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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 153

Hearing held at

Audience tenue à

Chances Prince Rupert

240 West, 1st Avenue

Prince Rupert, British Columbia

March 15, 2013

Le 15 mars 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), Friday, March 15, 2013

Audience tenue à Prince Rupert (Colombie-Britannique), vendredi, le 15 mars 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 BC Nature and Nature Canada - Mr. Chris Tollefson - Mr. Anthony Ho - Ms. Naomi Kovak 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 - Ms. Maria Morellato - 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 Gitxaala Nation - Ms. Rosanne M. Kyle - Ms. Virginia Mathers - Ms. Leslie Beckmann



(iii) INTERVENORS/INTERVENANTS Government of Alberta - Mr. Evan W. Dixon - Mr. Ron Kruhlak Government of Canada - Mr. James Shaw - Ms. Dana 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 Northwest Institute of Bioregional Research - Ms. Patricia Moss Office of the Wet'suwet'en - Mr. Mike Ridsdale - Mr. David De Wit - Mr. Ken Rabnett



(iv) INTERVENORS/INTERVENANTS 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


ERRATA

(i)

Thursday, March 14, 2013 - Volume 152

Paragraph No.: Should read:

26223:

“…project would be different on then.” “…project would be different on them.”

26233:

“If consent if not obtained,…” “If consent is not obtained,…”

26260:

“…and the gap in our rights,…” “…and a gap in our rights,…”

26406:

“If this project gets proposed, there is “If this project gets approved, there is

another…” another…”

26928:

“Some are in the range of 12…” “Somewhere in the range of 12…”

27037:

“I might just also add than an example of “I might just also add that an example of

how…” how…”

27174:

“…the 160-kilometre whitefish and “…the 160-kilometre Whitefish and Samson

Samson Cree.” Cree.”

27175:

“…why it speaks to whitefish, providing…” “…why it speaks to Whitefish, providing…”

27353:

“…part of the Western Cree tribe also,…” “…part of the Western Cree Tribal Council

also,…”

27494:

“…same, so Sampson would not…” “…same, so Samson would not…”

27495:

“…to or understood their traditional land “…to or understand their traditional land

uses.” uses.”


ERRATA

(ii)

Thursday, March 14, 2013 - Volume 152

Paragraph No.: Should read:

27498:

“...Six whom Sampson is a member…” “...Six whom Samson is a member…”

27499:

“…directly with Sampson?” “…directly with Samson?”

27501:

“…correct that then, for Sampson, the onus…” “…correct that then, for Samson, the

onus…”

27503:

“…in 2002, Sampson was not…” “…in 2002, Samson was not…”

27504:

“…onus on Sampson to come…” “…onus on Samson to come…”

27506:

“…conversations with Sampson, or tried…” “…conversations with Samson, or tried…”

27507:

“Again, with Sampson, it went…” “Again, with Samson, it went…”

27509:

“…of dialogue with Sampson.” “…of dialogue with Samson.”


TABLE OF CONTENTS/TABLE DES MATIÈRES

(i)

Description Paragraph No./No. de paragraphe

Opening remarks by the Chairperson 27647

Enbridge Northern Gateway Panel 4 - Prince Rupert

Aboriginal Engagement and Public Consultation

Ms. Janet Holder

Mr. Paul Anderson

Mr. John Carruthers

Mr. Ray Doering

Mr. Jeffrey Green

Ms. Catherine Pennington

Ms. Michele Perret

Ms. Jan Whitney

- Examination by Ms. Griffith 27661

Preliminary matters brought forward by Ms. Estep 28226

- Examination by Ms. Humchitt 28292

- Examination by Ms. Campbell 28796


LIST OF EXHIBITS/LISTE DES PIÈCES

(i)

No. Description Paragraph No./No. de paragraphe

AQ72-C Fort St. James Sustainability Group - 2012 July 12

Speaking Notes Al Monaco TD Energy Conf,

Adobe page 8

AQ73-A Haisla Nation - NGP 2013-2014 Geotechnical

Investigations 21 Jan 2013.pdf 27978

AQ73-B Haisla Nation - HNC to NGP Jan 11 2013

re exploratory work and boat tour.pdf 27978

AQ73-C Haisla Nation - HNC to NGP Feb 1 2013

re TUPs.jpg 27978

AQ73-D Haisla Nation - HNC to NGP Feb 20 2013.pdf 27978

AQ73-E Haisla Nation - A-2011-00013-DFO Atip Release 27978

B212 Enbridge Northern Gateway’s Response to

Undertaking U-73 28228

B213 Enbridge Northern Gateway’s Response to

Undertaking U-74 28384


RULINGS/DÉCISIONS

(i)

Description Paragraph No./No. de paragraphe


UNDERTAKINGS/ENGAGEMENTS

No. Description Paragraph No./No. de paragraphe


Examination by Ms. Griffith


--- Upon commencing at 8:37 a.m./L’audience débute à 8h37

27647. THE CHAIRPERSON: Ms. Fung is working with Ms. Griffith to

solve the WebEx issue. Let’s get under way. And are there any preliminary

matters that parties wish to raise this morning?

27648. I’m not sure how much further we’re going to get than that at this

point.

--- (Laughter/Rires)

27649. THE CHAIRPERSON: Ms. Griffith, are you on the line?

--- (No response/Aucune réponse)

27650. THE CHAIRPERSON: I think she’s working with Ms. Fung, so our

apologies for the late start. We’ll -- let’s just wait and see where we’re getting to

in about five or 10 minutes and hopefully by then we’re resolved and able to get

under way.

--- (A short pause/Courte pause)

27651. THE CHAIRPERSON: Good morning, Ms. Griffith. It’s Sheila

Leggett here. I understand you’re on WebEx?

27652. MS. GRIFFITH: Yes, I am.

27653. THE CHAIRPERSON: Oh, terrific. Are you able to see the screen?

27654. MS. GRIFFITH: Yes, I am.

27655. THE CHAIRPERSON: Oh, terrific. That’s great. So there -- unless

you have any preliminary matters, Ms. Griffith, to raise -- there weren’t any

others this morning. Do you have any that you wish to raise?

27656. MS. GRIFFITH: I do not.

27657. THE CHAIRPERSON: So then we’ll -- oh, good morning. I can see

you now.




27658. MS. GRIFFITH: Good morning.

27659. THE CHAIRPERSON: We’ll go immediately to your questions of

this witness panel. Thank you.

27660. MS. GRIFFITH: Thank you, Madam Chair, and good morning,

Panel Members and witnesses, NEB staff. I’m joined by Jesse McCormick,

who’s here in the room with me but is not within the camera view.

JANET HOLDER: Resumed

PAUL ANDERSON: Resumed

JOHN CARRUTHERS: Resumed

RAY DOERING: Resumed

JEFFREY GREEN: Resumed

CATHERINE PENNINGTON: Resumed

MICHELE PERRET: Resumed

JAN WHITNEY: Resumed

--- EXAMINATION BY/INTERROGATOIRE PAR MS. GRIFFITH:

27661. MS. GRIFFITH: And I’d like to start by calling up Exhibit 2-33,

page 46, please.

27662. In its Appendix M summarizing issues and concerns identified as a

result of its Aboriginal engagement, Northern Gateway has said the following

about the duty to consult Aboriginal peoples and appropriate Crown consultation:

“To the extent that Northern Gateway may have certain

consultation duties, it has sought to discharge any such

duties.”

27663. It is our understanding that the Crown has not specifically delegated

any aspects of consultation to Northern Gateway. Is that your understanding as

well?


27664. MS. JANET HOLDER: It may be semantics -- good morning, it’s

Janet Holder.




27665. It may be semantics, but we do believe that through the Aboriginal

consultation framework, that they have at least assigned to Gateway -- Northern

Gateway as well as the JRP process part of the responsibility of duty to consult.

27666. MS. GRIFFITH: Could we please have Exhibit E9-21-12, page 3?

27667. Sorry, Exhibit E as in Eric -- E9-21-12, page 3. At -- in its response to

the Haisla Nation IR 1.1(a), the federal government stated explicitly that it “has

not delegated aspects of its consultation or accommodation obligations to

Northern Gateway.”

27668. Given this, could you please identify which of Northern Gateway’s

Aboriginal engagement activities are to be considered consultation activities?

27669. MS. ESTEP: Ms. Griffith, it’s Laura Estep, counsel for Northern

Gateway. Can you just point us where on that page it says what you’ve quoted?

27670. MS. GRIFFITH: Sorry; it starts at page 2, actually. My apologies

for that. The bottom of page 2, the response to 1.1(a):

“The Government of Canada has not delegated aspects of its

consultation or accommodation obligations to Northern

Gateway.”

27671. So I’ll repeat the question. Given this, could Northern Gateway please

identify which of its Aboriginal engagement activities are to be considered

consultation activities?

27672. MS. JANET HOLDER: Can we just scroll down to the next page

because I think we answer it as part of the rest of the answer to this.


27673. MS. JANET HOLDER: I think if you go -- I want to go back to the

Aboriginal consultation framework. And from our perspective, we do believe that

certain procedural aspects of the duty to consult have been delegated to us as

Northern Gateway.

27674. And I -- it’s through those five phases of -- so if you go to Exhibit E9-

6-10 -- I’m hoping I’ve got the right reference -- and it talks about the five phases




under the Aboriginal consultation framework. And that is in our evidence and

that would be, I think, how we would best characterize how we believe our

Aboriginal engagement or consultation is being fulfilled relative to what has been

asked by the governments through the JRP.

27675. MS. GRIFFITH: Sorry, Ms. Holder, your mic is still on. Were you

still responding? Thank you.

27676. The federal government, though, has said that it has not delegated any

aspects of the consultation duties to Northern Gateway. And what I’m trying to

understand is which of Northern Gateway’s Aboriginal engagement activities

Northern Gateway actually identifies as consultation activities.

27677. MS. JANET HOLDER: Again, I think we’re getting into semantics.

If you go back to your reference, which is the government’s response to question

1.1.(a), if you go on to the Adobe page 3 -- and if you read at the top there, it does

say:

“The Government of Canada is relying on the Joint Review

Panel process as part of the broader consultation including

efforts of Northern Gateway, to the extent possible…”

27678. And I think what our efforts are, are everything that we have filed in

this Application around our engagement with Aboriginal communities. I mean, it

would be our whole Application, in essence.

27679. MS. GRIFFITH: Madam Clerk, could we please go back to Exhibit

B2-33, page 46? And if we scroll down a little bit, we see there opposite the

phrase -- that’s good -- “Appropriate Crown consultation”:

“Northern Gateway has communicated, and will continue to

communicate, this concern [and I presume that means the

concern around appropriate Crown consultation] to Crown

agencies that may have a review or decision-making role.”

27680. Could you please tell us what communication Northern Gateway has

had with Crown agencies that may have a review or decision-making role about

the duty to consult and/or appropriate Aboriginal consultation since this was

filed?




27681. MS. ESTEP: Madam Chair, that’s a extremely broad question. If we

could perhaps narrow it down if Ms. Griffith is asking in respect of the Haisla or

-- that might be a more fair question to put to the witnesses.

27682. MS. GRIFFITH: I’m prepared to narrow it down to in respect of the

Haisla.

27683. MS. JANET HOLDER: Sorry; can you repeat the more narrow

question?

27684. MS. GRIFFITH: Could you please tell us what communication

Northern Gateway has had with Crown agencies that may have a review or

decision-making role about the duty to consult and/or appropriate Aboriginal

consultation in relation to the Haisla Nation since this was filed? This was part of

the original Application in May of 2010.

27685. MS. JANET HOLDER: We’re just trying to confirm that there is

only the -- we have, in receipt, a letter from the Canadian Environmental

Assessment Agency to Chief Councillor Ellis Ross dated February 6th

, 2013.

27686. MS. GRIFFITH: Thank you Ms. Holder. I’m not sure that answers

the question.

27687. What I’m interested in is not communication from CEAA to the Haisla

Nation, but communication from Northern Gateway to Crown agencies that may

have a review or decision-making role with respect to the duty to consult and/or

appropriate Aboriginal consultation in relation to the Haisla Nation.

27688. MS. JANET HOLDER: I believe the original question meant since

the filing of this information. Is that correct?

27689. MS. GRIFFITH: Yes, since May of 2010, when -- which is when

this information was filed.

27690. MS. ESTEP: Madam Chair, it’s still an incredibly broad question.

We’re talking about a five-year timeframe -- sorry, three years. So we’re talking

about quite a range of time. If I could ask my friend to be -- if there’s something

more specific in the question, it might be helpful.

27691. MS. GRIFFITH: I’m prepared to move on to my next question.




27692. Could we please have Exhibit B24-2, page 366? Is that page 366?

Yes. If we could please scroll down to "Crown Consultation" -- the section that

reads "Crown Consultation". It says here that:

“Northern Gateway has communicated, and will continue to

communicate, concerns surrounding federal government

processes to Crown agencies that may have a review or

decision-making role on Project-related matters.”

27693. Northern Gateway has recently submitted 12 applications for

temporary use permits for geotechnical exploration work in Haisla Nation

territory to the provincial Crown. Are you aware of these applications?

27694. MS. JANET HOLDER: Yes, we are.

27695. Sorry; maybe you didn’t hear. Yes, we are aware.

27696. MS. GRIFFITH: Could we please have aid to cross number 2 --

Haisla Nation aid to cross number 2 for this Aboriginal engagement panel?

27697. This is one of the 12 applications for a temporary use permit that

Northern Gateway sent to the Haisla Nation. Have you had a chance to review

this aid to cross?

27698. MS. JANET HOLDER: Yes, we have.

27699. MS. GRIFFITH: And had you seen it prior to it being provided as an

aid to cross?

27700. MS. JANET HOLDER: The project team definitely, yes.

27701. MS. GRIFFITH: And then you’re aware that each of these permit

applications include a section on Haisla Nation concerns. Can you confirm that?

27702. MS. JANET HOLDER: Yes.

27703. MS. GRIFFITH: And these temporary use permits for geotechnical

exploration would be considered a project-related matter; correct?




27704. MS. JANET HOLDER: In the broader sense of the Northern

Gateway project, yes. With respect to the JRP process, I'm not sure it’s part of

that process.

27705. MS. GRIFFITH: But none of the permit applications identifies the

Haisla Nation’s concerns with the federal government consultation process, do

they?


27706. MS. JANET HOLDER: What we are providing through this permit

-- or this application is for a B.C. permit and what we have provided is the

concerns that the Haisla have with the B.C. permitting issue. We did not provide

Haisla’s concerns with regards to the JRP process.

27707. MS. GRIFFITH: And did you provide any information about the

Haisla Nation’s concerns with respect to consultation -- the federal consultation

process with respect to the project?

27708. MS. JANET HOLDER: No, we did not, but I think it’s -- you know,

we don’t believe it was required or what’s to be included in an application for

B.C. permit. We do believe that the B.C. province, as an intervenor in this

process, likely does understand the concerns of the Haisla with respect to

consultation, but that is not something we would include when we’re applying for

a permit for -- from the Province of British Columbia.

27709. MS. GRIFFITH: So if we could go back to Exhibit B24-12, page

366, and that question on Crown consultation.

27710. Is it fair to say that that sentence on Crown consultation needs to be

revised to clearly identify that this will apply only with respect to Federal Crown

agencies?


27711. MS. JANET HOLDER: If I understand your question correctly, you

were suggesting that in the two paragraphs under Crown consultation that we

should be referring to Federal Crown.

27712. The interesting thing is that I think, for all intents and purposes, when




we refer to the Crown we are talking federal because this is a federal application.

That being said, though, we do where -- you know, through this process the B.C.

Government is aware of all issues in this case, as they are an intervenor.

27713. MS. GRIFFITH: So Ms. Holder, from that can I take that it’s

Northern Gateway’s position that it does not have any intention to advise

provincial decision-makers about the Haisla Nation’s concerns surrounding

federal consultation for this project?

27714. MS. JANET HOLDER: No, we’re not restricting at all and I think

that we are providing them that information through this very process.

27715. And where we would have an opportunity to meet with the B.C.

Government, we would talk to them quite openly about all aspects of this project.

But as you may be well aware, the B.C. Government has not been engaged, nor

will they engage with us over the last year.

27716. But to talk to them specifically about the Haisla, that, I don’t believe,

is the role -- purpose of our project as much as it is that we will use this process as

part of our consultation requirements that have been asked of us through the

Aboriginal consultation framework.

27717. MR. JOHN CARRUTHERS: John Carruthers. And Ms. Holder

spoke about B.C. hasn’t engaged. That’s more at a political aspect. We certainly

work with the Province of British Columbia.

27718. They are very well aware of the Haisla’s issues that have been raised

in this proceeding and that’s dialogue we often have. And in fact, these permit

applications themselves are part of that dialogue.

27719. So all -- the Crown and British Columbia and the federal government

are well aware of the Haisla’s concerns.

27720. MR. PAUL ANDERSON: Aboriginal consultation is a component of

this permitting process through the Provincial Crown as well, so there will be

ample opportunity for the Haisla to bring forward that concern if they still have it.

27721. MS. GRIFFITH: Thank you.

27722. So for the purposes of testing this evidence, though, what I’m




understanding is that Northern Gateway may choose to advise provincial

decision-makers about the Haisla Nation’s concerns around consultation but in the

particular instance on these temporary use permits chose not to. Is that fair?

27723. MS. JANET HOLDER: Can you just define for us what you mean as

provincial decision-makers?

27724. MS. GRIFFITH: Well, in a situation where the -- where Northern

Gateway is applying for a permit to the Ministry of Forest, Lands, Natural

Resource Operations, then the person within that department who makes the

decision on the permit would be the provincial decision-maker.

27725. MR. JOHN CARRUTHERS: We would put in there information

that’s relevant for these permit applications. Certainly that would -- no one would

presume that that fully outlines the Haisla’s interests, rights, obligations. It’s an

application where you put summary information in and it was never intended to

not -- to represent something that it isn’t.

27726. But certainly the Crown is very much aware of the Haisla’s issues, and

this is a permit application.

27727. MS. GRIFFITH: Thank you, Mr. Carruthers.

27728. So just going back to this sentence, I see an inconsistency between this

sentence on Crown consultation and Northern Gateway’s application materials

and what’s actually happening on the ground. Is that fair?

27729. MR. JOHN CARRUTHERS: No, it is not. We -- it’s fully --

Northern Gateway has communicated and will continue to communicate concerns

surrounding federal government processes to Crown agencies. And that, as

you’ve demonstrated, is in the Application at this time.

27730. MS. GRIFFITH: Yet it didn’t do so with respect to those 12

temporary use permit applications, did it?

27731. MR. JOHN CARRUTHERS: It wouldn’t be that every time we

speak to the Crown we say in a preface that the Haisla has concerns. The

information is -- has been communicated and it’s available to both the Federal and

Provincial Crowns. So yes, the statement still stands.




27732. MS. GRIFFITH: So how often would you communicate this to

Crown decision-makers?

27733. MR. RAY DOERING: Ms. Griffith, it’s Ray Doering.

27734. We have weekly communication with the decision-makers at Forest

Lands and Natural Resource Operations to provide ongoing updates regarding

Aboriginal consultation or Aboriginal engagement with regards to the permitting

process.

27735. We’re looking at approximately 35 sites across B.C. for these

geotechnical permits, so we provide a weekly update spreadsheet format to

FLNRO describing those updates.

27736. MS. GRIFFITH: And do you advise them on a weekly basis that the

Haisla Nation still has concerns with the Federal Crown consultation process?

27737. MR. JOHN CARRUTHERS: Again, I don’t think it’s necessary. I

mean, the communications we have -- our understanding would be that the

provincial government’s well aware of the Haisla’s position.

27738. MS. GRIFFITH: Thank you for those answers. I’m going to move

on to a slightly different topic.

27739. Northern Gateway’s project will alter the physical landscape. Do you

agree?

27740. MS. ESTEP: Madam Chair, that question is quite broad. If my friend

could be more specific, it would be appreciated.

27741. MS. GRIFFITH: Does Northern Gateway agree that the alteration of

the physical landscape carries with it a measure of risk to the environment?

27742. MS. ESTEP: Again, that is an exceedingly broad question and so I

object.

27743. MS. GRIFFITH: Northern Gateway acknowledges that the Haisla

Nation territory encompasses the areas in and around Kitimat, the proposed

terminal site, and the pipeline through the Kitimat River Valley, doesn’t it?




27744. MR. JOHN CARRUTHERS: Yes, we acknowledge that is their

position. They’ve provided us a map of that area as well.

27745. MS. GRIFFITH: And Northern Gateway also acknowledges that the

Haisla Nation and its members rely on the lands, waters and natural resources of

Haisla Nation territory for food and for its cultural heritage, doesn’t it?

27746. MR. PAUL ANDERSON: Yes, we do as shown in exhibits in these

proceedings with respect to Aboriginal interest and use studies that were done by

the Haisla.

27747. MS. GRIFFITH: And Northern Gateway acknowledges that the

Haisla has expressed concerns about the risks associated with the project. Is that

fair?

27748. MS. ESTEP: Again, Madam Chair, what risks are we referring to

here?

27749. MS. GRIFFITH: Does Northern Gateway acknowledge that the

Haisla Nation has expressed a concern about the risk of a spill into the Kitimat

River?

27750. MR. PAUL ANDERSON: Yes.

27751. MS. GRIFFITH: And Northern Gateway is a corporation; correct?

27752. MR. PAUL ANDERSON: Yes.

27753. MS. GRIFFITH: And as a corporation, is it fair to say that Northern

Gateway operates for the benefit of its shareholders?

27754. MR. JOHN CARRUTHERS: Is this a consultation question?

27755. MS. GRIFFITH: It is related to consultation, yes.

27756. MS. JANET HOLDER: We -- yes, as a corporation we have an

obligation to shareholders, but as a regulated entity, which Northern Gateway

Pipelines will be, there is also an obligation to customers, shippers, as well as

other stakeholders. So being regulated, we are not just responsible to our

shareholders.




27757. MR. JOHN CARRUTHERS: And I would broaden that. All

corporations would have a broader responsibility to their customers and their

suppliers, et cetera.

27758. MS. GRIFFITH: But Northern Gateway is not an Aboriginal group

that lives in the area of the proposed project, is it?

27759. MS. ESTEP: Madam Chair, I think that’s a fairly obvious rhetorical

question. I’m not sure it’s helpful to the Panel.

27760. MS. GRIFFITH: If the proposed project results in damage to the

environment, the ultimate consequence for Northern Gateway is largely financial;

is that fair?

27761. MS. ESTEP: Madam Chair, I’m struggling with how these questions

relate to the issues that are assigned to this particular panel, which are potential

impacts of the project to Aboriginal rights and interest and public consultation and

Aboriginal engagement.

27762. MS. GRIFFITH: Madam Chair, this goes to Aboriginal engagement

and the perspectives that Northern Gateway brings to that process.

27763. THE CHAIRPERSON: Ms. Estep, any further comments?

27764. MS. ESTEP: I don’t have anything further to add.

27765. THE CHAIRPERSON: Ms. Griffith, the Panel is struggling to see

the connection between the current line of questioning that you’re asking this

panel and their responsibilities for the particular panel that’s been established

here. Can you directly go to your questions that relate to Aboriginal engagement

and public consultation?

27766. MS. GRIFFITH: I can, Madam Chair, but I might like to come back

to this question after I’ve done that.

27767. Northern Gateway has heard from Haisla Nation members the concern

that the project will impact the resources they rely on in their transmission of

cultural knowledge. Is that a fair statement?




27768. MR. JOHN CARRUTHERS: Yes, we’ve heard the concern.

27769. MS. GRIFFITH: Could we please have Exhibit 132-2, page 121?

27770. In its IR 4.75 the Haisla Nation asked about the geohazard risk level,

which in the view of Northern Gateway is considered an acceptable risk level in

the Kitimat River Valley. Northern Gateway was not able to identify an

acceptable risk level and rather described it as context relevant and stated that it

would continue to reduce all identified risks to as low as reasonably practicable

levels given the available technologies and procedures.

27771. Northern Gateway’s context for risk is therefore informed by available

technology and procedures. Have I understood that correctly?

27772. MS. ESTEP: Madam Chair, again I’m struggling to understand how

these questions relate to this panel. We can look it up, but I’m going to assume

this is not an IR that’s assigned to this panel either. In addition, this was

examined upon in Prince George with Mr. Mihell.

27773. MS. GRIFFITH: I’ll ask a different question.

27774. Northern Gateway has never asked the Haisla Nation what an

acceptable level of risk is in the Kitimat River Valley has it?

27775. MS. ESTEP: An acceptable level of risk for what, please?

27776. MS. GRIFFITH: Northern Gateway has never asked the Haisla

Nation what an acceptable level of risk of a spill into the Kitimat River Valley is

has it?

27777. MS. JANET HOLDER: I suspect we never asked that specific

question, but we’ve had ongoing dialogue with the Haisla Nation for over 10

years now, and part of that dialogue is continually trying to understand the

concerns of the Haisla Nation and also explaining what it is that we can do to

mitigate their concern.

27778. So the dialogue is ongoing and within that dialogue we would be

talking about the risk of a spill, but specifically asking that one question with a

specific answer, I don’t believe we have.




