Hearing Order OH-002-2013 Ordonnance d'audience OH-002-2013 ...

NATIONAL ENERGY BOARD OFFICE NATIONAL DE L’ÉNERGIE

Hearing Order OH-002-2013 Ordonnance d’audience OH-002-2013 Enbridge Pipelines Inc. Line 9B Reversal and Line 9 Capacity Expansion Project Application under s.58 of the National Energy Board Act Pipelines Enbridge Inc. Projet d’inversion de la canalisation 9B et d’accroissement de la capacité de la canalisation 9 Demande présentée aux termes de l’article 58 de la Loi sur l’Office national de l’énergie VOLUME 5 Hearing held at L’audience tenue à Metro Toronto Convention Centre South Building 222 Bremner Boulevard Toronto, Ontario October 16, 2013 Le 16 octobre 2013

International Reporting Inc. Ottawa, Ontario (613) 748-6043

© Her Majesty the Queen in Right of Canada 2013

© Sa Majesté du Chef du Canada 2013

as represented by the National Energy Board

représentée par l’Office national de l’énergie

This publication is the recorded verbatim transcript

Cette publication est un compte rendu textuel des

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

délibérations et, en tant que tel, est enregistrée et

official languages, depending on the languages

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

spoken by the participant at the public hearing.

officielles, compte tenu de la langue utilisée par le participant à l’audience publique.

Printed in Canada

Imprimé au Canada

HEARING ORDER/ORDONNANCE D’AUDIENCE OH-002-2013 IN THE MATTER OF Enbridge Pipelines Inc. Line 9B Reversal and Line 9 Capacity Expansion Project Application under s.58 of the National Energy Board Act

HEARING LOCATION/LIEU DE L'AUDIENCE Hearing held in Toronto (Ontario), Wednesday, October 16, 2013 Audience tenue à Toronto (Ontario), mercredi, le 16 octobre 2013

BOARD PANEL/COMITÉ D'AUDIENCE DE L'OFFICE L. Mercier

Chairperson/Présidente

M. Richmond

Member/Membre

J. Gauthier

Member/Membre

Transcript

Hearing Order OH-002-2013

APPEARANCES/COMPARUTIONS (i) APPLICANT/DEMANDEUR Enbridge Pipelines Inc. - Me Ann Bigué - Mr. Douglas E. Crowther - Ms. Margery Fowke - Ms. Kristi Millar INTERVENORS/INTERVENANTS First Nations/Premières Nations Aamjiwnaang First Nation - Mr. Scott A. Smith - Mr. Paul Seaman Chippewas of the Thames First Nation - Mr. Scott A. Smith - Mr. Paul Seaman Mohawk Council of Kahnawà:ke - Chief Clinton Phillips - Mr. Francis Walsh - Mr. Patrick Ragaz Groups/Groupes Algonquin to Adirondacks Collaborative - Ms. Emily Conger - Mr. Rob McRae Association Industrielle de l’Est de Montréal - M. Dimitri Tsingakis - M. André Brunelle Canadian Association of Petroleum Producers - Me Guy Sarault - Mr. Nick Schultz Communications Energy and Paperworkers Union of Canada - Unifor - Mr. Steven Shrybman Conseil du patronat du Québec - Mme Norma Kozhaya - M. Yves-Thomas Dorval - M. Louis-Paul Lazure

Transcript


APPEARANCES/COMPARUTIONS (ii) INTERVENORS/INTERVENANTS (Continued/Suite) Groups/Groupes Council of Canadians - York University Chapter - Mr. Amit Praharaj Durham Citizens Lobby for Environmental Awareness and Responsibility Inc. DurhamCLEAR - Mr. Doug Anderson Équiterre (Coalition) - Mr. Albert Koehl - M. Sidney Ribaux Fédération des chambres de commerce du Québec - M. Jérôme Gaudreault - M. François-William Simard Grand River Indigenous Solidarity - Mr. Dan Kellar - Ms. Rachel Avery Great Lakes and St. Lawrence Cities Initiative - Ms. Nicola Crawhall - Mr. Philippe Chenard Manufacturiers et exportateurs du Québec - M. Simon Prévost - Mme Audrey Azoulay Ontario Petroleum Institute - Mr. Jim McIntosh - Mr. Hugh Moran Ontario Pipeline Landowners Association - Mr. John D. Goudy Ontario Pipeline Probe - Mr. Darko Matovic Rising Tide Toronto - Ms. Amanda Lickers Stratégies Énergétiques - Me Dominique Neuman

Transcript


APPEARANCES/COMPARUTIONS (iii) INTERVENORS/INTERVENANTS (Continued/Suite) Groups/Groupes Sustainable Trent - Mr. Julian Tennent-Riddell Union des producteurs agricoles - M. Pierre Lemieux - Mme Isabelle Bouffard Companies/Compagnies Suncor Energy Marketing Inc. - Mr. Lawrence E. Smith, Q.C. - Mr. Jay Headrick - Mr. John Van Heyst Valero Energy Inc. (was Utramar Ltd., Ultramar Ltée) - Mr. Alan Hollingworth - Me Julie-Martin Loranger - Ms. Lisa Jamieson Governments / Gouvernements Alberta Department of Energy - Mr. Colin King Ontario Ministry of Energy - Mr. Rick Jennings City of Toronto - Mr. Graham Rempe Municipalité de Rigaud - Maire Réal Brazeau - Mme Chantal Lemieux Municipalité de Sainte-Justine-de Newton - Mairesse Patricia Domingos Municipalité de Très-Saint-Rédempteur - Maire Jean A. Lalonde Municipalité régionale du comté de Vaudreuil-Soulanges - M. Guy-Lin Beaudoin - Dr Gilles Bolduc - Mr. Simon Richard

Transcript


APPEARANCES/COMPARUTIONS (iv) INTERVENORS/INTERVENANTS (Continued/Suite) Governments/Gouvernements Ville de Sainte-Anne-des-Plaines - M. Guy Charbonneau - M. Benjamin Plourde Individuals/Individus Ms. Catherine Doucet Ms. Marilyn Eriksen Ms. Emily Ferguson Dr. Nicole Goodman Ms. Sarah Harmer Ms. Louisette Lanteigne M. Jean Léger Ms. Carrie Lester Mr. John Quarterly National Energy Board/Office national de l’énergie - Mr. Ryan Rodier - Mr. Mark Watton

Transcript


ERRATA (i) Tuesday, October 8, 2013 - Volume 1 Paragraph No.: 196: “MR.CROWTHER: ...”

Should read: “THE CHAIRPERSON: ...”

281: “...highly approximates spill costs...”

“...highly approximate spill costs...”

304: "...(qui est déjà en exploitation). Ainsi que..."

"...(qui est déjà en exploitation), ainsi que..."

334: “...Toronto information request 1.8.b. In particular, but...”

“...Toronto information request 1.8.b., in particular, but...”

375: "...capacité de la canalisation 9. Rapport..."

"...capacité de la canalisation 9, rapport..."

390: "...conditions d’écoulement. Ainsi que..."

"...conditions d’écoulement, ainsi que...”

394: “...are no are no cause for concern.”

“...are no cause for concern.”

442 and 443: Read separately.

Should be read together.

444: “...mentionnés et ailleurs...”

“...mentionnés ailleurs...”

452: “...First Nation against Enbridge Pipelines...”

“...First Nation v. Enbridge Pipelines...”

506: “...First Nations member to tour...”

“...First Nations members to tour...”

515 and 516: Read separately.

Should be read together.

Transcript


ERRATA (ii) Tuesday, October 8, 2013 - Volume 1 Paragraph No.: 527: “...conditions is necessary. Because the...”

Should read: “...conditions is necessary, because the...”

595: “...just let me try to be clearer if I wasn't...”

“...just let me try to be clear if I wasn't...”

604: “...use the word "official version"...”

“...use the words "official version"...”

616: “... -- it has once been expressed to me...”

“... -- it was once expressed to me...”

620: “...has been insufficient in its...”

“...has been deficient in its...”

630: “...engagement or consultation information sharing...”

“...engagement or consultation and information sharing...”

690: “...confined to disserved lands...”

“...confined to disturbed lands...”

709: “...I think and those efforts...”

“...I think. And those efforts...”

723: “...and Enbridge Pipelines are shared deployed...”

“...and Enbridge Pipelines are both deployed...”

733: “...in the Great Toronto area...”

“...in the Greater Toronto area...”

Transcript


TABLE OF CONTENTS/TABLE DES MATIÈRES (i) Description

Paragraph No./No. de paragraphe

Opening remarks by the Chairperson

3013

Registration of appearances by Mr. Watton

3033

Final argument by Aamjiwnaang First Nation and Chippewas of the Thames First Nation - Mr. Scott A. Smith - Mr. Paul Seaman

3192

Final argument by Algonquin to Adirondacks Collaborative - Ms. Emily Conger - Mr. Rob McRae

3467

Registration of appearances by Mr. Watton

3673

Final argument by Communications, Energy and Paperworkers Union of Canada (Unifor) - Mr. Steven Shrybman

3705

Final argument by City of Toronto - Mr. Graham Rempe

3784

Final argument by Durham Citizens Lobby for Environmental Awareness and Responsibility Inc. - DurhamCLEAR - Mr. Doug Anderson

4040

Final argument by Ms. Emily Ferguson

4234

Final argument by Ms. Louisette Lanteigne

4330

Transcript


Opening remarks Chairperson --- Upon commencing at 8:59 a.m./L’audience débute à 8h59 3013.

THE CHAIRPERSON: Good morning, ladies and gentlemen. My name is Lyne Mercier. I am the Chair of the Panel designated by the National Energy Board to hear this application submitted by Enbridge Inc.

3014.

My colleagues on this Panel are Mr. Mike Richmond, seated to my right, and Mr. Jacques Gauthier, who is seated to my left.

3015.

As this is a bilingual hearing, simultaneous interpretation is available throughout the hearing, and those who wish to use it can obtain headphones and devices at the back of the room. With this in mind, we ask parties, when addressing the hearing, to speak -- to please speak clearly and slowly so that our translators and transcribers can ensure your presentations are reflected accurately.

3016.

Now, for safety emergency instructions, please, if there is an alarm or you have to leave the room suddenly, I would ask you to exit through the door that you first came in and follow the exit signs.

3017.

At the front of the room is Ms. Niro, who is the Board Regulatory Officer. To her left is the transcriber. Then we have Board counsel, Mr. Ryan Rodier, and next to him is Mr. Mark Watton.

3018.

A number of you will already have met with Michael Benson, who is our Process Advisor and here to assist intervenors with questions about the hearing. Other members of Board staff are also present and are identifiable by the brass nametag. If you have media questions, please consult with the Board's communication officer, Ms. Carole Léger-Kubeczek.

3019.

I would remind everyone that the Board is superior court of record in its hearing held in accordance with the National Energy Board Act and with the Board's Rules of Practice and Procedure as well as the Hearing Order issued in respect of this application and the four procedural updates which have followed.

3020.

While many of the questions which are at issue in this application and hearing may be the subject of strong opinions, the Board requires appropriate levels of courtesy, respect and professionalism during the hearing in any exchanges or presentations among the parties, the Panel, Board staff, and the public who are in attendance. We will not tolerate departures from basic decorum during the hearing sessions.

Transcript


Opening remarks Chairperson 3021.

On October 29, 2012, Enbridge filed an application detailing a request to reverse the 639 kilometre segment of pipeline from North Westover, Ontario to Montreal, Quebec with an additional request to increase the capacity of the entire Line 9 and a request to revise the Line 9 rules and regulations tariff to allow for the transportation of heavy crude. These three items are the projects. The Board has determined that the application is properly filed under section 58 of the NEB Act.

3022.

On December 19th, 2012, the Board determined that the application was complete to proceed to assessment and decided to hold a public hearing for this project consisting of written evidence and oral final argument.

3023.

On 19th of February 2013, the Board issued Hearing Order OH-002-2013 to convene this hearing, which continues in Toronto today. Up to this point, this hearing has included the submission of written evidence by the parties, letters of comment, information requests and responses from the parties, the presentation of reply evidence from Enbridge, and the written final argument from intervenors who chose to submit their final argument in writing.

