CBC Yellowknife, on GSX and MGP

CBC - Yellowknife

03 Dec 2004

COMMENT:On Thursday, Dec 2, I was interviewed by CBC - Yellowknife about our experience with the GSX proceeding conducted by the National Energy Board.

The context and audience was for the Mackenzie Gas Pipeline Project (MGP), for which a "Joint Review Panel" has been assembled to conduct a review of the project under the Canadian Environmental Assessment Act and for which a sometimes-in-parallel and sometimes-sequential process will be conducted by a smaller panel under the National Energy Board Act. The internet gateway into the thing is through the Northern Gas Project Secretariat.

The MGP process is different than that received by GSX. With GSX, a three person "Joint Review Panel" reviewed the project under both Acts, in a single proceeding.

Another difference: participant funding for GSX was $100,000, while for the MGP it's a little higher, at $1.5 million. (GSX Concerned Citizens Coalition received $25,000 in the GSX proceeding, thanks in large part to Tom Hackney's marvellous ways with the forms and reports required by bureaucrats)

The two projects had/have Rowland Harrison as a panel member in common. My impression of Harrison was that he brought a conservative, conventional force to the panel.

I am caught out on a factual error. I said that the NEB never denies approval. I was wrong.

- In April 2004, an NEB panel turned down the high profile and highly unpopular application for a powerline from the proposed Sumas Energy 2 generation project in Sumas Washington to BC Hydro's Clayburn Substation in Abbotsford. Given that the project was opposed by MPs, MLAs, the BC government, local governments, hundreds of local citizen intervenors, and only the proponent, a privately held US company, was for the powerline, it became an easy decision to oppose for the NEB. NESCO, the proponent, is now taking the NEB to court.

- The NEB has also turned down a rates revision request by TransCanada Pipelines, in Feb 2003, and a request by New Brunswick to relax gas export rules, in Sept 2002.

An interview with Denis Tremblay of the NEB follows mine in this transcript - Arthur Caldicott

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(6) Mackenzie Gas Project

CBC Special Report, Thursday, December 3, 2004, 5:15 p.m.

CBC: The National Energy Board will have a large role in approving construction of a pipeline down the Mackenzie Valley. The board is an independent agency of the federal government. The NEB isn't well known in the North, but it is on Vancouver Island. About a year ago the board approved construction of a 60-kilometre pipeline from a point on the Canada/U.S. border to a point south of the town of Duncan, British Columbia. The Georgia Straight Crossing is a small project compared with the proposed Mackenzie pipeline, but the review process is similar.

Arthur Caldicott is a founding director of the Georgia Straight Crossing Concerned Citizens Coalition, a group that opposed the pipeline and he joins us from Vancouver Island. Good afternoon Arthur.

CALDICOTT: Good afternoon.

CBC: So tell me why you were opposed to the pipeline?

CALDICOTT: Well the pipeline, all of these projects, the Mackenzie gas pipeline and the GSX pipeline that was proposed for Vancouver, these projects are always the instrument of some large well funded corporation or corporation and government from outside the community who wants to impose their big visions on small communities or on First Nations and we were a typical small community on Vancouver Island that had this big gas pipeline being proposed to run right through it. Very quickly community concerns grew about many issues; pipeline safety, the marine implications of putting a new pipeline in the ocean, land owner concerns about alienating farm land and particularly firing up Vancouver Island with gas fired electricity would mean in the narrower global warming was becoming the most acutely relevant concern. So the concerns were you know spread across quite a vast range, but it all started with a big project being imposed on a small community and the community pushing back.

CBC: Now I want to talk about I guess your whole experience with the National Energy Board. What did you expect from the NEB going into the hearing?

CALDICOTT: Well we didn't know what to expect because we were all knew to this as are most of the people up the Mackenzie Valley. So we knew nothing about what a regulatory proceeding was and the National Energy Board probably did the best they could to try and introduce the community to what their processes are and in doing that they encouraged people from all of the communities along the pipeline route to come out and present their concerns to the board. Where that backfired for the National Energy Board and I think we were misled by them was that by encouraging the public to get involved they led to the public to believe that the public could actually have a say in the decision and that proved not to be the case cause at the end of the day after all the public has gone home the doors on the room close and the hearing becomes an exercise for lawyers, experts, highly funded people who can stand their professional lives doing these things.
It's no place for common citizens. So you know we kind of learned this as we went and we managed to find some funding from supportive people and from some supportive agencies that enabled us to hire a lawyer to represent us in the hearing. Much of the work we did we did on our own, two in the morning when our regular jobs were finished we were digging through transcripts and digging through previous regulatory proceedings and learning an awful lot about energy and pipelines. I think we did quite a valiant job, but at the end of the day of course the project was approved.