27779. MR. JOHN CARRUTHERS: We would be very aligned, though, in

terms of there has been ---

27780. MS. GRIFFITH: I apologize for the background noise.

27781. THE CHAIRPERSON: You have no control over that, Ms. Griffith?


27782. MR. JOHN CARRUTHERS: People have identified the risk of a

spill as something of concern, clearly, and that’s -- we’re very much aligned to

drive that to as low as practicable. And as we’ve talked about, we’ve had a lot of

dialogue with the Haisla about the things that we’re doing to reduce the chance of

a spill and then also be prepared in the event there was one.

27783. MS. GRIFFITH: And in terms of preparation, in the event there is a

spill, you’re referring to an oil spill response plan; is that correct?

27784. MR. JOHN CARRUTHERS: That would be part of it, yes.

27785. MS. GRIFFITH: But Northern Gateway hasn’t actually completed

that plan, has it?

27786. MS. ESTEP: Madam Chair, these are questions that have been

canvassed on previous panels.

27787. MR. JOHN CARRUTHERS: I will say from an engagement

perspective we do desire and have sought and continue to seek participation with

the Haisla in the continued development of all plans, and those are, again, not just

in this process but would go throughout the life operations of the pipeline and

terminal operations.

27788. MS. GRIFFITH: But Northern Gateway is not prepared to complete

a national spill response plan for the Kitimat River Valley that could be tested and

assessed during this JRP process; is that fair?

27789. THE CHAIRPERSON: Ms. Griffith, could you -- it’s Sheila

Leggett.

27790. Could you help the Panel understand the relevance of this line of




questioning with respect to the responsibilities assigned to this witness panel?

27791. MS. GRIFFITH: I’m trying to test the Aboriginal engagement and

whether or how the concerns of my client, the Haisla Nation, are or are not being

addressed as part of that Aboriginal engagement.

27792. MR. JOHN CARRUTHERS: Well ---

27793. MS. GRIFFITH: The Haisla Nation has made it very clear to

Northern Gateway, a long time ago, that it’s concerned about a spill into the river,

and Northern Gateway, despite that, has not put together a comprehensive spill

response plan for the Kitimat River.

27794. MR. JOHN CARRUTHERS: No. And I’ll let Mr. Doering speak to

it. But of course that is why we undertook the additional evidence that we did file

with respect to the Kitimat Valley. And again, that was done in cooperation with

the Haisla to directly address their concerns.

27795. MS. GRIFFITH: But without having a spill response plan, there

can’t be Aboriginal engagement on that spill response plan at the project review

stage can there?

27796. MR. JOHN CARRUTHERS: Well, we have filed the general oil

spill response plan and did speak to that at length. So there has been a lot of

dialogue and we -- people have had the opportunity to speak to it. Again, we

don’t see that as an endpoint, we see continued dialogue as we go through the

project.

27797. And again, I reiterate, that doesn’t stop at any one time, we’ll have that

continued engagement as we go forward, as new technology arrives, as we have

learnings from the project. So that’s something we would undertake.

27798. But again, in terms of the specific question you asked, we did file a lot

of evidence in terms of the questions that were being raised and the concerns they

had, and a good one is the Kitimat Valley design and risk assessment that I think

Mr. Doering can speak to in terms of the type of engagement that we had.

27799. MR. RAY DOERING: Yes, I could add a little bit to that.

27800. Certainly, concerns have been raised by Haisla regarding the potential




for a spill into the Kitimat River. And in response to those concerns and other

issues raised through these sessions and ongoing consultation activities, we

prepared the Kitimat Valley design construction and operations report, as well as

the -- on a preliminary basis as well as the preliminary Kitimat River drainage

area emergency preparedness report.

27801. And in both cases, we engaged Haisla and utilized some of their local

assistance in preparing those preliminary plans, and they are preliminary plans.

We intend to continue to add detail and refine those plans as we go forward, but

they are both on the record as reply evidence.

27802. MR. JEFFREY GREEN: It's Jeff Green here.

27803. I'd also like to add that in the original application as a result of input

from the Haisla in Volume B3-21, for example, which is the pipeline emergency

response and risk assessment, in the mass balance examples a location was

selected specifically to look at some of the Haisla concerns.

27804. Subsequently, that was picked up in the pipeline ecological and human

health risk assessment in Volume B80-2 and, similarly, the ecological and human

health risk assessment for the Kitimat Terminal focused on the Village of Kitimat.

27805. So there's very specific references throughout the application to the

concerns of the Haisla both for environmental effects, human health effects and

traditional use.

27806. MR. PAUL ANDERSON: And I guess I'd just say lastly, and then

we tabled a panel specific to the Kitimat River with a specific panel to address

those questions and to test that evidence. So I don't see how we could be more

responsive.

27807. MS. JANET HOLDER: And sorry, I do want to add on, though, that

engagement is not stopped. I think if you were to look at our update and then our

more recent filing, you will see that we continually are engaging, we’re

continuing to talk to all communities, including the Haisla, and that as an ongoing

process, we actually have started to engage with a First Nation community in

British Columbia with regards to a spill emergency response plan.

27808. So though that plan is not completed, we're already in that process.

We're already engaging with communities in British Columbia, Aboriginal




communities in British Columbia, to move forward on this project. So it's -- this

is an evolution. We've been at this for 10 years, as we've said, and we will

continue to move through the engagement process as we continue on down the

road of hopefully getting a certificate to build and construction.

27809. So engagement does not stop at any point in time. It is ongoing

through regulatory process, after the regulatory process, during construction as

well as operation.

27810. I also do want to make a comment. I believe that the reports that were

mentioned by Mr. Doering actually were provided to the Haisla, and I don't

believe that we had any comments back on those reports.

27811. MS. GRIFFITH: Madam Clerk, could we please bring up Transcript

Volume 8, line 4294? Actually, if we could start at 4293. That's perfect.

27812. This is the oral evidence provided by Chief Councillor Ellis Ross on

January 10th

, 2012 in Kitimat. If you could just read 4293 through 4295, I'd

appreciate that.


27813. MS. JANET HOLDER: I have -- we have read that. And actually, I

was present at the time that Chief Ellis Ross spoke.

27814. MS. GRIFFITH: We see here that Chief Councillor Ellis Ross is

making references to promises made in the past to the Haisla Nation by industry

and how these promises turned out to be hollow.

27815. The only thing that Northern Gateway has put on the table in terms of

spill response in the Kitimat River Valley to date is essentially a promise to

develop a response plan that will be effective. Do you agree with that?

27816. MR. JOHN CARRUTHERS: No, we've put quite a bit of

information with respect to what that might look like and how it would be

evolved.

27817. But again, I would suggest that further engagement is how best to

make those even better, so that is what we would seek. There'd be -- as we'd get

into the detailed planning, we would work with communities that are interested to




finalize those plans, but there has been a significant amount of information put on

the record already. We've talked about it. And as we've talked, that doesn't stop

there.

27818. I think the Haisla themselves would be very well positioned to

participate, have a lot of good knowledge, have different views that they could

bring to the table and I think could make that -- any response plan even more

effective.

27819. MR. PAUL ANDERSON: I think I'd just like to add that these are

commitments that we're making and it's within a regulated process that has checks

and balances to allow and to ensure that that will take place.

27820. MR. JOHN CARRUTHERS: And with respect to -- because we

know this is a key issue with respect to the response plans, we've agreed to have

those independently audited by a party, again, to give people more confidence

because we appreciate the concern. It's -- we all share that concern and we

appreciate the importance of it. So it'll go through the regulatory process where

the National Energy Board has certain authorities, our commitments will need to

be met, but over above that, we've got an independent audit as well.

27821. MS. JANET HOLDER: And just to ensure that the message is clear,

our commitments and our promises are not hollow.

27822. MS. GRIFFITH: There was a reference to the amount of information

that's gone into the record to date, and some of that information identifies a

number of concerns.

27823. And I'm just thinking back to the recent Kitimat River Valley Panel

where significant access concerns in the Upper Kitimat were acknowledged,

where we found out there's been no water flow measurements at the proposed

recovery sites, where we identified a lack of effective means to contain and

remove non-floating oils, and where Northern Gateway was not able to provide an

estimate of the time that would be required to travel to stage and deploy

equipment at one of the key proposed containment sites.

27824. We've also heard much earlier in this process that leak sensitivity

thresholds ---

27825. THE CHAIRPERSON: Ms. Griffith. Ms. Griffith, it's Sheila




Leggett.

27826. Again, can you get right to your question please?

27827. MS. GRIFFITH: Taking into consideration those areas of lacking

information and uncertainty as identified in response to the Joint Review Panel at

the end of the Kitimat River Valley Panel, wouldn't you agree that the level of

work done to date does not provide the requisite level of certainty required by the

Haisla Nation to address Haisla Nation concerns about a spill into the Kitimat

River?

27828. MR. PAUL ANDERSON: First of all, I'd just like to speak to the

lack of information.

27829. The panel that spoke to the Kitimat Valley response planning and

other issues spoke in detail regarding those issues. There was a tremendous

amount of material that was put on the record regarding how we would respond to

a spill, how access would -- all the many and varied options for access that are

available.

27830. What we were not able to do was to provide specific details on a

specific location in great detail, but we were able to provide how we would

respond to a spill and the locations where the tactic sheets had been completed.

We were able to respond in, I think, great detail in how we would respond in

those situations.

27831. When it comes to uncertainty, there will be more certainty provided

through this process. As we go forward, we will be providing, through detailed

design, our detailed plans. And where there is still uncertainty, that is the purpose

for follow-up programs under CEAA. So there is mechanisms, as I've said,

checks and balances in the process that can afford us comfort when it comes to

the process going forward.

27832. MR. JOHN CARRUTHERS: I would say, and it’s not just

ourselves, again, we very much encourage Haisla participation in these as we go

forward. So I think that -- that’s clearly something we would see a lot of value in.

27833. MS. GRIFFITH: Thank you for those answers.

27834. Would Northern Gateway commit, as a condition of approval, to




identifying and meeting the acceptable risk levels of the Haisla Nation in the

Kitimat River Valley?

27835. MR. JOHN CARRUTHERS: No. I mean, we are looking to what

the Joint Review Panel’s decisions would be in terms of this project, so that’s the

fundamental approval process we go through in Canada.

27836. The Joint Review Panel’s gone through a very thorough, exhaustive

assessment. That assessment is quite broad. It’s gone up and down the right-of-

way. There’s been a lot of stakeholders have voiced their opinion and, of course,

they have heard months and months of evidence.

27837. So I think, ultimately, we’d be looking to what the decisions made

through the Joint Review Panel process and the Government of Canada.

27838. MS. GRIFFITH: Northern Gateway is now familiar with Haisla

Nuyem and the stewardship obligations it imposes for the lands, waters and

resources of Haisla Nation territory. Is that fair?

27839. MR. PAUL ANDERSON: Did you say is Northern Gateway aware

or not aware?

27840. MS. GRIFFITH: Is aware.

27841. MR. PAUL ANDERSON: We are aware of the information that has

been included as evidence in these proceedings in that matter, yes.

27842. MS. GRIFFITH: Could we please have Exhibit B74-5, page 74?

And if we could just scroll down to the bottom column there. That’s good.

27843. We see the Haisla Nation’s stewardship obligation captured here in

column C of this table. This table is described as a summary of the potential

impacts, issues or concerns raised by the Aboriginal group, the mitigation

measures, if any, proposed by the Aboriginal groups -- group and any comments

received by the Aboriginal group and a summary of Northern Gateway’s planned

mitigation measures.

27844. Turning to -- moving to the right to the column identified as “Standard

or Generally Accepted Mitigation Measures” -- see it’s right in the middle of the

screen there. That’s good.




27845. Northern Gateway refers to PTP’s response to Haisla Nation concerns

associated with the KSL looping project.

27846. Has Northern Gateway asked the Haisla Nation whether PTP’s

proposed mitigation measures address the Haisla Nation’s concerns with the

Northern Gateway project?

27847. MR. JOHN CARRUTHERS: I am not aware of that specific

question being asked.

27848. MS. GRIFFITH: Does Northern Gateway acknowledge that the

Haisla Nation asserts Aboriginal title to the proposed terminal area and the

proposed pipeline route in the Kitimat River Valley?

27849. MR. JOHN CARRUTHERS: Yes, again, as we’ve had quite a bit of

engagement with the Haisla, part of that was their preparation and providing us

with a map of what -- that they consider the traditional territory.

27850. MS. GRIFFITH: And Northern Gateway understands, doesn’t it, that

this assertion is based in the Haisla Nation’s exclusive use and occupation of its

territory?

27851. MR. JOHN CARRUTHERS: Can you just repeat that question

again, please?

27852. MS. GRIFFITH: And Northern Gateway understands that the Haisla

Nation’s assertion of title is based in the Haisla Nation's exclusive use and

occupation of its territory. Is that fair?

27853. MR. JOHN CARRUTHERS: Again, I lost the half -- the second half

of what you’ve said. I just couldn’t quite pick up the words. But I mean, we

understand it’s -- the Haisla’s assertion is what they’ve filed on their evidence,

yes.

27854. MR. PAUL ANDERSON: And we understand that through the

traditional use studies how the land use is -- has been -- how the land has been

used in the past.

27855. I don’t think we can make any comment about assertions of title. I --




we can understand the information that’s been provided in terms of Aboriginal

interests and Aboriginal use of the land. And that’s what’s been included as part

of Haisla’s evidence and it’s what we’ve included and tried to incorporate into our

planning for mitigation. That’s as far as we can go.

27856. MS. JAN WHITNEY: If I could just ---

27857. MS. GRIFFITH: Does Northern Gateway ---

27858. MS. JAN WHITNEY: Sorry; it’s Jan ---

27859. MS. GRIFFITH: --- appreciate that Aboriginal ---

27860. MS. ESTEP: Well, just a minute.

27861. MS. GRIFFITH: --- title carries with it a right to choose the use to

which the land is put?

27862. MS. ESTEP: Sorry.

27863. THE CHAIRPERSON: Ms. Griffith, Ms. Whitney was wanting to

add to the previous response -- the previous question, so we’ll have her response

and then ask you to repeat your question.

27864. MS. GRIFFITH: Sure, Madam Chair.

27865. MS. JAN WHITNEY: In terms of how we’re working with the

Aboriginal groups, I think it’s very important to understand that, rather than

getting into an analysis of rights and title, we use a practical approach when we’re

working with the groups. And that is outlined in terms of, you know, the

engagement program, the ATK studies, sitting down, meeting with the

communities, reviewing mitigation measures, so it’s not -- we don’t get into the

analysis of rights and title.

27866. MS. GRIFFITH: Does Northern Gateway appreciate that Aboriginal

title carries with it a right to choose the use to which the land is put?

27867. MS. ESTEP: Madam Chair, that’s a legal question and not fairly put

to these witnesses.




27868. MS. GRIFFITH: I’m seeking to test the knowledge and

understanding with which Northern Gateway comes to the Aboriginal

engagement table, so I think it is a fair question.

27869. MR. JOHN CARRUTHERS: Again, we’ve -- we haven’t taken the

approach ---

27870. THE CHAIRPERSON: Ms. Estep, did you have any further

comments?

27871. MS. ESTEP: No, I maintain the view that that’s a legal question.

27872. THE CHAIRPERSON: Ms. Griffith, can you rephrase the question

such that you’re not seeking a legal opinion, please?

27873. MS. GRIFFITH: When Northern Gateway engages with the Haisla

Nation, does it understand that the Haisla Nation claims an Aboriginal title and, as

a result of that Aboriginal title, claims a right to choose the use to which the land

is put?


27874. MR. JOHN CARRUTHERS: I wasn’t sure if it was us. We do

understand the underlying aspects of assertions through the engagement but,

again, we haven’t taken a legal approach. We've just taken a practicable one. We

try to understand the issues and address those.

27875. It’s also difficult because we did -- there’s various assertions of title on

that, so we haven’t tried to assess it or make it. We understand the considerations

that the Aboriginal communities are putting to us. But again, there’s overlapping

claims and that so we’ve just tried to work at it from a practicable perspective

from a project.

27876. MS. GRIFFITH: But Mr. Carruthers, you’re not suggesting there’s

an overlapping claim to the terminal area, are you?

27877. MR. JOHN CARRUTHERS: I’m not suggesting anything. I’m just

saying what we’ve tried to do is address the concerns that are being raised.

27878. MS. GRIFFITH: And is Northern Gateway aware that the Haisla




Nation has its own aspirations for the use of the land where Northern Gateway is

proposing to build the tank terminal and the marine terminal?


27879. MR. JOHN CARRUTHERS: Can you point me to the reference

you’re bringing us to just so I can work from that please?

27880. MS. GRIFFITH: Sure. If we could please have Exhibit D as in

David, 80-24-2, page 6, and that’s the affidavit of Chief Councillor Ellis Ross.

And at page 6, we see a reference to the Treaty land selection that the Haisla

Nation has provided to British Columbia and Canada in 2005. And that identifies

that the Treaty land selection offer specifically included the area where Northern

Gateway proposes to place its terminal.

27881. In addition, in response to Northern Gateway’s IR 1, and that is

Exhibit D80-51-2, at pages 3 and 18, the Haisla Nation refers to its aspirations for

the use of the land. So that’s on page 3 and then again on page 13.

27882. MR. PAUL ANDERSON: I’m having trouble finding that, could you

direct me to the line please?

27883. MS. GRIFFITH: Okay. If we could go back to page 3, line 8:

“The proposed project would require the use of Haisla Nation

aboriginal title land for a purpose that is inconsistent with

Haisla Nation stewardship principles and with the Haisla

Nation’s own aspirations for this land.”

27884. MR. JOHN CARRTUTHERS: Yes, I can see the evidence before

me. Thank you.

27885. MS. GRIFFITH: And at page 18 of this exhibit, I think we need to

scroll down a little bit, we see, again, in that paragraph that’s near the bottom of

the page on my screen, probably about in the middle of the -- oh, there, “The

Haisla Nation does not believe”, et cetera, we see the sentence:

“The Haisla Nation views the risks associated with the

proposed project as inconsistent with Haisla Nation

stewardship principles and the Haisla Nation’s own




aspirations for the use of its lands, waters and resources.”

27886. So I’ll go back to my original question and that is, is Northern

Gateway aware that the Haisla Nation has its own aspirations for the use of the

land where Northern Gateway is proposing to build the tank terminal and the

marine terminal?

27887. MR. JOHN CARRUTHERS: Yes.

27888. MS. GRIFFITH: And Northern Gateway is proposing to use Haisla

Nation Aboriginal title lands for a purpose that is inconsistent with Haisla Nation

exercise of its right to choose its own use for these lands; is that fair?

27889. MS. ESTEP: There was a lot in that question. First of all, it’s

asserted Aboriginal titles, as I think these witnesses have spoken to on a number

of occasions. Perhaps we could break that question down and try it again.

27890. MS. GRIFFITH: Is it fair to say that the Haisla Nation has not

chosen to use these lands for a Northern Gateway oil terminal?

27891. MR. JOHN CARRUTHERS: Again, I think I could just go back to

the evidence that you directed us to earlier.

27892. MS. GRIFFITH: So is it fair to say that Northern Gateway is

proposing to use this land for a use that the Haisla Nation has not chosen?

27893. MS. ESTEP: Madam Chair, to the extent that the Haisla can provide

their own evidence on what their wishes and aspirations are and they’ve done that.

These witnesses can acknowledge that the evidence is on the record but they can’t

speak to the intentions of the Haisla.

27894. THE CHAIRPERSON: Ms. Griffith, did you have any comment on

that?

27895. MS. GRIFFITH: Would Northern Gateway agree that from the

evidence it has received from the Haisla Nation, the project it is proposing is

inconsistent with Haisla Nation stewardship obligations?

27896. MS. ESTEP: Madam Chair, the Haisla are certainly free to take that

position and they can do so in argument.




27897. MS. GRIFFITH: Madam Chair, I’m trying to understand what the

Aboriginal engagement people in Northern Gateway are coming to the Aboriginal

engagement table with in terms of understanding of what the issues are when they

engage with the Haisla Nation.

27898. THE CHAIRPERSON: Ms. Estep, any further comments?

27899. MS. ESTEP: Nothing further, Madam Chair.

27900. THE CHAIRPERSON: Ms. Griffith, we’d ask you to ask your

questions more directly and to not ask the -- it’s not helpful to the Panel to have

questions that you’re posing which are asking Northern Gateway to provide

opinions on what the Haisla Nation may be thinking.

27901. MS. GRIFFITH: I’ll move on to a different line of questions but I

may have to come back to this.

27902. Could I please have Exhibit B2-26, page 191? And at the top of the

page here, we see a reference to ATK with the Haisla Nation.

27903. If you could just read that top paragraph. This refers to some work

being put on hold because of disturbances to traditional resources during

fieldwork. What was the nature of the fieldwork that was being conducted?

27904. THE CHAIRPERSON: Before we go ahead, Ms. Gilbert, could you

scroll up to the page above please? Thank you.

27905. Let’s go back to the page that Ms. Griffith was requesting. And Ms.

Griffith, could you please repeat your question?

27906. MS. GRIFFITH: Yes. What was the nature of the fieldwork that

was being conducted in 2007, that led to the disturbance of traditional resources?

27907. MR. PAUL ANDERSON: Ms. Griffith, we spoke to this in the panel

in Prince George.

27908. MS. GRIFFITH: I think this is relevant to Aboriginal engagement.

It’s set out in this Aboriginal engagement section of the application and it’s

important to understand fieldwork and disturbance to traditional resources in the




context of Aboriginal engagement.

27909. THE CHAIRPERSON: Ms. Griffith, as you can appreciate, we’re

not wanting to have the record repeated to the extent that that’s feasible. I would

invite the witnesses to add any additional information beyond what was already

provided in Prince George.

27910. MR. PAUL ANDERSON: Yes, I fear we are repeating that but it --

we were doing some work for geotechnical reasons.

27911. MS. GRIFFITH: And that work was guided by a fieldwork

management plan; is that correct?


27912. MR. PAUL ANDERSON: To our knowledge, there wasn’t a specific

management plan for this specific work, as we do envision going forward with

these temporary permits that we’ve applied for.

27913. MS. GRIFFITH: Thank you, Mr. Anderson.

27914. Could we please have Exhibit B24-2, page 30? And we see a

reference here to two letters that were sent by Enbridge -- or sorry, Northern

Gateway to Aboriginal groups in British Columbia providing information about

the spill at Kalamazoo. And if we scroll down to the next page, we’ll see that

Haisla -- or Kitimat Village Council is listed for Q10 and Q11 as well.

27915. Has Northern Gateway sent any other updates to Aboriginal groups

about this spill?

27916. MS. JANET HOLDER: There has not been specific letters since this

time, that we’re aware of, to the Haisla Nation. However, Enbridge did provide

information by way of full page ads across B.C. and Alberta as well as we’ve had

meetings on the topic that’s been open to the public in the area. And I think most

of all, we provided extensive evidence with regards to this situation as part of a

panel here in the fall.

27917. So there has been a lot of information provided through different

means. Probably the most extensive would be through this hearing process.




27918. MS. GRIFFITH: So from that, I take that Northern Gateway hasn’t

advised Aboriginal groups that it is opposing the EPA’s proposed administrative

order directing further clean-up. Is that fair?

27919. MS. JANET HOLDER: Sorry; I’m going to have to ask you to

repeat your question. But before you do, I did forget to comment that we also

responded to an IR or a request from the Haisla Nation with regards to the

Marshall spill.

27920. So can you repeat your question?

27921. MS. GRIFFITH: Is it fair to say, though, that Northern Gateway has

not advised Aboriginal groups that it is opposing the EPA’s proposed

administrative order directing further clean-up for the Marshall spill?

27922. THE CHAIRPERSON: Ms. Griffith, can you help the Panel

understand the relevance of this question with respect to the witness panel that’s

been seated here?

27923. MS. GRIFFITH: Yeah, the relevance is that -- is simply this, is that

Northern Gateway has identified all the letters that it has sent to Aboriginal

groups, but when we dig into the content of those letters, they’re not necessarily

disclosing the full story. And there’s a much bigger story still ongoing in

Michigan and Northern Gateway has chosen -- I’m just trying to test whether

Northern Gateway has chosen to communicate that to Aboriginal groups or not.

27924. I’m simply trying to verify what Northern Gateway has or hasn’t done

in terms of Aboriginal engagement and information on the Kalamazoo spill.

27925. MS. JAN WHITNEY: It’s Jan Whitney here. Perhaps I can provide

some content in terms of this table.

27926. We develop these tables for purposes of providing some of the

communication that would have taken place consistently between Alberta and

B.C., and namely, we -- I mean, originally we had newsletters that went out to the

Aboriginal groups and we included all the project filings with the NEB. And at

this time, there was expressed interest from the Aboriginal groups, so we sent out

information specific to the spill. But as you can see, we would not have filed

correspondence -- other correspondence that routinely goes out to the groups back

and forth. So that was the intent of this table.




27927. MS. GRIFFITH: Thank you, Ms. Whitney.

27928. I’d like to just go back to the question, though, and that is, has

Northern Gateway sent any letters to Aboriginal groups advising that it is

opposing the EPA’s proposed administrative order directing further clean-up at

Kalamazoo?

27929. MR. JOHN CARRUTHERS: Difficult for us to answer because

we’re on the panel. I think that’s happening in the last couple days, if I know

what you’re referring to.

27930. And I have never characterized it or wouldn’t have, from the readings

I’ve had, characterize it as opposing. Again, we may have regular dialogue with

the EPA about how best to respond to it. And that’s fairly typical where you’d

work with -- and as we would see going forward and working, if there was ever a

spill in terms of you’d work with various people to, through consultation, try and

come up with the optimum response.