3024.

Last week, this Panel heard oral final argument from the Applicant, Enbridge, and from intervenors who attended this hearing in Montreal, Tuesday, October 8th through Friday, October 11th.

3025.

Today, and through the next four sitting days, we will continue hearing from intervenors who expressed a preference to present oral final argument in Toronto. Once all of the intervenors have presented their argument, Enbridge will have an opportunity to speak in reply.

3026.

The Board is grateful for all the submissions received to date and for the participation of parties, both in Montreal and here in Toronto. Starting today and running to Saturday, the Board intends to sit from 9:00 a.m. until 6:30 p.m. each day, unless it determines otherwise. We will take a 20-minute break in the morning and each afternoon. Each sitting day we will take an hour long lunch break when it is convenient, at or near 12:30 p.m.

3027.

We will start today with the registration of appearances. This will be only necessary for those parties who did not previously register their appearance in this matter during the Montreal hearing dates. Board counsel will explain this in a greater detail shortly.

Transcript


Registration of appearances Mr. Watton 3028.

After the registration of appearances, the Board will consider any preliminary matters, should it be necessary, and then proceed with oral final argument in the order as set out in the List of Appearances.

3029.

Parties are reminded that if they intend to refer to exhibits already on the record, to please clearly cite the reference and page number so that the audience may follow along. Exhibits and references will be displayed on the screen as necessary, but in order to do so efficiently, we remind you that it is important to provide to our regulatory officer and court reporter a list of those references in advance, if you have not already done so.

3030.

References to exhibits must include the whole exhibit number, including the small letter at the end, as it appears in the Exhibit List, and the specific page number of the Adobe document. For more information you may consult the Exhibit List and the procedural updates which are available in the back of the hearing room.

3031.

I will also take this opportunity to remind you that the audio of these proceedings are being streamlined online at www.neb-one.gc.ca. If you are a party requiring a copy of each day's transcript, please speak with the Regulatory Officer, Louise Niro, to make arrangements.

3032.

We will now proceed to the registration of appearances, and I will let Mr. Watton do that.

3033.

MR. WATTON: Thank you, Madam Chair.

3034.

As the Chair just mentioned, those parties who’ve already registered their appearances at the hearing sessions in Montreal don't need to do so today. So what I propose to do is just quickly read through a list of those parties and if there are any parties who registered in Montreal who have to change the name of their counsel or representative, they can do so.

3035.

And then, when I'm through that list, I'll call the names of those who need to register their appearance for the first time here in Toronto.

3036.

So quickly, I'll go through those Montreal names.

3037.

Enbridge Pipelines Inc.; Aamjiwnaang First Nation; Chippewas of the

Transcript


Registration of appearances Mr. Watton Thames First Nation; Mohawk Council of Kahnawà:ke; Association industrielle de L’Est de Montréal; the Canadian Association of Petroleum Producers; le Conseil du patronat du Québec; Équiterre (Coalition); Fédération des chambres de commerce du Québec; Manufacturiers et exportateurs du Québec; Ontario Pipeline Probe; Stratégies Énergétiques; Union des producteurs agricoles; Suncor Energy Marketing Inc.; Valero Energy Inc.; Alberta Department of Energy; Municipalité de Rigaud; Municipalité de Sainte-Justine-de-Newton; Municipalité de Très-Saint-Rédempteur; Municipalité régionale du comté de VaudreuilSoulanges; la Ville de Sainte-Anne-des-Plaines; Catherine Doucet; Sarah Harmer; Jean Léger. 3038.

So if there are no changes to make to those registrations, I'll proceed with those parties who have yet to register. And if you could just clearly state your name for the record and the name of the organization and mention if you have any preliminary or administrative matters to raise before we start with the hearing.

3039.

First up would be the Mississaugas of the New Credit First Nation, if you could just come forward and state the name of your representatives for the record.

--- (No response/Aucune réponse) 3040.

MR. WATTON: Alberta Federation of Labour...?

--- (No response/Aucune réponse) 3041. 3042.

MR. WATTON: Algonquin to Adirondacks Collaborative...? Could you please come up and state your name for the microphone? Thank you.

3043.

MS. CONGER: Emily Conger.

3044.

MR. WATTON: Thank you.

3045.

MR. McRAE: Rob McRae with A2A.

3046.


Transcript



The Communications, Energy and Paperworkers Union of Canada, CEP...?

3048.

MR. SHRYBMAN: Madam Chair, Members of the Board, my name is Steven Shrybman. I represent the Communications, Energy and Paperworkers Canada, which, since it merged with the Canadian Auto Workers in September, is now known as Unifor. Thank you.

3049.

THE CHAIRPERSON: Merci.

3050.

MR. WATTON: Council of Canadians - York University Chapter...?


MR. WATTON: The Durham Citizens Lobby for Environmental Awareness and Responsibility Inc...?

3052.

I'm thinking we should maybe take a break.

3053.

I'll go back to -- for those parties who are on the phone, I will come back at the end to make sure that we get your names in case there's an audio problem.

3054.

I'm sorry, sir. I think your microphone was off. If you could just -thank you.

3055.

MR. ANDERSON: This is Doug Anderson for DurhamCLEAR.

3056.


3057.

The Grand River Indigenous Solidarity...?

--- (No response/Aucune réponse) 3058. 3059.

MR. WATTON: Great Lakes and St. Lawrence Cities Initiative...? MR. CHENARD: Yes, hello. My name is Philippe Chenard, and I'll also be accompanied by my Deputy Director, which is Mrs. Nicola Crawhall.

3060.

Transcript




Les Citoyens au Courant...?


MR. WATTON: The National Farmers Union of Ontario and Ecological Farmers of Ontario...?


MR. WATTON: The Ontario Petroleum Institute...?

3064.

MR. MORAN: Good morning, Madam Chair, Members of the Board. My name is Hugh Moran; I'm with the Ontario Petroleum Institute.

3065.

One preliminary matter; the -- our presenter will be changed from Mr. Ian Culhoun to Mr. Jim McIntosh. Thank you.

3066.


3067.

Ontario Pipeline Landowners Association...?

3068.

MR. GOUDY: Good morning, Madam Chair and Board Members. I'm John Goudy. I'm here as counsel for the Ontario Pipeline Landowners Association. And also with me today are Marg Vance, the President of OPLA and a Line 9A landowner, and Beverly Dahmer, a Director of OPLA and a Line 9B landowner from Grafton.

3069.

Thank you.

3070.


3071.

The Progressive Contractors Association of Canada...?


MR. WATTON: Rising Tide Toronto...?

3073.

I believe she's on the phone, is she? I'll come back to that one in a moment.

Transcript



Sustainable Trent...?

3075.

MR. TENNENT-RIDDELL: Good morning. My name is Julian Tennent-Riddell.

3076.

I have one preliminary matter, which is a request that my oral presentation not be today, that it could be at least tomorrow, just because I have to leave at around 4 o'clock today. And given my order in the Order of Appearances, I don't think that I would be today anyway, but that's my one request.

3077.

MR. WATTON: Sure. Given the current order of appearances, I think you're probably safe in that respect, but thanks for raising it.

3078.

MR. TENNENT-RIDDELL: Thank you.

3079.

MR. WATTON: BP Canada Energy Group ULC...?


MR. WATTON: Imperial Oil...?


MR. WATTON: Marathon Petroleum Trading Company LLC...?


MR. WATTON: Nexen Marketing...?


MR. WATTON: Talisman Energy Inc...?


MR. WATTON: Environment Canada...?

--- (No response/Aucune réponse)

Transcript


Registration of appearances Mr. Watton MR. WATTON: Le gouvernement du Québec…?

3085.


MR. WATTON: The Ontario Ministry of Energy...?

3087.

MR. JENNINGS: Good morning, Madam Chair and Board Members. I'm Rick Jennings from the Ontario Ministry of Energy; so I'll be appearing today.

3088. 3089.

MR. WATTON: Thank you. Toronto Region -- sorry, Toronto and Region Conservation Authority...?


MR. WATTON: City of Toronto...?

3091.

MS. LICKERS: Amanda Lickers for Rising Tide Toronto.

3092.

MR. REMPE: Good morning. My name is Rempe, R-E-M-P-E, first name Graham with an H. And I have with me Ms. Frankl, F-R-A-N-K-L, first name Katherine with a K. But I'll be making the submissions.

3093.

Thank you.

3094.


3095.

Corporation of the City of Mississauga...?


MR. WATTON: Marilyn Eriksen...?


Transcript

MR. WATTON: Emily Ferguson...?



MS. FERGUSON: Good morning, Madam Chair, Members of the Board. My name is Emily Ferguson. I'm representing myself as an individual, and I have no preliminary matters this morning.

3099.

Thank you

3100.


3101.

Dr. Nicole Goodman...?

3102.

I think she's on the phone, but we're having audio trouble.

3103.

DR. GOODMAN: Hi. Yes, I am on the phone. Can you hear me?

3104.

MR. WATTON: Dr. Goodman, I'm going to return to you at the end because I think we’re having some telephone difficulty. We’ll be back to you shortly.

3105.

DR. GOODMAN: Okay, thank you.

3106.

MR. WATTON: Oh there we go, there we go. Now it’s coming through just fine.

3107.

I understand that we have a preliminary matter for you with respect to your schedule and so when I get through the list of parties we’ll address that, okay?

3108.

DR. GOODMAN: Okay, thank you.

3109.


3110.

Mr. Dan Harris…?


MR. WATTON: Mr. Gavin Hutchison…?


Transcript

MR. WATTON: Mr. Paul Kuebler…?


Registration of appearances Mr. Watton --- (No response/Aucune réponse) MR. WATTON: Louisette Lanteigne…?

3113.

--- (No response/Aucune réponse) MR. WATTON: Carrie Lester…?

3114.

--- (No response/Aucune réponse) MR. WATTON: Jesse McCormick…?

3115.

--- (No response/Aucune réponse) MR. WATTON: Christopher Powell…?

3116.

--- (No response/Aucune réponse) MR. WATTON: John Quarterly…?

3117.


MR. WATTON: And if you’ll bear with me for just a moment, Madam Chair, I believe there are a couple on the telephone that we may have missed. I’m just going to consult with Louise as to whether we have their names.

3119.

If there’s -- if there’s anyone left on the phone, I think there were a couple that I could hear check in but weren’t able to come through on the audio.

3120.

If you did not get a chance -- if you’re on the -- if you’re on the conference call line and you did not get a chance to state your name for the record if you could try to do so now that would be great.

3121.

I believe for example I heard Ms. Amanda Lickers?

3122.

MS. LICKERS: That’s correct, I’m here.

3123.

MR. WATTON: And you’re with Rising Tide Toronto; correct?

Transcript



MS. LICKERS: Yes, I’m here. Can you hear me?

3125.

MR. WATTON: Yes, I can now. Thank you. That’s fine.

3126.

Is there anyone else left on the phone who has not had an opportunity to register?

3127.

MR. KELLAR: Dan Kellar for Indigenous Solidarity.

3128.

MR. WATTON: Sorry; could you repeat that please?

3129.

MR. KELLAR: Dan Kellar for ---

3130.

MR. WATTON: Oh, was that Grand River?

3131.

MR. KELLAR: Yes.

3132.

MR. WATTON: Okay, sorry. There were a number of beeps there.

3133.

Thank you.

3134.

MS. LICKERS: And then -- can you hear me now?

3135.

MR. WATTON: Yes.

3136.

MS. LICKERS: Okay, yes. Amanda Lickers, I’m for Rising Tide Toronto.

3137.

MR. WATTON: Okay, great. Thank you.

3138.

MS. LICKERS: And I -- okay.

3139.

MR. WATTON: Oh sorry, did you have a matter to raise?

3140.

MS. LICKERS: I just wanted to check in about bringing a witness.

3141.

MR. WATTON: Sorry, there won’t be evidence or witnesses; this is just for final argument.

