again, the

Government of Canada relying on the Joint Review Panel process. It does little

for the First Nations, the Treaty 6 First Nations, for the Joint Review Panel to

look at the impacts on the Treaty 6 First Nations if then the Province of Alberta

and the Government of Canada are each denying that the other -- or each denying




that it has any obligations and the obligations are on the other level of

government.

26357. Once again, I’m simply trying to put some meat and substance on the

evidence that Canada has put before you. It’s all well and good to talk about

relying on your findings, but if those findings lead to a dead end, then the

Government of Canada has tasked you with an illusory job, Madam Chairman.

26358. THE CHAIRPERSON: Mr. Lambrecht?

26359. MR. LAMBRECHT: Nothing further. I thank Mr. Rae for his

clarification.

26360. MR. RAE: Madam Chair, perhaps I could ask for a ruling on my

question then.

26361. THE CHAIRPERSON: Would you please repeat your question for

clarity?

26362. MR. RAE: Does the Government of Canada take the position that

any consultation obligations for that portion of the project that runs through the

Province of Alberta and Treaty Number 6 territory, does Canada consider that any

of those obligations fall upon the Province of Alberta and not about the

Government of Canada?

26363. THE CHAIRPERSON: The Panel would like to hear the witnesses’

answer to this question please.

26364. MR. DEAN STINSON O'GORMAN: Certainly, Madam Chair.

26365. The Government of Canada takes its responsibilities to fulfill all its

requirements for the legal duty to consult very seriously. We’ve been engaged in

a consultation process stretching back a number of years on this project, making

use of the JRP process. So we certainly aren’t denying in any way our

responsibility to -- to consult which I -- I heard to be an element of the question.

26366. We really -- our evidence doesn’t address the province’s role nor is it

appropriate for me to speak to what responsibilities a province may or may not

have in consultation.




26367. MR. RAE: Madam Chair, I’m prepared to move on unless the Panel

would like a response.

26368. THE CHAIRPERSON: The Panel has heard the answer to your

question, Mr. Rae.


26370. Now, the Province of Alberta has submitted evidence to the Joint

Review Panel as to not just the economic benefits from the proposed project, but

in regard to the economic rents as that term is defined by the Government of

Alberta, the economic rents that will accrue resulting from the completion of the

Northern Gateway Project. And Alberta's evidence in that regard is contained in

the Wood McKenzie report.

26371. Given that a portion -- a large portion of those projected economic

rents will accrue to the Government of Canada, has Canada attempted to ascertain

what portion of the economic rents accruing to it will, in fact, accrue to the First

Nations over whose land the proposed project travels?

26372. MR. DEAN STINSON O'GORMAN: Madam Chair, I would go

back to the answers I gave earlier at the beginning of questioning.

26373. There may be some elements of the broad -- entire Government of

Canada evidence that speak to those kind of issues but it's not related to the

evidence that this Panel has put forward. So we're not aware of those issues.

26374. MR. RAE: Given that Canada has not put evidence to the Panel in

this regard, is it fair to assume that the Government of Canada is of a position that

100 percent of the economic rents as identified by both the Proponent and by the

Province of Alberta, that 100 percent of those economic rents for that portion of

the Project that travels through the Province of Alberta, 100 percent of those

economic rents accruing to Canada will stay with Canada and not be passed on to

any First Nations within the Province of Alberta?

26375. MR. DEAN STINSON O'GORMAN: Once again, Madam Chair,

that’s not an element of our evidence; nothing that we can speak to.

26376. MR. RAE: Madam Chair, I believe that concludes my questions of




this Panel given the restricted nature of the evidence that has been presented by

this Panel on behalf -- or by the Government of Canada through this Panel.

26377. So thank you.

26378. THE CHAIRPERSON: Thank you, Mr. Rae. Good afternoon.

26379. Is there anyone from Coastal First Nations either in the room or

joining us remotely to question this Panel?

--- (No response/Aucune réponse)

26380. THE CHAIRPERSON: If not, we'll call next the Haisla Nation.

26381. As you're getting seated, Mr. McCormick, I see the time. Do you want

us to take our afternoon break now and let you get settled and then come back and

finish up with you or would you like to proceed for the first 15 minutes or so with

your questions?

26382. MR. McCORMICK: If it pleases the Panel, Madame Chair, I think

I'd be happy to proceed. We may actually finish within the 15 minutes.

26383. THE CHAIRPERSON: Let's proceed.


26384. MR. McCORMICK: So good afternoon, again, Members of the

Panel, staff of the NEB, Witness Panel and my friends at the counsel table.

26385. My name is Jesse McCormick; I'm legal counsel to the Haisla Nation.

I have a few brief questions for you.

26386. And if I could ask Madame Clerk to please display Exhibit E9-06-6,

page 20?

26387. So this is the Northern Gateway Project Agreement and, at page 20,

we see the Agreement set outs the steps that RAs will take during Phase I and

Phase II of the Federal Government Consultation Process.

26388. You'll note that it includes participating in coordinated consultation




activities throughout the entire EA and regulatory review process, including pre-

assessment, assessment and post-assessment phases as appropriate or required.