27931. So a lot of people would have different information or views, and

again, you’d work to try and get to a common resolution. But from my

understanding, the question you're asking for was something very recent, and

we’ve been full-time on this panel. But ---

27932. MS. GRIFFITH: But ---

27933. MR. JOHN CARRUTHERS: Sorry. And again, can’t -- there

couldn’t have been more information that we could have provided, I don’t

believe, than what was the providing the expert panel that we did in Prince

George in responding to any questions and -- questions that come to us.

27934. MS. JANET HOLDER: And I think that’s a very fair comment that

Mr. Carruthers just made. The relevance of the Marshall situation was well

canvassed on a panel. We put the best experts we had on the situation. Those

people who were intimately involved and those who really knew all the

circumstances were here on a panel before.

27935. There would be no reason for us to believe that we should be

providing any further information than what’s been provided through this process.




27936. MS. GRIFFITH: So from that, am I to understand that Northern

Gateway has not provided updates as part of its Aboriginal engagement to

Aboriginal groups with respect to the October 3rd

EPA proposed administrative

order and the November 2nd

Enbridge response?

27937. MS. JANET HOLDER: We have not. And I think you used a key

word “proposed”, so that’s why we are really questioning this or struggling to

answer your questioning, is that I think the information that’s relevant has been

provided through this process.

27938. MR. JOHN CARRUTHERS: And again, would be responsive as we

go forward to questions that are being raised. So you know, it evolves, the

process, obviously, as new information becomes available there may or may not

be interest in it.

27939. MS. GRIFFITH: Could we please have exhibit -- actually, before we

go there, Madam Chair, I can’t recall if the break time is usually 10:00 or 10:15.

27940. THE CHAIRPERSON: If this is a good time to take a break, we’ll

take the break now.

27941. MS. GRIFFITH: Sure, we’ll take it now. Thank you.

27942. THE CHAIRPERSON: Okay. Thank you, everyone. Let’s be back

by 20 after 10:00, please.

--- Upon recessing at 10:01 a.m./L’audience est suspendue à 10h01

--- Upon resuming at 10:18 a.m./L’audience est reprise à 10h18









27943. THE CHAIRPERSON: I believe we’re ready to continue. Ms.

Griffith, are you on the line?




27944. MS. GRIFFITH: Yes, I am. Thank you, Madam Chair.

27945. THE CHAIRPERSON: Thank you. Please continue with your

questions.

--- EXAMINATION BY/INTERROGATOIRE PAR MS. GRIFFITH:

(Continued/Suite)


27947. I’d like to go back to a topic I was discussing earlier in relation to the

Haisla Nation Aboriginal title. I just have one or two more questions on that.

27948. Northern Gateway has talked a lot about mitigation of potential

impacts. One thing that Northern Gateway is not proposing to do, though, is

mitigate impacts to Haisla Nation Aboriginal title. Is that fair?

27949. MS. ESTEP: Madam Chair, if I could ask my friend to be more

specific in what she means by mitigating impacts to Aboriginal title? I’m not sure

I understand the question.

27950. MS. GRIFFITH: The project will require the use of Haisla Nation

Aboriginal title lands for the pipeline right-of-way, associated infrastructure and

for the terminal site. Northern Gateway is not proposing to mitigate the alienation

of Haisla Nation Aboriginal title land required for the purposes of the project. Is

that fair?

27951. MS. ESTEP: Can you give me one minute please?

27952. Madam Chair, the question assumes that the Haisla Nation have title to

those areas and we’re trying to be very respectful here, but that is an assertion.

Title has not been proven in Canada for Aboriginal title and we’ve set that out in

the application volume and I don’t think it’s a fair question to put to these

witnesses.

27953. THE CHAIRPERSON: Ms. Griffith, any comments?

27954. MS. GRIFFITH: If you could just give me a minute, please.




27955. Northern Gateway acknowledges that the Haisla Nation has asserted

Aboriginal title; is that fair?

27956. MS. ESTEP: I think we’ve already covered that this morning, but…

27957. THE CHAIRPERSON: Let’s have the witnesses answer that

question please.

27958. MR. JOHN CARRUTHERS: Yes, I think you pointed to what they

have provided in their evidence.

27959. MS. GRIFFITH: And does Northern Gateway acknowledge that if

the Haisla Nation were to establish Aboriginal title to the terminal site, the use of

the terminal site by Northern Gateway would be an infringement of that title?

27960. MS. ESTEP: Madam Chair, that’s a legal question, I object. So

there’s a number of steps that have to occur in there. It’s also a hypothetical

question, so I don’t think it’s a question that’s fairly put to these witnesses.

27961. MS. GRIFFITH: Is Northern Gateway only proposing to mitigate

impacts from the project to proven Aboriginal rights?

27962. MS. ESTEP: I’m sorry, Madam Chair, I don’t mean to be interjecting

every time, but we are covering a lot of areas that involve legal questions, and that

involves a legal question.

27963. MS. GRIFFITH: I disagree that that’s a legal question. I think that’s

a question these witnesses can answer.

27964. MS. ESTEP: Could I ask you to state the question again please?

27965. MS. GRIFFITH: Is Northern Gateway only proposing to mitigate

impacts to proven Aboriginal rights?

27966. MS. ESTEP: Maybe I can state the objection this way. Could you

clarify please what you mean by “proven Aboriginal rights”?

27967. MS. GRIFFITH: By proven Aboriginal rights I mean Aboriginal

rights that have been recognized by the Crown or established in court.




27968. MS. ESTEP: And in this case, which rights are you referring to?

27969. MS. GRIFFITH: I’m not referring to specific Haisla Nation proven

rights. I’m asking -- Northern Gateway’ counsel has raised an objection that

distinguishes between asserted and proven rights and so I’m trying to establish

whether Northern Gateway views, for the purposes of its mitigation on this

project, proven Aboriginal rights as different from asserted Aboriginal rights.

27970. MS. ESTEP: Madam Chair, I’m still not clear what we’re talking

about in terms of proven Aboriginal rights.

27971. These witnesses are here to speak to mitigation measures an they’re

happy to do so. There’s lots of evidence on the record in respect to that. So if we

want to talk about the facts and what Northern Gateway has done or what

Northern Gateway is willing to do, then we’re wide open for that.

27972. MS. GRIFFITH: If Northern Gateway proposing to provide

mitigation for the alienation of land in Haisla Nation territory for the terminal

site?

27973. MS. ESTEP: Madam Chair, I’m sorry, that assumes that the Haisla

have title to that land, which they do not.

27974. MS. GRIFFITH: Could we please have Exhibit B207-8, page 54

through -- sorry, 53 through 54.

27975. This is the Aboriginal engagement update filed by Northern Gateway

on February 23rd

, 2013, and if we get to the bottom there, we see the update for

the Haisla Nation.

27976. Northern Gateway in this refers to a letter sent in late December or

refers to letters sent in late December; what were the dates of those letters?


27977. THE CHAIRPERSON: Ms. Gilbert, while the witnesses are seeking

the answer to the question that’s been asked, could we get an AQ please for the

Haisla Nation for this witness panel? Sorry, an AQ number?




27978. THE REGULATORY OFFICER: AQ73.

--- AID TO CROSS-EXAMINATION NO./AIDE AU CONTRE-

INTERROGATOIRE No. AQ73:

Haisla Nation - Aids to cross-examination

27979. MR. JOHN CARRUTHERS: In terms of the evidence it says in

early December, Northern Gateway corresponded with the Haisla Nation and I

believe those might have been emails. I’m not positive, because the letter I’m

most familiar with is the December 20th letter, if that’s what you might be

referring.

27980. MS. GRIFFITH: And then Northern Gateway also refers to

receiving a letter from the Haisla Nation in January, mid-January; what was the

date of that letter?

27981. MR. JOHN CARRUTHERS: January 11th.

27982. MS. GRIFFITH: And in that letter the Haisla Nation advised that it

was concerned about physical impacts to its territory from the proposed field

work; is that fair?

27983. MR. JOHN CARRUTHERS: Yeah, if you can just point us to the

clause, it would be most instructive.

27984. MS. GRIFFITH: Yeah, could we please have Haisla Nation AQ,

Aboriginal Engagement Number 4 please. We could scroll down please to the

next page. If we could just stop there. That last -- or on page 3 of 5 on the fax

there, I guess it’s Adobe page 2 or 3. I can’t tell from my screen.

27985. It says that:

“If the proposed project can’t go ahead, the investigatory work

in Haisla Nation territory that results in ground alteration

and/or other impacts to Haisla Nation territory will have been

unnecessary.” (As read)

27986. MR. JOHN CARRUTHERS: And your question was?




27987. MS. GRIFFITH: I just wanted you to confirm that that’s what the

Haisla Nation disclosed in this letter.

27988. MR. JOHN CARRUTHERS: That the second paragraph is what the

Haisla said?

27989. MS. GRIFFITH: Do you acknowledge that in that letter of January

11th

, the Haisla Nation advised that it was concerned about physical impacts to its

territory from the proposed field work?

27990. MR. JOHN CARRUTHERS: Again, since it’s in front of us, we

might just go to the specific sentence that says:

“…the Haisla are therefore reluctant to allow work that will

result in impacts to its territory to proceed for the proposed

project at this time.”

27991. So we have no better information than what’s in that paragraph.

27992. MS. GRIFFITH: Okay. And the Haisla Nation also raised concerns

about the timing of the field work. Is that fair?

27993. MR. JOHN CARRUTHERS: Again, they would have seen the

proposed investigations as premature as per the letter.

27994. MS. GRIFFITH: The Haisla Nation also raised concerns about the

timing of the work and winter ungulates, particularly mountain goat habitat. Is

that fair?

27995. MR. JOHN CARRUTHERS: It might be quicker if you just point

me to that paragraph and I expect we’ll agree that that’s what the paragraph says.

27996. MS. GRIFFITH: Okay, if we could scroll down, please, to the next

page. And I think it’s on the next page. Might be further down.

27997. There. If we could just stop. I think it might have been just in the

middle of the page there:

“Northern Gateway has already acknowledged in its oral

evidence that the least risk period for mountain goats is from




June 15th

to October 31st. A temporary permit application

itself states that Northern Gateway intends to conduct

exploratory work starting April 1st, 2013.”

27998. So can you acknowledge that the Haisla Nation advised that it was

concerned about the proposed work in relation to the least risk period for

mountain goats?


27999. MR. JOHN CARRUTHERS: So again, they do note the periods and

they have raised this issue, but they -- I’m not sure. The point to me was that the

results would not be available for this Joint Review Panel process, so ---

28000. MR. PAUL ANDERSON: I think in the paragraph in Section 4, you

-- the Haisla speak to the least risk period for mountain goats. And we would

acknowledge that June 15th

to October 31st is a general timing constraint. It -- and

it has both a temporal and spatial parameters that are associated with it.


28002. When we go to the Exhibit B207-8, the Aboriginal update on recent

engagement with the Haisla Nation, and we look at that sentence:

“…the Haisla Nation Council raised concerns regarding

Northern Gateway’s intention to complete investigative work in

their traditional territory, given the project had not yet

received approval.”

28003. That really doesn't capture fully the concerns that were set out in the

Haisla Nation’s letter, does it?


28004. MR. JOHN CARRUTHERS: Again, just to put it in context, this is

a permit application. And maybe Mr. Doering can kind of describe the type of

work that we envisioned in this program.

28005. It’s quite common work. It’s being done regularly in the area. This is

a permit application that has a summary.




28006. So we do fully recognize that nobody can represent the Haisla views as

well as they do, but we did try and put the context in for this application.

28007. MS. JANET HOLDER: I just want to add, this document you’re

referring to under 6.9.3 -- or Section 6.9.3 is just that; it is a summary. There’s

absolutely no way that we could reasonably provide details of every single letter,

email we receive on this application and present it and have it be meaningful

because the reams of pages of information that would be filed would be

astronomical.

28008. The evidence just from this panel alone, meaning the public

consultation and Aboriginal engagement, is in itself 7,500 pages, not including the

responses to information requests and not including transcripts and aids.

28009. That’s just the evidence alone. So if we were to expand this to really

provide all details of every single thing that we receive would just be a

monumental task and probably result in less meaning to the Panel here today.

28010. MR. JOHN CARRUTHERS: And again, I think we did try and

capture that -- as I continue to read that the concerns and interests as set out in

their correspondence. So we did acknowledge that.

28011. MS. GRIFFITH: So thank you, Ms. Holder and Mr. Carruthers.

28012. So from that, I’m understanding that Northern Gateway makes the

decision about the extent to which the information Aboriginal groups provide to it

will be set out in the Aboriginal engagement updates and then provides those

updates. Is that fair?

28013. MR. JOHN CARRUTHERS: The Board has asked us -- again, we

provide updates as requested by the Board, and we do need to respond to those.

And they are, again, on the public record. So we do try in the way that the

Board’s asked, respond to their specific questions.

28014. MS. JANET HOLDER: And again, this process is very open and

transparent and provides opportunity for the Haisla Nation, as we are today, to

fully discuss these matters and expand upon them if it’s felt important by the

Haisla Nation.




28015. MS. GRIFFITH: Northern Gateway also refers to its response -- its

response to the Haisla Nation’s letter of January 11th. And that was a letter dated

January 21st. Is that fair?

28016. MS. JANET HOLDER: Yes, it is.

28017. MS. GRIFFITH: And in that letter, Northern Gateway offered to

meet to discuss possible alternative approaches and refinements to field work. Is

that right?

28018. MS. JANET HOLDER: That is correct.

28019. MS. GRIFFITH: Was that offer to meet to discuss possible

alternative approaches a genuine offer?

28020. MS. JANET HOLDER: Definitely.

28021. MS. GRIFFITH: And on January 22nd

, the very next day, Northern

Gateway sent another letter with an additional 11 applications for temporary use

permits. Is that right?

28022. MR. JOHN CARRUTHERS: Yes, that’s correct.

28023. MS. GRIFFITH: And this was despite the fact that the Haisla Nation

had informed Northern Gateway of its views on January 11th

; correct?

28024. MR. JOHN CARRUTHERS: Yes. We were aware of the views of

January 11th

and we would propose that we were looking to comply with what --

our letter of the 21st, yes.

28025. MS. GRIFFITH: And the additional temporary use permit

applications were filed on January 21st despite Northern Gateway’s offer to meet

with the Haisla to discuss possible alternative approaches and refinements to the

field work and to seek an outcome amenable to both parties. Is that fair?

28026. MR. PAUL ANDERSON: I think it’s important to look at the

process that we set out for these temporary permits for investigation. And in the

management plan that was provided as part of the applications, it details how we

develop -- how this process works.




28027. The application is simply that, it was to meet provincial regulatory

requirements for a permit, but the process outlines how we will do preliminary

review to refine the locations of the sites, determine access to minimize

disturbance to the environment. It also outlines how we will incorporate

information from the Haisla into that -- into more detailed planning with respect

to a site-specific execution plan for each of these locations. It also incorporates

how we have archaeological and forestry, safety and environmental monitoring

incorporated into the overall plan.

28028. So these were simply applications that went to the provincial

government but it doesn’t negate the process which we have in place to further

refine and develop those as part of an ongoing process to minimize the

disturbance and get the information we require. So I do not see them being

incongruent in any way.

28029. MR. RAY DOERING: And just to add onto Mr. Anderson’s

comment, the site-specific execution plan which is described within the

application and within the management plan is the core document -- is the core

plan for this project. And that is the plan where all of the concerns and issues that

could be raised in ongoing discussion and dialogue with the Haisla would be

addressed to ensure that the geotechnical work is undertaken with minimal

impact.

28030. These are routine activities undertaken by many Proponents on Crown

land within the Kitimat Valley and really that will be addressed through the site-

specific execution plan. The temporary permit application process is a lengthy

one with the province -- with forest lands natural resource operations.

28031. The service guidelines would allow the provincial agency to take up to

120 days to issue those permits and it’s really during that time where we would

develop the site-specific execution plans for each of the sites.

28032. MS. GRIFFITH: And Northern Gateway also refers to a letter

received in February of 2013. That was a letter dated February 1st that raised

concerns with the additional 11 applications for TUPs that Northern Gateway

filed; is that right?

28033. MR. JOHN CARRUTHERS: Again, just so we can follow along,

can you point exactly to where you’re referencing?




28034. MS. GRIFFITH: Yes, if we could call up Haisla Nation AQ Number

3, please?


28036. MS. GRIFFITH: This is a letter responding to the January 21st and

22nd

letters and the new -- the 11 new temporary use permit applications. And it

raises a number of errors and omissions in the applications. I’d ask you to just to

read the highlighted portions because -- it might take a while but there was a

number of comments on errors, omissions in the applications.

28037. MR. JOHN CARRUTHERS: Sorry, I thought you referenced what

we said. That’s what I was looking for.

28038. MS. GRIFFITH: Oh, what you said. Sorry, I can do that as well.

28039. MR. JOHN CARRUTHERS: I thought that was your question, so if

you could just point to that and then we’ll go where that takes us please.

28040. MS. GRIFFITH: I can do that.

28041. At the -- and in Exhibit B207-8, page 53, if we scroll down -- if we

could just scroll down a little bit please? There.

28042. “In February 2013, Northern Gateway…”-- it’s near the top of the

screen there now.

“In February, 2013, Northern Gateway received

correspondence from the Haisla Nation Council addressing…”

28043. Et cetera, et cetera.

28044. So I just wanted to confirm that that was a reference to the February 1st

letter from the Haisla Nation?

28045. MR. JOHN CARRUTHERS: Okay, thank you.

28046. MS. GRIFFITH: And does Northern Gateway acknowledge that that

February 1st letter identified a number of error and omissions in the temporary use

permit applications?




28047. MR. JOHN CARRUTHERS: Not necessarily errors or omissions, it

identified some concerns that the Haisla had, yes.

28048. MR. PAUL ANDERSON: And to be fair, it does identify several

errors and omissions and in some cases, there -- we agree that there were -- there

was at least one error made. But as I said, the process will continue going

forward to include additional information. So the omissions is -- you know, we

don’t agree that they’re omissions, that information would be provided in the site-

specific execution plans.

28049. MS. GRIFFITH: Would you agree that the Haisla Nation also

identified some substantive concerns with each of the temporary use permit

applications?

28050. MR. PAUL ANDERSON: I would not agree that they’re substantive

concerns from our perspective. I would agree that if they were stand -- these were

stand-alone documents that did not -- were not part of a process, there would not

be sufficient information in order to execute the work as we proposed to do it in

our management plan.

28051. MS. GRIFFITH: Could we please go back to that AQ Number 3?

And could we please go to page 4, near the bottom?

28052. With respect to the Chist Creek crossing area, the highlighted section

there. Could you please read the highlighted portions under the heading, “Chist

Creek” on page 4 and over on to the next page to where the section on Onion

Lake Delta is?


28053. MR. RAY DOERING: We have reviewed the section in front of us.

28054. MS. GRIFFITH: So in that section, the Haisla Nation raised the

concern that was raised in other -- with respect to a number of other of the

applications as well and that is that a number of these areas were seeking new

access roads. Is that fair that that’s what the Haisla Nation has identified here?

28055. MR. RAY DOERING: That is what the letter says.




28056. MS. GRIFFITH: And the letter also says -- or states that the

applications were misleading about the extent to which new access roads are

required. Do you see that? I think it’s on page 4.


28057. MR. RAY DOERING: We see the comment you are making in the

letter. We disagree. The applications described the great extent we’ve gone

through to identify geotechnical investigation locations that will take advantage

and utilize existing roads and trails to the greatest extent. So we would disagree

that there’s going to be substantial new access roads required.

28058. MS. GRIFFITH: So will there be new access roads required?

28059. MR. RAY DOERING: Not roads, there will be a small amount of

minimal trail construction required, but not roads.

28060. MR. JEFFREY GREEN: Ms. Griffith, it’s Jeff Green too.

28061. I would just say that I would disagree with the statement in the letter

that we revealed that Northern Gateway has failed to consider the environmental

impacts associated with clearing of new access roads. That is not the case.

28062. In Volume B3-6, we spoke to the access management plan for wildlife

at some length. It was not a geospatial analysis because the location of the roads

were not known but we definitely did consider the effects and the caribou habitat

compensation plan was spoken to, as an example, spoke very specifically to the

creation of new access.

28063. MS. GRIFFITH: But these particular new access routes or trails that

are required were not identified specifically, geospatially, in the ESA; is that fair?

28064. MR. JEFFREY GREEN: That’s correct; they were not identified

geospatially because the exact locations of access roads -- the requirement for

new access was not known. And -- and so the intent was to assess the effects

qualitatively and -- and then provide mitigation for those effects.

28065. MR. RAY DOERING: And we are working through issues with the

Forest Lands and Natural Resource Operations. We’ve spent a few months

working with that organization to basically build the content of these temporary




permit applications. And we are providing the information as requested by Forest

Lands and Natural Resource Operations for this geotechnical investigation

activity.

28066. MS. GRIFFITH: But this activity will not be assessed as part of the

JRP process?

28067. MR. PAUL ANDERSON: As -- as Mr. Green mentioned, it has been

assessed. It’s been incorporated in a -- in a general way as part of what we

anticipated work that would be going on as part of -- as part of the project as it

was described. These kinds of activities were mentioned in the assessment and

Mr. Green’s already mentioned that.

28068. I’d also remind you that as part of this permitting process we have to

go through and identify what we’re doing and how we’re going to do it and it’s

part of the permitting process to consider the environmental implications of

everything we do.


28070. If we could go back to Exhibit B207-8. And just at the bottom of the

-- on page 53 again.

28071. I’m sorry, if we could just scroll up to the bottom of page 53, the top

of page 54; if we could get that spilt there. I think it’s – is it the next page up?

On the -- the discussion of Haisla, I think it’s 2.9, I think it’s Adobe page 54 --

sorry, 53. That will work there. Sorry, it was there. We actually do have to go

to 54, sorry. So a little bit further down. There.

28072. So there we see:

“In February 2013, Northern Gateway received

correspondence from the Haisla Nation Council addressing

additional concerns with the [TUP’s] as well as specific

concerns relating to each application area.”

28073. Again the -- this one sentence really doesn’t capture the full extent of

the Haisla Nation concerns as set out in that February 1st letter does it?

28074. MR. JOHN CARRUTHERS: Again, we did not incorporate the




entire letter here.

28075. MS. GRIFFITH: Northern Gateway’s Aboriginal engagement update

from February 23rd

also refers to a letter dated November 14th, 2012, that was sent

to First Nations soliciting questions and comments on the material filed by

Northern Gateway in the JRP process on Aboriginal engagement.

28076. It was identified in Appendix A and also I think in this document at

page 9. We see it there at the top of the screen there’s a reference to the letter sent

by Northern Gateway.

28077. The Haisla Nation has provided its comments; correct?

28078. MS. JANET HOLDER: As we’ve been busy gathering the various

documents I think -- can you just put that question in context?

28079. MS. GRIFFITH: Yes. Can you confirm that the Haisla Nation has

provided comments in response to the November letter identified by Northern

Gateway in its Aboriginal engagement update in which Northern Gateway sought

questions and comments on the materials filed by Northern Gateway in the Joint

Review Panel process on Aboriginal engagement?

28080. MS. JANET HOLDER: I’m sorry to have to do this again because I

think I -- I’ve confused who is “it” and who is “we” here. So can you just repeat

your question one more time because it was quite lengthy?

28081. MS. GRIFFITH: Can you confirm that the Haisla Nation has replied

to Northern Gateway’s letter seeking comments or questions on material filed by

Northern Gateway in the Joint Review Panel process on Aboriginal engagement?

28082. MS. ESTEP: Madam Chair, Ms. Griffiths, might I suggest, for the

purposes of efficiency that we just go to your aid?

28083. MS. GRIFFITH: Sure. We can do that. I was trying to reduce

reliance on aids but we can do that.

28084. If we could have Aid Number 7. This is the response letter provided

by the Haisla Nation to that November 14th letter from Northern Gateway.

28085. Can you just confirm that these comments have not been captured in




the February 23rd

update that Northern Gateway provided in this Joint Review

Panel process?

28086. MR. JOHN CARRUTHERS: I think if we went back to the letter it

would outline the date of the consultation that was incorporated.

28087. MS. GRIFFITH: I just wanted to confirm that the February 23rd

update was written prior to Northern Gateway having received this letter and

therefore, does not incorporate the comments provided by the Haisla Nation in

this letter.

28088. MS. JANET HOLDER: Just to be clear the Exhibit B -- sorry,

Exhibit B207-8 was updated prior to the letter that we received dated February

20th.


28090. Could we turn to page 16, please? Sorry, page 16 of the AQ Number

7.

28091. And I just would simply like Northern Gateway to confirm that the

Haisla Nation has informed Northern Gateway that the commitments identified in

attachment JRP IR 15.1 do not address or alleviate the concerns the Haisla Nation

has about the potential impacts of this project on the lands, waters and resources

and on Haisla Nation culture and cultural heritage.

28092. Can Northern Gateway confirm that please?

28093. MR. JOHN CARRUTHERS: Yes that’s what the letter of -- from

the Haisla of February 20th

states.

28094. MS. GRIFFITH: Thank you, Mr. Carruthers.

28095. Now, earlier today Northern Gateway confirmed its understanding that

its engagement with First Nations is helping to discharge part of the procedural

consultations of the Crown; is that fair?