CBC: So during the hearing did the board question a lot of what you had proposed or addressed?

CALDICOTT: The way a proceeding or a hearing is conducted is all of the interveners, you have to formally get registered as an intervener, all of the interveners ask questions of each other through a formal process called information requests and file evidence. Once again, the evidence has to be filed formally as well. So the only record you get to ask questions on are the evidence that's been filed and through that process you can ferret out quite a bit of information, but you don't get it all of course. Most of the questions are asked of the proponent, the applicant, the company that wants to build a project. Very seldom does the proponent or does the National Energy Board ask questions of an intervener and in our case particularly very few persons were asked of us because of course we weren't providing much original evidence.
We did on gas supply, however, and we did on some of the load forecasting numbers that B.C. Hydro was providing to the National Energy Board, but largely the questions aren't asked of us. The tough asking questions are the proponent and without a big bank of experts it's hard to position questions that expose the weak parts of a proponents set of arguments and evidence, but really when it comes down to it it's what the National Energy Board is there to do. Their purpose is to find where the public convenience is in a project that is being proposed and to determine whether or not there's a need for the project that's being proposed and the public view of what a public convenience or what's serving in the public interest is and what need is is quite different. It's vastly different than what the board construes public convenience to be and need to be in terms of a project that's being proposed to them.
It's that big gap between the board's interpretation of public convenience and necessity and the public that was probably one of the biggest learning experiences for us.

CBC: Do you think then that this process favours the developer?

CALDICOTT: Yes, it clearly favours the developer. It always favours the developer. The National Energy Board to the best of my understanding has never turned down a project. Some get withdrawn when they see their opportunity to getting approval are slim, but for the most part the National Energy Board approves projects. Now they may condition their approval. They may say, well in the case of the GSX Pipeline, they said you can't build a pipeline unless you build a gas plant to use fuel from it, but that's pretty much self evident. The company is not going to build the pipeline unless there's somebody to buy the fuel. But no, largely the National Energy Board works with industry to facilitate industry's projects. That's pretty much their mandate in the absence of the government that more strongly represents the interests of people, of communities and First Nations. The National Energy Board will always be to some extent the handmaiden of industry.

CBC: So how can the NEB address disparity or resources between the groups?

CALDICOTT: Well one fellow who participated in the Sable Island pipeline said you've got to de-lawyerize and de-expertize the process first of all because by making it a club for highly specialized professionals you cut the people out of the picture. Most people can't quit their jobs and go be full-time regulatory participants. Somehow that has to be balanced out so that the people can actually participate on a fair and equal level with industry, with corporations and with government. You know in this real world or real politics what Canada needs is some sort of national energy strategy that represents more strongly and gives more weight to the interests of the environment or weight to the interests of aboriginal entitlement, more weight to the interest of communities and land owners cause right now the deck is hopelessly stacked in favour of industry.

CBC: So what did you learn from being involved in this process Arthur?

CALDICOTT: Well the first thing I would counsel anybody getting into a big project like this is make sure you're equipped for the long run. We naively kind of though this thing would all be over in three weeks or three months, it's five years now and we're still working on it. So I would counsel anybody to build an organization around them that doesn't depend solely on the energies of one or two or three people, that has some carrying some capacity and some continuity should any of the key people burn out, which almost certainly they are going to do, make sure there's funding in place, make sure there's some sort of paid staff on board because volunteers can't do all of this all of the time. That would be one thing. Lobby governments, make sure that the public are continuously well informed. Going back to the early days of Green Peace I strongly recommend implementing as much as possible of all hunters ideas of planting mind bombs, using the media in the minds of people,
make use of all electronic technologies at your disposal, the internet, e-mail, websites.

CBC: Well I'm glad you made that distinction between mind and mine.

---Laughter

CALDICOTT: Right.

CBC: All right Arthur, so it could be a lengthy process for anyone that's involved in the review of the Mackenzie gas pipeline up here?