26389. You'll also note that the RAs are also required to, if they become

aware of Aboriginal issues related to the mandate of the JRP, make efforts to have

that information fed into the JRP process.

26390. I won't bring up the references but, later in the document at page 26

and page 31, we see references to DFO and Environment Canada indicating that

they should participate where appropriate in Aboriginal consultation activities

coordinated by the CEA Agency.

26391. The question is: Has the CEAA coordinated any Aboriginal

consultation activities with the Haisla Nation involving either DFO or

Environment Canada during the EA process?

26392. MR. DEAN STINSON O'GORMAN: So, Madam Chair, as we've

outlined in our evidence, I'm not going to address individual particular meetings

as a part of our consultation record but there have been quite a number of

meetings that took place early in the process -- through 2008-09 kind of

timeframe -- to explain to Aboriginal groups that we'd identified as, you know,

potentially having an interest in the Project, what the process would be for

consultation, how the -- giving groups an opportunity to review, for example, the

draft Joint Review Panel Agreement and how the Review would be structured and

making sure that we had explained to groups the nature of how the -- we would be

integrating the Aboriginal consultation in our legal duty to consult into the JRP

process to the extent possible.

26393. And so I can't speak to and point to the dates of particular meetings

and who took place in those but we certainly engaged with all of the groups that

we thought would be -- have an interest and making sure they understood their

opportunity to be meaningfully consulted on the Project.


26395. And may I take from your response that, at this time, you're not

prepared to confirm whether the DFO or Environment Canada participated in

direct meetings with the Haisla Nation during the consultation process or during

the environmental assessment process?





26396. MR. DEAN STINSON O'GORMAN: So, Madam Chair, the

consultation process that the Government of Canada is using for this project is the

whole of government approach.

26397. The Crown consultation coordinator who works for me at the CEA

Agency works with colleagues in other departments to ensure that we have a

collective voice as we engage in consultation activities.

26398. And I would point out, as I think we've tried to be really clear, whether

individual face-to-face meetings took place or that I could point to, is not so much

the issue as that this JRP process is the way through which we're gathering the

information from the Haisla or from other Aboriginal groups about potential

impacts of the Project, the information that they have about their rights that might

be impacted.

26399. And so, through this forum, we're engaging in the consultation

exercise in the whole of government way.


26401. And an understanding that the Government intends to apply or is

applying a whole of government approach, does the whole of government

approach take into account when individual departments are or are not involved in

discussions with First Nations?

26402. MR. DEAN STINSON O'GORMAN: I'm not sure I really

understand the question.

26403. I'm sorry, could you repeat it or rephrase it.

26404. MR. McCORMICK: Certainly.

26405. You've mentioned in relation to a question about specific government

departments that there's a whole of government approach without confirming or

denying whether those individual departments have actually met with the Haisla

Nation.

26406. So the question is: In applying the whole of government approach, is




Canada considering those individual meetings that may or may not happen

between departments and First Nations?


26407. MR. DEAN STINSON O'GORMAN: Madam Chair, I would offer

that, certainly, whatever meetings have taken place as part of the broad

consultation process, you know, that information has all led us to where we are

today in helping to accumulate a record that upon which final decisions can, you

know, are going to eventually be made.

26408. When we carry out the whole of government approach, that involves

having interagency, interdepartmental discussions as appropriate and ensuring

that all the right people who need to be informed of or participate in issues are

informed and participating, whether that occurs in face-to-face meetings or not,

the right people are at the table.


26409. MR. McCORMICK: In the understanding of the Government of

Canada, has the whole of government approach to consultation already

commenced?

26410. MR. DEAN STINSON O'GORMAN: Yes.

26411. MR. McCORMICK: And when you reference "the right people

needing to be at the table", would any of the witnesses seated at this particular

Panel be included amongst those right people?

26412. MR. DEAN STINSON O'GORMAN: Sorry.

26413. Madam Chair, I would offer that of how the Public Service works

means people have different roles and different people report to other people and

when the discussions are shared and sometimes need to be sent for approval to

various groups, you know -- whether Bruno or Terry or I are “the right people” is

not so much the question as making sure that, on any given issue, where -- we

need the whole of government confirmation of views, that the right

representatives of the right departments are engaged appropriately, and that takes

place.





26415. And does the whole of government approach contemplate meetings

directly between departments and First Nations?


26416. MR. DEAN STINSON O'GORMAN: So, Madam Chair, we

certainly already did have, in the early stages of the process, a number of

meetings that involve representatives both from the Canadian Environmental

Assessment Agency and other federal departments in setting up the process and

getting the consultation process going on this Project.

26417. And I think also, importantly, in Phase 4, once we actually have

received the report from the JRP, our Phase 4 consultation process has been very

clear that, at that point, we'll afford to all the groups an opportunity to make their

views known about whether the impacts on their rights are accurately

characterized to figure out what their views are on whether their recommended

mitigation measures might address those impacts and to find out from groups

whether there are any outstanding issues.

26418. At that point, we have allowed for the potential for there to be face-to-

face meetings. We haven't determined yet who -- and that could involve

representatives of different federal departments. It will depend upon, at this point

what we don't know, what are the outstanding issues if they need to be discussed

and what sort of mitigation or accommodation measures do we need to consider.