28096. MR. PAUL ANDERSON: I think it’s fair to say that Northern

Gateway has a role to play in consultation.




28097. MS. GRIFFITH: And in conducting those engagement processes, is

Northern Gateway soliciting and addressing concerns related to asserted

Aboriginal title?

28098. MR. PAUL ANDERSON: As we’ve been directed in the scope of

factors to be considered, we’ve been gathering information about traditional use

and Aboriginal interests related to the project.

28099. MS. GRIFFITH: And does that include Aboriginal title?

28100. MR. PAUL ANDERSON: That is up for the -- up to the Aboriginal

communities that we’re dealing with to bring that up as an interest.

28101. MS. JANET HOLDER: And title is a matter between the Crown and

the First Nation.

28102. MS. GRIFFITH: So does that mean Northern Gateway is not

engaging over Aboriginal title rights?

28103. MR. PAUL ANDERSON: I think, in terms of our engagement,

we’ve been engaging on the issues and interests and concerns that are raised by

the communities and we engage and discuss as those communities and as those

consultations evolve.

28104. MS. GRIFFITH: And so is it Northern Gateway’s position that it is

engaging with the Haisla Nation with respect to Aboriginal title?

28105. MS. JANET HOLDER: I believe that there was a letter from CEAA

addressing that issue and how CEAA actually views the role of this process in

addressing consultation.

28106. With regards to title, as we’ve said, I think that is really between the

Crown and the First Nation, or in this case the Haisla Nation, and what we have

done is sort of taken this practical approach. We have not challenged what people

have asserted. What you assert is what you have a right to assert and that has not

been an issue that we have taken on to ourselves or challenged.

28107. MS. GRIFFITH: And is Northern Gateway addressing those

concerns, Aboriginal title concerns, in its project design?




28108. MS. ESTEP: Madam Chair, if I could ask my friend to be more

specific with her question please.

28109. MS. GRIFFITH: Is Northern Gateway addressing the Haisla

Nation’s Aboriginal title concerns through its mitigation measures?

28110. MS. JANET HOLDER: I’m going to try to restate this one other

way. Throughout our project Northern Gateway really has endeavoured to avoid

characterizing or taking a position on the merits of the claim asserted by the

Haisla Nation with regards to rights, including title.

28111. Again, we really have taken or sought to identify, you know, interest

and concerns underlying those claims so the project could be developed in a

manner that achieves alignment between those groups -- you know, between

ourselves and the Haisla Nation where practicable.

28112. And I believe Mr. Green and Mr. Anderson can provide lots of

information on what we’ve done with regards to mitigation.

28113. MR. PAUL ANDERSON: And we don’t try to make any distinction

around title or any aspects for that matter. Issues and interests are identified and

we try to mitigate them through the project where we can incorporate them

through -- in our initial design or in through detailed design. We will continue to

try to mitigate interests that are brought up and issues that are brought up, and we

always provide an opportunity for further dialogue and consultation on them.

28114. MR. RAY DOERING: And perhaps, if I could just add. The project

has considered Haisla’s concerns regarding the potential for spills in the Kitimat

Valley, and that is why the project design has been modified as we’ve gone

through the project.

28115. We’ve looked at undertaking mitigation measures, such as increasing

wall thickness, increasing a number of isolation valves, identifying potential

diversion structures, enhancing operational measures, leak detection measures

through the Kitimat Valley, and these have all been well described through the

Kitimat Valley design, construction and operations reports and other evidence that

we filed as reply evidence and as response to IRs, specifically to address concerns

that we’re hearing through ongoing engagement with Haisla.

28116. MS. GRIFFITH: And what steps is Northern Gateway proposing to




address what the Haisla Nation has identified as a use for its territorial lands and

its title land that is inconsistent with Haisla Nation’s stewardship obligations?

28117. MR. JOHN CARRUTHERS: Again, we would -- we first had

discussions about the terminal site, as we talked about in earlier panels, about

where the route would go and where it would terminate, and at that time we’d had

-- and this goes back into the early 2000s but eventually we settled on Kitimat as

the proposed terminus of the project. And we’d had discussions at that time about

the terminal site with the Haisla and we did get a map reserved with the Province

of B.C, and that would have been back in 2006 I believe.

28118. So much of what we’re hearing -- and at that point we -- I don’t recall

having any objection from what the Haisla would have said to the location of the

terminal site. In fact, directionally, I saw some support.

28119. Now, it wasn’t firmed up because again the Haisla had wanted to make

sure that their safety issues were addressed. But certainly that map reserve was

there since, I think, 2006 and some of these -- some of this information is coming

up, at this point, in terms of concerns.

28120. So again, we would -- we understand it, and what we’re trying to do,

as we’ve talked significantly about, as these concerns are raised -- and some of

these are being raised later in the process -- we still try and address them because

obviously they’re areas of importance and they would like to work with the Haisla

in terms of mitigating specific concerns that they have.

28121. But this issue has evolved to where we have more information of what

the Haisla’s concerns are, but again, that’s what, I would say, is an ongoing

consultation process.

28122. MS. GRIFFITH: And just to go back to something Ms. Holder said

earlier, that Northern Gateway is of the view that that consultation process is to be

between the Haisla Nation and the federal government; is that fair?

28123. MS. JANET HOLDER: No, I think I said the issue of title is

between the government and the Haisla Nation.

28124. What we have been trying -- what we have been saying here, and I

think repeating fairly consistently actually, is a response to an IR request from the

Haisla Nation to Northern Gateway and that’s IR Request Number 1GH and that




is at Exhibit -- if I get this right -- exhibit -- sorry, I’m going to have to -- I have

an old reference number not a new reference number so -- but just wait and see if

I can find the actual exhibit number.


28125. MS. JANET HOLDER: Sorry. As I said, this is a very extensive file

and when you’re trying to find that one needle in the 8,000 pages, it can be a

challenge.

28126. So it’s Exhibit B39-3, Adobe page 53. On the very bottom of the

page, there’s one sentence -- I think I got it right. So I think that response under

GH -- and if you go to the top of the next page, you’ll see the rest of the response

-- is a good summary of what we have been trying to portray here today.

28127. So I have not made the comment that consultation is between the

Crown and First Nations. I made the comment that the title is. We do believe

that the Crown or through, I guess -- through -- the Crown has assigned us certain

procedural aspects of their duty to consult and that role is part of this process, this

hearing process.

28128. And we have been doing everything in our power to fulfil that role that

has been outlined to us through the Aboriginal consultation framework. I think

we have gone well in excess of what’s ever been required of a proponent in any

application before the National Energy Board and we take, actually, great pride in

that.

28129. And again, I have to state that it’s not -- it has not ended. We are

continuing to consult. We continue to be engaged. We want to be continue -- we

want to continue to engage.

28130. We’ve had ongoing meetings with the Haisla Nation. We continue to

have ongoing meetings with the Haisla Nation. We’ve had meetings with the

Haisla Nations even since these letters have been filed that you’ve been referring

to through your aids to cross and we will continue to engage throughout the

process, as I’d mentioned earlier.

28131. MS. GRIFFITH: Thank you, Ms. Holder. I’d like to move on to a

slightly different topic, and that relates to the marine component.




28132. Is Northern Gateway aware that First Nations on the coast, including

the Haisla Nation, have now -- have been engaged in management and planning

initiatives for their marine waters for quite some time now?

28133. MR. JOHN CARRUTHERS: Yes, we are.

28134. MS. GRIFFITH: And are you familiar with the Pacific North Coast

Integrated Management Area, or PNCIMA?


28136. MS. GRIFFITH: And are you aware that First Nations on the coast

are involved in the PNCIMA initiative?

28137. MR. JOHN CARRUTHERS: Yes, we are.

28138. MS. GRIFFITH: And are you familiar with the First Nation marine

planning initiatives associated with PNCIMA?

28139. MR. JEFFREY GREEN: We’re aware of the general planning

initiatives, and information from PNCIMA was used in the marine environmental

assessment.

28140. MS. GRIFFITH: And are you aware that the Haisla Nation is one of

the First Nations participating in the PNCIMA initiative?

28141. MR. JEFFREY GREEN: Yes, we are.

28142. MS. GRIFFITH: And as originally conceived, PNCIMA was going

to have as one of its outputs marine planning and zoning. Is that fair?

28143. MR. JEFFREY GREEN: Yes, in a general sense. Like the intent

was to look at different sensitivities and then provide recommendations on

different types of views.

28144. MS. GRIFFITH: And was Northern Gateway involved in

discussions within the context of PNCIMA on marine planning and zoning?

28145. MR. JOHN CARRUTHERS: We have been participating, yes.




28146. MS. GRIFFITH: In your view, did First Nations on the coast have

high aspirations for planning and zoning that might result from PNCIMA as it

was originally conceived?

28147. MR. JOHN CARRUTHERS: I’m not sure I could speak for their

aspirations.

28148. MS. GRIFFITH: The PNCIMA initiative created a forum for

stakeholders, including industry representatives and First Nations, to discuss

marine transportation, vessel safety and spills. Is that fair?


28150. MS. GRIFFITH: And was Northern Gateway involved in

discussions within the context of PNCIMA on marine transportation, vessel safety

and spills?

28151. MR. JOHN CARRUTHERS: Yes, we are participant in the

PNCIMA process to a limited -- to an extent.

28152. MS. GRIFFITH: Is the PNCIMA process still engaged in

discussions on marine transportation, vessel safety and spills?

28153. MR. JOHN CARRUTHERS: I believe there was a recent meeting,

but I’m not sure of the agenda for that meeting.

28154. MS. GRIFFITH: Could we please have aid to cross number 1 from

the Haisla Nation?

28155. Have you had an opportunity to review this aid to cross?

28156. MR. JOHN CARRUTHERS: Yes, I have.

28157. MS. GRIFFITH: This presentation by Northern Gateway to DFO

made in December of 2010 was obtained under an Access to Information request

to the Department of Fisheries and Oceans.

28158. Were you aware that Northern Gateway had made this presentation to

DFO in December of 2010?





28160. MS. GRIFFITH: And did you participate in this presentation?

28161. MR. JOHN CARRUTHERS: I did not, but there would have been

representation from Northern Gateway.

28162. MS. GRIFFITH: And have you had an opportunity to review, in

particular, the highlighted portions?

28163. MR. JOHN CARRUTHERS: I have.

28164. MS. GRIFFITH: Turning to page 7, we see here that Northern

Gateway raised questions on the credibility of the PNCIMA process with DFO.

Were you aware of that?

28165. MR. JOHN CARRUTHERS: We did raise concerns with respect to

the funding and the organizational structure of PNCIMA.

28166. MS. GRIFFITH: And this is a document prepared by Northern

Gateway, correct, that we’re looking at?

28167. MR. JOHN CARRUTHERS: Yes, it is.

28168. MS. GRIFFITH: And so that first highlighted section reads, towards

the end -- I’ll read the whole thing:

“The PNCIMA administrative support role of Tides Canada in

areas such a stakeholder engagement and information

gathering, while actively working to stop expansion of the oil

sands prevent a west coast oil terminal from being developed

and stop tanker traffic on the PNC [presumably Pacific North

Coast] will seriously impact the credibility of any PNCIMA

plan which recommends zoning restrictions on tankers in the

region.” (As read)

28169. So do you acknowledge that Northern Gateway raised questions on the

credibility of the PNCIMA process with DFO?

28170. MR. JOHN CARRUTHERS: We did have concerns with respect to




the role of Tides Canada. And to put that in perspective, if we could bring up

B70-8 -- so that’s B70-8.

28171. And it’s a fairly lengthy presentation about the tar sands campaign that

was brought up through the Rockefeller Brothers. And I don’t have to go through

it all, but I would like if we’d go to page 12. And then this is what they -- it’s a

globally significant response network of leading U.S. and Canadian NGO’s

coordinated structure, a $7 million a year campaign.

28172. And if we go then to Slide 14, there we want -- their theory of change

was to slow down and stop infrastructure. And this is broader than just Canadian

it goes into U.S. interests as well.

28173. If we go to Slide 16, again one of the strategies -- the track one, in fact,

was to stop limit pipelines. And then if we go to 21, tar sands campaign structure

they had a -- you know -- U.S. and Canadian component. If we go to 23, the

structure again went to a steering committee and which incorporated the

coordinators, funders and the Tides tar sand fund.

28174. At 24, again we go back to the budget of $7 million; 25, we see some

of the -- you know, they have a Canadian context, in this case, led by Pembina;

29, stop limit pipelines as their strategy; 36, looking for more resources. So it’s

significant resources. And here they go through the resources are required for

ongoing engagement, a regulatory approval process, First Nation and other legal

challenges.

28175. And if we then go to page 42 they talk about the Midwest and western

regions of the United States are right for regional campaigns. And that went back

a little bit to what I talked about yesterday where it’s of global interest for Canada

to have the west coast access.

28176. And we see things like important infrastructure being built, like

Keystone XL, and it’s -- you know, the process has taken a long time, and even if

that does come through, we may see more and more of this as we go forward

where even if we solve what I characterized as the bitumen bubble yesterday, you

know, I think we could see ongoing incurrence as we try and expand Canada’s

resource for Canadian interest. But this is consistent with what we are seeing

today.

28177. And if I go to slide 45, you know, raise the financial risk. So again, in




raise the risk profile, and this goes to where they’re showing Enbridge.

28178. So again, we did have, based on this type of information, a significant

concern on the roles that Tides Canada was playing in the PNCIMA process.

28179. MS. GRIFFITH: And so can you confirm that because of that

concern you raised questions on the credibility of the PNCIMA process with

DFO?

28180. MR. JOHN CARRUTHERS: No, our concerns really went to the

elements of the PNCIMA work plan and areas such as stakeholder engagement,

information gathering and administration. You know, given that Tides Canada

was a primary sponsor of the anti-oil sands campaign, providing them with a role

in stakeholder engagement and information gathering clearly went beyond what

we saw as a funding arrangement, so we did have concerns on that aspect.

28181. MS. GRIFFITH: And did Northern Gateway raise this issue in its

engagement with Aboriginal groups in the context of the Northern Gateway

Project?

28182. MR. JOHN CARRUTHERS: I was just looking at something, could

you repeat the question please?

28183. MS. GRIFFITH: Did Northern Gateway raise this issue, its concerns

with Tides Canada’s involvement with Aboriginal groups in the context of the

Northern Gateway Project?

28184. MR. JOHN CARRUTHERS: I’m not aware of a specific

presentation, but I’m not aware that it was restricted either.

28185. MS. GRIFFITH: Did Northern Gateway advise the Haisla Nation

that it had concerns with funding being provided through Tides Canada and how

that might affect zoning coming out of PNCIMA?

28186. MR. JOHN CARRUTHERS: I can’t specifically remember, but I

don’t -- can’t think of a reason why we would have been concerned if it came up.

So I just don’t remember a specific presentation, but we would have had regular

dialogue with the Haisla throughout the period, and so I don’t expect it would

have been something we would have been shy about talking about.




28187. MS. GRIFFITH: But you can confirm that Northern Gateway didn’t

raise this issue with the Haisla Nation before making this presentation to DFO; is

that fair?

28188. MR. JOHN CARRUTHERS: No, I cannot confirm that. In fact, I

was not confirming that.

28189. MS. GRIFFITH: So you don’t know whether Northern Gateway

raised this issue with the Haisla Nation or any other coastal First Nations before

making this presentation to DFO; is that what I’m hearing?

28190. MR. JOHN CARRUTHERS: I cannot confirm that we made a

special presentation with that. Again, I -- it would have been a view of ours so

I’m not sure how we might have shared that.

28191. MS. GRIFFITH: Do you know whether Northern Gateway advised

the Haisla Nation that it intended to raise this issue with DFO?

28192. MR. JOHN CARRUTHERS: No, I cannot. I think I’ve answered

that question.

28193. MS. GRIFFITH: If we could go back to the AQ of the Haisla Nation

---

28194. MS. JANET HOLDER: Sorry, can I just interrupt?

28195. MS. GRIFFITH: --- on page 7?

28196. MS. JANET HOLDER: Can I just interrupt? In that the Haisla may

be present at one of our CAB meetings, this is a topic that had been discussed at

CAB meetings, so there could have been something through that process, but we

had not -- we don’t recall any specific literature or letters that went directly to the

Haisla on this matter.

28197. MS. GRIFFITH: At the bottom of this page we see a reference here

that through Northern Gateway and other industry representatives possibly

needing to reconsider their participation in the PNCIMA initiative under the

circumstances outlined by Northern Gateway in this deck. Did Northern Gateway

in fact withdraw from the PNCIMA process?




28198. MR. JOHN CARRUTHERS: We are still a participant.

28199. MS. GRIFFITH: So then you’re aware, are you not, that the

PNCIMA initiative has been watered down as a result of DFO withdrawing some

funding from the initiative?

28200. MR. JOHN CARRUTHERS: Again, I would not characterize it as

watering down.

28201. MS. GRIFFITH: But the plan to be developed under the current

PNCIMA initiative no longer has marine zoning as an outcome; is that fair?

28202. MR. JOHN CARRUTHERS: I have not participated so I could not

confirm that.

28203. MS. GRIFFITH: Can anyone else on this Aboriginal Engagement

Panel speak to that?

28204. MR. JOHN CARRUTHERS: No.

28205. MS. GRIFFITH: Did Northern Gateway have any discussions with

DFO about PNCIMA after this December 2010 presentation?

28206. MR. JOHN CARRUTHERS: Again, I’m not aware of a specific

presentation. PNCIMA -- the subject may have come up at -- in conversation as a

point of interest. Clearly we did not at any time ask the government to cancel

PNCIMA or anything, but it would have been a conversation that could have

come up.

28207. MS. JANET HOLDER: I think it is fair to say that as we have

general meetings, update meetings, with the Ministry, that this would be -- was a

topic of interest and was raised. But again, we never ever were lobbying to cancel

PNCIMA and it was just a topic of conversation and update -- or topic of interest

and update.

28208. MS. GRIFFITH: Does Northern Gateway make it a habit of putting

together comprehensive slide presentations like this for topics of conversation and

update?

28209. MR. JOHN CARRUTHERS: No, the presentation -- the one was




specific. It again had broader information but in that case, clearly there was a

focus on PNCIMA for that presentation.

28210. MS. JANET HOLDER: And that was actually reported in the

lobbyist registry.

28211. MS. GRIFFITH: So Northern Gateway acknowledges that this

presentation was a lobbying activity on the part of Northern Gateway?

28212. MR. JOHN CARRUTHERS: No, I -- well, I’m not sure of the

technical aspects. We went and we provided our views on the PNCIMA process

as part of an update on the project.

28213. MS. GRIFFITH: Is it fair to say that in its less ambitious form, the

PNCIMA initiative is no longer providing an opportunity for industry groups and

First Nations to discuss marine transportation, vessel safety, and spills?

28214. MR. JOHN CARRUTHERS: I cannot speak to how the process has

evolved and to the reasons why it has evolved to that. I expect there’s a number

of issues that they need to address, not unlike our own process as you go through

where it evolves, it may change based on the needs of the participants.

28215. MS. GRIFFITH: Is Northern Gateway currently having discussions

through PNCIMA with First Nations about marine transportation, vessel safety,

and spills?

28216. MR. JOHN CARRUTHERS: We are participating in the PNCIMA

process, so whatever their agenda is we would be part of that agenda. But we

don’t set that agenda, in fact, we play -- we don’t play a major role in it.

28217. MS. GRIFFITH: Madam Chair, if I could just have a minute to

check my notes and I may be done with my questions but if I could just please

have a minute.

28218. THE CHAIRPERSON: Please go ahead.

28219. MS. GRIFFITH: Those are my questions. Thank you witness panel

and Members of the National Energy Board, Madam Chair, Panel Members.

Preliminary matters

Ms. Estep


28220. THE CHAIRPERSON: Thank you, Ms. Griffith.

28221. So we’ll next call the Heiltsuk Tribal Council, please.


28222. THE CHAIRPERSON: Let’s have everyone take a five minute

stretch break while the Heiltsuk Tribal Council get themselves organized to be at

the questioning table.

28223. Thank you.

--- Upon recessing at 11:33 a.m./L’audience est suspendue à 11h33

--- Upon resuming at 11:40 a.m./L’audience est reprise à 11h40

28224. THE CHAIRPERSON: It looks like we’re ready to proceed again.






JEFF PAETZ: Resumed




28225. THE CHAIRPERSON: Ms. Estep, I understand you have a

preliminary matter that you wish to raise?

28226. MS. ESTEP: Thank you, Madam Chair.

28227. Two items. The first one is just a housekeeping matter. So we had an

Undertaking U-73 that we have ready. This was an undertaking given by Mr.

Carruthers to Mr. Stonhouse, counsel for the Enoch Creek Nation, Ermineskin

Cree Nation and Samson Cree Nation, at Transcript Volume 152, at paragraph

27524. If we could please get an exhibit number for that?

28228. THE REGULATORY OFFICER: B212.

Preliminary matters

Ms. Estep


--- EXHIBIT NO./PIÈCE No.: B212

Enbridge Northern Gateway’s Response to Undertaking U-73

28229. MS. ESTEP: Thank you.

28230. And then I also have another matter to address and it has to do with the

AQs that we’ve received in advance from Ms. Humchitt, counsel for the Heiltsuk

Nation. Shall I address that matter now?

28231. THE CHAIRPERSON: Yes, please, let’s proceed with that matter.


28233. Ms. Humchitt has delivered a significant number of AQs -- 25 by my

count -- in a series of emails with multiple attachments and four different versions

of a summary list. First, I’d like to speak to some process concerns.

28234. In many cases, no document has been provided for the AQ, only a

website link. This means that there’s nothing to mark for the record and there’s

been no pinpoint or highlighting provided to indicate the relevant passage for the

witnesses. That clearly does not meet the requirements of your Procedural

Directions on AQs.

28235. The JRP staff and the Proponent should not be expected to retrieve

website materials for the purposes of questioning. That is the questioner’s job. It

is hard enough to keep all of the AQs straight without the additional steps of

having to download, save, print, organize and name them all. More importantly,

that significantly cuts into time that could be used by the witnesses to actually

review the documents.

28236. Now, some PDF documents were provided with the various emails,

but they have not been numbered, so the reference list does not match up to the

electronic documents.

28237. In addition, documents have been provided or listed as AQs which are

actually exhibits in the proceeding. In some cases exhibit numbers have been

provided and in some cases the exhibit numbers have not been provided.

Preliminary matters

Ms. Estep


28238. Again, the JRP staff and the Proponent should not be expected to

search through the record to see what has already been marked as an exhibit and

what has not. Again, that takes away from time that could be used by the

witnesses for review.

28239. There also appear to be multiple AQs that say virtually the same thing,

adding unnecessary volume.

28240. This is quite surprising given where we are in the process, given Ms.

Humchitt and her external counsel’s participation in the questioning of previous

Northern Gateway panels, and the numerous written and oral directions that you

have given on AQs, Madam Chair, not to mention the repeated complaints that

have been raised by Northern Gateway.

28241. Substantively, I also have a number of concerns. The AQs include

legal opinion pieces, case law, numerous press releases from an organization that

the Heiltsuk belong to and, most surprisingly, a YouTube video, none of which

are authored by any of these witnesses and all of which are devoid of any

probative value.

28242. The AQs also cover a number of procedural decisions by the JRP

regarding hearing venues and schedules that Northern Gateway took no part in.

Northern Gateway has been very patient with the non-compliant use of AQs in

this proceeding from a process perspective but this has now gone well beyond

what can be considered reasonable or appropriate.

28243. So we can deal with these AQs one at a time, on the assumption that

the aids should not need to be referenced at all or, if you prefer, I’m prepared to

go through them now and advise which ones we object to. Either way, we’ll be

asking you not to allow the use of a number of these aids.

28244. THE CHAIRPERSON: Ms. Estep, the Panel would appreciate if you

would go through the aids and advise us of your views.

28245. MS. ESTEP: Okay. So the first aid is entitled “A Duty to Conserve”,

it’s written by a lawyer for a law forum and it interprets case law and its

argument. So we would object.

28246. THE CHAIRPERSON: Ms. Estep, we’ll stop there and we’ll have

Ms. Humchitt -- do you have any response to this, Ms. Humchitt, if -- let’s do it

Preliminary matters

Ms. Estep


on an AQ by AQ basis.

28247. MS. HUMCHITT: Yes, certainly, Madam Chair. I can ask the

question without the benefit of this AQ, so it’s not an issue.

28248. THE CHAIRPERSON: Thank you, Ms. Humchitt.

28249. MS. ESTEP: Okay. The second AQ is a copy of the Haida Nation

case. It’s apparent on the face of the document that this is case law. It’s about the

government’s duty to consult Aboriginal peoples and in its -- on its face and in its

nature it deals with legal questions; so we object.

28250. MS. HUMCHITT: Yes, Madam Chair, we are here because of --

there is a specific duty of consultation to Aboriginal peoples. There’s a limited

reference to this AQ and it is specifically important in terms of how a Proponent

is defined.

28251. I will not be asking this panel any questions of a legal nature; it is

simply confirmation of the delegation of the duty to consult to a Proponent.

28252. THE CHAIRPERSON: Ms. Humchitt, would you be able to proceed

without bringing this document forward?

28253. MS. HUMCHITT: I could possibly refer to the Heiltsuk Nation

submission in regards to this without referring to this document. I do consider it

crucial to this proceeding to have this AQ in particular.