3142.

Transcript

MS. LICKERS: Okay, thank you.



MR. WATTON: But if you want to consult with the procedural update or have our Process Advisor follow-up with you to clarify that I’d be more than happy to ---

3144.

MS. LICKERS: Yes, I’ll follow-up with the Process Advisor.

3145.

MR. WATTON: Okay.

3146.

MS. LICKERS: Thank you.

3147.


3148.

Anyone else left on the telephone?

3149.

MS. ERIKSEN: Marilyn Eriksen.

3150.

MR. WATTON: Oh ---

3151.

MS. ERIKSEN: I don’t know if you heard me the first time.

3152.


3153.

Is there anybody left on the conference call line.

3154.

DR. GOODMAN: There’s just myself, I think, Nicole Goodman.

3155.

MR. WATTON: Okay.

3156.

DR. GOODMAN: Just let me know whenever ----

3157.

MR. WATTON: Sure.

3158.

DR. GOODMAN: I just had a preliminary matter to raise.

3159.

MR. WATTON: Yes and I’m happy to turn to that now.

3160.

Madam Chair, Dr. Goodman is unable to present at what is likely going to be her time. So -- I know that her proposal was if she could be put to the top of the order on Thursday. So unless there are any objections to that I propose

Transcript


Registration of appearances Mr. Watton that we make that arrangement. 3161.

THE CHAIRPERSON: We’re fine with that, thank you.

3162.

DR. GOODMAN: I’m okay with that.

3163.

MR. WATTON: So Dr. Goodman, we’ll try to have you as the first party that starts on Thursday morning to accommodate the schedule if that’s okay?

3164.

DR. GOODMAN: Great, thank you so much. I really appreciate that.

3165.


3166.

I also have one other preliminary matter regarding Ms. Carrie Lester whose filing to submit argument here in Toronto was subject of a documentary mix-up possibly on our end.

3167.

So we’ve added her to the end of the list -- or we suggest to add her to the end of the list of appearances for Toronto.

3168.

Ms. Lester, are you on the phone or are you here in the room?


MR. WATTON: We’ll follow-up with her to confirm that.

3170.

The only other preliminary matter that I have is one that was outstanding from Montreal, which is the final argument of Mr. Léger has been filed and received. So his written argument is in, in place of his oral submissions.

3171.

And I believe that’s it. So thank you.

3172.

MS. LICKERS: Great. I just have one quick question.

3173.

MR. WATTON: Can I ask who’s speaking? Is it Ms. Lickers?

3174.

MS. LICKERS: Oh, it’s Amanda, yes.

Transcript


Final argument AFN and COTTFN 3175.

MR. WATTON: Yes.

3176.

MS. LICKERS: What are -- those parties who were not able to register for the record today, will they still be able to present?

3177.

MR. WATTON: I’ll have to get the Process Advisor to follow-up with them. So we have a list of those who didn’t and we’ll communicate with them in due course.

3178.

MS. LICKERS: Okay, excellent. Thank you.

3179.

MR. WATTON: Okay. Thank you.

3180.

Okay, Madam Chair?

3181.

THE CHAIRPERSON: So we’re now here in Toronto and we’ll resume where we -- with parties who are -- who picked -- who choose to present in Toronto. So we’ll start with the Aamjiwnaang First Nation, and I believe it’s Mr. Scott A. Smith.

--- (A short pause/Courte pause) --- FINAL ARGUMENT BY/ARGUMENTATION FINALE PAR AAMJIWNAANG FIRST NATION AND CHIPPEWAS OF THE THAMES FIRST NATION: 3182.

MR. S. SMITH: Morning, Madam Chair and Board Members. Just a few preliminary matters. So we’ve handed up a joint compendium, as well as of a book of authorities for both Aamjiwnaang and Chippewas of the Thames First Nation. We will be referring to both of those volumes in our oral submissions to the Board this morning. We also have written copies of the oral submissions that we will be making this morning and have provided those as well.

3183.

My name is Scott Andrew Smith; I am co-counsel to Aamjiwnaang First Nation and Chippewas of the Thames First Nation in this matter.

3184.

I would like to acknowledge the presence of Chief Miskokomon, Chief of Chippewas of the Thames First Nations who is here with us today in the room, as well as some of the councillors from Aamjiwnaang and Chippewas of the Thames and community members and some of their staff.

Transcript



I will refer to Aamjiwnaang First Nation in my submissions as AFN and Chippewas of the Thames First Nation as COTTFN, C-O-T-T-F-N.

3186.

We will be making AFN and COTTFN submissions jointly to the Board this morning.

3187.

I will make five submissions to you. I will explain why the Crown's duty to consult my clients is triggered, why the duty is extensive in the circumstances, why the Board must assess whether the Crown has adequately consulted my clients before it grants the exemptions and approvals Enbridge is seeking, why the Crown has failed to consult my clients, and finally, why the Board cannot grant the exemptions and approvals at this time.

3188.

I respectfully submit to you that it would be an error of law for the Board to do so before the Crown satisfies its duty to consult my clients.

3189.

Seated to my right is my co-council Mr. Seaman. Seaman, S-E-A-MA-N. Mr. Seaman will respond to some of the arguments that Enbridge made in relation to the issue of Aboriginal consultation in this matter.

3190.

I will begin my submissions this morning with a very brief overview of the principles underlying the Crown's duty to consult and accommodate Aboriginal peoples.

3191.

The Crown has a constitutional duty to consult Aboriginal peoples whenever it contemplates a decision that may have an adverse impact on recognized or asserted Aboriginal and Treaty rights. [Reference: Haida Nation v. British Columbia (minister of Forests). 2004 SCC 73 at para 35; Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council 2010 SCC 43 at para 31)]

3192.

Please turn to the Haida Nation and B.C. Minister of Forest case. It is found at Tab C of our Book of Authorities. Please turn to page 10.

3193.

The Supreme Court's decision in Haida Nation is one of the leading duty to consult cases in Canada. It is the case in which the Supreme Court first recognized the duty to consult and accommodate Aboriginal peoples.

3194.

In its decision, the Supreme Court described the historical circumstances that give rise to the Crown's duty and the corresponding

Transcript


Final argument AFN and COTTFN fundamental purpose that the duty seeks to achieve as follows, and I'm reading from paragraph 25 of the decision. Quote: “Put simply, Canada's Aboriginal peoples were here when Europeans came, and were never conquered. Many bands reconciled their claims with the sovereignty of the Crown through negotiated Treaties. Others, notably in British Columbia, have yet to do so. The potential rights embedded in these claims are protected by section 35 of The Constitution Act 1982. The honour of the Crown requires that these rights be determined, recognized and respected. This is turn requires the Crown, acting honourably, to participate in the process of negotiation. While this process continues, the honour of the Crown may require to consult and where indicated accommodate Aboriginal interests.” [Reference: Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 at para 25] 3195.

The duty to consult is a procedural obligation placed on the Crown to ensure that Treaty and asserted Aboriginal rights are protected and damage is prevented not only pending resolution of claims but also in respect of established Crown obligations recognized under Treaty. [Reference: Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 at para 32; Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 at paras 32-34; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69 at paras 54 and 63]

3196.

In its final oral argument in this matter, Enbridge stated that neither the Board nor Enbridge have an independent duty to consult Aboriginal peoples or to accommodate their interests. My clients agree. [Reference: Hearing Transcript Vol 1 (A54658) at para 458]

3197.

The Crown, not the Board or the Proponent such as Enbridge, owes a duty to consult and accommodate Aboriginal peoples. In Haida, the Supreme Court held that while the Crown may delegate procedural aspects of its duty to consult Aboriginal peoples to Proponents, ultimate legal responsibility for consultation and accommodation rests with the Crown and the Crown alone. [Reference Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 at para 53]

Transcript



The first issue that I would like to address this morning is whether Enbridge's application triggers the Crown's duty to consult and accommodate my clients.

3199.

The duty to consult arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it. [Reference: Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 at para 35, Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 at para 31]

3200.

Please turn to the Rio Tinto and Carrier Sekani case. It is found at Tab L of our Book of Authorities. Please turn to page 20.

3201.

The Supreme Court's decision in Carrier Sekani released more recently than Haida Nation is also a leading Supreme Court case on the duty to consult. In this case the Supreme Court explained that three elements must be present to trigger the duty to consult. The Crown must know about the potential Aboriginal claim or right, contemplate conduct, and the contemplated conduct must have the potential to adversely affect the claim or right in question. [Reference: Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 at para 31]

3202.

I submit to you that all three elements of the test are met in this proceeding.

3203.

I will now address the first element of the test. In Carrier Sekani, Chief Justice McLachlin explained the Crown knowledge requirement in the following way -- and I'm reading from paragraph 40 of the decision. Quote: “To trigger the duty to consult, the Crown must have real or constructive knowledge of a claim to the resource or land to which it attaches. The threshold informed by the need to maintain the honour of the Crown is not high. Actual knowledge arises when a claim has been filed in court or advanced in the context of negotiations, or when a Treaty right may be impacted. [Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, 2005 SCC 69 [2005] 3 S C R 388 para 34] Constructive knowledge arises when lands are known or reasonably suspected to have been traditionally occupied by an Aboriginal community or an

Transcript


Final argument AFN and COTTFN impact on rights may reasonably be anticipated. While the existence of a potential claim is essential, proof that the claim will succeed is not. What is required is a credible claim.” [Reference: Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 at para 40] 3204.

As the Chief Justice wrote in Carrier Sekani, the threshold for satisfying the Crown knowledge requirement is not high. A credible claim will suffice to trigger the duty. I submit to you that that threshold has clearly been met in this case. The Crown has knowledge of AFN and COTTFN's Aboriginal and Treaty rights.

3205.

Through their file affidavits and their joint September 27 th, 2013 letter to the Crown, Chiefs Plain and Miskokomon have made Enbridge, the Board and the Crown aware of the rights they are asserting in this proceeding.

3206.

In the case of AFN, Line 9 is located in its traditional territory and Enbridge's Sarnia terminal is located within a kilometre or two of AFN's reserved lands. The drain that flows to the Sarnia terminal empties into Talfourd Creek, which flows through AFN's reserve and into the St. Clair River.

3207.

AFN's members and their ancestors have lived in and harvested resources from their traditional territory since time immemorial.

3208.

AFN is asserting its recognized Treaty right to the exclusive use and enjoyment of lands reserved to it under Treaty 29. It has submitted uncontradicted sworn evidence that it has Aboriginal title to the bed of the St. Clair River, as well as the airspace over its reserve, the St. Clair River, and other lands throughout its traditional territory.

3209.

In the case of COTTFN, Line 9 is located in its traditional territory and crosses underneath the Thames River, a watershed that Chippewas of the Thames First Nations members and their ancestors have lived in and harvested resources from since time immemorial.

3210.

COTTFN is asserting its recognized Treaty right to exclusively use and enjoy lands reserved to it under Treaty. It has submitted uncontradicted sworn evidence that it has Aboriginal title to the beds of the Thames River, as well the airspace over the Thames River and other lands throughout its traditional territory.

Transcript



Both AFN and COTTFN has submitted uncontradicted, sworn evidence that their members firstly, have Aboriginal harvesting rights throughout their respective traditional territories and secondly, that their members continue to exercise their harvesting rights by using lands and resources for traditional purposes at sites on their reserve as well as directly adjacent to and downstream of the Line 9 right-of-way. [Reference: Exhibit C1-6-1 at paras 6, 12 (Adobe pp34); Exhibit C2-6-3 at paras 6, 10 (Adobe pp 3-4); Exhibit C1-10-1]

3212.

I will refer in my submissions to AFN and COTTFN’s Aboriginal and Treaty rights collectively as “the rights”. The Crown knowledge requirement is clearly satisfied in this instance.

3213.

I would like to turn to the second element of the test. For a duty to consult to arise there must be Crown conduct or a Crown decision that may adversely impact the rights. [Reference: Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 at para 42]

3214.

Enbridge’s application and the regulatory process that it has triggered must be examined to discern the relevant Crown conduct in the circumstances.