26419. So that certainly can take place in Phase 4, but it's premature to say

that we will meet with anyone group or the other until we actually see the final

report.

26420. MR. McCORMICK: We had the opportunity to cross-examine some

of your colleagues from other government departments earlier and I believe it is

consistent with the evidence but I'm basing it upon my own recollection that there

were departments that had not yet met with the Haisla Nation to discuss the

potential impacts of this Project on the Haisla Nation's interests.

26421. Would you agree with me that there are departments that will be

directly involved in this Project that have not yet met with the Haisla Nation?





26422. MR. DEAN STINSON O'GORMAN: So, Madam Chair, I would

just make a couple of points in response to the question.

26423. One is that, of course, early in the process, our intention was to --

when face-to-face meetings took place, they were to make sure that groups

understood how the consultation process would work. And that for actually

hearing part of the question -- actually hearing about impacts on the Haisla

Nation, our message very clearly was to bring those to the JRP because that was

how we were going to gather that information through the JRP process.

26424. That being said, in Phase 4, when we come to finally having our final

round of consultation on -- after once we received the JRP report, as I've already

said, those meetings would be based on what issues seem to be outstanding; the

concerns that we've heard from groups in their written response to the JRP report;

and making sure that we do have the right officials there available to discuss the

right recommended mitigation measures, that sort of thing during Phase 4.

26425. And even if individual departments are at face-to-face meetings, that

the right representatives are involved in the discussions internally in the

Government to make sure we've accurately dealt with the issues at play.


26427. And during those early in the process meetings that you referenced in

your last response, was information received by the federal government in relation

to the concerns, rights, and title of the Haisla Nation, as they relate to this Project?


26428. MR. DEAN STINSON O'GORMAN: So, Madam Chair, as I said,

what we -- in the early-phase face-to-face meetings, our objective was to

communicate to the Aboriginal groups that we met with that the appropriate

forum to raise their concerns of potential impacts on their rights to this process

through the JRP, and that would be the way that we would use in an open and

transparent and meaningful way to hear about the impacts of the Project.

26429. I'm not here to speak to the individual meeting notes or what was

discussed at any particular meeting at any time in the past, because that's not part




of the evidence that we've submitted.

26430. MR. McCORMICK: So I think there may have been a

misunderstanding as to what I was seeking in relation to that particular question.

26431. You've noted that, at the meetings, the government took it upon

themselves to inform First Nations that one of the places they could bring their

information would be to this process.

26432. The question went specifically not to any particular information or

specific notes that might have been made at the meetings but rather, generally,

during those early-in-the-process meetings, was any information received by the

Federal Government in relation to the concerns, rights and/or title of the Haisla

Nation, as they might be affected by this particular Project?


26433. MR. DEAN STINSON O'GORMAN: So, Madam Chair, one of the

pieces of evidence that we did submit in some way addresses the question in

terms of pointing out that, when we were receiving comments from all Aboriginal

groups about the draft Joint Review Panel Agreement -- and we submitted it as

Exhibit No. E9-6-09, I believe -- it does reflect -- and I haven't reviewed that to

find specifically Haisla Nation's input.

26434. But that being said, there's an example of how, in some cases, groups

put forward issues that could be construed as substantive impacts concerns they

were concerned about.

26435. And so all that being said, it shows that we were interested in hearing

from groups early in the process about their views on how we would construct the

Joint Review Panel Agreement in terms of reference that would guide the work of

this -- of your Panel, and also making sure that we affirm to the groups that there

would be an opportunity for them to be meaningfully consulted throughout the

process on their concerns on impacts.


26437. I do know the time, Madame Chair. It is now a quarter past. I will

note that I may be a little longer than I initially anticipated. Based on my notes,

I'm still on Question 1.





26438. THE CHAIRPERSON: Mr. McCormick, let's take our afternoon

break and come back everybody, please, for 2:30. Thank you.

26439. Thanks, Mr. McCormick.



--- Upon resuming at 2:29 p.m./L’audience est reprise à 14h29

BRUNO STEINKE: Resumed

DEAN STINSON O’GORMAN: Resumed

TERENCE HUBBARD: Resumed

26441. THE CHAIRPERSON: Thank you very much, everyone, for being

back promptly.

26442. Mr. McCormick, please continue. Are we onto Question 2 now?


26443. MR. McCORMICK: Yes, we are, Madame Chair, thank you.


(Continued/Suite)

26444. MR. McCORMICK: Question two: Did the Canadian

Environmental Assessment Agency advise federal government departments not to

meet directly with Haisla Nation?

26445. MR. DEAN STINSON O’GORMAN: I wonder if you could be a

little more -- I’m sorry, I wonder if I could ask that you be a little more clear with

the question and are you referring to, you know, any particular time period or to

just about this project or ---

26446. MR. McCORMICK: Certainly. In relation to the present project

since the whole of government process initiated for consultation, has the Canadian




Environmental Assessment Agency advised any individual departments of the

federal government not to meet directly with the Haisla Nation?

26447. MR. DEAN STINSON O’GORMAN: Madam Chair, I wouldn’t say

yes to that. Certainly what I would say is that in determining a whole of

government approach, what we have encouraged is that the -- this forum, the JRP

process, to the extent possible, is how we’ll fulfill our consultation

responsibilities. So federal departments are participating through this process in

consulting with First Nations.