28254. THE CHAIRPERSON: Ms. Estep, do you have any further

comments?

28255. MS. ESTEP: I actually don’t think this -- this could be a clearer case

of an inappropriate AQ. It’s -- it’s a legal case about the duty to consult. So

that’s a matter for argument and we can deal with it in argument.

28256. If there is specific questions about the facts of Northern Gateway’s

consultation process and what Northern Gateway has done, then of course, these

witnesses are here to respond to those questions.

28257. THE CHAIRPERSON: Ms. Humchitt, the Panel will ask you to

proceed without the AQ that’s been identified and just ask your questions directly

Preliminary matters

Ms. Estep


to the panel.

28258. MS. HUMCHITT: Okay.

28259. MS. ESTEP: The third AQ is called “Coastal First Nations Pull Out

Of This Week’s Northern Gateway Joint Review Panel Hearing”. The document

was not provided. Only a URL link was provided, it was not highlighted and it’s

from the Coastal First Nations. It’s a press release. In addition, the comments are

already included from Mr. Sterritt in the transcript for the proceeding.

28260. So for a number of reasons it’s not necessary. It’s not even a

document that’s been provided that could be marked so we object.

28261. THE CHAIRPERSON: Ms. Humchitt?

28262. MS. HUMCHITT: This is not an issue; I can proceed with my

questions without this AQ.

28263. THE CHAIRPERSON: Ms. Humchitt, I would like to deal with any

AQs which reference -- which take reference to a live website or a URL.

28264. Procedural Direction 11 and 14 refers to the use of relevant documents

as potential aids to questioning as we’ve discussed.

28265. The Panel does not accept links to live websites or videos as

documents under the direction -- under the directions issued for the AQs. The

content on live websites can change at any time and therefore, don’t provide a

specific text or an ability to highlight text for questioning.

28266. This is not fair for the witnesses as they don’t have an opportunity to

review in advance the material on which questions will be based which can create

prejudice.

28267. Therefore, the Panel will not accept live links to websites as AQs for

this proceeding.

28268. MS. HUMCHITT: This is not an issue to me either, Madam Chair, I

can ask my questions without those.

28269. As stated on my letter, these were listed only in the event that we

Preliminary matters

Ms. Estep


needed them. And I respect that; I can ask the question without them.

28270. THE CHAIRPERSON: Thank you, Ms. Humchitt.

28271. So Ms. Estep, we don’t need to go through any other of the AQs that

you are wishing to raise that include references to URLs.

28272. MS. ESTEP: Thank you, Madam Chair.

28273. So I think we’re up to the eighth AQ then. That’s a notice of motion

document. It’s an exhibit in the proceeding. So we can -- we can see where we

go on that one. But this is one of the documents I was referring to when I said

that Northern Gateway did not comment.

28274. So your guidance and your procedural directions has been that there’s

-- AQs are intended to be documents that the witnesses have authored or that

they’ve been involved in so this doesn’t fit into that criteria.

28275. THE CHAIRPERSON: Ms. Humchitt?

28276. MS. HUMCHITT: Actually I did author this one.

28277. THE CHAIRPERSON: Ms. Humchitt, do I understand that it’s

already on the record?

28278. MS. HUMCHITT: Yes it is.

28279. THE CHAIRPERSON: So it’s not the purpose of AQs to bring up

things that are already on the record. When you get to that point if you want to

reference it we’d ask you just to reference the exhibit number that’s already in

evidence and so we don’t need to go to AQs for that purpose.

28280. MS. HUMCHITT: Sorry, I was just trying to be thorough in letting

my friend know what I would be referencing.

28281. THE CHAIRPERSON: Terrific. Thank you.

28282. So you’ll be prepared to proceed on the basis of referencing the exhibit

numbers; is that correct?


Examination by Ms. Humchitt


28283. MS. HUMCHITT: Absolutely.

28284. THE CHAIRPERSON: Thank you.

28285. So Ms. Estep, again if there are other references that are in a similar

vein that are already on the record, I understand from Ms. Humchitt, that we’ll

proceed directly with just the references to the exhibit numbers.

28286. MS. ESTEP: Yes. Could you just give me one moment?

28287. Okay, I think we’ve dealt with those on the directions that you’ve

provided, Madam Chair. Thank you.

28288. THE CHAIRPERSON: Thank you, Ms. Estep.

28289. Ms. Humchitt, if I can just ask you over the lunch hour, if you could

get Ms. Gilbert the exhibit number references that you’ll be referring to so that

she’ll be able to pull them up.

28290. Terrific. Thank you.

28291. So Ms. Humchitt, please proceed with your questions of this panel.

--- EXAMINATION BY/INTERROGATOIRE PAR MS. HUMCHITT:

28292. MS. HUMCHITT: Thank you.

28293. Yes, I would like to ask the panel to describe how they consider to be

the Heiltsuk Nation as stakeholders in this process?

28294. MS. JAN WHITNEY: Ms. Heiltsuk ---

28295. MS. HUMCHITT: Humchitt.

28296. MS. JAN WHITNEY: Humchitt, sorry. --- this is Jan Whitney.

28297. I’ll just speak to the Aboriginal engagement program as set out in the

application. And that process I described yesterday in terms of how we engaged

specific Aboriginal groups.




28298. MS. HUMCHITT: Could you speak up a bit; I’m having a hard time

hearing you.

28299. MS. JAN WHITNEY: I’m sorry.

28300. I’ll speak to the Aboriginal engagement program which describes the

Aboriginal groups in both in Alberta and British Columbia in relation to our

engagement area, 80 kilometres on either side of the project right-of-way, which

would have been a total engagement area of 160 which would -- if included

Aboriginal groups within the project -- 80 kilometres either side of the project

corridor with a land base, so a community.

28301. It would have also included groups outside of the 80 kilometres whose

traditional territory traversed the project corridor. It would have also included the

coastal community as defined in the confined channel and open -- open water

assessment area. That list is included -- an entire list of all the groups that we

were -- are engaged with in Table 2-1 in the application.

28302. MS. HUMCHITT: Yes, I am understanding that, I’m specifically

asking in regards to the stakeholder definition with respect to the Heiltsuk Nation.

28303. MS. JANET HOLDER: Can you just -- is there a reference where

we referred to stakeholder with regards to the Heiltsuk Nation?

28304. I -- I’m sorry, I -- I’m trying to understand whether you’re referring to

something we have actually said or whether you’re referring to stakeholder as a

general statement.

28305. MS. HUMCHITT: Well, there are non-Aboriginal stakeholders and

what the ENG has typified as Aboriginal interests and stakeholders. Specifically

I’m inquiring as to does Enbridge Northern Gateway consider the Heiltsuk Nation

to be stakeholders, and if so, how do they define us as stakeholders?

28306. MS. JAN WHITNEY: No we don’t -- in our Aboriginal engagement

program we don’t consider Aboriginal groups to be -- we don’t define them as

stakeholders.

28307. There’s a definition that I -- I clearly went through yesterday. I could

do that again in terms of how we defined Aboriginal groups would -- which




would have included First Nations, Métis peoples.

28308. MS. HUMCHITT: Yes. Sorry, it’s hard to keep up with everything

that’s going on here. If you could go through that, that would be appreciated.

28309. MS. JANET HOLDER: So just as we’re trying to find that, I think

what we’ve been referencing is Exhibit B2-26, which -- at page 17 of 226, and

where we talk about Aboriginal groups and how we take them into consideration

is what Ms. Whitney is referring to.

28310. We have a number of stakeholders, obviously, in this project and our

consultation plan addresses each stakeholder group in -- sometimes in the same

ways, but sometimes in different ways. And what Ms. Whitney is referring to is

-- as you can see under 2.5.2 on the slide here, is how we define or how we

consider Aboriginal groups as a stakeholder.

28311. MS. HUMCHITT: I’d like to refer to -- oh, sorry. I’d like to refer to

D85-3-02 and refer to page 4 -- Adobe page 4.

28312. THE CHAIRPERSON: So that was an exhibit number, correct, Ms.

Humchitt?

28313. MS. HUMCHITT: Yes.


28315. MS. JANET HOLDER: Do you have a page reference?

28316. MS. HUMCHITT: Yeah, that’s Adobe page 4, and it would be the

last paragraph on the page. Do you have it?

28317. MS. JANET HOLDER: Yes, we do.

28318. MS. HUMCHITT: So you are aware that the Heiltsuk Nation

opposes the JRP process because we are treated as stakeholders in this process?

28319. MS. JANET HOLDER: I think that is what is written here and that

is your client’s evidence. It would not be what we would believe to be the case.

28320. MS. HUMCHITT: Does the Enbridge Northern Gateway recognize




the sovereignty of the Heiltsuk Nation?

28321. MR. JOHN CARRUTHERS: Again, we weren’t looking to make a

determination of rights and title. We are looking to understand any concerns that

the Heiltsuk might have and how they -- how the project may impact those and

what mitigation might be available.

28322. MS. HUMCHITT: In regards to -- my first question is a -- I’d like to

ask that the transcripts for the session on March 12th, 2013 be pulled up, and

specifically line 22496.

28323. THE CHAIRPERSON: Do you have a volume number, Ms.

Humchitt?

28324. MS. MICHELE PERRET: Is it Volume 150 for March 12th

?

28325. MS. HUMCHITT: Yes, it is.

28326. THE CHAIRPERSON: Thank you for your assistance, Ms. Perret.

28327. And so the line number, Ms. Humchitt?

28328. MS. HUMCHITT: Is 22946.

28329. THE CHAIRPERSON: Ms. -- are we on Volume 150? Ms.

Humchitt, there isn’t such a line number in that volume.

28330. MS. JANET HOLDER: I believe it’s in Volume 149.

28331. MS. HUMCHITT: My apologies.

28332. THE CHAIRPERSON: Thank you, Ms. Holder.

28333. Ms. Humchitt, is this what you were looking for?

28334. MS. HUMCHITT: Yes, that’s what I’m looking for.

28335. My question is to John Carruthers of the panel. I’m specifically

referring to the very last line of that section in which it's stated that:




28336. “Enbridge is a sponsor but not the proponent.”

Can you explain that statement?

28337. MR. JOHN CARRUTHERS: The application was made on the

behalf of Northern Gateway’s pipeline project, which of Northern Gateway’s

Pipeline Inc. is the general partner.

28338. MS. HUMCHITT: I would now like to refer to another AQ, number

D35-11-1.

28339. THE CHAIRPERSON: Again, Ms. Humchitt, that’s on the record

already so it’s not an AQ. Just to ---

28340. MS. HUMCHITT: Okay, sorry about that.

28341. THE CHAIRPERSON: That’s fine. And as we get there and you

ask your question, can I ask you to keep in mind the time?

28342. And if it’s a question that sort of has a beginning and an end, that

might be a good time after that to take the break for lunch and then you can give

Ms. Gilbert the exhibit references so she’ll be able to pull them up after lunch for

you.

28343. MS. HUMCHITT: Absolutely.


28345. And did you have a particular Adobe page that we were going to go to

on this one, Ms. Humchitt?

28346. MS. HUMCHITT: Yes, I’m just finding that right now. I’d look --

like to refer to Adobe page 5, please, specifically number 27.

28347. This is the Coastal First Nations notice of motion. It’s stated:

“The identity of the backers of the Project is needed, not only

because they are regarded as the real 'proponent' by Mr. Pat

Daniel, […] as the former federal Minister of Environment,

[…] has pointed out to the JRP[…] so that their safety record




and corporate culture with respect to safety and environmental

protection can be determined.”

28348. On the following line, it says:

“The Panel needs to know who the 'backers' are so that they

have assurance that the right parties are appearing before

them.”

28349. I’d then like to refer to page 7 of that same document.

28350. THE CHAIRPERSON: And again, as we’re going there, Ms.

Humchitt, I just remind you that there’s no need to read it into the record. You

can just point us to the -- and the witnesses to the part that you’d like the

witnesses to respond to.

28351. MS. HUMCHITT: Yes, I’d like to refer to -- at the very end of the

page and looking for Pat Daniel’s statement, “I don’t know if I have the power to

stop the JRP”. Specifically, I’m looking to the last line in Mr. Daniel’s:

“We are only one proponent, the pipeline company. The main

proponents are their producers and the refiners.”

28352. Can a member of the panel provide information as to who are the

producers and the refiners?

28353. MS. JANET HOLDER: At the time of this discussion, the

Proponents were just Enbridge and what we refer to as funding partners, but at

this point in time we also do have -- 10 percent of this project has been allocated

to various First Nations. So the statement now needs to include the Proponents

are Enbridge, funding partners and First Nations.

28354. MS. HUMCHITT: And who are the funding partners?

28355. MR. JOHN CARRUTHERS: That was ---

28356. THE CHAIRPERSON: Ms. Humchitt, can you help the Panel

understand the relevance of this line of questioning to this particular panel that’s

in front of us today?




28357. MS. HUMCHITT: It would appear that -- well, what I am trying to

get at is that all -- not all of the Proponents are identified, and that’s what I was

trying to determine, is exactly who the extent of the Proponents are.

28358. THE CHAIRPERSON: Can you help the Panel understand how

your line of questioning relates to the areas of expertise and content that this

witness panel is here to speak to in terms of Aboriginal engagement and public

consultation? That’s where we’re just struggling a little.

28359. MS. HUMCHITT: Yes, it was referred to in the notice of motion is

that in order for proper consultation to occur, that all of the Proponents need to be

identified. That is why I am asking this question.

28360. THE CHAIRPERSON: And this area has been canvassed in

previous panels associated with the process, so I just ask the witnesses if there’s

anything further to add beyond what’s already been provided on the record on this

topic.

28361. MR. JOHN CARRUTHERS: No, there’s not.

28362. MS. HUMCHITT: Okay. I was not a party to that process so there

isn’t -- I’m not trying to go back and revisit it. I would just like to refer to -- and

it’s not this line but the one below -- who is Sinotec?

28363. THE CHAIRPERSON: Ms. Humchitt, again, this area has been

previously canvassed and when I talk about process, I’m talking about the joint

review proceeding of which you’ve been involved with through the Heiltsuk

Tribal Council throughout the proceeding is my recollection.

28364. So again, is there anything further that the witnesses have to add

beyond what’s already on the record?

28365. MR. JOHN CARRUTHERS: No, other than that word would have

been properly spelled Sinopec. But other than that, I have nothing further to add.

28366. MS. HUMCHITT: Okay. I just have one more question with respect

to this. In regards to Enbridge Northern Gateway, the statement that Enbridge is a

sponsor but not the Proponent, I would also like to refer to A1R4D5, the Joint

Review Panel agreement.




28367. It states:

“Whereas the Northern Gateway Pipelines Limited

Partnership, the Proponent, is proposing to construct and

operate pipelines in a marine terminal as per the described in

the appendix to this agreement.” (As read)

28368. This statement seems to be in conflict with what John Carruthers said

in earlier testimony this week.

28369. THE CHAIRPERSON: Ms. Humchitt, is there a question?

28370. MS. HUMCHITT: How can these statements be reconciled? In one

it says Mr. Carruthers said Enbridge is a sponsor but not the Proponent. And the

Joint Review Panel agreement states Northern Gateway’s Pipeline Limited

Partnership is the Proponent.

28371. MR. JOHN CARRUTHERS: Well, Northern Gateway Pipelines

Limited Partnership is the Proponent and I just want to find the wording I used the

other day.

28372. And, again, in that I would identify that it was Northern Gateway that

was the Proponent so these are exactly consistent.

28373. MS. HUMCHITT: They don’t appear to me, according to the

statements. I would ask -- also refer to the -- previously referred to the Coastal

First Nation’s Notice of Motion:

“Then CEO, Pat Daniel, told us that he would not ask the JRP

process to be put on hold to allow for proper consultations

because the backers did not approve doing so.” (As read)

28374. THE CHAIRPERSON: Ms. Humchitt, we’re having trouble keeping

up with you. Can you give us the reference to where you are now?

28375. MS. HUMCHITT: Yes.

28376. THE CHAIRPERSON: And now that I’ve interrupted you, would

this be a realistic time to take a break and then you could give Ms. Gilbert the

exhibit numbers so that she’ll be able to pull things up more quickly and then




we’ll come back with this question with the material on the screen?

28377. MS. HUMCHITT: Yes, that would be acceptable, Madam Chair.

28378. THE CHAIRPERSON: Thanks, Ms. Humchitt.

28379. So we’ll be back for 1:15 please.

--- Upon recessing at 12:11 p.m./L’audience est suspendue à 12h11

--- Upon resuming at 1:16 p.m./L’audience est reprise à 13h16

28380. THE CHAIRPERSON: Good afternoon, everyone.

28381. Are there any preliminary matters that anyone wishes to raise at this

point?

28382. MS. ESTEP: Good afternoon, Panel. We just have one undertaking

to file.

28383. So it’s our response to U-74 given by Mr. John Carruthers to Mr.

Allan Stonhouse, at Transcript Volume 152, paragraph 27642. If we could have

an exhibit number, please?

28384. THE REGULATORY OFFICER: B213.

--- EXHIBIT NO./PIÈCE No. B213:

Enbridge Northern Gateway’s Response to Undertaking U-74













28386. THE CHAIRPERSON: Ms. Humchitt, please continue with your

questions of this witness panel.

--- EXAMINATION BY/INTERROGATOIRE PAR MS. HUMCHITT:

(Continued/Suite)

28387. MS. HUMCHITT: This is regarding Enbridge lobbying a federal

government regarding PNCIMA.

28388. First, is Northern Gateway aware of how this marine use planning

process has been directed at reconciling coastal First Nation’s interest in the

PNCIMA areas with one another through harmonization of marine use plans?

28389. MR. JOHN CARRUTHERS: Yes, as we talked about earlier today.

28390. MS. HUMCHITT: And how does Enbridge Northern Gateway

foresee themselves making sure that their activities don’t impact this process?

28391. MR. JOHN CARRUTHERS: I’m not sure we’d say we wouldn’t

impact, I mean, we are a participant so we may impact them through our

participation.

28392. MS. HUMCHITT: So how is your participation, is it through the

DFO in particular, or…

28393. MR. JOHN CARRUTHERS: No, I think we’re on one of the sub-

committees.

28394. MS. HUMCHITT: And how often does this sub-committee meet?

28395. MR. JOHN CARRUTHERS: I’m not certain. It is periodic though.

28396. MS. HUMCHITT: Say, four times a year, quarterly or something to

that effect?

28397. MR. JOHN CARRUTHERS: That seems consistent but I don’t have

a copy of their records of meeting.

28398. MS. HUMCHITT: Is the Northern Gateway aware of how this

marine use planning process has been directed at reconciling participating First




Nation’s interests with the interests of industries such as shipping and commercial

fishing?

28399. MR. JOHN CARRUTHERS: Again, that would be as we discussed

earlier today.

28400. MS. HUMCHITT: M’hm. Would you agree that the federal

government’s withdrawal from the PNCIMA initiative affected the ability of the

marine use planning to be continued under this initiative?

28401. MR. JOHN CARRUTHERS: I would not know that.

28402. MS. HUMCHITT: Is it not true that Enbridge lobbied the federal

government because it was concerned with the Gordon and Betty Moore

Foundation having influence over the direction of the PNCIMA initiatives marine

use planning?

28403. MR. JOHN CARRUTHERS: We covered that question this

morning.

28404. MS. HUMCHITT: And Northern Gateway expressed an interest in

being involved and contributing to the funding of the marine use planning under

the PNCIMA initiative, did it not?

28405. MR. JOHN CARRUTHERS: We are a participant.

28406. MS. HUMCHITT: Does this include being involved in funding?

28407. MR. JOHN CARRUTHERS: I’m not certain of the funding process

for PNCIMA.

28408. MS. HUMCHITT: So you are not interested in contributing to the

funding?

28409. MR. JOHN CARRUTHERS: I think PNCIMA would have a

protocol in terms of how its funding is determined and developed.

28410. MS. HUMCHITT: And if it was in line with the protocol, would you

be -- would Northern Gateway be interested in contributing?




28411. MR. JOHN CARRUTHERS: I wouldn’t know at this point until --

unless we participated in those discussions.

28412. So that’d be -- again, I -- you’d have to have a lot more information of

how it’s being done today, who else. But we don’t have that at this point.

28413. MS. HUMCHITT: Can this be a subject of a future meeting?

28414. And can the inquiry be made?

28415. MR. JOHN CARRUTHERS: No, I would not being -- I would not

see it being done outside of the -- the processes that PNCIMA has developed to

determine its -- its budget and its funding.

28416. MS. HUMCHITT: And if Northern Gateway -- do you think --

actually, I’m not to do this one.

28417. I’d like to turn to Exhibit B2-26, Adobe page 18.

28418. And I’d like to just state the title is: “Aboriginal Groups Engaged By

Northern Gateway” and ask to go to Adobe page 20 of this same exhibit.

28419. And there are several First Nations listed in this table including the

Kitasoo/Xaixais. However, the Heiltsuk Nation is not included in this list;

correct?



28421. In this case, it would have been incorporated through the Turning

Point Initiative.

28422. MS. HUMCHITT: Can you explain why this -- this omission?

28423. Does this confirm that the Heiltsuk Nation is not listed as being

engaged by Northern Gateway?





28424. MS. JANET HOLDER: So if you were -- I think, as Mr. Carruthers

mentioned, they were included as a turning point in that list.

28425. And then later on, of course, that became the Coastal First Nations.

But we have included in our updates the Heiltsuk Nation in Exhibit B207-8, page

55 of 59.

28426. And, of course, they were also included in Exhibit B24-2, page 381 of

424.

28427. So we have included the Heiltsuk Nation in our Application.

28428. MS. HUMCHITT: And in the title of the previous document, Coastal

British Columbia region has a footnote which reads:

“… identified as coastal communities, the scope of engagement

will be determined through engagement discussions.”

28429. Could Northern Gateway explain what is meant by this sentence?



28431. Of this same document, if you could turn to Adobe page 203?

28432. And there, you’ll see:

“The General Protocol Agreement provides [for] the basic

framework under which individual First Nations that are party

[...] can negotiate their own specific agreements with the

Province.”

28433. And those eight include the Heiltsuk Nation.

28434. MS. HUMCHITT: Is that further below? Or is that …

28435. MR. JOHN CARRUTHERS: That’s the sentence that leads into the

first paragraph.




28436. And the Heiltsuk would be the fourth community listed.


28438. I’d like to direct my attention to the community advisory boards. And

my understanding is that the Heiltsuk Nation is -- and all the other Coastal First

Nations are not included in community advisory boards?

28439. Can you explain this?


28440. MS. MICHELE PERRET: So with that discussion, would you mind

repeating you question please? Sorry.

28441. MS. HUMCHITT: Yeah, my understanding is that the Heiltsuk

Nation and all the other Coastal First Nations are not included as being considered

for community advisory boards.

28442. Can you explain the reason for this?

28443. MS. MICHELE PERRET: So I just want -- I’ve talked about this on

-- earlier this week that the community advisory boards are public. And so

members of the public can attend.

28444. And we have had a participant from Old Massett Village -- has

attended at least one of the CABs.

28445. And that’s …

28446. MS. HUMCHITT: But isn’t it true that the Coastal -- I mean, the

community advisory boards were not even considered for the Central Coast area

in terms of regions?

28447. MS. MICHELE PERRET: There is a Coastal First Nations -- or

sorry, a coastal CAB that typically meets in Kitimat and -- and, actually, the -- the

person that attended from Old Massett Village actually attended the other CAB

meeting that typically meets in -- in Terrace.

28448. MS. HUMCHITT: And is the CABs intended to supplement




consultation with Aboriginal communities?

28449. MS. MICHELE PERRET: The CABs are part of the public

consultation program and they are -- they are -- as we’ve discussed earlier this

week, they’re -- they’re driven by the -- by the public.

28450. MS. HUMCHITT: So in regards to that, considering we live in Bella

Bella, B.C., how could any of our members possibly attend these meetings which

are far away from us?

28451. MS. MICHELE PERRET: Members of your community are

welcome to come to the -- as I said, any of the CAB meetings that take place

along the proposed right-of-way between Kitimat and the Edmonton area.

28452. MS. HUMCHITT: And what about funding to get there?

28453. MS. MICHELE PERRET: There is a reimbursement.

28454. We’ve talked about this as well earlier this week that there is

reimbursement for travel associated with participating in the CABs if you are a

member of the CAB.

28455. MS. HUMCHITT: For how many people?

28456. MS. MICHELE PERRET: So if you are a member of a community

then one person could be appointed the member and that one person would be

reimbursed.

28457. MS. HUMCHITT: Only one person?

28458. MS. MICHELE PERRET: We do limit the reimbursement to one

person per association represented.

28459. But one than one person from that group may attend the CAB meeting.

28460. MS. HUMCHITT: Do you recognize that this limits the participation

of the members of the Heiltsuk Nation due to this limitation?

28461. MS. MICHELE PERRET: Well, I would go back to the -- as we’ve

discussed earlier this week, that these rules, these operating guidelines and these




terms of reference where the reimbursement is discussed was developed by the

CAB members themselves and was finalized around May of 2010 and is on the

record, as we’ve talked about earlier this week.

28462. MS. JAN WHITNEY: Jan Whitney here.

28463. I just want to add too, in terms of our Aboriginal engagement program,

this is just one forum in terms of our engagement program. We -- preferably, our

groups like us to come to the community and meet with them in the community.