3215.

Enbridge has applied for discretionary exemptions under section 58 of the National Energy Board Act from the requirement to obtain, amongst other things, a certificate granting it leave to construct the pipeline. It has also applied for approval of the revised Line 9 Rules and Regulations Tariff.

3216.

The federal government has been excluded from this regulatory decision making process. The Board, not the federal government, is being asked to make a final decision in this matter. The Board is empowered under the National Energy Board Act to make orders granting the exemptions and approvals without consulting with the federal government. This raises the question of what Crown action or decision engages the duty to consult in the circumstances.

3217.

In Haida, the Supreme Court stated that the controlling questions in all situations involving the duty to consult is as follows, quote: “...what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake.” [Reference: Haida Nation v. British Columbia (Minister of Forests), 2004

Transcript


Final argument AFN and COTTFN SCC 73 at para 45] 3218.

Please turn up the Ross River Dena Council and Government of Yukon decision. It is found at Tab M of our Book of Authorities. Please turn to page 7.

3219.

In Ross River, the Court of Appeal for Yukon held that the regulatory regime under Yukon’s Quartz Mining Act, which failed to provide any mechanism for consultation with Aboriginal peoples before accepting mineral stakes, was the source of the problem rather than an answer to Ross River Dena Council’s concern about the lack of consultation in the circumstances. In this respect, Justice Groberman wrote the following on behalf of the Court of Appeal. I’m reading from paragraph 36. He wrote, quote: “I do not, in any event, accept the Crown’s argument that the absence of statutory discretion in relation to the recording of claims under the Quartz Mining Act absolves the Crown of its duty to consult. The duty to consult exists to ensure that the Crown does not manage its resources in a manner that ignores Aboriginal claims. It is a mechanism by which the claims of First Nations can be reconciled with the Crown’s right to manage resources. Statutory regimes that do not allow for consultation and fail to provide any other equally effective means to acknowledge and accommodate Aboriginal claims are defective and cannot be allowed to subsist. The honour of the Crown demands that it take into account Aboriginal claims before divesting itself of control over land. Far from being an answer to the plaintiff’s claim in this case, the failure of the Crown to provide any discretion in the recording of mineral claims under the Quartz Mining Act regime can be said to be the source of the problem.” [Reference: Ross River Dena Council v. Government of Yukon, 2012 YKCA 14 at paras 36-38]

3220.

Please turn to page 9.

3221.

The Court of Appeal went on to determine that Yukon was required to

Transcript


Final argument AFN and COTTFN engraft a process onto the Quartz Mining Act regime to allow for appropriate level of consultation before Aboriginal claims were adversely affected. At paragraph 43 of the decision Justice Groberman writes as follows, quote: “I am of the opinion that the judge erred in his analysis. I fully understand that the open entry system continued under the Quartz Mining Act has considerable value in maintaining a viable mining industry and encouraging prospecting. I also acknowledge that there is a long tradition of acquiring mineral claims by staking, and that the system is important both historically and economically to Yukon. It must, however, be modified in order for the Crown to act in accordance with its constitutional duties. The potential impact of mining claims on Aboriginal title and rights is such that mere notice cannot suffice as the sole mechanism of consultation. A more elaborate system must be engrafted onto the regime set out in the Quarts Mining Act. In particular, the regime must allow for an appropriate level of consultation before Aboriginal claims are adversely affected.” [Reference: Ross River Dena Council v. Government of Yukon, 2012 YKCA 14 at paras 43-44] 3222.

End of quote.

3223.

Likewise, I submit to you, in this instance, the Crown, faced with the regulatory regime under the National Energy Board Act that does not provide any mechanism for it to consult with Aboriginal peoples, was required to develop a parallel process to this hearing to allow for an appropriate level of consultation. Clearly, arising from Ross River, nothing less was required to uphold the honour of the Crown in the circumstances.

3224.

In Carrier Sekani, the Supreme Court determined that Crown conduct capable of triggering the duty to consult is not limited to government exercise of statutory powers. [Reference: Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 at para 43]

3225.

In this instance, the Board’s assessment of the Crown conduct requirement must focus on whether the Crown’s duty to consult my clients’ about Enbridge’s application has been satisfied rather than whether the Board,

Transcript


Final argument AFN and COTTFN exercising its discretion under the National Energy Board Act, constitutes a Crown decision capable of triggering the duty to consult. 3226.

The Federal Court confirmed in Ka’a’Gee Tu First Nation v. Canada (Attorney General) that, quote, “the Crown’s duty to consult cannot be boxed in by legislation.” [Reference: Ka’a’Gee Tu First Nation v. Canada (Attorney General), [2007] 4 C.N.L.R. 102 at para 121] End of quote.

3227.

The Crown cannot insulate itself from its duty to consult Aboriginal peoples by devolving decision making authority to non-Crown actors or by remaining indifferent to decisions that may affect Aboriginal rights and interests. That, I submit to you, would be dishonourable and what has occurred in the circumstances.

3228.

The second element that there must be Crown conduct or a Crown decision is satisfied in the circumstances of this hearing.

3229.

I will now turn to the third element of the duty to consult test.

3230.

In Carrier Sekani, the Supreme Court held that Aboriginal claimants must establish a causal relationship between the proposed conduct and a potential for adverse impacts on Aboriginal and Treaty rights. While Aboriginal claimants are required to demonstrate a potential for adverse impacts, conclusive proof of actual impacts is not required. [Reference: Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 at para 45]

3231.

I submit to you that the evidence in this matter indisputably establishes a causal relationship between Enbridge’s application and a potential for adverse impacts on my clients’ rights.

3232.

If the Board approves the project, the exemptions and approvals that Enbridge is seeking would allow it to undertake a fundamental commercial repurposing of Line 9. The project will enable Enbridge to ship up to 250,000 barrels per day of additional crude oil on Line 9 as well as heavy crude on Line 9 in my clients’ traditional territories.

3233.

My clients’ central concerns are that repurposing Line 9 will increase the frequency and size of releases of crude oil following implementation of the project and that such releases will cause large and more severe health, environmental and socio-economic effects and corresponding infringement of

Transcript


Final argument AFN and COTTFN their rights. 3234.

The basis for my clients’ concerns is set out in paragraphs 48 through 77 of the affidavit of Chief Miskokomon. I will not review those submissions in detail with you this morning.

3235.

Suffice to say that my clients’ concerns are substantiated by Accufacts Inc.’s August 5th, 2013 report entitled “Report on Pipeline Safety for Enbridge’s Line 9B Application to NEB”. [Reference: C2-6-3 at pp 17-37 (Adobe pp 1838)]

3236.

Accufacts was asked to provide an independent analysis of safety concerns relating to the project. Briefly, Accufacts concluded that, firstly, there’s a high risk that Line 9 will rupture post-reversal; secondly, Enbridge’s leak detection will not detect ruptures in a timely way; and thirdly, Enbridge has understated rupture release volumes. [Reference: C13-6-3 at pp 28-29 (Adobe pp 31-32)]

3237.

In its response to Jesse McCormick’s Information Request 2.2, Enbridge admitted that a release of crude oil from Line 9 during the operational phase of the project may cause adverse environmental effects and correspondingly impair First Nations’ ability to exercise their Aboriginal and Treaty rights. [Reference: B35-32 -- Response to Jesse McCormick IR No. 2.2 -- A3J3V6]

3238.

My clients have filed uncontradicted evidence of their members’ use of lands and resources in close proximity to the Line 9 right-of-way which are protected by their Aboriginal and Treaty rights. We will examine that very focused and specific evidence momentarily.

3239.

Suffice to say for the moment that the evidence indisputably establishes that the project has the potential to cause new adverse impacts on their rights.

3240.

The third requirement has therefore been met and the Crown’s duty to consult triggered in the circumstances of Enbridge’s application to the Board.

3241.

The fact that Line 9 is old infrastructure being refurbished or repurposed for commercial purposes is no answer to the existence of a duty to consult or the potential for new adverse effects on my clients’ rights.

Transcript



Please turn up the Kwicksutaineuk decision which is located at Tab G of our Book of Authorities. Please turn to page 28.

3243.

An analogous situation to Enbridge’s application arose in this case where the Federal Court held that the reissuance of aquaculture licences allowing aquaculture operations to continue for a period of time triggered a new Crown duty to consult them because, quote: “In the absence of the renewed licence, the commercial activity authorized by that licence would have come to a halt.”

3244.

End of quote.

3245.

At paragraph 110 of the decision the Federal Court held as follows, quote: “It is true that the purpose of consultation is to address concerns regarding new potential adverse impacts. As stated by the Supreme Court in Rio Tinto, above at paragraph 49: ‘Prior and continuing breaches, including prior failures to consult, will only trigger a duty to consult if the present decision has the potential of causing a novel adverse impact on a present claim or existing right’. In other words, the scope of the duty to consult does not include past infringements or existing and ongoing impacts of past actions. For the duty to be triggered, there must be a new decision or conduct that may affect Aboriginal rights. The re-issuance of a licence, even if it is similar to the one it is replacing, is certainly sufficient to meet the third requirement underlying the duty to consult (see, for example, Upper Nicola Indian Band v British Columbia (Minister of Environment), [2011 BCSC 388, 2011 BCSC 388 at paras 103-114, 21 BCLR (5th) 81)]. It is a fresh action, so much so that in the absence of the renewed licence, the commercial activity authorized by that licence would have […] come to a halt. In my view, the duty to consult arises each time a licence is renewed, because each new licence may potentially affect the claim, right or title, if only incrementally. Otherwise, the duty to consult would be spent once the initial licence has been granted, for however long a period it is renewed and irrespective of the impacts the renewed [licence] may have

Transcript


Final argument AFN and COTTFN down the road. Such a reasoning would make a mockery of the duty to consult and of the honour of the Crown.” [Reference: Kwicksutaineuk Ah-Kwa-Mish First Nation v. Canada (Attorney General), 2012 FC 517 at para 110] 3246.

I submit to you that the principle in Kwicksutaineuk applies here. Enbridge’s proposal to fundamentally repurpose Line 9 to make it commercially viable again has the potential to cause new and additional impacts on the rights.

3247.

I will now turn to the second issue, the scope of the Crown’s duty to consult and accommodate in this application. My clients respectfully submit that the Crown’s duty is very broad in the circumstances.

3248.

The Supreme Court clarified in Haida Nation that the scope of the Crown’s duty depends on two factors: firstly, a preliminary assessment of the strength of the case supporting the existence of the right at issue; and secondly, the seriousness of the potential adverse effect upon the rights being claimed. [Reference: Haida Nation v. British Columbia (Ministry of Forests), 2004 SCC 73 at para 39]

3249.

Turning to the first issue, AFN and COTTFN have both -- have strong cases supporting the existence of the rights. Both communities have submitted sworn, uncontradicted evidence of the rights and site-specific evidence of where their members are exercising those rights.

3250.

My clients have filed preliminary traditional land use studies to document and describe the use of lands and resources by their members in proximity of Line 9 or that otherwise may be adversely affected by the project, including by releases of crude oil from Line 9 during the project’s operational phase.

3251.

I submit to you that these respective traditional land use studies confirm that AFN and COTTFN’s members continue to exercise their respective Aboriginal harvesting rights by using lands and resources in close proximity to, and in the case of Chippewas of the Thames First Nation, on top of the Line 9 right-of-way which crosses underneath the Thames River.

3252.

I commend that the Board review each traditional land use study in detail. They are found at Exhibits C1-6-7 and C2-6-3 respectively.

Transcript



For the purposes of my submissions, I will briefly summarize the findings reached in each of the traditional land use studies.

3254.

Please turn up Aamjiwnaang First Nations’ traditional land use study. It is found at Tab 3 of our Joint Compendium. Please turn to page 17.

3255.

So before we get started on the results of the traditional land use study, the map at page 17 of Aamjiwnaang’s traditional land use study shows the location of Aamjiwnaang’s reserve which is located just outside of Sarnia, Ontario, and shows a blow-up of some of the traditional land use studies occurring on the reserve and in the traditional territory.