26449. So you noted that you wouldn’t say “yes”. Are you confirming that

the federal -- or the Canadian Environmental Assessment Agency at no point

advised individual federal government departments not to meet with the Haisla

Nation?

26450. MR. DEAN STINSON O’GORMAN: Madam Chair, I’m not aware

of us having advised departments to not meet with the Haisla Nation beyond as I

said, our general direction to in the whole of government approach using this

process as our means by which we would be consulting, which one could I

suppose interpret that way but it’s not the same thing I don’t think.

26451. MR. McCORMICK: Thank you gentlemen.

26452. Madame Clerk, could we please see displayed on the screen Exhibit

E9-6-7, page 1?

26453. So these are the 20 -- or March 2011 “Aboriginal Consultation and

Accommodation Updated Guidelines for Federal Officials to Fulfil the Duty to

Consult”. Is this the most up to date set of guidelines the federal government has

for fulfilling its duty to consult?

26454. MR. BRUNO STEINKE: Yes.

26455. MR. McCORMICK: And would it be an accurate description to say

that these guidelines set out what the federal government understands is required

of federal efficient -- or federal officials to discharge the honour of the Crown?

26456. MR. BRUNO STEINKE: Madam Chair, these guidelines were




developed to give federal officials general guidelines -- general direction on how

to fulfil their consultation and accommodation obligations.


26458. And is it fair to say that Canada has taken steps to implement its

consultation process in relation to this project?

26459. MR. TERENCE HUBBARD: Madam Chair, it’s Terry Hubbard.

26460. Yes, I would agree. We’ve taken a number of steps over the last

number of years, collectively through the MPMO initiative, to work together to

implement the guidelines in developing a whole of government approach to

Aboriginal consultation for all major natural resource projects, including Northern

Gateway.


26462. And if, Madame Clerk, could we please see page 26 of this document?

26463. And I’ll direct the attention of -- I’m sorry, it would be hardcopy page

22 -- so it may be actually page 22.

26464. THE CHAIRPERSON: Do you have a title that you’re looking for,

Mr. McCormick, that would help us?

26465. MR. McCORMICK: That is the page there. Ms. Niro has found it.

Thank you, Ms. Niro.

26466. I’ll direct the attention of the witness panel to the first sentence under

the heading “Identify potential or established Aboriginal or Treaty rights and

related interests”. It indicates:

“Managers should be familiar with the nature and location of

these rights in their respective regions…”

26467. Are the managers responsible for the regions which will be impacted

by this project and fall within the traditional territory of the Haisla Nation familiar

with the nature and location of the rights of the Haisla Nation?




26468. MR. DEAN STINSON O’GORMAN: Madam Chair, I’m sorry, first

could you repeat the question? You’re asking are managers aware? Is that…

26469. MR. McCORMICK: Certainly. Noting that this is under one of the

steps identified for the guidelines indicating that nature and location of the rights

for the respective regions should be within the familiarity of the managers, do the

managers, who currently have responsibility for the areas that will be impacted by

this project and fall within the traditional territory of the Haisla Nation, have

knowledge of the nature and location of the rights of the Haisla Nation?

26470. MR. DEAN STINSON O’GORMAN: So Madam Chair, this

process has been designed to elicit exactly that information, the information that

the Haisla Nation wants to bring forward and put on the public record through the

JRP process so that the government can make sure that it has a full understanding

about the potential impacts of the project on rights and what the asserted or

established rights are.


26472. And prior to the initiation of the whole of government approach to

consultation for this project, did the federal government possess information

about the nature and location of the rights of the Haisla Nation?

26473. MR. BRUNO STEINKE: Madam Chair, Bruno Steinke.

26474. I think over the time period or over the years of working with the

Haisla Nation, the Government of Canada would have collected information on

the assertions and the concerns of the Haisla Nation of this project and many other

projects or any other assertions they would have generally.

26475. MR. McCORMICK: And has the full scope of that information been

provided to the Joint Review Panel as evidence by the Government of Canada?

26476. MR. DEAN STINSON O’GORMAN: So Madam Chair, we have

very clearly asked to the Aboriginal groups to bring forward that information to

the JRP, and may as a part of the reciprocal responsibility of groups, to use this

process to bring forward and put that information on the record and that Canada

wasn’t tendering that evidence on behalf of First Nations but that it was the role

of the First Nations to bring it to this panel.




26477. MR. McCORMICK: I’d like to touch a bit on that concept of

reciprocal responsibility. Is it the Government of Canada’s understanding that the

reciprocal responsibilities associated with consultation permit the Government of

Canada not to file the information it has available relating to the rights of my

client as part of these proceedings?

26478. MR. DEAN STINSON O’GORMAN: Madam Chair, I would say

that while Canada, as my colleague has pointed out, has general information that

it has acquired over the years, for the purpose of this project what we need to

understand are how the specific impacts of this project might impact on the

groups from their perspective and how they understand those impacts to impact

on their rights.

26479. So that’s why it’s the appropriate forum for them to present that

information to the JRP and for us to then understand the group’s understanding

and interpretation of those impacts and rights.