28464. MS. HUMCHITT: So then, there is potential for CAB to be set up in

either the Heiltsuk Nation or Shearwater B.C. where our members can access

CAB meetings?

28465. MR. JOHN CARRUTHERS: It’s possible but I don’t know if that

would be preferable for the CAB members.

28466. As you mentioned, Bella Bella is quite a ways away from the confined

channel, and that goes to something where we did look at these CABs being either

where we see the transportation confined channel assessment area, which would

be Kitimat primarily and/or along the right-of-way.

28467. So most participants are through that process, that’s where the greatest

interest -- as you’ve mentioned, you’re quite a ways a way. I think it would be

more effective for the engagement where there’s an effect that we would come

and speak to you. That’s something that we are trying to work out with the

Heiltsuk at this time of getting into the community to address any concerns they

may have.

28468. MS. HUMCHITT: And can you let me know how many meetings

you’ve had with the Heiltsuk Nation or any other Coastal First Nations?

28469. MR. JOHN CARRUTHERS: They’re pretty much all part of the

record here in terms of the numbers of meetings, which have been quite a few.

28470. MS. JANET HOLDER: Yes, I have the reference.

28471. With regards to the Heiltsuk, it is Exhibit -- oh gosh ---





28472. MR. JOHN CARRUTHERS: Again, our notes would go back to

having engagement in July of 2003, 2009 -- one, two, three, four, five in 2010 --

six, seven, eight -- 10 in 2010, about, again some in 2011.

28473. And, as I’d mentioned, we are hoping to have a meeting with the

Heiltsuk pretty much as soon as this formal regulatory process completes. And

that’s something I know we’ve been in discussions with yourself of trying to pick

a date and go from there.

28474. MS. HUMCHITT: So it’s fair to say up to this point there hasn’t

been very many meetings at the Coastal First Nation communities?

28475. MR. JOHN CARRUTHERS: No, there’s been numerous ones, but it

partly goes back to the interest of the community.

28476. And again, as you’ve mentioned, you’re quite a ways away from the

route, over 100 kilometres. So often we find that people who are that far may not

have as great an interest in the Project.

28477. But again, if there is an interest, we’re certainly prepared to go and

meet with the community, talk about any questions they have, concerns they have

and what our plans are.

28478. MS. HUMCHITT: So it’s on the basis of the distance away from the

right-of-way that Northern Gateway is restricting the scope of communities in

terms of engagement and consultation with respect to this Project?

28479. MS. JANET HOLDER: Sorry, just before we answer that question, I

just want to be clear that Mr. Carruthers was referring to the engagement we have

had with the Heiltsuk Nation not all the Coastal First Nations.

28480. There’s been a number of meetings with various Coastal Nations and

Mr. Carruthers was referring only to those meetings, when he was listing them, of

with the Heiltsuk Nation.

28481. MR. JOHN CARRUTHERS: And the engagement’s not limited.

28482. Typically, it’s gone to where there’s an interest of potential effects

from the Project. So that’s what -- you know, people have had a greater interest




in engagement. Potentially, there’s a correspondence with distance but that’s not

a criteria per se, other than you’d probably see more from an effect -- a potential

effect of the Project than a distance ---

28483. MS. HUMCHITT: So you don’t recognize that the Heiltsuk Nation

has a great interest in this Project?

28484. MR. JOHN CARRUTHERS: No, I didn’t say that at all.

28485. MS. HUMCHITT: In terms of that -- I’m just trying to look at --

could I move on to Exhibit B24-2 at Adobe page 381?

28486. Okay, have we got it there?

28487. On here, there’s a summary of information on engagement the

Heiltsuk Nation including references to concerns by the Heiltsuk Nation over the

potential impacts of a marine oil spill.

28488. Can Northern Gateway please confirm that there is no reference to

Northern Gateway seeking Aboriginal traditional knowledge from the Heiltsuk

Nation with respect to these oil spill concerns?


28489. MR. JEFFREY GREEN: Ms. Humchitt, could you just clarify?

28490. You had used the word “oil spills” and so this section comes from the

Aboriginal Engagement Overview Report and doesn’t speak directly, it just

speaks to the shipping route.

28491. Could you just clarify on your reference to oil spills, please?

28492. MS. HUMCHITT: Specifically, even apart from the reference to oil

spills, is the -- there’s no reference to the Gateway seeking Aboriginal traditional

knowledge from the Heiltsuk Nation and I’m just wondering why that’s not

referenced.

28493. MR. PAUL ANDERSON: I don’t believe there is a reference in this

initial instance.




28494. There is reference, though, in updates and I draw your attention to

Exhibit 207-8 and page 55 explains specifically that -- about the possibility of

completing a traditional land use study as well as potential community meeting.

28495. So if we wanted to -- yeah -- oh, sorry, it’s not there. It’s just the last

sentence in the first paragraph it does reference traditional land use in this update.

28496. MS. HUMCHITT: But there isn’t one as of yet; correct?

28497. MR. PAUL ANDERSON: No, this is the most recent update, so it

indicates that that is what we’re pursuing now with the Heiltsuk First Nation.

28498. MS. HUMCHITT: Okay, I’d like to go to page 383, the second

paragraph.

28499. THE CHAIRPERSON: What reference are you referring to, Ms.

Humchitt?

28500. MS. HUMCHITT: Yeah, sorry, it was ---

28501. THE CHAIRPERSON: Oh, no, I guess Ms. Gilbert’s got it. If you

could give us the reference that would be very helpful.

28502. MS. HUMCHITT: Okay. B24-2, Adobe page 383. Yeah, under the

“Effects and Mitigation of Tanker Traffic” the first sentence reads:

“Northern Gateway has not identified marine risk mitigation

measures or commitments that would apply specifically to the

Heiltsuk Tribal Council.”

28503. Could Northern Gateway please explain its basis for not identifying

marine risk mitigation measures or commitments that would apply specifically to

the Heiltsuk Nation?


28504. MR. JOHN CARRUTHERS: Again, mitigation -- it’s a concern

shared by all of us that we reduce the chance of a spill to as low as practicable and

that’s why we go into all of the initiatives that we’re going to undertake, in terms

of reducing the chance of a spill. And then in the event of one, if there ever was




one, that we are well prepared. And certainly, we’ve been through that in a lot of

information as we’ve talked about in previously panels of which you participated.

28505. So I think they’re well documented in terms of the extent of measures

that we’re taking, both to reduce the chance of a spill and then one to be respond

timely and effectively if there ever was a spill.

28506. MS. HUMCHITT: I’ll move on to my next question. What

discussions, if any, has the Northern Gateway had with representatives of the

government, with respect to the necessary scope for engagement of and

consultation with the Heiltsuk First Nation?

28507. MR. JOHN CARRUTHERS: The government is a part of this

process and would be very familiar with the process, the framework for

Aboriginal consultation and the efforts we’ve undertaken in terms of engagement

with communities. Many of the departments are part of the assessment of the --

participating in reviewing the project.

28508. MS. HUMCHITT: Yeah, I’d like to ask a question concerning CABs

again. My understanding is that there were sessions in various communities on

the Kalamazoo oil spill. Were there any information in Central Coast First

Nations on the Kalamazoo oil spill?

28509. MS. JANET HOLDER: This has been well canvassed in the last

couple of days. Though in some of the CABs we did have an update in the

Kalamazoo oil spill where we had a specific individual who was in a position to

speak to that situation. But I think the more extensive record has been provided

through this process earlier in the process, in the fall, in Prince George.


28511. MR. JOHN CARRUTHERS: Again, Ms. Humchitt, it could be

something that if the community had a specific interest, and again, it might be

something that we speak to when we come to the community. But really, we’d

want that to be your agenda, what are the key issues you’d want to hear about and

we’d develop that with you but that could be a -- an item of interest for the

community.

28512. MS. HUMCHITT: Okay. So if the Heiltsuk Nation officially

requested you to come to the community to speak to the Kalamazoo oil spill, you




would be amenable to that?

28513. MR. JOHN CARRUTHERS: Yes and it doesn’t have to be official,

I mean we’ll just work that out in terms of the proposed meeting agenda.

28514. MS. HUMCHITT: It seems that a lot of the considerations are

restricted by area restrictions; I heard 100 kilometres referenced. Does Enbridge

Northern Gateway -- that the potential impacts go well beyond these restrictions?

28515. MR. PAUL ANDERSON: No. Certainly from a routine effects

perspective, we would not expect to see any impacts anywhere near that 100 mile

distance from our facilities.

28516. MS. HUMCHITT: Routine effects does not account for a worst case

scenario; correct?

28517. MR. PAUL ANDERSON: We make a distinction between routine

effects and accidents and malfunctions, as does the Canadian Environmental

Assessment Act.

28518. MS. HUMCHITT: So another question, how is the Northern

Gateway’s assessment, to date, of the potential impacts on Aboriginal rights and

title posed by this project, incorporate the oral testimony and evidence provided

through our community hearings?

28519. MR. PAUL ANDERSON: Well, I’ll ask Mr. Green to comment after

I’m completed. But first of all, our analysis was to look at the potential impacts

on the environment and the resources that -- and then by extension, potential

effects on Aboriginal rights. We did -- we were listening to the oral evidence and

we are aware that -- of the evidence that was provided with respect to the Heiltsuk

First Nations.

28520. I do note in that evidence that it was stated that the open water areas

were too dangerous, typically, for the conduct of harvest activities and so that was

noted. And so because of that, we didn’t think there was any need to address any

further mitigation with respect to routine activities and their impacts potentially

on those activities.

28521. Mr. Green?




28522. MR. JEFFREY GREEN: The way the oral evidence has been used

is that we have individuals that actually will go through the oral evidence and we

maintain the lists, for example, of the types of species that are harvested and

cross-checking to what we’ve made assumptions about in the environmental

assessment.

28523. So as we obtain information from traditional land use studies like the

one from the Gitxaala and the oral evidence, that’s been used to sort of keep track

of the range of species and the seasons of species, any information we can gather

on harvesting and use of marine resources.

28524. MS. JANET HOLDER: Just to add, we did have representatives at

the oral statements and we did summarize the Heiltsuk’s concerns and those were

provided in Exhibit B74-8, page of 38 of 108.

28525. MS. HUMCHITT: So you acknowledge that summary doesn’t

provide the full range of evidence that was given at these hearings, with respect to

traditional knowledge?

28526. MS. JANET HOLDER: We tried our best to capture the essence of

the -- what was said but we didn’t not transcribe what was said because that is

available as part of this record. So all we did was attempt to summarize, the best

of what we could, from what we heard and that is what we’ve used in our analysis

and mitigation measures.

28527. MS. HUMCHITT: Were any members of this current panel in

attendance for the hearings when they were cancelled in Bella Bella, on April 2nd

?

28528. MS. JANET HOLDER: No, I don’t believe we were. There was a

representative I know that -- I believe was there but not on this panel.

28529. MS. HUMCHITT: So you’re not aware that as a result of this, the

balance of our hearings were rescheduled to be finished on a different date?

28530. THE CHAIRPERSON: Ms. Humchitt, can you help the Panel

understand the relevance of this to this particular witness panel?

28531. MS. HUMCHITT: Okay. I’ll just cut right to the chase with a

question.




28532. Does the Enbridge Northern Gateway realize the impact this had on

the nation in terms of consultation with Enbridge and the Joint Review Panel?

28533. MR. JOHN CARRUTHERS: No. Hard for us to say what the

Heiltsuk -- but it wasn’t something that -- it’s part of the broader Joint Review

Panel process. So we would have difficulty in speaking for the Heiltsuk for sure.

28534. MS. HUMCHITT: Did the members of the Enbridge Northern

Gateway have any safety concerns with respect to the hearings in Bella Bella?

28535. THE CHAIRPERSON: Again, Ms. Humchitt, the Panel is having a

difficult time understanding the relevance of this line of questioning for this

particular panel.

28536. You’re here -- we’re here to test the evidence that’s been filed and

that’s the purpose of this. So if you could move on to your next line of

questioning to test the evidence that’s been filed that would be very helpful to the

Panel.

28537. MS. HUMCHITT: Okay, I’ll move on, Madam Chair.

28538. And I know the answer to this question but I’m going to ask it. You

are aware that the Heiltsuk Nation was a part of the Coastal First Nations?

28539. MS. JANET HOLDER: Yes we were.

28540. MS. HUMCHITT: And you’re aware that the Coastal First Nations

had to withdraw because of funding?

28541. MR. JOHN CARRUTHERS: That was the statement that they

made.

28542. MS. HUMCHITT: Did the Coastal First Nations request funding

from the Northern Gateway so they could participate?

28543. MS. JANET HOLDER: As the Coastal First Nations I do not believe

they did but we have had discussions with various nations on the coast that -- with

regards to funding and there has been funding provided to some nations on the

coast.




28544. MS. HUMCHITT: Can you explain what exactly the range and

extent of the type of funding provided is?


28545. MS. JANET HOLDER: So in aggregate we have provided to First

Nations, I can’t -- I will not say Coastal First Nations -- just shy of $11 million,

$10.8 million, of that $5.6 have been provided in British Columbia. And of that a

portion has been provided to coastal First Nations -- or nations on the coast.

28546. MS. HUMCHITT: Well I have had confirmation with the Coastal

First Nations that they had requested funding from Enbridge Northern Gateway

and were turned down. Can you confirm this?

28547. MS. JANET HOLDER: Can you make a -- do you have a reference

that this may be stated in?

28548. MS. HUMCHITT: Yes I have a…


28549. MS. HUMCHITT: Okay, I don’t have a reference because I am not

allowed to pull up any media reports, but from what I understand members of the

panel were in attendance when Art Sterritt of the Coastal First Nations made the

announcement?

28550. MS. ESTEP: Sorry, I’m not following which announcement we’re

talking about here. But in any event I think the witnesses have already answered

the question.

28551. MS. HUMCHITT: Okay, I’ll just get direct to a different question.

28552. Is Enbridge Northern Gateway amenable to providing funding to

Coastal First Nations so that they can participate in the JRP process?

28553. MS. ESTEP: Madam Chair, that is something that could be discussed

offline with Ms. Humchitt and her client if that’s appropriate. It’s not appropriate

to be having those discussions on the record in the proceeding.





that Coastal First Nations require a sufficient amount of funding to participate in

the consultation process?

28555. MS. JANET HOLDER: Before I answer that, as you know or

probably recognize, I struggle with the word “Coastal First Nation” because

Coastal First Nations start with a big C stands for an organization. And we tend

to refer to coastal First Nations as the various individual nations on the coast.

28556. Are you referring to the Coastal First Nations as Art Sterritt’s

organization or as individual nations on the coast?

28557. MS. HUMCHITT: I am referring -- if I have to divide it up, to the

Heiltsuk Nation one and then in second part to Coastal First Nations in general.

28558. MR. JOHN CARRUTHERS: So over time we have provided

funding to what was then Turning Point. We have also worked with communities

that are on the -- Aboriginal communities on the coast.

28559. And that’s something that -- in terms of the Heiltsuk -- my

understanding that was going to be a topic of conversation between us in terms of

is there information that we could work with you on that’s relevant to the project.

28560. MS. HUMCHITT: Does the Northern Gateway recognize that many

First Nations, including, or I could just say specifically the Heiltsuk Nation,

lacked the technical expertise to go through various scientific reports?

28561. MS. JANET HOLDER: I think in some respects that is a fair

statement which is one of the reasons why early on in the process we have

provided funding to various First Nations communities in order that they can hire

the expertise they need in order to -- whether it be review reports or participate in

this process.

28562. MR. JOHN CARRUTHERS: And that’s in addition to what funds

CEAA might have provided to communities.

28563. MS. HUMCHITT: When considering that the Heiltsuk Nation will

be one of the Nations who is potentially heavily impacted by the event of an oil

spill, doesn’t it follow that they should be considered for an equity agreement?

28564. MS. ESTEP: Madam Chair, the premise of the question has been




something that Northern Gateway has addressed in its evidence and that is not

Northern Gateway’s position.

28565. So she can -- if my friend can put the premise to the witnesses and

have them respond to that first that would be fair to the witnesses.

28566. MS. HUMCHITT: Okay. Basically my question is why is the

Heiltsuk Nation excluded from the equity agreement and any other potential

benefits to this project which are afforded to other First Nations?

28567. MS. JANET HOLDER: I will start by saying that the equity offering

has not been finalized for nations on the coast, the Coastal First Nations. That is

something that I think we can -- we need further to develop and work on.

28568. And I believe there is lots of other opportunities and have been spoken

to at this hearing with regards to benefits to the Heiltsuk, and I may ask my

colleagues to jump in here.

28569. MR. JOHN CARRUTHERS: I think we talked a lot about the

potential programs that would be available as we move forward, in terms of better

understanding the Heiltsuk, and one of them was for the response plans, there’s

some potential that that would be a location. But again that would be something

we’d want to talk with the Heiltsuk about.

28570. MS. HUMCHITT: In regards to any economic benefits as a result of

the project, does the Enbridge Northern Gateway recognize that any benefits may

be nullified by a spill as much of the Heiltsuk Nation’s economy is dependent

upon access to our marine resources?

28571. MS. JANET HOLDER: Sorry, before my colleague Mr. Carruthers,

answers that question, I want to go back to the fact that engagement is critical to

ongoing benefits to First Nations and the Coastal First Nations, as an

organization, has not been engaging with us over the last while. And so we

struggle with some of the questions you’re asking us because with engagement --

and yet I’m glad to know that we are trying to set up a meeting with the Heiltsuk,

but that is important.

28572. In order to benefit from this project and be -- and understand this

project and how you can benefit you have to engage with us as an organization.




28573. And the Coastal First Nations organization has not had a lot of

engagement in the past while, which I think is why we’re stepping out and

wanting to have the engagement with the individual nations, such as the Heiltsuk.

28574. MR. JOHN CARRUTHERS: And again, I think we’ve discussed

the potential for a spill in the open water which is very low. Notwithstanding

that, we’re looking to enhance the response capacity. And again, one could view

that response capacity might be more probably used in a non-Northern Gateway

related incident.

28575. So in terms of the safety aspect of the marine transportation for

Northern Gateway in terms of what we’re putting together, the chance of a spill is

very low and yet we’re going to put in enhanced response capacity that could be

available. And one of the locations could be in the area of the Heiltsuk. So again,

that’s something we’d want to talk to you about in terms of potential opportunity

for your community.

28576. MS. HUMCHITT: And are you aware of the Heiltsuk Integrated

Resource Management Department?

28577. MR. JEFFREY GREEN: Yes, we are.

28578. MS. HUMCHITT: And you’re aware that this is the stewardship arm

of the Heiltsuk Nation?

28579. MR. JEFFREY GREEN: Our understanding of that, that’s part of

their objective. The other, from what I understand, is documenting resources and

the status of those resources.

28580. MS. HUMCHITT: And you’re aware that it’s through this office that

referrals get processed?

28581. MR. JEFFREY GREEN: I’m not directly aware of that but that

makes logical sense.

28582. MS. HUMCHITT: Has anyone from the Enbridge Northern Gateway

been in contact with anyone from the Heiltsuk Integrated Resource Management

Department?

28583. MR. JOHN CARRUTHERS: Not that I’m aware. But again, we are




looking to set up meetings with the Heiltsuk in the very near term.

28584. MS. HUMCHITT: Like -- sorry, I’m not sure if you finished.

28585. MR. PAUL ANDERSON: Just one second. I think we may have to

make a correction there; I think we do have some contact with that department.

28586. MR. JOHN CARRUTHERS: Sorry, and that is correct. In October

of 2010, Northern Gateway ongoing correspondence with the Heiltsuk Tribal

Council and the Heiltsuk Integrated Resource Management Department regarding

scheduling, rescheduling community meetings in Bella Bella. The meeting was

finally scheduled for November 2010. So -- and that was -- we did attend that

meeting in 2010 -- November 2010, and that was with leadership and community

members.

28587. MS. HUMCHITT: So there hasn’t been any other meetings outside

of hearings except this November 2010 meeting?

28588. MR. JOHN CARRUTHERS: No, I went through a number of

meetings that we’ve had over the past few years earlier in this proceeding.

28589. MR. PAUL ANDERSON: And there has been ongoing

correspondence with that department as well.

28590. MS. HUMCHITT: Okay. I work for that department and I haven’t

seen that correspondence.

28591. I will move on to my next question. In regards to the Fisheries Liaison

Committee, is the Enbridge Northern Gateway amenable to an alternative form of

consultation and a way of addressing fisheries concerned outside of the proposed

Fisheries Liaison Committee?

28592. MS. ESTEP: Madam Chair, I just raise a concern at this point in time

that that was an area that was canvassed quite thoroughly by Ms. Humchitt on a

previous panel. So I think we’re getting into ground that we’ve covered before.

28593. MS. HUMCHITT: M’hm.

28594. MS. ESTEP: If there’s specific consultation issues then we can try

and address them.




28595. MS. HUMCHITT: Okay. Yes, I recognize it has been canvassed

before. In recognition of that, would the Enbridge Northern Gateway reconsider

the matter concerning the Fisheries Liaison Committee in terms of consultation?

28596. MS. ESTEP: Sorry, can I ask you to be more specific with your

question? Reconsider what matter?

28597. MS. HUMCHITT: As opposed to a Fisheries Liaison Committee,

which has limited membership for the Heiltsuk Nation, would the Enbridge

Northern Gateway be amenable to attending a fisheries committee meeting in

Bella Bella, specifically?

28598. MR. JOHN CARRUTHERS: Sorry, I was just preparing what I

thought was going to be the question and I didn’t get that question I thought. So

could you just repeat the question? I apologize.

28599. MS. HUMCHITT: In regards to the Fisheries Liaison Committee, I

recognize I have canvassed it before, I was wondering if the Enbridge Northern

Gateway would reconsider the Fisheries Liaison Committee as a form of

consultation and attend fisheries committee meetings, specifically in Bella Bella?

28600. MR. JOHN CARRUTHERS: Okay, it was the second part I wasn’t

expecting.

28601. The Fishing Liaison Committee, as was described, is something that

we envision would be further developed and amended through consultation with

the community. So we’ve put a draft template down there but certainly that’s

something we wanted to work with communities in terms of making it most

effective. So we do expect to have that discussion.

28602. In terms of meetings with Bella Bella, again I think that’s something

we’d want to discuss consistent with our agreement to come and meet with you

but the details we’d need to work out, outside of this meeting, in terms of when

they are and how they’d be accomplished. But we are definitely interested in

meeting with the Heiltsuk.

28603. MS. HUMCHITT: Are you aware of the specific duty of

consultation with respect to the herring fishery of the Heiltsuk Nation?




28604. MR. JEFFREY GREEN: Ms. Humchitt, our understanding of the

herring roe fishery is that the Heiltsuk have priority allocation for that fishery in

their traditional territory, and that would be an example of a specialized fishery

that could be the subject of perhaps measures specific from the Fisheries Liaison

Committee.


28606. I would like to move on to a different area of questioning. This is in

respect to the Aboriginal consultation and framework. Is the Enbridge Northern

Gateway that the Heiltsuk Nation and many other Nations were not consulted

with respect to this?

28607. MS. ESTEP: Madam Chair, that’s not an issue that relates to the

engagement program for this project or Northern Gateway’s Aboriginal

engagement program. So if we can frame the question in that context it would be

helpful.

28608. MS. HUMCHITT: Well, the Aboriginal consultant framework is

applicable to the JRP, so I’d respectfully disagree with my friend.

28609. MS. ESTEP: No, that’s not what I said.

28610. MS. HUMCHITT: I’m not sure what the objection is.

28611. THE CHAIRPERSON: Ms. Humchitt, let’s let Ms. Estep clarify

then so that we can all understand and go forward from there.

28612. MS. ESTEP: My understanding of your question was that you were

seeking to understand the Crown’s consultation with First Nations in respect of

the Aboriginal consultation framework. Did I hear that correctly?

28613. MS. HUMCHITT: No, I’m not speaking to the Crown’s consultation

at all. I am simply asking whether or not the Enbridge Northern Gateway was

aware that we were not consulted with respect to this framework?

28614. MS. ESTEP: Not consulted by whom then?

28615. MS. HUMCHITT: Not consulted by the Crown, not consulted by

anybody, any parties with respect to the framework.




28616. MS. ESTEP: These witnesses are not here to speak to the specific

engagement between the Crown and the Heiltsuk. If they have questions about

Northern Gateway’s consultation then we’ll certainly try to answer them.

28617. THE CHAIRPERSON: Ms. Humchitt, the material that you’re

seeking to question this panel on is outside the scope for this review and so we’d

ask you to move to your next question.

28618. MS. HUMCHITT: Yes, I will, Madam Chair.

28619. In terms of consultation, is the Enbridge Northern Gateway aware that

many members of the Heiltsuk Nation reside off reserve?

28620. MS. JANET HOLDER: Yes.

28621. MS. HUMCHITT: Can you let me know what, if any, strategies that

the Enbridge Northern Gateway has towards consulting with the off-Reserve

members of the Nations who could be impacted by the Gateway?

28622. MS. JAN WHITNEY: Hi, Ms. Humchitt, it’s Jan Whitney. I think I

said your name correctly this time.

28623. I can speak to that. In terms of our Aboriginal Engagement Program,

our program is designed to work directly with the Aboriginal communities and

then we recognize the governance of the community and how we work is within

the community guidelines.

28624. So we go out and meet with the community members, we rely on the

governance, the Chief of Council to direct us as to how we should be consulting

with their company -- I mean with their community, and that may or may not

include off-Reserve members.