3256.

In the case of AFN, the traditional land use studies confirms the following: AFN members continue to teach and follow an annual round of seasonal land and resource use similar to the annual round followed by their ancestors;

3257.

Secondly, AFN members make significant use of lands and resources in close proximity to both sides of the Line 9 right-of-way, including by hunting, trapping and harvesting plants for traditional purposes over relatively large areas east of the Sarnia terminal on both sides of the Line 9 right-of-way; and thirdly, the use of lands and resources, and the land and water bodies on which they are carried out have a deep spiritual significance to Aamjiwnaang First Nations members. [Reference C1-6-7 at pp 2-3 (Adobe pp 3-4)]

3258.

These findings are set out in the executive summary of the traditional land use study.

3259.

AFN’s members use of lands and resources is illustrated in Figures 3a and 3b of the traditional land use study. AFN members harvest a variety of locally and seasonally abundant resources, including fishes, deer, muskrat, raccoons, rabbits, squirrels, birds, medicinal plants, berries, fruits, nuts and vegetables. [Reference C1-6-7. Figures 3a & 3b at pp 18-19 (Adobe pp 19-20)]

3260.

So I’d like to review some of the site-specific information in Figure 3a with you right now. So at the top of Figure 3a, there’s a yellow line.

3261.

Sorry, Madam Chair, are you able to see the figure that’s being displayed on the screen?

Transcript



THE CHAIRPERSON: We can follow on the paper and I pointed to my colleagues the yellow line which is close to the black square.

3263.

MR. S. SMITH: Okay, if you have any questions, please stop me because this is very important.

3264.

THE CHAIRPERSON: No, it’s very -- the colours are quite crisp, so it’s easy to follow.

3265.

MR. S. SMITH: Okay, thank you.

3266.

So to situate everybody, we’re just outside of Sarnia, Ontario. The Line 9 pipeline is shown in yellow here at the top right-hand corner of Figure 3a. Enbridge’s Sarnia terminal is depicted by the polygon in black lines at the top right-hand corner of the screen.

3267.

What Figure 3a shows is extensive use of lands and resources in and around the area of Aamjiwnaang’s reserve lands which are the dark green lands located in the middle of Figure 3a. And then each of the other polygons represents a different type or species of use of lands and resources.

3268.

So for example, if you look right along Line 9 here, there are brown polygons. These brown polygons represent areas where members of Aamjiwnaang First Nation are hunting deer. So there’s this polygon here, another polygon further to the south, and then a polygon just south of Enbridge’s Sarnia terminal.

3269.

Aamjiwnaang members are also hunting turkeys, deer and coyote just to the left of the Sarnia terminal in this area here, these two ellipses that I’m showing to you right now.

3270.

And then, important, there’s a very sacred ceremonial site that’s depicted in purple on Figure 3a here. So we’re just left of the Sarnia terminal adjacent to Line 9.

3271.

If we can move to Figure 3b please. So Figure 3b is depicting the use of lands and resources by members of Aamjiwnaang First Nation at a larger spatial scale. So we still have Line 9 shown in yellow at the top right-hand corner of the figure.

Transcript



We can see Enbridge’s Sarnia terminal, again depicted in black in the polygon in the center top-hand portion. To the left is located Aamjiwnaang’s reserve, and as you can see from the multiple overlapping polygons near the reserve, Aamjiwnaang First Nation members are making extensive use of lands and resources, including harvesting activities on the reserve. They are hunting and trapping a variety of the species and harvesting plants and traditional medicines on the reserve.

3273.

Then we can see the ceremonial site here depicted in purple that’s just directly adjacent to the Sarnia terminal where Line 9 originates from. And then I’d like to draw your attention to -- in particular, to two polygons located in the top right-hand corner of Figure 3b.

3274.

First polygon is this polygon here. What -- that’s showing that AFN members hunt deer and trap rabbits all along this area, directly overlapping and adjacent to the Line 9 right-of-way.

3275.

And then if we move to the south of the Line 9 right-of-way, still on the right-hand side of the figure, there’s another sort of fuchsia-coloured polygon with green circles, that shows traditional harvesting areas for berries, plants and traditional medicines.

3276.

There’s also extensive trapping going on just to the south of Enbridge’s Sarnia terminal and Line 9, depicted in the green polygon in the middle of the screen that I’m showing you now with the pointer. AFN members are trapping rabbits in this area.

3277.

MEMBER RICHMOND: Mr. Smith?

3278.

MR. S. SMITH: Yes?

3279.

MEMBER RICHMOND: While we’ve got these maps up, could you, on this one or the last one, point out Talfourd Creek to us, which you had referred to?

3280.

MR. S. SMITH: Yes, so maybe if we can go back to 3a.

3281.

So there’s a drain in the Sarnia terminal. I don’t think Talfourd Creek is depicted here. It essentially runs from the Sarnia terminal through the reserve and then out into the St. Clair River which is located on the left-hand side of the

Transcript


Final argument AFN and COTTFN figure. 3282.

MEMBER RICHMOND: Thank you.

3283.

MR. S. SMITH: So if you could go back to 3b please.

3284.

So the take home message from Figures 3a and 3b is that members of Aamjiwnaang are making extensive use of lands and resources in the vicinity of the Sarnia terminal and directly adjacent to and overlapping with the Line 9 rightof-way. This use of lands and resources is protected by their Aboriginal and Treaty rights.

3285.

So I’d like to move on to the Chippewa of the Thames First Nation traditional land use study, it is found at Tab 4 of our Joint Compendium. Please turn to page 13.

3286.

Sorry, could I have page 13 displayed on the screen, please? No, from the Chippewas of the Thames traditional land use study; it's the next document.

3287.

So before we review the summary findings of the traditional land use study, I thought we could look at a picture. The picture shown at page 13, which is presently displayed on the screen -- sorry, you were at the right page before. Yes, page 13, please with the picture.

3288.

That's it. Thank you very much.

3289.

So this picture was taken in the Thames River watershed. You see the Thames River in the background there, in close proximity to the Line 9 right-ofway.

3290.

The picture shows COTTFN member, Shane Henry and Ashley Riley standing beside the Thames River, approximately 100 metres north of the Enbridge pipeline crossing. Shane Henry is explaining to Dr. Jim Tanner, who conducted the traditional land use studies, the medicinal gathering, hunting, and fishing that is carried out at this relatively pristine location at the Thames River. Shane has identified herbs and medicines along the river, such as red willow and spoke about hunting and canoeing on the river while he was exercising his Aboriginal rights.

3291.

Transcript

In the case of Chippewas of the Thames First Nation, the traditional


Final argument AFN and COTTFN land use study confirms the following three points: Firstly, COTTFN members continue to teach and follow a seasonal pattern of land and resource use similar to the annual rounds followed by their ancestors. 3292.

Secondly, many of the locations where COTTFN members use lands and resources are found in the Thames River watershed, including in close proximity to where the Line 9 right-of-way crosses the Thames River. This should come as no surprise, given that the community's name is Chippewas of the Thames First Nation.

3293.

And thirdly, the use of lands and resources and the land and water bodies on which they are carried out have a deep spiritual significance to COTTFN members. [C2-6-3 at pp 2-3 (Adobe pp 89-90)]

3294.

COTTFN members’ use of lands and resources is illustrated in Figure 3 of the Chippewas of the Thames First Nation traditional land use study.

3295.

If we could go to Figure 3 please?

3296.

The Chippewas of the Thames First Nation's members harvest a variety of locally and seasonally abundant resources, including several species of fish, deer, muskrats, raccoons, skunks, rabbits, squirrels, birds, medicinal plants, berries, fruits, nuts and vegetables. [C2-6-3, Figure 3 and accompanying text at pp 13-14 (Adobe pp 100-101)]

3297.

Okay, so we're presently looking at Figure 3 from the Chippewas of the Thames First Nation traditional land use study. So just to situate the Board, we are just west of London, Ontario, and Line 9 is depicted this time by the orange line that bisects the figure in two, crossing from the left top end corner to the right top end corner.

3298.

The Thames River is shown on the right. It's shown in blue but there's overlapping yellow and brown lines. It starts at the top right-hand corner of the page, continues south, crosses Line 9, and turns to the west, flows through Chippewas of the Thames First Nation Reserve, which is located just south of the right-of-way, and continues southwest.

3299.

Figure 3 shows again extensive use of lands and resources by COTTFN members. The green polygon, which is shown here -- it starts at the bottom right-hand corner of Figure 3 and continues up, crosses over the river, and

Transcript


Final argument AFN and COTTFN encompasses the entire northern area, shows an area of multiple hunting use in the territory. So multiple species are being hunted by COTTFN members -- the area depicted by the green polygon. 3300.

If we look further to the south, again just south of the Line 9 right-ofway, there's extensive use of lands and resources by members of the Chippewas of the Thames community in and in proximity to the reserve.

3301.

The fuchsia circles located in the middle and to the left of Figure 3 here, here, and here, show areas where plants and medicinal plants are gathered and collecting activities occur.

3302.

In particular of note, this yellow line that follows the contours of the Thames River, all the way from the top right-hand corner of Figure 3 through the reserve and down to the southwest, shows areas where Chippewas of the Thames members fish in the Thames River.

3303.

In particular, the area that I'm showing you here at the top right-hand corner, where the mouse is located, is an important fishing area for members of the community where they fish for many species of fish.

3304.

So again, the take-home message from Figure 3 is that members of the Chippewas of the Thames are using lands and resources extensively in proximity to and on top of the Line 9 right-of-way.

3305.

The Supreme Court stated in Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) that, quote: "…if the respective obligations are clear, the parties should get on with performance." [Mikisew Cree First National v. Canada (Minister of Canadian Heritage) 2005 SCC 69 at para 63]

3306. 3307.

End of quote. I submit to you that the Crown ought to have gotten on with performing its broad duty to consult here given that the respective obligations are clear. AFN and COTTFN's sworn evidence about the rights and the areas where they are exercising the rights is uncontradicted. The only conclusion that the Board or the Crown can reach is that both communities have strong cases

Transcript


Final argument AFN and COTTFN supporting the existence of the rights. 3308.

I will now turn to the second factor, the seriousness of potential impacts on the rights.

3309.

The evidence filed in this proceeding establishes that a release of crude oil has the potential to cause catastrophic effects on the rights.

3310.

Please turn up the affidavit of Chief Miskokomon. It can be found at Tab 2 of the Joint Compendium. Please turn to page 38.

3311.

In paragraphs 79 and 80 of his affidavit, Chief Miskokomon explains the significance that a release of crude oil from Line 9 would have on COTTFN's rights as follows, quote: "Larger and more frequent spills, leaks, and discharges of more toxic substances from Line 9 will contaminate the soil, water, and air in our traditional territory, including the Thames River, as well as harm individual organisms and entire populations of species harvested by COTTFN members, which are important parts of our cultural, spiritual, and religious practices. Harming or killing individual organisms and entire species of organisms will impair our ability to harvest those species in our traditional territory. Such impacts will directly infringe our Aboriginal harvesting rights and cause intergenerational impacts on our culture and way of life by decreasing our ability to educate and pass on our traditional knowledge and harvesting methods to our children." [Exhibit C2-6-3 at p 38 (Adobe 39)]

3312.

Chief Plain also states that a release of crude oil from Line 9 would cause equally significant impacts on AFN's rights and culture in paragraphs 71 and 72 of his affidavit. [Reference: Exhibit C1-6-1 at p25 (Adobe p 26)]

3313.

Chiefs Miskokomon and Plain's concerns are substantiated by the conclusions reached by Eagle Sun in the traditional land use studies.

3314.

Transcript

Please turn to AFN's traditional land use study at Tab 3 of our Joint


Final argument AFN and COTTFN Compendium. Please go to page 3. 3315.