26480. MR. McCORMICK: Would the panel agree that meaningful

consultation requires reciprocal, two-way dialogue about the information

pertaining to rights and title?

26481. MR. DEAN STINSON O’GORMAN: I’d point out, Madam Chair,

that this forum, of course and what we’re doing right now, is an opportunity and

example of how we’re having a two-way conversation with Aboriginal groups

and using the JRP process about the impacts of the project.

26482. We’re still in the process of collecting information about the impacts

and collecting information about the established or asserted rights. When we

come to Phase 4, we’ll need to appropriately consider all of that information that

we’ve raised before making any final decisions. What sorts of dialogues may or

may not take place at that point in Phase 4 will depend upon what we read in the

final JRP report.

26483. MR. McCORMICK: If I could direct the attention of the witness

panel to the first line under -- you’ll see in the left-hand column it indicates, “For

example”. And then it says:

“a) An Aboriginal group may have an established hunting

right that could be impacted by an activity and express a

related interest in declaring[…] further information.”




26484. Has the federal government assessed, as part of its whole of

government consultation approach, whether there are any established or asserted

hunting rights pertaining to the Haisla Nation that might be impacted by this

project?

26485. MR. DEAN STINSON O’GORMAN: Could you repeat that one

more time please?

26486. MR. McCORMICK: Certainly. Has the -- excuse me. Has the

federal government, as part of the whole of government approach to consultation

for this project, assessed whether there may be any established or asserted hunting

rights pertaining to the Haisla Nation that may be impacted by this project?

26487. MR. DEAN STINSON O’GORMAN: So Madam Chair, again it’s

premature to -- for the government to have made that final determination. We’re

in the middle of an information gathering process on this project.

26488. I’m trying to understand what the impacts will be and we would make

any final determinations about the claims and the impacts before making final

decisions. But at this point, we’re in the middle of gathering the information

required to fully understand that.

26489. MR. McCORMICK: Could we please turn to page 18, Ms. Niro?

26490. I’m afraid my numbers are off. I’m hoping to see a page where the

first four words are, “Guiding Principle No. 4”. Thank you, I appreciate the

assistance.

26491. So we see here guiding principles and consultation directives to be

applied. This one particularly is Guiding Principle No. 4. We see reference to

consultation being carried out in a timely, efficient, and responsive manner and in

a manner that includes accommodation such as changing of timelines and project

parameters where appropriate.

26492. Does the whole of government consultation approach anticipate

modifications to the project in its approved form to accommodate any Aboriginal

rights or title that might be assessed during Phase 4 of the consultation process?

26493. MR. DEAN STINSON O’GORMAN: I’m sorry; I wonder if I could




please ask for a little more clarification about what you mean by the -- “in its

approved form” and also when you say the word “modifications”, what sorts of

things you’re implying, please?

26494. MR. McCORMICK: Certainly. So consultation and

accommodation, the duty would have both the consultation aspect, the learning

aspect and the accommodation aspect; being sometimes you have to change the

nature of the project in order to ensure it doesn’t have an adverse impact or

addresses or considers appropriately the impacted rights.

26495. In this case, we see accommodation. We understand that there is

further work to be done in the eyes of the federal government at Phase 4.

However, to my understanding, Phase 4 in those discussions are being postponed

to a period where the Joint Review Process will have completed its mandate and

recommendations about what the project should look like will have already

occurred.

26496. Does the whole of government consultation approach anticipate that

once those dialogues do eventually occur with First Nations and the appropriate

accommodation measures are identified -- for instance, a change to the route of

the pipeline, modifications to mitigation measures -- will those be retroactively

applied to the project in the form of modifications to the project, as approved by

the Joint Review Process?


26497. MR. DEAN STINSON O’GORMAN: So Madam Chair, I apologize

for the delay.

26498. I just wanted to reiterate that in the Phase 4 of our consultation

process, what our plans will be to do will be being informed by the information

that’s been accumulated and by the -- your report.

26499. We would be asking groups, such as the Haisla Nation, to give us their

views on whether the report accurately characterizes the impacts on their rights, to

let us know what they think about the recommended mitigation measures and

conditions that your Panel may recommend to government, and whether they

would address those potential impacts and whether the groups have any

outstanding concerns.




26500. It’s premature, at this point, to say what the outcome of such a

conversation is going to be but certainly there will be a forum in which we will be

looking to hear from the groups and carefully consider whether or not the

potential impacts on their rights are appropriately mitigated or accommodated

where necessary.

26501. And that’s going to be a -- an important part of the process before

making a final decision on the project and the sorts of conditions, for example, of

mitigation measures that you recommend are some of the things that will be

examined to determine if those -- if it’s appropriate to apply those to the

Proponent in moving forward with the project.

26502. MR. TERENCE HUBBARD: And just to reiterate, the consultation

process is an ongoing process. So in terms of outcomes of that Phase 4

consultation, the government will consider the adequacy of consultations up to

that point in the process as part of the decision making process and will determine

whether or not there are additional steps that need to be required.

26503. It could be as part of Phase 5 consultations, it could be other venue for

discussions that may need to take place or it could be through that decision

making process, putting additional terms and conditions as part of an EA

certificate that Cabinet will be putting in place as part of that decision making

process.