28625. It’s -- we rely on that governance to decide how they want to deal with

their off-Reserve members.

28626. MS. HUMCHITT: My understanding is that the public could not

attend the hearings in Victoria and Vancouver.

28627. I was wondering if there’s a forum outside of those hearings for




consultation with Aboriginal communities in those areas.

28628. MS. ESTEP: Sorry, could you be more specific?

28629. Aboriginal consultation in what areas?

28630. MS. HUMCHITT: Well, a lot of our -- being specific, some Heiltsuk

Nation members wanted to attend these hearings but could not because they were

-- the public could not attend.

28631. So I’m inquiring how members of the Heiltsuk Nation could possibly

be part of a consultation process off-Reserve.

28632. MS. JANET HOLDER: I think there is a couple ways.

28633. First of all, the public, the general public, and members of the Heiltsuk

Nation could attend the hearings in a separate building and room from where the

hearings were taking place but they would see in real time actually, what was

being said and by whom.

28634. Also, they were -- it was possible to listen online, which a number of

us do when we can’t be in the communities where the hearings are taking place.

Transcripts were also available for anybody of the public or the Heiltsuk Nation

to read.

28635. In addition, the public is -- can attend our CABs and that would

include Heiltsuk members who are living close to our right-of-way that may be

able to be -- have easy access to our CABs. So there are a number of ways that

they could still access information.


that the public being barred from these venues limits an opportunity for our off-

Reserve members to participate and be part of the consultation process?

28637. MS. ESTEP: Madam Chair, the premise in that question that the

public was barred is not correct. Ms. Holder just spoke to that.

28638. THE CHAIRPERSON: Ms. Humchitt, you seem to be speaking to

the Northern Gateway Panel Review Process as opposed to asking Northern

Gateway witnesses questions about the consultation efforts of Northern Gateway.




28639. So I’d ask you to refocus your questions and test the evidence that’s on

the record with respect to Aboriginal engagement and public consultation.

28640. MS. HUMCHITT: Will do, Madam Chair.

28641. Okay, I’ll redirect that. Would Enbridge Northern Gateway be

conducive to a request to slow down the consultation process so that a more

meaningful consultation can occur with the First Nations?

28642. MR. JOHN CARRUTHERS: Again, I think, we -- there’s a very

thorough, very broad consultation public engagement process.

28643. So in many ways there’s no necessity to slow down. It’s very

thorough, it’s very broad already.

28644. And it -- but we definitely, as we’ve said -- I think part of that, as we

go through this, would be we continue to meet not just prior to this process but we

can meet prior to decision, after decision, so that it’s ongoing consultation.

28645. So it’s not -- it doesn’t stop at any one time.

28646. MS. JANET HOLDER: And I think we just have to remind

ourselves, this process has been going on for over 10 years so it has been very

extensive to date and it will continue to go on as Mr. Carruthers has mentioned.

28647. MS. HUMCHITT: Does the Northern Gateway realize the

accelerated nature of the consultation process impacts meaningful consultation

with the Heiltsuk Nation?

28648. MS. ESTEP: Madam Chair, again, the premise of the question -- you

know, the phrase “the accelerated nature of the consultation process” was just

addressed by the witness panel.

28649. So it’s not fair to build that premise into the question.

28650. MS. HUMCHITT: I’ll move on.

28651. In regards to landowners’ rights, is the Enbridge Northern Gateway

that the Heiltsuk Nation considers ourself to have rights and title to the lands and




seas closest to the proposed tanker route?


28652. MR. JOHN CARRUTHERS: Could you just state that question

again, please?

28653. MS. HUMCHITT: In regards to the reference to landowners’ rights,

is the Enbridge Northern Gateway that the Heiltsuk Nation, in addition to many

other Nations, consider ourselves to have rights and title to the lands and seas

closest to the proposed tanker route?

28654. MS. ESTEP: Madam Chair, is the question whether they’re aware of

that?

28655. I think that’s -- that might be the word we’re missing. Is that what the

beginning of the question was?

28656. MS. HUMCHITT: Yes, that was in there, “aware”.


28657. MR. JOHN CARRUTHERS: Again, we’re just trying to narrow the

scope.

28658. Could you point to your evidence where you want us to work from,

please?

28659. MS. HUMCHITT: This is -- oh, sorry. I could point to the -- I’m

just going to pull up the exhibit number ---


28660. MS. HUMCHITT: D85-3-02.

28661. I’d like to point out to Adobe page 3, paragraph 2, which is stated:

“The Heiltsuk Nation like many other First Nations on the B.C.

Coast has not settled […] land claims by way of […] Treaty

Process and as such, the Heiltsuk Nation is on unceded




territory and our sovereignty over our lands and waters has

never been relinquished. This is also exemplified by our

stewardship duties, which is our duty to look after and care for

the land and sea[s] for […] uses of our future generations.”

28662. MR. JOHN CARRUTHERS: Yes, we see that, but I don’t think

we’d have anything further to add than what we did earlier this morning or what’s

incorporated in response -- IR response 1010.


28664. I’m going to move onto a different question. Later in that -- that same

page, actually, where it says Gvi’las.

28665. How does the consultation process incorporate Heiltsuk traditional law

in regards to assessment?

28666. MR. JOHN CARRUTHERS: Again, could you point us to the

specific line you’re looking at?

28667. MS. HUMCHITT: Yeah. It says:

“Our Gvi’ilas [...] state that: We, the Heiltsuk Nation are the

stewards of our territory. This is Gvi’ilas, our traditional way,

and we will ensure our lands and resources can support our

people now and into the future.”


28668. MR. PAUL ANDERSON: Well, I believe that the stewardship

values that your community has would be consistent with those of the federal

government’s and -- and would be consistent with our attempts to mitigate the

impacts to our -- of our Project on the environment.

28669. And -- and I think that is well-documented in our Application and in

the evidence that’s before this Panel.

28670. MS. HUMCHITT: Has there been consultation and/or a cultural

impact assessment with any of the Coastal First Nations; specifically the Heiltsuk

Nation on the potential of an oil spill?




28671. MS. ESTEP: That’s an extremely broad question.

28672. If we could narrow it down, focus on perhaps the Heiltsuk or want to

be more specific that would be helpful.

28673. MS. HUMCHITT: I thought I did say “specifically the Heiltsuk”.

28674. Has there been discussion of a cultural impact assessment with the

Heiltsuk Nation?

28675. MS. ESTEP: Can you clarify what you mean by a “cultural impact

assessment”?

28676. MS. HUMCHITT: This would include -- there has been extensive

evidence given by the Heiltsuk Nation how the oil spill would impact our Nations.

28677. In the last hearing, it was presented as a cultural genocide on our

Nations.

28678. MS. ESTEP: Okay.

28679. And Mr. Wooley had a dialogue with you about that concept in

particular.


28681. MS. ESTEP: And there was quite a bit of discussion about the

assessment that -- assessment approach that Northern Gateway has taken in

respect of cultural impacts.

28682. So I believe that this area of questioning has been fairly well-

canvassed already.

28683. MS. HUMCHITT: I’m wondering if the Enbridge Northern Gateway

would reconsider and have a cultural impact assessment done for the Heiltsuk

Nation specifically?

28684. MR. JOHN CARRUTHERS: I -- I think, again, we have indicated

that we would like to meet with the Heiltsuk to just talk about potential future




programs.

28685. MS. HUMCHITT: And you do realize that the Heiltsuk Nation is

opposed to the Enbridge Northern Gateway because it offers very limited

economic benefits and requires us to take a lot of the risk associated with this

Project?

28686. THE CHAIRPERSON: Ms. Humchitt, I’d remind you that were not

here for argument.

28687. So if you could just pose your question and then let the witnesses

answer it without filling in further aspects of the question?


28689. Are you aware of the Heiltsuk Nation’s basis for opposition to the

Enbridge Northern Gateway?


28691. MS. HUMCHITT: Can you explain what that means to you?

28692. MR. JOHN CARRUTHERS: Again, we’ve heard concerns about

the potential for a spill.

28693. And -- and as you -- and as you’ve indicated previously, there’s

questions about the economic benefits. So, again, those are things we’d like to

speak directly with the Heiltsuk about and may be good things that we add to the

agenda when we meet.

28694. And I go to the -- the -- what we’re doing to reduce the chance of a

spill to as low as practicable, what we’re doing to have an effective and efficient

timely response and the economic opportunities that could be available.

28695. And you’ve also asked that of us as well what they could be and they

could be relatively significant.


28697. So has there been an economic benefits analysis with respect to that?




28698. MR. JOHN CARRUTHERS: Of the Project, there was a significant

one.

28699. And that was again what we would have talked about extensively at

the panel in Edmonton in September.

28700. MS. HUMCHITT: I’m talking specifically in regards to the Heiltsuk

Nation.

28701. You mentioned a marine response station has -- can you give me an

idea of how many positions or jobs that would entail, like such a station?

28702. MR. JOHN CARRUTHERS: I think we would need to work with

the Heiltsuk to determine exactly what that might look like.

28703. Again, there was some indication for the Heiltsuk that they may not

want that but, certainly, I think that’s where we can get into opportunities, scope

what that might look like.

28704. MS. JANET HOLDER: I think there’s also a lot of indirect benefits

-- the -- which was discussed in Edmonton in the first panel.

28705. The contribution to Canada which is, therefore, a contribution to

Alberta and a contribution to British Columbia is -- is very significant and that

actually does weave into the social welfare of our country and that leads into

social well -- well-being of everybody that has the pleasure of living in these

provinces.

28706. So there is a lot of indirect benefit that would be -- that needs to be

recognized. You know, we are putting beds and hospitals. We are providing

doctors in communities, we’re providing education for our children and that is a

big part of what this Project is all about.

28707. MS. HUMCHITT: Yeah, there may be benefits for general Canada

but there are very little benefits for the Heiltsuk Nation.

28708. I’m not going to -- I’ll frame this as a question: In terms of -- in

comparison with the general Canadian benefits, how would you see this

benefiting the Heiltsuk Nation?




28709. MR. JOHN CARRUTHERS: Again, from a marine aspect, there

could be -- we’ll need marine response. And again, just because of the location,

that might be a -- an obvious tool that might provide opportunities for the

Heiltsuk.

28710. But it’s not limited to that. I mean, we would look to -- there’s going

to be training opportunities, there’s going to be procurement, there’s going to be

jobs. So it’s not limited to that.

28711. But there is a significant marine component in terms of the -- the need

for the Project in terms of what we’ll use for tugs, what we’ll use for service and

what we’ll use for navigation aids.

28712. So there -- there is opportunities within that framework.

28713. MS. CATHERINE PENNINGTON: It’s Catherine Pennington here

speaking, Ms. Humchitt.

28714. And I guess that I would just restate that we have a -- a real interest in

working with the community. And, certainly, from a skills and training and

business development standpoint, we welcome the opportunity to sit down and

talk about the benefits and ways that the Nation could participate in those, should

they so choose.

28715. MS. HUMCHITT: However, you are aware that the Heiltsuk is

opposed to the Enbridge Northern Gateway because of the risks it poses?

28716. MS. JANET HOLDER: And we have acknowledged that.

28717. But that does not mean that if this Project goes forward there isn’t an

opportunity to benefit.

28718. We would expect that anybody who has an interest in being part of this

Project has an opportunity to talk to us about skills and training, has an

opportunity to talk to us about jobs.

28719. So even though you are opposed, that does not restrict you on a go-

forward basis from participating in these programs.




28720. MS. HUMCHITT: And in terms of consultation which is the subject

of this Panel, you mentioned that you haven’t had much contact with the Coastal

First Nations.

28721. If they were interested in further consultation, would the Enbridge

Northern Gateway be amenable to that?

28722. MS. JANET HOLDER: So I just want to clarify when you refer to

the Coastal First Nations, it’s the organization of a number of Coastal Aboriginal

communities.

28723. The answer is ‘yes’. As individual communities, we do have extensive

dialogue with many of them.

28724. MS. HUMCHITT: Specifically referring to a deeper form of

consultation outside of the Joint Review Panel process and that’s specifically

what I’m referring to in regards to not just the Coastal First Nation but with the

Heiltsuk Nation.

28725. MR. JOHN CARRUTHERS: Again, we are planning at this point to

meet with the Heiltsuk in the very near term and would be open to meeting with

the formal Coastal First Nation community. Often they didn’t want to engage

with us but certainly we’re open to that.

28726. MS. HUMCHITT: And how would the Enbridge Northern Gateway

react if, upon consultation with the community, that there was overwhelming non-

support?

28727. MR. JOHN CARRUTHERS: Again quite hypothetical. What we

can do from our part is meet with people, hear their issues, talk about what we can

do and talk about -- again, often it comes down to, the worry about spill so there’s

some education. There was some worry about the effects of a spill if it were to

happen, and again that was well covered in our last panel, but those are the type of

dialogue we’d have.

28728. But I -- again, what we have found where we’ve been able to meet

with people and talk about it is that we can get close alignment in terms of the

outstanding issues.

28729. MS. JANET HOLDER: And I just want to add, really this project, as




I’ve mentioned, is really too important not to engage. We want to engage and we

try to engage where possible with those who support the project, those who are

neutral in the project, and those who oppose the project. The more opportunity

we have to engage I think the better off this project is and I think better off

Canada will be as a whole.

28730. THE CHAIRPERSON: Ms. Humchitt, would this be a reasonable

time to take our afternoon break?

28731. MS. HUMCHITT: Yes, actually, I’m almost finished, Madam Chair.

28732. THE CHAIRPERSON: Would you like to continue and finish up

and we’ll take a break after that or does this give you a chance to look at your

notes and ---

28733. MS. HUMCHITT: No. No, I’d just like to continue and then ---

28734. THE CHAIRPERSON: Okay, sure.

28735. MS. HUMCHITT: --- then we’ll finish.

28736. THE CHAIRPERSON: Okay. Let’s do that then.

28737. MS. HUMCHITT: This is not so much a question, but I would be

remiss in my duties to my nation if I didn’t say that ---

28738. THE CHAIRPERSON: Ms. Humchitt, we are here for questioning,

and so I would ask you to frame anything that you have as questions to this

witness panel ---


28740. THE CHAIRPERSON: --- and the purpose being to test the

evidence that’s on the record.

28741. MS. HUMCHITT: Okay. I’ll frame it a different way then.

28742. Is there potential for this consultation process to be stopped to allow

for more meaningful consultation with the Heiltsuk Nation?




28743. MS. JANET HOLDER: I think Mr. Carruthers has answered that

question earlier. And we do believe that the consultation to date, being over an

excess of 10 years, has been more than any other project had ever seen at this

stage in the project.

28744. The fact that the consultation is not intended to stop, that we will

continue on consulting through the next phase as we wait for decisions from this

Panel, wait for decisions from the government, and then it will continue ongoing

after that.

28745. So I think there still is plenty of time for continued consultation with

the Heiltsuk Nation. And we are more than willing to sit down and speak with

your client, the Heiltsuk Nation. We’re more than willing to come to Bella Bella

to do that.

28746. MS. HUMCHITT: And does the Enbridge Northern Gateway

recognize that the Heiltsuk Nation views as this consultation process as

insufficient?

28747. MR. JOHN CARRUTHERS: Again, we would like to meet with the

Heiltsuk to go and engage with them and understand their concerns. So I think

that is an opportunity to raise any type of concern that they might have so that we

can address it jointly.

28748. And again, as we’ve reiterated, it won’t stop at that one meeting, it will

be ongoing, it will -- it can go through once we’re off the panel, it can go through

after decision, and it will in fact go through even if we get into operations.

There’s ongoing consultation.

28749. MS. HUMCHITT: I’d like to thank this panel and Members of the

Panel for the time today and Walas Giaxsixa.

28750. THE CHAIRPERSON: Ms. Humchitt, thank you very much for

your participation in this proceeding.

28751. We’ll take our afternoon break now and come back and we’ll have

Michel First Nation on the line when we come back. So we’ll come back for 10

to three please.


Examination by Michel First Nation


--- Upon recessing at 2:35 p.m./L’audience est suspendue à 14h35

--- Upon resuming at 2:49 p.m./L’audience est reprise à 14h49









28752. THE CHAIRPERSON: If we could get everyone to take their seats.

I believe we’re ready to get underway again.

28753. MS. CAMPBELL: Hello.

28754. THE CHAIRPERSON: Hello. Is this Ms. Campbell?

28755. Ms. Campbell, is this you, are you on the line?

28756. MS. CAMPBELL: Yes, I am.

28757. THE CHAIRPERSON: It’s Sheila Leggett speaking.

28758. MS. CAMPBELL: Oh, hello.

28759. THE CHAIRPERSON: Nice to meet you at a distance.

28760. MS. CAMPBELL: Yes, we’re very excited.

28761. Can you hear us okay?

28762. THE CHAIRPERSON: We can hear you very clearly. Thank you

very much.

28763. And I just wanted to confirm that you’re also on WebEx?

28764. MS. CAMPBELL: Yes, we are.




28765. THE CHAIRPERSON: So you’re able to see the screen. And do

you have your camera turned on so that we can have the chance to meet you too?

28766. MS. CAMPBELL: We do. Can you see us?

28767. THE CHAIRPERSON: Not yet.

28768. MS. CAMPBELL: Oh, there we are.

28769. THE CHAIRPERSON: So my next question was to ask you if you

were alone. I see that that’s not the case.

28770. MS. CAMPBELL: No.

28771. THE CHAIRPERSON: So, Ms. Campbell, will it be you who’s

asking the questions?

28772. MS. CAMPBELL: Chief Goerz is going to make an opening

statement and then Germaine Conacher and I will be asking questions.

28773. THE CHAIRPERSON: And could we just get everybody’s names

for the spelling, just for the record please?

28774. CHIEF GOERZ: My name is Gil Goerz, G-O-E-R-Z, and I’m the

elected Chief of Michel First Nation.

28775. THE CHAIRPERSON: It’s a pleasure to meet you, Chief.

28776. CHIEF GOERZ: Thank you.

28777. MS. CAMPBELL: I’m Tracy Campbell, T-R-A-C-Y, C-A-M-P-B-E-

L-L. And I’m with Calliou Group, and Michel First Nation is our client.

28778. MS. CONACHER: Hi there. And Germaine Conacher, it’s G-E-R-

M-A-I-N-E, C-O-N-A-C-H-E-R.

28779. THE CHAIRPERSON: Thank you very much to each of you. It just

helps with the transcript to make sure we can accurately record your names.

28780. So, Chief, over to you.




28781. CHIEF GOERZ: Okay. We would like to thank the Joint Review

Panel for this opportunity to Michel First Nation to participate in the proceedings.

28782. It is our first opportunity to speak publicly about this project and the

consultation process with Michel First Nation. We very much appreciate this

opportunity to test the evidence filed with respect to Michel First Nation.

28783. And now I’ll turn it over to Tracy and Germaine.

28784. MS. CAMPBELL: Can you hear us okay?

28785. THE CHAIRPERSON: Yes we can. Thank you.

28786. MS. CAMPBELL: Oh, I can’t see anybody over there. Is that ---

28787. THE CHAIRPERSON: Oh, we’re here, I promise.

28788. MS. CAMPBELL: Oh, there you are. Oh, but now we can’t see --

oh, I guess -- okay.

28789. THE CHAIRPERSON: You’ll find that the camera will move

around to whoever is speaking.

28790. MS. CAMPBELL: Okay.

28791. THE CHAIRPERSON: And so you’ll have that opportunity when

the questions get asked. I don’t know if I’m showing up on your screen or not,

but when ---

28792. MS. CAMPBELL: Not at ---

28793. THE CHAIRPERSON: There we are. Good afternoon.

28794. MS. CAMPBELL: Hi.

28795. THE CHAIRPERSON: Hi. And so let’s go ahead with your

questions please, Ms. Campbell.

--- EXAMINATION BY/INTERROGATOIRE PAR MICHEL FIRST NATION:




28796. MS. CAMPBELL: Okay. We’re looking at Document Number

D139-308. And my question is to Northern Gateway, can you confirm how

Northern Gateway first came into -- be entered into a consultation process with

Michel First Nation?

28797. MS. JAN WHITNEY: Hi, Ms. Campbell. It’s Jan Whitney

speaking.

28798. We were initially advised of Michel First Nation through this letter,

and subsequent to that we later had two meetings with Michel in, I believe in

2009.

28799. MS. CAMPBELL: Oh, I’m sorry; we’re having such trouble hearing

you.

28800. Oh, and that’s got a delay on it.


28801. THE CHAIRPERSON: You really need to pull that microphone

closer.

28802. MS. CAMPBELL: I know.

28803. THE CHAIRPERSON: So we’re just having a little bit of a

balancing act on the sound because, Ms. Campbell, you’re coming through very

loud and clear and ---

28804. MS. CAMPBELL: Oh, you are not.

28805. THE CHAIRPERSON: And so our -- can you hear me now, Ms.

Campbell?

28806. MS. CAMPBELL: I can.

28807. THE CHAIRPERSON: You can, okay. And so Ms. Whitney has

pulled the microphone closer. So let us know if you’re having trouble hearing her

and we’ll make further adjustments.




28808. MS. CAMPBELL: Awesome.

28809. THE CHAIRPERSON: Thank you. Were you able to understand

Ms. Whitney’s ---

28810. MS. CAMPBELL: I didn’t hear a word.

28811. THE CHAIRPERSON: You didn’t hear a word. We’ll ask Ms.

Whitney to repeat her answer please.

28812. MS. JAN WHITNEY: Ms. Campbell, I was responding to your

question. And yes, the Michel First Nation self-declared an interest in the

Northern Gateway Project in accordance with this letter. Subsequently we met

with Michel First Nation later; I believe it was in November or December after

this letter.

28813. MS. CAMPBELL: Okay, Michel First Nation requested Northern

Gateway’s detailed record of communication used to outline events in the

Application update B2-26, PDF page 109.

28814. Can you confirm that Northern Gateway has not yet filed that detailed

record of communication including copies of emails, phone records, meeting

minutes as requested on August 25th, 2011?

28815. MS. JAN WHITNEY: Are you speaking about the consultation log?

28816. MS. CAMPBELL: Well, in our IR No. 1, we requested the

information that was used to create the table. In the Application update, the

document number is B2-26, PDF page 109.

28817. And since we made that request, can you confirm that Northern

Gateway has not provided the details used to prepare that summary?


28818. MS. ESTEP: So, Madam Chair, -- it’s Laura Estep, counsel for

Northern Gateway. So there was an information request that -- where the Michel

First Nation had requested further information. The consultation log was

provided.




28819. Is that what we’re -- what the questions are guided towards?

28820. MS. CAMPBELL: Well, as it turns out, the log that Northern

Gateway provided at -- it was called “Attachment MFN IR 1.1.6”. It was an

incorrect -- it was our letter that they -- that you attached as the attachment.

28821. MS. ESTEP: Yes, and I had correspondence with you on February

26th where I pointed out to you the correct attachment where that was replaced.

28822. MS. CAMPBELL: And could you give us the document number for

that?

28823. MS. ESTEP: Certainly, it’s B74-11.

28824. MS. CAMPBELL: Can you pull that up for us?

28825. THE CHAIRPERSON: Ms. Gilbert will just do that now. There it

is.

28826. MS. CAMPBELL: Awesome. And the date that you provided that?

28827. MS. ESTEP: Ms. Campbell, you and I had an exchange of emails

where you had indicated a list of documents that you intended to refer to and, in

responding to that email on February 26th, I indicated to you that -- I pointed out

to you that the correct reference for this particular table was Exhibit B74-11.

28828. MS. CAMPBELL: And that was February 26th

of this year?

28829. MS. ESTEP: February 26th

, 2013.

28830. MS. CAMPBELL: Twenty thirteen (2013)?

28831. MS. ESTEP: Yes, this year.

28832. MS. CAMPBELL: Okay.

28833. So that was when the updated ROC was provided -- two years after

Michel First Nation asked for it?

28834. MS. ESTEP: No, that’s not correct.




28835. That was when my email to you, just as a courtesy because you’d

referenced the place in the record where the incorrect document had been

provided and we acknowledged that and replaced the document.

28836. So I was directing you to the correct exhibit number and that email

was February 26th

.


28838. MS. ESTEP: But the correct document was filed June 7th, 2012.

28839. MS. CAMPBELL: June 7th, 2012. Okay.

28840. So a year after Michel First Nation asked for it?

28841. Is that correct?

28842. MS. ESTEP: Well, the filing dates are on the record.

28843. MS. CAMPBELL: Okay. Thank you.

28844. Did the Crown or any regulatory authority provide any direction,

whether written or verbal, to Northern Gateway to guide its consultation efforts

with Michel First Nation?


28845. THE CHAIRPERSON: So, Ms. Campbell, the witness panel is just

conferring before they answer your question. I just wanted you to know what’s

going on.

28846. MS. CAMPBELL: I see that.

28847. THE CHAIRPERSON: Okay, great. Thanks.

28848. MS. JAN WHITNEY: Northern Gateway did consult with the

provincial Crown in terms of consultation, not specific to Michel.

28849. MS. CAMPBELL: So the Crown has not.




28850. Did Northern Gateway seek any direction, whether written or verbal,

from the Crown or regulatory authorities to guide its approach to consultation

with Michel First Nation?

28851. MS. JAN WHITNEY: No, I wouldn’t say we sought direction.

28852. We met with the provincial Crown just to provide project information

and it was project information to introduce them to the Project.

