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NEWS RELEASE · 29th August 2012
MP Nathan Cullen - Ottawa
Below is a document submitted to the Enbridge Northern Gateway Joint Review Panel yesterday. It is MP Nathan Cullen's response to the letter written by the Department of Justice, on behalf of the Attorney General, which tries to limit Nathan Cullen’s cross-examination of government departments. MP Cullen speaks to perceived procedural limitations and attempts by the government to silence critics of the pipeline.


Attention: Ms. Sheri Young, Secretary to the Joint Review Panel Enbridge Northern Gateway Project
Secretary to the Joint Review Panel
Enbridge Northern Gateway Project
444 Seventh Avenue S.W.
Calgary, Alberta
T2P 0X8

Re: Hearing Order OH-004-2011

Enbridge Northern Gateway Project

Response to Department of Justice Canada letter dated August 22, 2012 and Secretary to the Joint Review Panel’s letter dated August 24, 2012.
SEE BELOW

First, let me thank the Panel for the opportunity to clarify my request to question several key participants in the proposed Enbridge Northern Gateway Pipeline project. The Department of Justice has made a submission, on behalf of the Attorney General, questioning several aspects of my request for crossexamination of federal departments. These departments hold key aspects to the public's understanding of the project and the government's role in the process. Their responses to the topics that I have outlined are important to my constituents and to Canadians more generally; it is fitting to the purpose of the review that as an elected Member of Parliament, I have the opportunity to ask questions that are on the minds of many Canadians about this project.

The topics I propose to address are central to the mandate of the Panel, as set out in the Terms of Reference, to “conduct a review of the Environmental Effects of the project and the appropriate mitigation measures based on the project description and consideration of the project application under the NEB Act.” The mandate of the Panel is designed to accommodate the questions of “all of those affected by the project,” including the questions that I will raise.

The Hearing Order sets out that the List of Issues is not exhaustive: “the Panel’s environmental assessment of the Project and related public interest determination will include, but not be limited to, consideration of the following.” This is also underscored in the Panel’s Procedural Direction #8, where the list of sub-issues by location is stated to be illustrative rather than exhaustive. Procedural Direction #9 simply states that questions “must relate” to the List of Issues. The Panel is not precluded from allowing questions that do not match up verbatim with the list of issues. Strictly limiting the topics to the List of Issues as set out in the Hearing Order could constrain the Panel from hearing questioning that is relevant to fulfilling its mandate.

All of the topics that the Department of Justice suggests, on behalf of the Attorney General, are not directly related to the evidence are in fact related to testing the credibility of the evidence that has been filed on the record. Testing the credibility of the evidence can, at times, be done best by examining whether critical information is missing from the evidence, what alternatives exist, and the context within which the existing project has emerged. The purpose of the questioning is to test the credibility of the evidence and nothing prohibits the Panel from hearing questions to that end. Limiting the questioners and responders to only what has been already submitted would render the questioning phase of the proceedings moot.

The Panel has said that this process is “designed to gather information from all viewpoints” and “is public and open to anyone who wishes to participate.” The Department of Justice submits, on behalf of the Attorney General, would like the Panel to adopt overly restrictive procedures that would compromise integrity of the proceedings. What’s more, those interpretations would exclude me and many others from participating in the proceedings. A broad understanding of the kinds of questions that go to the credibility of evidence must be adopted in order for a proper review to take place.

On the question of the Department of Fisheries and Oceans my questioning of the application of the Fisheries Act is specific to the role of the federal government. The response from this department to the Panel's own requests for comment and risk assessment has been both disappointing and in need of clarification. I expect to get such clarification through my questions.

I also note that the Panel has reportedly requested that Transport Canada “provide a detailed discussion on what provisions exist in the relevant Canadian marine shipping legislation to ensure that Northern Gateway’s voluntary marine shipping risk reduction measures are and remain mandatory and enforceable.” Supertankers have never before carried diluted bitumen through such narrow passageways in such unpredictable waters; the risks to Northwest British Columbia’s pristine coastal waters, land, and way of life, are too great to allow such obligations to be voluntary. These matters get at the heart of what concerns many of my constituents and Canadians alike. Questions about Transport Canada’s role in this are critical to reviewing the environmental effects of the project.