26504. So there are opportunities for additional steps that may or may not be

required following the recommendations of the Joint Review Panel.


26506. With respect to matters that fall beyond the scope of the Joint Review

Process, has the federal government yet engaged with the Haisla Nation?

26507. MR. DEAN STINSON O’GORMAN: So Madam Chair, the

consultation framework that we’ve put out has clearly indicated that we expect to

use the JRP process to the extent possible as a means of delivering on our legal

duty to consult for certainly for all matters within the mandate of the JRP.

26508. We’ve also identified that if there are any issues that arise -- potential

impacts, those sorts of thing -- that are outside the mandate of the JRP, the

government is going to look at those as well.




26509. We’re still -- and we expect that those to be brought to us by First

Nations if they have such concerns and, also, we’re in a constant process in terms

of evaluating the kinds of impacts that have come forward to determine whether

there are any issues that, from our perspective, are outside the mandate of the JRP

or not.

26510. That’s an ongoing process and we haven’t landed there yet but we

have provided the means through our consultation framework for a group if it

feels that it has an issue that’s outside the mandate of the JRP to inform us of that.

26511. We don’t have a final determination of any of those issues yet.


26513. And to borrow your language “we haven’t landed there yet”, does that

-- may I understand that to be an indication that, for matters falling outside the

scope of the mandate of the Joint Review Panel, the Federal Government has not

yet engaged with the Haisla Nation?



26515. MR. DEAN STINSON O’GORMAN: So, Madam Chair, the -- a

couple of points on this.

26516. It’s through this process that we’re actually engaging with the Haisla

Nation in trying to understand whether they have concerns, potential impacts, that

are outside the mandate of the JRP or not.

26517. We’ll look to your report to also help us determine that and we’ll be

interested to see your views on whether the impacts that you’ve -- you’ve heard

about are inside or outside of your mandate.

26518. On the specifics of “Have we engaged?”, I’d say that we’re engaging

through this process. We have not had specific conversations that I’m aware of

within this review of this Project at this point in time about issues that are outside

the mandate of the JRP which isn’t to say that other arms of the Government of

Canada through other processes may or may not be engaged in such discussions.




26519. But not that -- not that we’re directly aware of.


26521. Is the whole of government approach to consultation for this Project

limited solely to those matters falling within the scope of the mandate of the Joint

Review Panel?


26522. MR. DEAN STINSON O’GORMAN: No, the whole government

approach that we’re taking to consultation does allow us, through hearing about

issues that might be outside the mandate of the JRP, to bring the other appropriate

parts of Government in and refer issues over that might be best or appropriately

dealt with by some other arm than through this particular JRP discussion, for

example.


26524. The Haisla Nation has identified to the Federal Government aspects of

the Project which cannot be addressed through the Joint Review Process.


26526. MR. DEAN STINSON O’GORMAN: Madam Chair, so I’m not

speaking to any particular issues that may have been raised through the process up

to this point, I’m addressing the process that we’re taking in consulting and the

collection -- the collection of information about issues or concerns is something

that’s ongoing through the process and we’re -- that’s not a part of our particular

evidence.

26527. MR. McCORMICK: Has the Federal Government had discussions

about project effects on Haisla Nation Aboriginal title?


26528. MR. DEAN STINSON O’GORMAN: So, Madam Chair, the goal of

our consulting through this process is to understand the impacts of the Project on

-- on Aboriginal rights.




26529. It’s not a rights determination process and getting -- dealing with

questions of title.

26530. MR. McCORMICK: Am I correct to understand your response to

indicate that the Federal Government has not yet had any discussions with the

Haisla Nation about Project effects on Aboriginal title?

26531. Is that a correct understanding of your response?

26532. MR. DEAN STINSON O’GORMAN: Once again, Madam Chair, I

-- I’m not intimately familiar with the details of every meeting that has or has not

taken place between various arms of the Federal Government or -- and individual

groups; that’s not the nature of the evidence that we’ve submitted for this Panel.

26533. So I can’t confirm or deny that any such discussions may or may not

have taken place.

26534. MR. McCORMICK: Would you agree that discussions of Project

effects on Haisla Nation Aboriginal title will form an important part of

consultation?

26535. MR. DEAN STINSON O’GORMAN: So, Madam Chair, our goal is

to, through this process, to understand the concerns of Aboriginal groups such as

the Haisla Nation about potential impacts and their potential rights.

26536. And at the end before decisions are made in Phase 4, we’ll make sure

that we fully understand what those issues are, whether they would extend to

include the one that you’ve discussed right now.

26537. It’s just premature at this point to say.

26538. MR. McCORMICK: And by the one that I include right now you

referred to Aboriginal title?

26539. MR. DEAN STINSON O’GORMAN: Yes.

26540. MR. McCORMICK: And given that it is “premature to say”, to

borrow your phrase, am I also correct in my understanding that it would be -- that

the Federal Government has not yet conducted the necessary consultations to




understand Aboriginal title as it relates to my client and this Project?


26541. MR. DEAN STINSON O’GORMAN: So, Madam Chair, again the

Government of Canada has put in place a process to allow for consultation on

effects of the Project going back now to at least 2008.