In the AFN traditional land use study, Dr. Jim Tanner, an expert on these issues of Eagle Sun, concludes that, and I'm reading from the second paragraph on page 3, quote: "The environmental effects of spills, leaks and discharges of crude oil have been well documented. Given the findings set out in this Study, it is my professional opinion that a release of crude oil from Line 9 in this area would directly impact the lands and waters historically used by AFN and would, therefore, carry with it a serious risk of severely impairing the current exercise of rights and traditional practices associated with those lands and waters. AFN's membership is severely impacted by on-going industrial and refining operations located around the perimeter of their reserve. These sites continue to affect their quality of life and health. It is my opinion that further development of additional pipelines and facilities will contribute to the already significant negative cumulative effect on their reserve and traditional lands and waters, and will further impair their ability to carry out traditional practices." [Exhibit C1-6-7 at p. 3 (Adobe p. 4)]

3316.

I respectfully submit to you in that, in that sense, each new impact on the rights becomes more significant than the last.

3317.

Please turn to COTTFN's traditional land use study, which is found at Tab 4 of our Joint Compendium. Please go to page 3.

3318.

Dr. Tanner is also the author of COTTFN's traditional land use study and was responsible for carrying it out. On page 3, Dr. Tanner also concludes that a release of crude oil from Line 9 carries with it, quote: “a serious risk of severely impairing the current exercise of rights and traditional practices" -- end of quote -- by COTTFN members, and goes on to find in the COTTFN traditional land use study that -- and I'm going to read the third paragraph on page 3, quote: "Given that COTTFN is actively engaged in the process of selecting lands which may be partially based upon the criteria

Transcript


Final argument AFN and COTTFN of re-establishing historical uses and re-enforcing current uses of lands and resources, such an event would also seriously impair COTTFN's ability to achieve its future traditional land use goals." [C2-6-3 at p. 3 (Adobe p. 90)] 3319.

End of quote.

3320.

Please turn to the Haida case at Tab C of our Book of Authorities, and go to page 14.

3321.

I'm going to refer your attention to paragraph 44 in a moment, but before I do so, I'd like to make the following remark.

3322.

Given the strong cases supporting the existence of the rights, the significance of the rights to AFN and COTTFN, and the severity of the potential adverse impacts on the rights, the scope of the Crown's duty to consult and accommodate AFN and COTTFN falls at the high end of the spectrum described by the Supreme Court in Haida in paragraph 44. Reading from the decision, quote: "At the other end of the spectrum lie cases where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high. In such cases deep consultation, aimed at finding a satisfactory interim solution, may be required. While precise requirements will vary with the circumstances, the consultation required at this stage may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision. This list is neither exhaustive, nor mandatory for every case. The government may wish to adopt dispute resolution procedures like mediation or administrative regimes with impartial decision-makers in complex or difficulties cases." [Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at para 44]

3323.

In Haida, the Supreme Court clarified that deep consultation at the high end of the spectrum may require the Crown to accommodate Aboriginal

Transcript


Final argument AFN and COTTFN peoples. 3324.

I'm now going to read paragraph 46, quote: "Meaningful consultation may oblige the Crown to make changes to its proposed action based on information obtained through consultations..."

3325.

End of quote.

3326.

Skipping down to paragraph 47, quote: "When the consultation process suggests amendment of Crown policy, we arrive at the stage of accommodation. Thus the effect of good faith consultation may be to reveal a duty to accommodate. Where a strong prima facie case exists for the claim, and the consequences of the government's proposed decision may adversely affect it in a significant way, addressing the Aboriginal concerns may require taking steps to avoid irreparable harm or to minimize the effects of infringement, pending final resolution of the underlying claim. Accommodation is achieved through consultation, as this Court recognized in R. v. Marshall […] ‘'...the process of accommodation of the treaty right may be best resolved by consultation and negotiation'." [Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at paras 46-47]

3327.

End of quote.

3328.

I submit to you that the Crown was required to carry out this deep consultation referred to by the Supreme Court in Haida Nation with the intention of substantially addressing AFN and COTTFN's concerns, and accommodate my clients by making changes to its proposed actions based on information obtained through consultations and to take steps to avoid irreparable harm or to minimize the effects of infringement.

3329.

Key steps that the federal Crown, or Enbridge, must have taken to address my client's concerns include -- and I note before I go into these, none of these steps have been taken in the circumstances.

Transcript



Firstly, assess the potential environment effects and cumulative environmental effects of operating Line 9 following project completion. This work includes whether there will be an increased frequency of discharges of crude oil from Line 9A during the operational phase, whether larger volumes of crude oil will be released into the environment from Line 9A, whether the health, environmental and socio-economic effects of such discharges.

3331.

Secondly, consult my clients about Enbridge's application, including providing my clients with all necessary information about the application so that they can understand and assess how the application may adversely impact the rights.

3332.

That necessary information includes the information that I submitted to you in the first point, which has not been provided.

3333.

Providing the information to my clients in a timely way so that they can have adequate time to process the information and understand the nature of potential impacts.

3334.

Providing funding to pay for all costs incurred by my clients in respect of the application, including to hire consultants to help them understand and assess how the application could adversely impact their rights.

3335.

Providing my clients with the opportunity to make submissions for consideration after the aforementioned steps have been taken.

3336.

Take my clients’ concerns into account in the decision-making process and provide my clients with written reasons to show how their concerns were considered and to explain how they were taken into account and reflected in the Crown’s decision.

3337.

Thirdly, enter into agreements with my clients to ensure that their members will directly benefit from the application being put forth by Enbridge.

3338.

I will now turn to the third issue and address what the Board must do in relation to the Crown’s duty to consult in the circumstances of Enbridge’s application.

3339.

Please turn up the Carrier Sekani case. It is at Tab L of our Book of Authorities. Please turn to page 24 of that case.

Transcript



The reason why I’m bringing the following passages to the Board’s attention is that Carrier Sekani is the leading authority on how to determine the role of administrative tribunals, like the Board, in relation to the duty to consult. The Board must apply the analysis set out in Carrier Sekani to determine its role vis-à-vis Crown consultation in the circumstances of the application before you today.

3341.

In Carrier Sekani, the Supreme Court held that there are four possible roles of an administrative tribunal such as the Board can play with respect to the duty to consult. To consult with Aboriginal peoples, to assess whether adequate consultation has taken place, both roles, or no role at all. [Reference: Rio Tinto Alcan Inc. vs. Carrier Sekani Tribal Council, 2010 SCC 43 at paras 55-58]

3342.

Determining which one of these four circumstances applies to a particular tribunal “depends on the mandate conferred by the legislation that creates the tribunal.”

3343.

So I’m now going to refer to paragraph 58 of Carrier Sekani. In that paragraph the Supreme Court held as follows, quote -- I’m going to read the second sentence beginning with “both” half way down the paragraph: “Both the powers of the tribunal to consider questions of law and the remedial powers granted it by the legislature are relevant considerations in determining the contours of that tribunal’s jurisdiction. As such, they are also relevant to determining whether a particular tribunal has a duty to consult, a duty to consider consultation, or no duty at all.” [Reference: Rio Tinto Alcan Inc. vs. Carrier Sekani Tribal Council, 2010 SCC 43 at paras 55, 58]

3344.

Please go to page 26. At paragraph 69 the Chief Justice further explained that, quote: “It is common ground that the Utilities Commission Act empowers the Commission to decide questions of law in the course of determining whether the 2007 EPA is in the public interest. The power to decide questions of law implies a power to decide

Transcript


Final argument AFN and COTTFN constitutional issues that are properly before it, absent a clear demonstration that the legislature intended to exclude such jurisdiction from the tribunal’s power. [Conway, at para 81; Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55, 2003 SCC 55, [2003] 2 S.C.R. 585, at para 39] Specialized tribunals with both the expertise and authority to decide questions of law are in the best position to hear and decide constitutional questions related to their statutory mandates.” [Conway at para 6] [Reference: Rio Tinto Alcan Inc. vs. Carrier Sekani Tribal Council, 2010 SCC 43 at para 69] 3345.

Section 12(2) of the National Energy Board Act expressly grants the Board full jurisdiction to decide questions of law. Section 12(2) provides that, quote: “For the purposes of this Act, the Board has full jurisdiction to hear and determine all matters, whether of law or of fact.”

3346.

End of quote.

3347.

Based on the reasoning in Carrier Sekani, that I just referred the Board’s attention to a moment ago, the Board’s “full jurisdiction” to hear and determine questions of law attracts a presumption that it can consider the adequacy of Crown consultation in relation to matters properly before it.

3348.

I submit to you that the presumption is not rebutted in this case because there is no indication that Parliament intended to exclude such jurisdiction from the Board’s powers.

3349.

In a Supreme Court decision involving a previous matter that came before the National Energy Board, in the case Quebec (Attorney General) and Canada (National Energy Board), a case decided some nine years prior to the recognition of the duty to consult by the Supreme Court in Haida, the Supreme Court held that the Board’s decision-making function must be exercised in accordance with constitutional dictates, including section 35 of the Constitution Act 1982. [Reference: Quebec (Attorney General) v. Canada (National Energy Board), [1994] 1 SCR 159 at para 40]

Transcript



Since Quebec was decided, the constitutional dictates associated with section 35 now include the “constitutional dimensions” associated with the duty to consult and the related “constitutional principles” of the Honour of the Crown. [Reference: Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, at para 68, 72; Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, at para 42] The Supreme Court has made this clear.

3351.

In another decision of the Supreme Court in R. v. Conway, the Board held at paragraph 77 that, quote: “…administrative tribunals with the authority to decide questions of law and whose Charter jurisdiction has not been clearly withdrawn have the corresponding authority - and duty - to consider and apply the Constitution, including the Charter, when answering those legal questions…” [Reference: R. v. Conway, 2010 SCC 22 at para 79]

3352.

I respectfully submit to you that the Board therefore has a legal duty to assess the adequacy of Crown consultation in the circumstances of this hearing. The Board must satisfy itself that the Crown has discharged its duty to consult and accommodate my clients prior to granting the exemptions and authorizations being sought by Enbridge in this application.

3353.

I’d like to turn to the fourth -- my fourth submission. The fourth issue that I’ll address is whether the Crown has discharged its duty to consult and accommodate my clients in the circumstances. Simply put, it has not.

3354.

AFN and COTTFN have filed uncontradicted evidence that the Crown has not consulted with them at all. [Exhibit C1-6-1 at para 79 (Adobe p 29); Exhibit C2-6-3 at para 87 (Adobe p 42)]

3355.

Chiefs Plain and Miskokomon brought the Crown’s failure to consult AFN and COTTFN about Enbridge’s application directly to Minister Oliver’s attention in a letter that they jointly sent to the Crown on September 27th, 2013. That letter is Exhibit C1-10-1. [Reference: C1-10-1]

3356.

I’m advised by Chiefs Plain and Miskokomon that they have not received a reply from the Crown to their September 27 th letter. The Crown in no way has consulted with either AFN or COTTFN about Enbridge’s application.

Transcript



Furthermore, it is clear that the Crown’s duty to consult and accommodate cannot be met through AFN and COTTFN’s participation in this hearing for at least three reasons.

3358.

First, the National Energy Board Act does not empower the Board to consult with Aboriginal peoples and it would be wholly inappropriate for the Board to do so given its role as an independent quasi-judicial body. The Board cannot therefore consult with my clients, nor does it have the authority to delegate procedural aspects of the Crown’s consultation duty to Enbridge.

3359.

Second, Enbridge’s engagement with my clients cannot fulfill the Crown’s duty to consult because Enbridge was not engaging with them on behalf of the Crown. Enbridge confirmed in its response to AFN and COTTFN’s Information Request Number 1.1 that the Crown has not delegated the procedural aspects of its duty to consult my clients to Enbridge. [Reference: B18-8 Response to AFN and COTTFN IR No. 1.1]

3360.

To repeat, there has been no delegation by the federal Crown of the procedural obligations to consult and accommodate my clients to Enbridge.

3361.

Third, and in any event, given that nobody has assessed the impacts of operating Line 9 following reversal of flow, it necessarily follows that it’s impossible for Enbridge or the Crown to have meaningfully consulted my clients about their concerns that the operational phase of the project may adversely impact the rights that I have described to you this morning.

3362.