It is difficult in the context in which we are conducting these public forums to separate the current government's objections to my questions and the government’s publicly stated support for the project prior to assessment. Further, the Panel's authority has been seriously undermined by a retroactive rewriting of the rules of engagement creating a potential for loss of faith on behalf of the public.

Some have described the various tactics employed by the government as an attempt to silence critics and minimize the scrutiny of proposed pipeline and supertanker traffic. In my earlier intervention with the Panel I attempted to remain respectful of the Panel and the process that guides your deliberations. I will continue to respect the Panel’s independence in determining the best route towards understanding the potential impacts of this project.

Sincerely,
Nathan Cullen, MP
Skeena-Bulkley Valley

Department of Justice Canada
Kirk Lambrecht Q.C/ General Counsel
Prairie Region

August 22, 20I2
Attention: Ms. Sheri Young
Dear Madam:
Re: Hearing Order OH-4-2011
Enbridge Northern Gateway Project:
Response to Nathan Cullen, MP letter dated August 3, 2012

The Attorney General of Canada offers the following submissions on behalf of the Federal Government Participants in response to Nathan Cullen's request to question Government Participants during the final hearings of the Joint Review Panel of the Northern Gateway Pipeline Project, dated August 3, 20I2.

On July 20, 20 I 2, the Attorney General of Canada submitted a comprehensive response to twenty-one requests to question Federal Government Participants during the questioning phase of the final hearings. As Mr. Cullen's request is similar in nature to several of those requests, the Attorney General will refer this Panel to those submissions for its substantive content rather than duplicate it here in this response.

Section 8.9 of Hearing Order OH-4-20I I provides that Parties must receive approval from the Panel to question a Government Participant orally during the final hearings. A request to question a Government Participant must indicate:

I. The nature of the questions;

2. The relevance of the questions to the proceeding; and

3. Why fairness required the questions.

Similarly, section 8.9 of the Hearing Order relates questions asked of witnesses during the fmal hearings to the evidence submitted:

"During the first part of the final hearings, Parties may ask oral questions about the evidence that has been submitted by other Parties during the joint review process. Parties may not present new evidence during the final hearings except in response to oral questions. The purpose of oral questions is to allow the Panel and Parties to "test" the evidence submitted." [emphasis added]

Mr. Cullen has outlined the nature of the questions he would like to ask the Federal Government Participants as follows:

2) Environment Canada: new versus old environment assessment threshold;

3) Fisheries and Oceans Canada: application of fisheries act, net loss, habitat protection, water crossings;

4) Transport Canada: independence of review of application, regulations on diluted bitumen compared to conventional oil;

5) National Resources Canada: project promotion abroad, carbon pricing implications under government climate change plan.

First, the following proposed topics are outside the List of Issues found in the Hearing Order and therefore not within the mandate of the Panel:

• independence of review of application;

• project promotion abroad; and

• carbon pricing implications under government climate change plan.

Second, the following proposed topics are not related to the evidence filed by the Government Participants:

• new versus old environment assessment threshold;

• independence of review of application;

• regulations on diluted bitumen compared to conventional oil;

• project promotion abroad; and

• carbon pricing implications under government climate change plan.

Third, two of the proposed topics are unrelated to the mandates of the Government Participants:

• Environmental assessment thresholds are not within the mandate of Environment Canada. Rather, the Canadian Environmental Assessment Agency, the National Energy Board and Canadian Nuclear Safety Commission, none of which are parties to the JRP process, are responsible for administering environmental assessment legislation.

• Transport Canada's mandate does not include responsibility for the independence of the review of the application. The Government Participants note that the Panel has previously confirmed the independence of its review of the application in Ruling No. 17, dated January 31, 2012.

Finally, the request to question Fisheries and Oceans Canada on the application of the Fisheries Act is overly broad and in the nature of a blanket request. Such a request provides no guidance to the Government Participants to assist in witness preparation; it undermines fairness to the witnesses and has the potential to delay the proceedings.

To the extent that the nature of Mr. Cullen's questions relate to matters which are not related to the List oflssues, are outside the written evidence or mandates of the Federal Government Participants, or are blanket or generalized requests, the request does not demonstrate compliance with the criteria defined by the Panel. To allow such questions would undermine fairness to the witnesses, delay the proceedings and would not assist the Panel in its assessment of the application.