26542. We are gathering information about what the Aboriginal groups feel

may be the effects of the Project and what their -- that their asserted or established

rights are.

26543. And at the end, before any final decisions are made, we’re going to --

so I would say we have had been consulting. We provided a forum to allow for

the discussions to take place to understand if any particular right or, you know,

assertions of title, that sort of thing, to be brought to our attention.

26544. At the end, before decisions are made, we will be looking at all that

and making sure we have appropriately mitigated or accommodated impacts

where necessary of the Project.

26545. MR. McCORMICK: And you’ve noted Phase 4 in your response.

26546. Does that indicate that that portion of the assessment portion of the

government’s consideration of the consultation process -- by that I refer to

Aboriginal titles -- Aboriginal title and the effects of the Project on Aboriginal

title?

26547. Are those being deferred to Phase 4 or has that consideration already

commenced?

26548. MR. DEAN STINSON O’GORMAN: Madam Chair, it’s simply

premature to say at this point what particular issues will or won’t be discussed.

26549. What we’re going ask in Phase 4 is, as I’ve said a number of times,

what the impacts -- whether the impacts on a particular Aboriginal group are

correctly characterized, what the views are about whether the recommended

mitigation measures can or might address those impacts and if they have any

outstanding concerns.




26550. At that point, if we heard that an outstanding concern related to this

issue then we would think about that carefully and make sure we took whatever --

you know, appropriate steps were necessary.

26551. MR. McCORMICK: Has the Haisla Nation informed you that the

Haisla Nation considers Aboriginal title to fall outside the scope of the Joint

Review Panel mandate?

26552. MR. DEAN STINSON O'GORMAN: Madam Chair, that’s another

example of a specific issue raised by an Aboriginal group in the process that I’m

not here to speak to any particular element of the issues that have been raised, just

the process by which we’re hearing and going to consider those issues at the end.

26553. MR. McCORMICK: So would it be fair to understand that the

federal government’s whole of government consultation approach to date does not

seek to address specific issues but is limited to broad general characterizations?

26554. MR. DEAN STINSON O'GORMAN: I don’t believe that’s what I

said, Madam Chair.

26555. MR. McCORMICK: And just a few more questions. If we could

please turn to -- I have hardcopy page 36, but I’ve noted page 40, so perhaps 36,

please, Ms. Niro. That’s the one. Thank you.

26556. I’ll direct the attention of the witness panel to the first paragraph in the

left-hand column. It says:

“Part C provides a step-by-step chronological guide for

federal officials when fulfilling the Crown’s duty to consult

and, where appropriate, accommodate.” (As read)

26557. Is it your understanding that when Canada describes a step-by-step

chronological guide, does that mean that Step 1 would necessarily precede Step 2,

and Step 2 would necessarily precede Step 3, and so on?

26558. MR. BRUNO STEINKE: Bruno Steinke.

26559. It’s not necessarily they would follow in sequence. I think it would

start with Phase 1, but as you’re into the consultation you may gain additional

information so you may need to go -- and that’s later on in a step, you may need




to go back to Step 1 again and -- and reaffirm and adjust your information as you

collect information from Aboriginal groups.


26561. And could we please turn to page 46, Ms. Niro -- oh I’m sorry, page

42. Thank you.

26562. And I’ll direct the witness panel’s attention to the upper left-hand

corner of the page under Step 5, “Assess the Scope of the Duty to Consult and

Where Appropriate, Accommodate”. The first sentence indicates:

“The scope of the consultation and any appropriate

accommodation will be informed by the strength of the claim

and the severity of the adverse impacts on potential or

established Aboriginal or Treaty rights.” (As read)

26563. Has the federal government reached Step 5 with respect to consultation

on the Northern Gateway Project yet?

26564. MR. DEAN STINSON O'GORMAN: Madam Chair, the

government has been engaged in a process throughout the project and throughout

the JRP process to gather information required to fully understand and stress the

-- assess, sorry, the strength of the claim of the -- of Aboriginal groups that might

be impacted by the project.

26565. It’s important to note that in establishing the JRP process as our means

for fulfilling our legal duty to consult, we actually offered, at the very beginning

of the process, a meaningful and deep consultation process for all relevant groups

to participate and bring their issues to the JRP.

26566. So important to understand that we didn’t need to determine at the

very beginning that the strength of claim of any particular group was low, so we

could consult them less; all groups were afforded an opportunity for deep

consultation.


26568. Could we look at page 47, please, hardcopy page 43, sorry Ms. Niro.

My notes are wanting today, page 43. Thank you.




26569. Now, we see on the left-hand column five bullet points and

immediately below those bullet points we see:

“Justice can advise managers and their officials as to when to

seek legal advice in the development of strength of claim

analysis.” (As read)

26570. In terms of the stages of consultation that have been undertaken in

relation to these guidelines, has the federal government sought legal advice from

Justice on Haisla Nations’ strength of claim?


26571. MR. DEAN STINSON O'GORMAN: Madam Chair, I simply say

that the whole of government approach that we’re using to gather the information

necessary to determine both impacts, but also to determine issues such as strength

of claim is a whole of government approach and is part of whole of government.

Department of Justice is involved and there are various working groups and

discussions.