Please turn up Enbridge’s June 25th, 2013 letter to the Board. It is located at Tab 5 of our Joint Compendium.

3363.

In its June 25th, 2013 letter to the Board, Enbridge confirmed that it has not assessed the impacts of a pipeline rupture during the operational phase of the project.

3364.

I’m going to read the second paragraph of Enbridge’s letter to the Board. Quote: “In their IRs, several intervenors asked about the environmental effects of a Line 9 [rupture --] pipeline rupture. Scenarios concerning pipeline rupture events are not within the scope of the Project Environmental and Socio-Economic

Transcript


Final argument AFN and COTTFN Impact Assessment (“ESEIA”), which is limited to the seven Project Sites identified in Table 1-1 of the ESEIA Addendum (six existing fenced-in Enbridge facilities, and one new densitometer site to be located on the Enbridge Right of Way within a cornfield).” [Reference: B18-1 at p 1 (Adobe p 1)] 3365.

End of quote.

3366.

Those are the only locations where environmental effects or socioeconomic effects were assessed, and there has been no assessment by Enbridge of the potential impairment of Aboriginal and Treaty rights.

3367.

I submit to you on behalf of my clients this morning that meaningful consultation cannot occur until the Crown or its delegate fully assess the potential for a pipeline rupture to adversely affect my clients’ rights.

3368.

The Board must therefore conclude that the Crown has not satisfied its duty to meaningfully consult with either AFN or COTTFN about Enbridge’s application. Again, there has been no Crown consultation in the circumstances.

3369.

You may be asking yourself what the Board should do based on my submissions. And that’s the issue that I intend to address in my fifth and final submission to you this morning before turning the floor over to my colleague, Mr. Seaman.

3370.

The fifth and final issue that I will address is whether the Board can grant the exemptions and approvals that Enbridge is seeking at this time. It cannot.

3371.

Enbridge’s application triggered an expansive duty for the Crown to consult and accommodate my clients, yet there has been no Crown consultation.

3372. 3373.

Please turn to Tab L of our Book of Authorities and go to page 24. So we’re back in the Carrier Sekani decision. And in this decision the Supreme Court held that a tribunal must provide appropriate relief when faced with a breach of the duty to consult.

3374.

Transcript

I’m going to read paragraph 61. Quote:


Final argument AFN and COTTFN “A tribunal has the power to consider the adequacy of consultation, but does not itself have the power to enter into consultations, should provide whatever relief it considers appropriate in the circumstances, in accordance with the remedial powers expressly or impliedly conferred upon it by statute. The goal is to protect Aboriginal rights and interests and to promote the reconciliation of interests called for in Haida Nation.” [Reference: Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 at para 61] 3375.

End of quote.

3376.

Recall that in Ross River, one of the decisions we’ve reviewed today, on discovering that the mineral staking scheme did not comply with the honour of the Crown, the Yukon Court of Appeal mandated that a more elaborate system must be engrafted onto the regime in order to allow it to meet the constitutional dictates of section 35. [Reference: Ross River Dena Council v. Government of Yukon, 2012 YKCA 14 at para 44]

3377.

It is noteworthy in this regard that the Board, as part of its statutory mandate, must consider whether it would be in the public interest to grant discretionary exemptions under section 58, including whether there has been adequate consultation in the circumstances.

3378.

Importantly, in Carrier Sekani, the Supreme Court noted that proceeding without consultation adequate in the circumstances is not in the public interest. [Reference: Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 at para 70]

3379.

It is a well-established principle of administrative law that statutory decision makers are required to respect the legal and constitutional limits, and that the Crown’s duty to consult lies upstream of their statutory mandates. [Reference: West Moberly First Nation v. British Columbia (Chief Inspector of Mines), 2011 BCCA 247 at para 106]

3380.

In Beckman and Little Salmon/Carmack First Nation, another leading Supreme Court case in this area of law, the Supreme Court held that “a decision maker who proceeds on the basis of inadequate consultation errs in law.” [Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53 at para 48]

Transcript



My clients submit to you this morning that in light of the credible claim advanced and the potential for new and serious adverse effects to their rights, the appropriate remedy is for the Board to decide, as a matter of the public interest, to decline to grant Enbridge the exemptions and authorizations it is seeking in this hearing until such time as adequate consultation and accommodation regarding Line 9 has occurred between Aamjiwnaang First Nation, Chippewas of the Thames First Nation and the Crown.

3382.

It would be an error in law for the Board to issue an order granting the exemptions and authorizations before the Crown has discharged its duty to consult and accommodate AFN and COTTFN in the circumstances.

3383.

Those are my submissions to you today. I’m going to turn the floor over to my colleague, Mr. Seaman. And I would be happy to answer any questions that the Board may have for either Mr. Seaman or myself.

3384. 3385.

Thank you. THE CHAIRPERSON: Mr. Seaman, you are getting up but I see the time flying and perhaps it would be a good time for us to take a break this morning. So we’ll reconvene at 5 past 11:00 and we’ll ---

3386.

MR. SEAMAN: Sure. Thank you very much.

3387.

THE CHAIRPERSON: Okay.

--- Upon recessing at 10:45 a.m./L’audience est suspendue à 10h45 --- Upon resuming at 11:06 a.m./L’audience est reprise à 11h06 3388.

THE CHAIRPERSON: Bonjour, monsieur -- monsieur Seaman.

3389.

MR. SEAMAN: Thank you, Madam Chair and Board Members. Again, my name is Paul Seaman and I’m co-counsel to Mr. Smith in this matter.

3390.

My submissions respond to four arguments made by Enbridge in relation to Issue 7. These four submissions can be summarized as follows.

3391.

First, I will explain why the Standing Buffalo and Brokenhead Ojibway decisions are not the controlling authorities in this situation. As part of that discussion, I will also explain how those decisions may guide the Board in

Transcript


Final argument AFN and COTTFN other situations. 3392.

Second, I will explain to the Board how the reasoning in Brokenhead Ojibway actually suggests that a separate duty owed by the Crown, outside of the NEB process, is owed to our clients in this matter.

3393.

Third, I will explain why Line 9 being located on previously disturbed lands, and on an existing right-of-way, does not preclude a duty to consult from being triggered.

3394.

Fourth, I will explain why Enbridge’s approach to consultation would not, in any event, meet the standard of meaningful consultation required by the honour of the Crown.

3395.

With respect to my first submission, Enbridge has relied on the Standing Buffalo case for the proposition that the Board is not required to determine whether there is a duty to consult, or whether it’s been fulfilled. [Reference: Hearing Transcript Vol. 1 (A54658), paragraph 452]

3396.

First, and most importantly, Standing Buffalo predates the Supreme Court’s decision in Rio Tinto. Please turn to Tab Q of our Book of Authorities. Please skip to page 5-52. The page numbers are at the bottom.

3397.

I’m reading from the sidebar portion in the middle of page 5-52, just above the footnotes. It leads into the top of the next page 5-53. This is an excerpt from author Jack Woodward’s authoritative textbook “Native Law”. Mr. Woodward states the following after a discussion of Standing Buffalo and Brokenhead Ojibway, quote: “Any ruling on the role of an administrative tribunal’s role in consultation that was issued prior to the Rio Tinto decision should be treated with caution and reviewed for consistency with that case.” [Reference: Jack Woodward, Native Law, Vol. 1. Toronto: Carswell, 1994 (loose-leaf updated release 2, 2013 at pages 5-52 - 5-53, paragraph 561470]

3398.

The Standing Buffalo case’s inconsistency with Rio Tinto is readily apparent after reviewing just one paragraph of its reasoning. Please turn to Tab N of our Book of Authorities. Please skip forward to page 11. I’m about to read paragraph 41. Here, the Federal Court of Appeal wrote the following:

Transcript


Final argument AFN and COTTFN “The appellants were unable to point to any provision of the NEB Act or any other legislation that prevents it from issuing a Section 52 Certificate without first undertaking a Haida analysis or that empowers it to order the Crown to undertake Haida consultations.” 3399.

Relative to Rio Tinto, this reasoning is backwards.

3400.

First, as Mr. Smith pointed out earlier, Rio Tinto dictates that a tribunal that is empowered to consider questions of law, as the Board is, can and must assess whether there’s a duty to consult, and if so, whether that duty has been fulfilled. The only circumstances where such a tribunal should not do so is if its ability to consider consultation has been expressly take away by Parliament. Parliament has not taken this authority away from the Board. [Reference: Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, paragraphs 6869]

3401.

Secondly, as Mr. Smith explained, if the Board finds that adequate consultation has not occurred, the next question is not to consider whether the Board can order the Crown to consult. What the Board must do, is decline to grant the exemptions and approvals until Crown consultation occurs, in order to ensure that Aboriginal rights and interests are addressed and protected. [Reference: Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, paragraph 61; The Aboriginal Law Duty to Consult: An Introduction for Administrative Tribunals Zena Charowsky, (2011) 74 Sask. L. Rev. 213 - 230; paragraphs 56, 59-60]

3402.

Enbridge similarly relies on the Brokenhead Ojibway case for the proposition that the Board’s process itself may be sufficient to fulfil the Crown’s duty to consult. [Reference: Hearing Transcript, Vol. 1 (A54658), paragraph 453]

3403.

With respect to this submission, Brokenhead Ojibway was a case decided in relation to a different Board process, a section 52 process. This is a very important distinction I would like to impress on the Board. A section 52 process involves the Board submitting a report, with recommendations, to the Governor-in-Council. The GIC is, for all functional purposes, the Crown.

3404.

Transcript

The Crown, relying on that report and acting honourably, can then take


Final argument AFN and COTTFN a variety of steps in evaluating whether Aboriginal concerns have been adequately taken into account. In other words, under a section 52 process, the Crown is the final decision maker, and the Crown may rely on the Board’s process and associated report and recommendations. This is evident in the reasoning in Brokenhead Ojibway. 3405.

Please turn to Tab B of our Book of Authorities. Please skip ahead to page 14. I’m about to read from paragraph 25.

3406.

Here Justice Barnes wrote the following: “In determining whether and to what extent the Crown has a duty to consult with Aboriginal peoples [or] projects or transactions that may affect their interests, the Crown may fairly consider the opportunities for Aboriginal consultation that are available within the existing processes for regulatory or environmental review: Those review processes may be sufficient to address Aboriginal concerns, subject always to the Crown’s overriding duty to consider their adequacy in any particular situation.” [Reference: Brokenhead Ojibway First Nation v. Canada (Attorney General), 2009 FC 484, paragraph 25]

3407.

In other words, I submit to the Board that the rule that comes out of Brokenhead Ojibway is that the Crown can rely on Aboriginal peoples’ participation when it is within a section 52 process. The obvious reasoning behind this is that the report and recommendations generated by the process will assist the Crown before it makes a final decision where Aboriginal people’s rights and interests may be impacted and further consultation may be required.

3408.

Justice Barnes recognized this issue in Brokenhead Ojibway. Please skip to page 11. I’m about to read from the middle of paragraph 21: “It is enough for present purposes to say that where a duty to consult arises in connection with projects such as these it must be fulfilled at some point before the GIC has given its final approval for the issuance of a Certificate of Public Convenience and Necessity by the NEB.” [Reference: Brokenhead Ojibway First Nation v. Canada (Attorney General), 2009 FC 484, paragraph 21]

Transcript



As Mr. Smith highlighted for you a moment ago, the fundamental problem with Enbridge’s application is that it does not contemplate any involvement by the Crown prior to the Board making a final decision on a matter that risks serious impacts to constitutionally protected Aboriginal rights and interests. In other words, if the Board does not assess the duty to consult, nobody will.

3410.

Although this process may be suitable for assessing technical aspects of Enbridge’s application, it is deficient with respect to addressing the impacts to our clients’ constitutionally protected rights and interests.

3411.

As Mr. Smith explained, earlier, the Board, in addressing Enbridge’s application, should wait for Crown consultation to occur. Otherwise, the Board will violate the constitutional dictates underlying section 35 and act without jurisdiction

3412.