28853. MS. CAMPBELL: So no federal authorities either?

28854. MS. JANET HOLDER: Yes, with respect to the federal Crown, we

relied on the Aboriginal consultation framework for this Project.

28855. Again, not specific to any one First Nation, it was the framework for

all First Nations or all Aboriginal communities.

28856. MS. CAMPBELL: So can you tell me why advice was not sought

from the Crown about Michel?

28857. What’s the rationale for that?


28858. MS. JANET HOLDER: We did rely on the information that was

provided to us from the Crown in their Aboriginal consultation framework and

through this process of the JRP.

28859. We did not seek guidance for any one particular Nation over another

Nation. We relied on this framework and the guidance from this process to be

used for all Aboriginal groups.

28860. MS. CAMPBELL: Great. Thank you.

28861. Does an Aboriginal group have to be a “discreet entity” -- and I use

those words in quotation -- in the eyes of Canada for Northern Gateway to collect

information on traditional use of land and resources by its members?

28862. MS. JANET HOLDER: You’re going to have to help us with the




quotes “discreet ---

28863. MS. CAMPBELL: “Discreet entity.”

28864. MS. JANET HOLDER: --- entity”.

28865. Is there a reference to discreet entity that we can refer to, to make sure

---

28866. MS. CAMPBELL: I believe so. It was in our -- it was in one of the

tables that Northern Gateway …

28867. Can I come back to that? Because I think our reference is a little later.

28868. MS. JANET HOLDER: Yes, you can.


28870. Okay, we’d like to move to a different area. We’d -- just so that we’re

using the same terms to mean the same things, we’d like to ask a few question

about the material filed by Northern Gateway.

28871. And we’d ask you to refer to document B3-16, PDF page 51.

28872. Can I go ahead?

28873. THE CHAIRPERSON: Ms. Campbell, can you point us to the part

on the page that you’re wanting to direct the witnesses to?

28874. It’s not necessary to read the material, just point everybody to where

---

28875. MS. CAMPBELL: Right.

28876. THE CHAIRPERSON: --- on the page you’re referring to.

28877. MS. CAMPBELL: We can’t see it. Oops.

28878. THE CHAIRPERSON: You’re not able to see what’s on -- you’re

not able to see the document on your screen?




28879. MS. CAMPBELL: Now, we see it, sorry.

28880. THE CHAIRPERSON: Okay, great. Thanks.

28881. MS. CAMPBELL: So it’s the definition for “environment”, the

definition for “effect” and the definition for “environmental affect”.

28882. Right there. Awesome.

28883. So could you confirm and would -- to be clear, would you agree that

the term “environment” includes both human and non-human components?

28884. MR. JEFFREY GREEN: Ms. Campbell, it’s Jeff Green. That is

correct.

28885. And these definitions are extracted from the Canadian Environmental

Assessment Act.


28887. And I just wanted to quickly go through it because I think some of our

questions later may refer back to these definitions.

28888. To be clear, would you agree that the definition of “effect” is an

identified change to a valued component of the environment selected for study?

28889. MR. JEFFREY GREEN: I think that’s fair and the Act actually

specifies that we look at adverse effects primarily.


28891. And to be clear, would you agree that the environmental -- an

environmental effect is not restricted to identify changes to biophysical

components only but includes identified changes to human components as well?

28892. MR. JEFFREY GREEN: The Act is quite specific about what those

components are. So for example, in relation to Aboriginal groups, it primarily

focuses on changes to resources that are used by other people, including

Aboriginal groups. And then there’s reference to the current use of land and




resources as the specific reference for Aboriginal people.

28893. MS. CAMPBELL: Awesome. And I guess I am raising this because

sometimes there’s a discrepancy or a confusion around the word, environment,

meaning just biophysical. So -- and when we say, resources, sometimes people

hear just biophysical. So I want to make clear that the issues of greatest concern

to Aboriginal groups would be represented by both biophysical and human

components selected for study; correct?

28894. MR. JEFFREY GREEN: That’s correct.

28895. MS. CAMPBELL: Okay. And would you agree with me that in

order to maintain public confidence in the outcome and results of an

environmental assessment, standardized methodology should be used for all

selected VECs for study, whether biophysical or human components?

28896. MR. JEFFREY GREEN: I would agree and we tried to do that to

the best of our ability. There are some subtle differences between social and

cultural and economic effects and biological effects. As an example, it’s often

hard to set quantitative thresholds for cultural and social effects, as compared to

biological effects.

28897. MS. CAMPBELL: Agreed. I’d like to turn now to the words, issue

and concerns. They’re used frequently without -- throughout the application and

other material filed by Northern Gateway for these proceedings. Can you provide

a definition of the term, issues and concerns, or identify where we can find that

definition in the material filed by Northern Gateway?

28898. MR. JEFFREY GREEN: That was the topic of a panel -- the

Pipeline Panel in Prince George. And to save time, I’ll just say that an issue

and/or concern is typically what an Aboriginal group regulator or stakeholder may

raise as something of importance to them.

28899. As environmental impact assessors, we then look at issues and

concerns and restate them in relation to a change in the valued environmental

component and the measurable parameter associated with that measurable

parameter.

28900. MS. CAMPBELL: You restate them?




28901. MR. JEFFREY GREEN: Well as an example, an Aboriginal group

may make a statement like, we’re concerned about the effects of oil spills on

wildlife or on plants and then what the assessor would do -- would say, well, a

concern expressed by that group and perhaps other groups would be the

measurable parameter might be changed in the health of plants or the change in

the mortality risk to wildlife.

28902. So it’s translated into a more measurable parameter, not in all cases

but for biological parameters as an example for cultural and social traditional land

use -- non-traditional land use. The same sort of effects are more difficult to

quantify in terms of measurable parameters.

28903. MS. CAMPBELL: But would you agree with me that issues and

concerns expressed by people are different than the identified effects using the

CEAA definition we just talked about?

28904. MR. JEFFREY GREEN: Yes. And in fact, if you go in ---

28905. MS. CAMPBELL: That’s good, that’s good.

28906. MR. JEFFREY GREEN: No, I just want to make the point that in

our environmental assessments, in each of the volumes, there is a section that’s

called “Issues and Concerns” where we discuss the various types of exactly that,

issues and concerns expressed by various parties. We make attributions to who

raised the concern.

28907. Quite often in especially the biological resources, there’s a specific

section on the concerns of Aboriginal people in relation to that valued

environmental component. And then we continue to go on in the assessment,

scoping the assessment because issues and concerns are the first step in scoping

and then we eventually get to what is the actual measurable change that we’re

trying to assess.

28908. MS. CAMPBELL: Awesome, thank you.

28909. Can you confirm the size and the scope of mitigation measures should

be proportionate to the size and the scope of identified effects resulting from the

assessment?

28910. THE CHAIRPERSON: Ms. Campbell, I wonder if you can help the




Panel understand the relevance of this line of questioning for this particular panel

that’s in front of us now, which is focusing on Aboriginal engagement and public

consultation? It appears that the questions you’re raising are topics that have been

previously canvassed on other panels.

28911. MS. CAMPBELL: I believe they set the groundwork for the

questions around the specifics -- the specific treatment of Michel First Nation by

Northern Gateway throughout the consultation process. In particular, the way in

which information was gathered by -- from Michel First Nation and the response

we got from -- in the consultation process by Northern Gateway.

28912. THE CHAIRPERSON: Ms. Campbell, I’d encourage you to go

directly to those questions that relate to consultation and engagement and if

there’s a need to fill in material behind that, you can do that at that point but we

would like to go to your questions that you have of this panel directly about

Aboriginal engagement and public consultation.

28913. MS. CAMPBELL: Okie dokie, I’ll do that.


28915. MS. CAMPBELL: Okay. We’d like to turn to the submission of the

Michel First Nation project specific traditional land use study for use by Northern

Gateway.

28916. Can you confirm that Michel First Nation requested the collection of

Aboriginal traditional knowledge for integration into the project application as

early as October 2009?

28917. I believe it’s outlined in the document that we had up in the screen

earlier, document D139-3-08. That’s the one.

28918. THE CHAIRPERSON: Does the witness panel need the question

repeated?

28919. MS. JAN WHITNEY: I can confirm that we received the ATK study

August 2010.

28920. MS. CAMPBELL: That -- no, my question was, can you confirm

that Michel First Nation requested the collection of Aboriginal traditional




knowledge for integration into the project application to Northern Gateway as

early as October 2009?

28921. MS. JAN WHITNEY: Perhaps if you could point to this letter? This

is a letter to ---

28922. MS. CAMPBELL: Yep, if you can go down or can I control it? Oh,

that would be scary. Keep it going, keep it going, keep it going, keep it going.

28923. THE CHAIRPERSON: Do you have a page number that you can

point us to, Ms. Campbell?

28924. MS. CAMPBELL: It’s near the end. Whoops, too far, too far.

Sorry, I didn’t realize there was an attachment at the end.

28925. THE CHAIRPERSON: I believe this is the end of the letter. Is that

the right page or do we need to go up one more?

28926. MS. CAMPBELL: One more page.

28927. THE CHAIRPERSON: Okay.

28928. MS. CAMPBELL: At the bottom. So Michel talks about not having

capacity. Michel talks about having section 35 rights. Michel First Nation

requires capacity to specifically document the historical and current traditional

uses of land by our membership that are potentially affected by your project.

28929. Without this capacity which we currently do not have, we will be

unable to present at the proceedings the evidence necessary, blah, blah, blah.

28930. MS. JANET HOLDER: I wouldn’t go blah, blah, blah but yes, that

is the information and we can agree that it was provided on October 29th, 2009.


28932. Would you agree that Northern Gateway was aware of Michel First

Nation and their desire to collect ATK information for six months prior to the

submission of the application in May 2010?

28933. MS. JAN WHITNEY: My -- Jan Whitney here.




28934. My recollection is Michel First Nation sent us a letter. We responded

to the letter. The normal process, in terms of the ATK program is we would have

met with you, introduced the idea in terms of if you wanted to do your study and

got into work plan development. I believe FMA was also involved and so that

process was well under its way.

28935. MS. CAMPBELL: Yeah. Michel First Nation didn’t control that

process. We sent the letter in 2009 and waited for the meeting in February of

2010.

28936. But would you agree that Northern Gateway controlled the size and

the scope of the amount of ATK information collected by Michel First Nation,

including the total number of interviews?

28937. MS. JAN WHITNEY: No, I would disagree.

28938. MS. CAMPBELL: And why would that be?

28939. MS. JAN WHITNEY: Our ATK program is -- in terms of the

funding amount, is we would treat groups with similar characteristics in similar

ways.

28940. So the funding amount that was allocated or was agreed upon between

Michel First Nation and Northern Gateway.

28941. MS. CAMPBELL: You mentioned similar characteristics. Can you

describe a little bit what that is for Michel?

28942. MS. JAN WHITNEY: It could mean groups that have a certain

number of population. It could mean location from the right-of-way. It could

mean where your community is based.

28943. So in a nutshell, groups that were in the similar characteristics were

treated in similar ways. And then, the work plan development would have

included input from Michel and ultimately led to the mutual amount that was

agreed upon to conduct that study.

28944. MS. CAMPBELL: Do you recollect that Michel First Nation

submitted a budget for a traditional land use study of $160,000?




28945. Hundred.


28946. MS. JAN WHITNEY: Yes, I am aware of that.

28947. MS. CAMPBELL: I mean hundred.


28948. MS. JAN WHITNEY: Yes, I am aware of that amount.

28949. MS. CAMPBELL: And that Northern Gateway informed Michel that

they would only entertain a study of -- in the range of $20 to $40,000?

28950. MS. JAN WHITNEY: I would say that ATK funding is proportional

to the scope of ATK work identified by Michel First Nation and mutually agreed

upon.

28951. MS. CAMPBELL: So we did submit our budget and that was our

scope and Northern Gateway came back with a different scope and do you

recollect that?

28952. MS. JAN WHITNEY: Yes. I recollect that we mutually agreed upon

the scope of work including the work plan and budget; and that’s how you move

forward with your study.

28953. MS. CAMPBELL: Hmm.

28954. Could you refer to document B2-34, PDF page 16?

28955. At the bottom of the page. So this is the Application reflecting a date

of May, 2010.

28956. Would you agree by the time that this Application was filed in May

2010 Northern Gateway understood Michel First Nation’s desire to collect ATK

information independently?

28957. MS. JAN WHITNEY: Yes, that’s correct.




28958. The ATK program is ongoing and there were 17 studies that were filed

at the time of the Application but it wasn’t unusual to have other studies ongoing

at the same time, similar to Michel First Nation.

28959. MS. CAMPBELL: I guess I’d refer you specifically to the bottom of

that table where it says “Michel First Nation”, the status unknown and the type --

or the type unknown and the status engagement, using your definitions.

28960. MS. MICHELE PERRET: Can you just -- Ms. Gilbert, can you just

scroll up so we can see the titles on each of those columns, please? Thank you.

28961. MS. JAN WHITNEY: If you scroll down the document you’ll see

the definition.

28962. MS. CAMPBELL: M’hm.

28963. I think it’s on another page after the table.

28964. MS. JANET HOLDER: Yes, I can -- it’s on Page 19, Adobe page 19

of the same exhibit.

28965. MS. CAMPBELL: M’hm.

28966. MS. JANET HOLDER: Where it explains the status type as being

engagement, Footnote 5. There you go.

28967. MS. CAMPBELL: Can you think of a reason why Aboriginal

groups would choose to collect their own ATK information instead of using the

Proponent’s consultants to do so?

28968. MS. JAN WHITNEY: You did opt to do your own study. Your

study is an independent study.

28969. MS. CAMPBELL: Oh, I agree.

28970. Can -- I’m asking, can you think of a reason why Aboriginal groups

would choose to collect their own ATK information instead of using the

Proponent’s consultants to do so?





28971. MS. JAN WHITNEY: I can appreciate that Michel First Nation

wanted to do their own independent study.

28972. The information is very confidential and collecting the information is

-- can be very -- a lot of the information that’s collected is sensitive.

28973. So I can understand that and appreciate that and there were several

independent studies.

28974. MS. CAMPBELL: Is there a difference between the budgets

identified by Northern Gateway for collaborative versus independent ATK

studies?

28975. From Northern Gateway’s perspective.


28976. MS. JAN WHITNEY: No, because each study was based on a case-

by-case and it really depended on your scope of work, the number of participants,

the capacity of the community.

28977. There’s such a range in terms of that scoping.

28978. MS. CAMPBELL: So would you agree that the amount offered

Michel First Nation to complete the collection of ATK was substantially lower

than the budget and scope of work provided to Northern Gateway?

28979. MS. JAN WHITNEY: No, I would not.

28980. ATK funding that was provided to Michel First Nation was

comparable to amounts provided for similar studies with other groups with the

same characteristics.

28981. MS. CAMPBELL: And those characteristics are the population, the

location, the community, et cetera, that you raised before?

28982. MS. JAN WHITNEY: Yes, many things.




28983. So your study was right in line in terms of other studies.

28984. MS. CAMPBELL: Do you have knowledge that, by drastically

reducing the amount available to collect ATK information, it will drastically

reduce the total number of interviews conducted by Michel First Nation?

28985. MS. JAN WHITNEY: I’ll repeat: the ATK funding that Michel First

Nation received was comparable to amounts provided for similar studies with

other groups such -- similar to Michel First Nation.

28986. MS. CAMPBELL: Do you know how many Nation members Michel

has?

28987. MS. JAN WHITNEY: Yes, let me just check.

28988. I did read your study, by the way.


28989. MS. JAN WHITNEY: According to your study, 750.

28990. MS. CAMPBELL: So for other Aboriginal groups with 750

members, the size of capacity provided to collect ATK information was

comparable to $40,000?

28991. MS. JAN WHITNEY: Yes, that’s correct.

28992. I’ll repeat again, the ATK funding amount that was provided to Michel

First Nation for -- actually produced quite a robust study.

28993. MS. JANET HOLDER: Sorry, I just want to interject as, you know,

it does include other factors which I believe Ms. Whitney has mentioned earlier

and I -- also, my understanding is that Michel First Nation did agree with the --

the study that we presented.

28994. MS. CAMPBELL: Michel First Nation had no choice but to agree

with the funding.

28995. It was a take it or leave it situation, so either we agreed to accept the

$40,000 and conduct the study or not conduct the study.




28996. THE CHAIRPERSON: Ms. Campbell, you’ll have your opportunity

to provide your viewpoints in final argument.

28997. At this point, we’re here to ---

28998. MS. CAMPBELL: I couldn’t resist. I couldn’t resist.


28999. THE CHAIRPERSON: And just while I’ve interrupted you, we do

plan to stop sitting around 3:30.

29000. So if you can just bear that in mind -- which would be 4:30 your time

-- and let us know when a convenient time to stop is.

29001. You don’t have to stop right now but I just wanted to let you know that

that is the time that we will aim to stop sitting by.

29002. MS. CAMPBELL: Okay, just a couple more questions then.

29003. Can you confirm that in earlier testimony -- and I apologize, it was in

yesterday’s testimony and we don’t have the reference specifically from the

transcript -- but that in earlier testimony, Northern Gateway identified that $2.5

million was provided to 26 Aboriginal groups.

29004. Is that correct?

29005. MS. JANET HOLDER: In Alberta, that is correct.

29006. MS. CAMPBELL: Great.

29007. Can you confirm that Northern Gateway representatives

communicated to Michel First Nation on March 10th, 2010 that the amount of

capacity to collect ATK information from Michel was related to “the MFN

status” and the reference to that is document D139-3-09, PDF page 2 of 9?

29008. MS. ESTEP: Madam Chair, there is quite a bit in there.

29009. If Ms. Campbell could just break it down a little bit, that would be




helpful.

29010. MS. CAMPBELL: I can repeat it if -- sure ---

29011. THE CHAIRPERSON: And Ms. Campbell, again, it’s Sheila

Leggett.

29012. I would encourage you to speak just a little bit more slowly so that we

can keep up with you as well as having the interpreters be able to keep -- the

translators be able to keep up with you.

29013. MS. CAMPBELL: You are asking me to break years and years of

habit.


29014. MS. CAMPBELL: Okie dokie.

29015. THE CHAIRPERSON: All in one afternoon.

29016. MS. CAMPBELL: Can you confirm that Northern Gateway

representatives communicated to Michel First Nation on March the 10th

, 2010 that

the amount of capacity to collect ATK information from Michel was related to

“Michel First Nation’s status”?

29017. MR. PAUL ANDERSON: Could we have the reference number,

please, again?

29018. MS. CAMPBELL: Document D139-3-09, PDF page 2 of 9.


29019. MS. JAN WHITNEY: I believe this is your evidence; is that correct?

29020. MS. CAMPBELL: Yes, it was filed quite a while ago, so I would

have figured that, if there was a dispute in the evidence, you would have told us.


29021. MS. CAMPBELL: It was a series of emails and conversations




between Northern Gateway and -- and ourselves about reducing the amount of the

-- of the budget and what that would mean to the number of interviews.

29022. And we asked why and we were told that Michel First Nation’s status

had something to do with the amount provided to Michel.

29023. MS. ESTEP: So Ms. Campbell, it’s Laura Estep.

29024. I see the two lines that are dated March 10th, 2010 ---


29026. MS. ESTEP: Are those the two that we’re looking for there because

it doesn’t seem to refer to status?

29027. MS. CAMPBELL: On March the 10th, Kate McAnally phone call?

29028. MS. ESTEP: Perhaps you could just read the portion that you want

the witnesses to ---

29029. MS. CAMPBELL:

“Kate called …”

29030. Whoops. You just went black, whoops, there.

“Kate called to indicate that Enbridge based their $40,000

funding amount on internal reasons including MFN's status.”

29031. MS. JAN WHITNEY: I don’t -- that would have been FMA and, in

terms of status, is that engagement status?

29032. What ---

29033. MS. CAMPBELL: Status as in Indian Band.

29034. MS. JAN WHITNEY: That’s not what it says, though.

29035. MS. CAMPBELL: Is FMA consultants of Northern Gateway?




29036. MS. JAN WHITNEY: Yes.

29037. MS. CAMPBELL: Was the amount of funding based on the lack of

Band status?

29038. MS. JAN WHITNEY: They would never -- we would never -- it’s

not based on status in terms of being in -- you’re talking about being an Indian

Band recognized under Section 35?

29039. MS. CAMPBELL: Yes.

29040. MS. JAN WHITNEY: Is that ---

29041. MS. CAMPBELL: No, not Section 35, the Indian Act.

29042. MS. JAN WHITNEY: I mean, under the Indian Act. They -- they

would never base it on that. The ---

29043. MS. CAMPBELL: Great, good. Thank you.

29044. Do you agree with the sequence of events after the submission of

Michel First Nation’s ATK study to Northern Gateway?

29045. I’ll slow down. Do you agree with the sequence of events after the

submission of Michel First Nation’s ATK study to Northern Gateway on August

30th, 2010 as described in the ROC?

29046. It’s the same document that we’re looking at.

29047. MS. ESTEP: Sorry, what was the date again please?

29048. MS. CAMPBELL: We -- August 30th, so it’s the next page, I believe.

29049. Keep it going, sorry. There it is, August the 30th, the ATK study was

submitted and then, a year later, Northern Gateway sent an email to us asking if

we -- if they could use it?

29050. MS. JAN WHITNEY: Yes, I do recall there was some confusion and

there was a -- in terms of Michel First Nation, I know that the Nation did not want

to use our format in terms of how we receive an ATK study and that was the




question.

29051. And it took some time, you’ll recall, Tracy, because on your end, you

didn’t like the format that Northern Gateway was using in terms of -- for practical

purposes, putting a summary table together so that we could use for our technical

meeting.

29052. Do you recall that?

29053. MS. CAMPBELL: What I recall was the study was submitted on

August the 10th with a cover letter that asked you to use it internally with your

biophysical and -- and socioeconomic discipline leads and submit the study to the

regulator and please identify how you would use it.

29054. MS. JAN WHITNEY: It was submitted internally in terms of when

we receive the -- the study, we normally and we usually pass it on to the

environment disciplines, the engineering discipline.

29055. Your study was addressed and it was used in the project -- in the

project planning, in design.

29056. It was addressed in JRP 10.9 in terms of how we were -- the suggested

mitigation measures.

29057. MS. CAMPBELL: So could you scroll down to 2011 with the

exchange that, a year later, we got a request from Colin Buchanan asking if they

could take the -- the confidential -- they could use the -- they could use the study

internally a year after it was submitted?

29058. MS. ESTEP: Sorry, where are we in the table now?

29059. MS. CAMPBELL: We can give you the -- the string of emails.

29060. It’s in -- hold on one second.

29061. So in D139-4-1, the email chain was submitted as evidence -- oh, I’m

sorry, it’s -- if you go down a little bit, keep going, keep going -- can I drive?

29062. THE CHAIRPERSON: No. But it would be helpful if you could

give us the Adobe page number?




29063. MS. CAMPBELL: It’s after the ROC.

29064. THE CHAIRPERSON: What does -- can you help us through this

then?

29065. MS. CAMPBELL: Yes, keep it going, keep it going, keep it going,

keep it going.

29066. THE CHAIRPERSON: So tomorrow when you come back it would

be very helpful if you had the Adobe page numbers, as well as the evidence

exhibit numbers.

29067. MS. CAMPBELL: Will do.


29069. MS. CAMPBELL: One more.

29070. So this is the -- on August the 16th

in an email from myself to Colin

Buchanan -- just go down a tiny bit -- awesome.

29071. So this was the outline of the submission of the report and the

exchange between Northern Gateway and Michel about use of the study and it’s

being considered confidential by Northern Gateway.

29072. MS. JAN WHITNEY: I’m sorry; can I get your question again?

29073. MS. CAMPBELL: Sure. Can you confirm that the Michel First

Nation ATK study was considered confidential by Northern Gateway as of

August 2011, despite Michel First Nation requesting the ATK study to be filed

publicly 12 months earlier, publicly and internally with their disciplines?

29074. MS. JAN WHITNEY: I believe -- what I can confirm is that we did

receive your study and we were considering it internally. We did respond to the

study in terms of JRP 10.10. As we do with all studies, we continue to collect

them and use them internally. You did publicly file it with the JRP.

29075. MS. CAMPBELL: I guess what I’m asking, though, is this email

suggests that it was not shared internally from SNA to Stantec or other




consultants with Northern Gateway, and that by August 2011, which was a year

after it was filed with you, it had not been shared internally.

29076. MR. PAUL ANDERSON: Ms. Campbell, this is Paul Anderson

speaking.

29077. I can tell you, after speaking with Dr. Buchanan, that he did send this

email in error. He wasn’t -- he was checking on whether it was still confidential.

He found out, through you, that it wasn’t. But I can confirm that the information

had been distributed within our team prior to this email going to you.

29078. MS. CAMPBELL: That might be a good place to stop.

29079. THE CHAIRPERSON: Thank you very much, Ms. Campbell. So

we’ll stop for today and we’ll resume tomorrow morning at 8:30.

29080. And, Ms. Campbell, it would be of great help if you had the PDF page

numbers as well when we go back into the evidence with you tomorrow morning.

29081. MS. CAMPBELL: Will do.

29082. THE CHAIRPERSON: Thank you very much, everyone.

29083. Good evening.

--- Upon adjourning at 3:39 p.m./L’audience est ajournée à 15h39

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