CALDICOTT: Oh, of all the projects in Canada this one is going to be far and away the biggest. I encourage everyone to get as much support as possible to those interveners with public interest and aboriginal interveners on the Mackenzie gas pipeline cause they are going to need all the support and help they can get.

CBC: All right Arthur, thank you very much for this today.

CALDICOTT: My pleasure.

CBC: Okay, bye-bye.

CALDICOTT: Cheers.

CBC: Arthur Caldicott is the founding director of a group called the Georgia Straight Crossing Citizens Coalition. He lives on Vancouver Island. Now Arthur said that the NEB has never said no to a project. That contradicts some of the research CBC reporter Julie Green has gathered. The NEB told her that they have turned down two proposals over the last 14 years and we'll find out more tomorrow about the NEB hearings here in the Territory and how you can get involved. You can tune into the Trail Breaker tomorrow morning between six and eight thirty.

CBC Special Report, Friday, December 3, 2004, 7:25 a.m.

CBC: Yesterday on the Trail Breaker we brought you the story of how hundreds of people got involved in the review of a power line in Abbotsford, British Columbia. The review was conducted by the National Energy Board. The NEB will also play a major role in the review of the Mackenzie gas project and now is the time for the public to get involved and to tell us how we're joined by Denis Tremblay. Mr. Tremblay is a spokesperson for the board and we've reached him at his office in Calgary. Good morning sir.

TREMBLAY: Good morning.

CBC: Well if I want to tell the NEB what I think about the pipeline what do I need to do?

TREMBLAY: Well as you know the NEB has scheduled the project for public hearing and in there there's three ways that people can participate in the hearing process. One of the ways is by a letter of comment, sending in a letter to the board and giving their opinion or their views about the project. Then a second one is a oral statement process where the people can schedule and come to the hearing and give their point of view at the public hearings that will be held eventually on this project. A third one is to file as a full-fledged intervener in the hearing.

CBC: And what does an intervener do?

TREMBLAY: Well the intervener can ask written questions from the applicant up until the public hearing and then during the public hearing it can cross-examine the witnesses of the applicant and other parties and it can present its own witnesses.

CBC: Well the role of an intervener sounds at the very least time

consuming and probably expensive. What help is available from the board?

TREMBLAY: Well as far as the expense the board has no funding, intervener funding process. So that's up to the interveners.

CBC: Yeah, is there any other way NEB can help?

TREMBLAY: Well it can help…

CBC: By sharing information or anything like that?

TREMBLAY: Well it has to be careful of what type of information it shares with any of the parties, even the applicant or interveners because it is a quasi judicial body and it's limited by how much assistance it can give to any party.

CBC: I wonder sir, can you tell me what's the difference between the review by the National Energy Board on this project and the review by the Joint Review Panel?

TREMBLAY: Well they are both looking at, like the Joint Review is dealing with the socioeconomic matters and environmental matters and the

NEB is looking at all the other matters like engineering, land matters, economics, markets and all that.

CBC: So if someone makes a presentation to the Joint Review Panel will they have to make the same points to the National Energy Board?

TREMBLAY: No, the National Energy Board will be using the Joint Review Panel's report as part of its hearing process. So all the environmental and socioeconomic evidence presented to the Joint Review Panel, the board will use that report before making its final decision on its subjects.

CBC: All right. So now I understand the Joint Review Panel will begin their hearings in March. What about the National Energy Board hearings?

TREMBLAY: Well the way I understand it right now they'll try to follow shortly after them. It will be sort of concurrent hearings. Like the Joint Review might do let's say for example one week in Inuvik, then the board would follow shortly after that and do its process. So they'll be more or less concurrent. They'll be running around the same time.

CBC: So Mr. Tremblay, where can people get more information about this process?

TREMBLAY: About the NEB process?

CBC: Yeah.

TREMBLAY: Well first of all one of the processes of the hearing is the hearing order itself, which is available upon request of the board or it's available on our website and as far as when we conduct public information sessions, like we've had about four or five already to inform the public, right now it's to inform them how the board works and all that, but then there might be some other information sessions as we get closer to the hearing to let people know exactly how a hearing process works. So we intend to have public information sessions to inform the people of our process and what we are.

CBC: All right. Well with that Denis Tremblay, thank you very much for joining me this morning.

TREMBLAY: You're welcome.

CBC: Bye-bye now.

TREMBLAY: Bye-bye.

CBC: Denis Tremblay is a spokesperson for the National Energy Board in Calgary.