Kirk Lambrecht Q.C/ General Counsel
Prairie Region
Department of Justice Canada

Dear Mr. Cullen […]:
Northern Gateway Pipelines Inc. (Northern Gateway)
Application for the Enbridge Northern Gateway Project
Hearing Order OH-4-2011
Late Requests to Question Federal Government Participants

Request from Nathan Cullen

On 23 July 2012, the Joint Review Panel (Panel) for the Enbridge Northern Gateway Project received a late request to question various federal government participants from Nathan Cullen, MP. The request set out that it was late due to the vacation schedule for Mr. Cullen’s office.

On 25 July 2012, the Panel received a response from the Attorney General of Canada (Canada) noting that Canada did not oppose the late filing. This response also noted that Mr. Cullen had only provided the names of federal government participants, with no information in relation to the criteria required by the Hearing Order for obtaining leave. Without this information, Canada could not prepare for the questioning phase of the final hearings in a meaningful way.

On 3 August 2012, the Panel received a letter from Mr. Cullen setting out information to address the criteria required by the Hearing Order.

On 22 August 2012, the Panel received a further response from Canada indicating that various proposed topics by Mr. Cullen were outside the List of Issues and not within the mandate of the Panel; that some of the proposed topics were not related to the evidence filed by the government participants; that two of the proposed topics were unrelated to the mandates of the federal government participants; and that the request to question one federal government participant was overly broad and in the nature of a blanket request.

Before ruling on [the late request] to question various federal government participants, the Panel will allow Mr. Cullen […] to file [his response] to Canada’s submissions on the request by 28 August 2012. All filings are due by noon Mountain Time (11:00 a.m. Pacific Time).

Yours truly,

Sheri Young
Secretary to the Joint Review Panel




Editor Note - We recorded the presentation delivered by Nathan Cullen to the three member JRP Panel in Prince Rupert Feb 17, 2012. It Can be Viewed by Clicking Here

Here is a copy of the text introducing the Video Recording;

This is a complete recording of Nathan Cullens presentation to the JRP in Prince Rupert, February 17, 2012.

As the Enbridge Joint Review Panel began in Prince Rupert today, February 17, 2012, Skeena Bulkley Valley MP Nathan Cullen was interrupted by the Enbridge Northern Gateway legal team after only 8 minutes. Enbridge argued Cullen was not following the parameters of the intervener rules. They claimed Cullen was making a political speech.

As Cullen began again clarifying how he was presenting his personal knowledge of the people and the disharmony being created, particularly with the Gitxsan people, Enbridge interrupted again.

The three member panel withdrew to discuss this dilemma and then allowed Cullen to resume after instructing him to stick to his personal knowledge of the impacts of the pipeline.

Cullen attempted to clarify how the social impacts on the communities, again referencing the Gitxsan, were just as significant as an oil spill. He spoke about the disharmony Enbridge has created amongst the Gitxsan people. This again drew an objection by Enbridge.

After a 5 minute recess Cullen was allowed to continue.

Cullen asked to respond to the allegations made against him by Enbridge and was refused. He stated it was not correct for the accusations made to stand undefended and countered by him claiming it was unfair to allow Enbridge to state something and have it on the record without allowing him to respond.

Accepting the ruling of the panel and stating his respect for them and the process, Cullen delivered a 5 minute presentation that began with his arrival in the Northwest to his acceptance in the Native communities and in their feast halls. He described how the land is the people, repeating a phrase used before, the people don't make the land, the land makes the people.

He stated without the harvest and the health of the land and the waters the people could not exist. He asked the Panel to seriously consider the people and their lives, the interrelatedness of everything within the Northwest Coast.

The audience had repeatedly interrupted the proceedings by boos to Enbridge and the panel, when they critiqued Cullen, and loud cheers and applause for Cullen.

When the Metlakatla Chief began he chastised the Panel and the NEB staff for asking one of their drummers to leave the room stating this was disrespectful. He stated they would never do that in their feast hall. They came to this hearing with respect and they expect to see the same respect returned to them.
Well done, Nathan
Comment by Paul Johnston on 31st August 2012
The Harperites and their minions could not do a better job of destroying any perception that the JRP process is unbiased and value free. Keep up the good work, Nathan.