26572. MR. McCORMICK: Could we please turn to page 44.

26573. And I’ll direct the attention of the witness panel to Step 6, “Design of

Form and Content of the Consultation Process”.

26574. Has the federal government taken Step 6 yet?

26575. MR. DEAN STINSON O'GORMAN: So Madam Chair, if I -- I

mean I think the simple answer is we certainly engaged in discussions in the early

stage of this process, back in 2008 and ’09 that produced an approach for

consultation and that provides all groups with a meaningful opportunity to be

deeply consulted on this project.

26576. MR. McCORMICK: Has the form and content of the consultation

process been made publicly available?

26577. MR. DEAN STINSON O'GORMAN: Yes, as is submitted in our

evidence about our Aboriginal consultation framework.




26578. MR. McCORMICK: And with first -- oh sorry.

26579. MR. DEAN STINSON O'GORMAN: For the record, that’s Exhibit

E9-6-10, which came as an evolution of an earlier piece that we had circulated,

Exhibit E9-6-08 on which we -- you know -- sought a significant amount of input

from Aboriginal groups.

26580. MR. McCORMICK: What is the anticipated timeline for the pre-

approval consultation process?

26581. MR. DEAN STINSON O'GORMAN: Could you -- I’m sorry, could

you clarify a bit more what you mean by pre-approval?

26582. MR. McCORMICK: Certainly. There’s a -- these proceedings are

quickly wrapping up in terms of the participation of the various parties. It will

then go to the Joint Review Panel to assess and consider and eventually prepare a

report. In order to for that to be approved, it will require the Cabinet approval of

the Governor-in-Council and eventually be issued in whatever form by the

National Energy Board.

26583. Prior to that final approval, assuming it is approved, has the federal

government developed an anticipated timeline for the pre-approval consultation

process, and if so, what is the anticipated timeline for the pre-approval

consultation process?

26584. MR. DEAN STINSON O'GORMAN: So Madam Chair, as we've

pointed out, consultation has been ongoing for years now on this Project through

the JRP process.

26585. I believe the question is directed to sort of at the final stages, so I

believe it's well understood that the timing for the Government's final decision on

the Project is at the end of June 2014, anticipating the JRP report by the end of

December of 2013.

26586. And so, certainly, we've set out to First Nations and Aboriginal groups

that Phase 4 we would expect to be getting out and getting their input on the final

stage of the consultation process in a way that provides them an opportunity to be

meaningfully consulted and responsive to allow for the decisions to be made in

the timeframe that's been established.





26587. MR. DEAN STINSON O'GORMAN: And I would add one other

thing that is worth putting on the record.

26588. We will very shortly be coming out with an opportunity -- for groups

to apply to the Agency for the Participant Funding Program that would be made

available for carrying out those Phase 4 consultations.


26590. Will funding be made available to First Nations to participate in

consultations outside the Joint Review process?

26591. MR. DEAN STINSON O'GORMAN: Well, as I just said, the

Agency's Participant Funding Program certainly envisions that there would be a

round of funding made available for the Phase 4 consultation process.

26592. MR. McCORMICK: And how much funding will be made

available?

26593. MR. DEAN STINSON O'GORMAN: Unfortunately, it's premature

at this point to make that determination, but it will certainly, once everything is

finalized within the agency to -- the Canadian Environmental Assessment

Agency, to make that available

26594. Then, it will all be -- groups will be notified certainly in advance and

with -- what the opportunities are.


26596. And how has the Aboriginal title claim of the Haisla Nation informed

the information that has been provided to the Joint Review Panel by the Federal

Government?

26597. MR. DEAN STINSON O'GORMAN: I'm sorry, Madam Chair,

that's a level of detail too specific for me to be able to respond as a part of the

evidence -- not really related to the evidence that we have submitted.

26598. As I've said, we haven't been here to speak to the particular issues or




concerns that have been put on the record but to the process.

26599. And I don't have an answer to that, I apologize.

26600. MR. McCORMICK: Thank you, gentlemen. I appreciate the

responses.

26601. Those are the questions of the Haisla Nation.

26602. Madame Chair, I'd also note that this will be my last turn at the

microphone during these proceedings. It has been a privilege to have the

opportunity to participate.

26603. I would also note that I appreciate the professionalism and courtesy

that has been shown by all the participants to myself and our team during these

proceedings.

26604. We hope our questioning has been helpful to you and we wish you

well in our deliberations -- in your deliberations.

26605. THE CHAIRPERSON: I was wondering if you were volunteering to

do them for us.


26606. THE CHAIRPERSON: Thank you very much, Mr. McCormick.

26607. MR. McCORMICK: Thank you, Madame Chair.

26608. Thank you, Members of the Panel.

26609. THE CHAIRPERSON: So given that we were going to sit until 3:30

today, I think we'll stop for today and we'll begin tomorrow morning with the

Gitxaala Nation, and we will sit tomorrow morning at 8:30, please.

26610. Thank you very much, everyone. Good evening.

--- Upon adjourning at 3:13 p.m./L’audience est ajournée à 15h13

JOINT REVIEW PANEL FOR THE ENBRIDGE NORTHERN …- Mr. Keith Bergner - Mr. Lewis L. Manning Cenovus...

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