I’ll move to my second submission, which is that Brokenhead Ojibway, on a proper reading, actually supports our clients’ position that a separate duty to consult outside of the Board process arises in this matter.

3413.

Please skip ahead to page 15 in Brokenhead Ojibway. I’m about to read from paragraph 29. Here Justice Barnes wrote the following. I’m reading from midway through the first sentence: “The NEB process may not be a substitute for the Crown’s duty to consult where a project under review directly affects an area of unallocated land which is the subject of a land claim or which is being used by Aboriginal peoples for traditional purposes.”

3414.

In the next paragraph, paragraph 30, Justice Barnes continued as follows: “The fundamental problem with the claims advanced in these proceedings by the Treaty One First Nations is that the evidence to support them is expressed in generalities.”

3415.

Transcript

Further down in the same paragraph:


Final argument AFN and COTTFN “Even to the extent that cultural, environmental and traditional land use issues were raised in the evidence, they were not linked specifically to the projects themselves.” 3416.

Finally, please skip ahead to page 19 of Brokenhead Ojibway. I’m about to read from paragraph 44. Here Justice Barnes wrote the following: “I have no doubt, however, that had any of the Pipeline Projects crossed or significantly impacted areas of unallocated Crown land which formed part of an outstanding land claim a much deeper duty to consult would have been triggered. Because this is also the type of issue that the NEB process is not designed to address, the Crown […] almost certainly [would] have had an independent obligation to consult in such a context.” [Reference: Brokenhead Ojibway First Nation v. Canada (Attorney General), 2009 FC 484, paragraphs 19, 2930]

3417.

I submit to the Board that the fundamental evidentiary problems with the claims advanced in Brokenhead Ojibway are simply not present in this case. The rights our clients are asserting in relation to the project are not being stated in generalities. As the traditional land use studies reviewed by Mr. Smith a few minutes ago show, our clients’ rights are being actively exercised on specific lands and waters directly on and adjacent to the right-of-way. [Reference: Exhibit C-1-6-1, Adobe page 11, paragraphs 29-31; Exhibit C-1-6-7, Exhibit C-26-3, Adobe pages 11-16, 88-112]

3418.

Furthermore, the Chippewas of the Thames claims title and rights in relation to the Thames River which Line 9 crosses. It is clear that Brokenhead Ojibway, on the facts before the Board in this case, supports the idea that a Crown duty to consult, separate and apart from the Board process, is triggered. [Reference: Exhibit C-2-6-3, Adobe pages 11, paragraphs 30-31; Adobe page 79]

3419.

This is perhaps a good segue into my third submission regarding what significance attaches to the fact that the right-of-way itself is on, quote, “previously disturbed” or, quote, “private” lands.

3420.

Transcript

Enbridge has submitted to the Board that, quote:


Final argument AFN and COTTFN “The Project work would take place entirely on previously disturbed lands within the confines of Enbridge’s existing and operating terminals and stations, which are privately owned or controlled by Enbridge and incompatible with the exercise of traditional activities.” [Reference: Hearing Transcript, Vol. 1 (A54658), paragraph 479] 3421.

Enbridge relies on R. v. Peace, a case from the Saskatchewan Provincial Court that relates to Treaty 4 and an NRTA. Suffice to say for the purposes of these submissions that it’s not on point.

3422.

First, Enbridge’s position can be summarized as missing a very obvious point entirely. Our clients are not concerned about exercising their rights directly on the narrow strip of land that is the right-of-way or about impacts from temporary project work carried out there. With all due respect to Enbridge, that would not make much sense.

3423.

Our clients are much more concerned about the potential for serious, adverse impacts to their rights and interests at specific locations adjacent to the right-of-way. The rivers in particular are unoccupied and remain compatible with traditional practices. We saw this in the photo of Mr. Henry at the Thames crossing.

3424.

These rights and interests, as my colleague Mr. Smith outlined earlier, would unquestionably be catastrophically impacted by a release of crude oil. [Reference: Exhibit C-1-6-1, Adobe page 26-27, paragraph 73; Exhibit C-2-6-3, Adobe page 40, paragraph 81]

3425.

Second, whether lands are previously disturbed or not is not determinative. The Haida Nation case itself, a leading case, if not the leading case, concerned the transfer of a tree farm licence over a block of land previously disturbed by extensive forestry operations for several decades. [Reference: Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 paragraph 4]

3426.

What is also clear is that asserting Aboriginal rights in relation to privately held lands does not preclude a duty to consult from arising. The B.C. Supreme Court has found a duty to consult where the Crown was making decisions to remove private lands from tree farm regulation.

Transcript



Importantly, the duty to consult was engaged at a moderate level with respect to adjacent Crown lands, at a level closer to deep consultation, and required the relevant Minister to engage with the First Nation directly, and most importantly, before a final decision was made. [Reference: Hupacasath First Nation v. British Columbia (Minister of Forests), [2009] 1 C.N.I.R. 30 (B.C. Sup. Ct.), paragraphs 219, 229, 236-237]

3428.

Finally, I’d like to make my fourth point in response to Enbridge’s submission that notwithstanding the lack of Crown involvement in this process, that the Board should find the Enbridge’s consultation activities would somehow satisfy the Crown’s constitutional obligations. [Reference: Hearing Transcript, Vol. (A54658), paragraph 508]

3429.

Our clients, respectfully, completely disagree with this submission. In their view, Enbridge’s approach to consultation to date only serves to further highlight why the Crown needs to be directly involved.

3430.

First, I want to highlight a few comments Enbridge included in its initial application. There, Enbridge committed to a “best practices” approach, taking into consideration traditional “existing land uses”, “exchanging information”, and, “responding to concerns” raised by Aboriginal communities who are up to 50 kilometres from the right-of-way. Enbridge stated that at that time it was not aware of any traditional land use -- land uses along the right-ofway. [Reference: Exhibit B-1-2, Adobe page 3, lines 24 to 26, Adobe page 35, lines 8 to 12]

3431.

In its submissions to the Board on Issue 7, Enbridge does not appear to have appreciably budged from its initial position that no relevant traditional activities are occurring in relation to the right-of-way. Enbridge instead notes that our clients had never made them aware of their traditional land use locations in the past. [Reference: Hearing Transcript, Vol. 1 (A54658), p 469-470]

3432.

Enbridge does not explain what relevance their lack of knowledge in the past has to this proceeding. Our clients have, as required by Brokenhead Ojibway, and in response to Enbridge’s own application, participated in this process and provided specific evidence of rights being exercised in and around the right-of-way. What Enbridge previously knew of our clients’ rights and interests is simply not relevant anymore.

3433.

Transcript

Enbridge’s approach does not accord with the Supreme Court’s


Final argument AFN and COTTFN directions regarding what constitutes meaningful consultation. Meaningful consultation may oblige the Crown to make changes to its proposed action based on information obtained through consultation. Consultation is not -- this is a quote -- “an opportunity to blow off steam” before the Crown proceeds to do what it intended to do all along. [Reference: Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 at paragraph 46; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69 at paragraph 54] 3434.

Enbridge has not shown how the information shared with it by our clients has served to change its course whatsoever. Rather, it has shown an unreasonable adherence to the perspective that our clients have previously stated their rights in generalities, presumably so it does not have to deal with them today or in the future.

3435.

In our clients’ view, this level of engagement amounts to Enbridge providing them with an opportunity to blow off steam. The Crown would be bound by its honour to act at a standard higher than this.

3436.

Finally, Enbridge also cites the Rio Tinto case in suggesting that our clients are improperly seeking to address, quote, “past wrongs” through this hearing. [Reference: Hearing Transcript, Vol. 1 (A54658), paragraph 469-470]

3437.

Enbridge has fundamentally misstated our clients’ position. In his sworn evidence, Chief Plain was providing context about how impacts caused by a lack of consultation in the past have accumulated and continue to affect his community today.

3438.

In fact, Chief Plain stated that, quote: “Industrial development continues to erode the Crown’s solemn [treaty] promise in Treaty 29 that we would have the right to exclusively use and enjoy our reserve lands…”

3439.

And further explains that AFN’s environment is, quote, “already extremely polluted.” [Reference: Exhibit C-1-6-1, Adobe pages 17-21]

3440.

In the West Moberly case, the B.C. Court of Appeal addressed and summarily rejected the argument Enbridge has put forward. In that case, a mining company argued that past impacts to a threatened caribou herd were not relevant to assessing potential cumulative impacts to the caribou in the present. The Court

Transcript


Final argument AFN and COTTFN held that a historical context was essential to achieving a proper understanding of the seriousness of new impacts to the rights in question. 3441.

The Court further held that, quote: “To take [these] matters into consideration as within the scope of the duty to consult is not to attempt the redress of past wrongs. Rather, it is simply to recognize an existing state of affairs, and address the consequences of what may result.”

3442.

I submit to the Board that in such a context, what is important to acknowledge is that each new impact becomes more significant than the last. [Reference: West Moberly First Nations v. British Columbia (Chief Inspector of Mines) 2011 BCCA 247 at paragraphs 117-119]

3443.

Similarly, in this instance, evidence of cumulative impacts and the historical circumstances provided by Chief Plain are not an attempt to address past wrongs. It provides invaluable historical context and evidence of the current state of affairs for the Board to consider in relation to new impacts to AFN’s Treaty right to exclusively use and enjoy their reserve lands. Enbridge’s reliance on Rio Tinto is therefore entirely misplaced.

3444. 3445.

To conclude my fourth submission, Enbridge’s approach does not measure up to the constitutional standard required by the honour of the Crown. Although Enbridge has asked for information regarding potential impacts from Aboriginal groups within 50 kilometres of the right-of-way, upon receiving that information, it has reverted to the illogical position that the narrow right-of-way is where the work will be done and it is privately held land that is incompatible with traditional uses. This is circular, catch-22 logic and Enbridge cannot have it both ways.

3446.

In our clients’ respectful submission, this approach does accord with common sense and certainly cannot be related to conduct that would be described as honourable. Meaningful consultation cannot occur in such an evasive atmosphere.

3447.

To conclude, our clients submit that the constitutional requirement of meaningful and honourable Crown consultation must occur before the Board concludes its regulatory process. The Board must insist on Crown consultation

Transcript


Final argument AFN and COTTFN occurring prior to granting the exemptions or approvals or will run afoul of the Constitution and act without jurisdiction. 3448.

Subject to any questions you may have, those are my submissions. Thank you.

3449.

THE CHAIRPERSON: Mr. Richmond has questions.

3450.

MEMBER RICHMOND: First I want to thank you for the presentations on duty to consult. They were very detailed and helpful.

3451.

I want to focus on an issue of subject matter that was not discussed in your oral presentation, but it is in your written submissions. To date, all of the technical concerns we’ve heard in oral argument have related to the risk of spills along the pipeline itself. And in your written submissions, your clients are the first to express concern about the risk of spill at the terminal itself, in this case, Sarnia terminal.

3452.

I understand why others have argued that this project, the reversal, the capacity expansion and the change in tariff to a heavy crude -- why they argue that it could increase spill-related risks along the pipeline. But I’m wondering if you could go in to some more detail as to why you think, as you stated in your submissions, there’s an increased risk of spill at the Sarnia terminal itself as a result of the reversal expansion and tariff change.

3453.

MR. SEAMAN: There’s going to be a -- my friend Mr. Smith may want to address this as well, but I am aware that there’s an additional tank being added as part of the reversal process and an initial volume of oil itself will be going through the terminal.

3454.

MR. S. SMITH: Yeah, I think the key is, one, there’s going to be additional crude stored at the Sarnia terminal; two, different types of crude are going to be stored there. So right now, there isn’t heavy crude being stored there as I understand. There will be, so that that crude can be shipped on Line 9.

3455.

Our clients’ main concerns are air contaminants escaping from the terminal, but also as I explained to the Board in my submissions, the drain at the Sarnia terminal drains into Talfourd Creek. Talfourd Creek is a creek that Aamjiwnaang First Nations members and their ancestors have fished in and harvested resources since time immemorial.

Transcript



The creek goes from close to the Sarnia terminal through the reserve, as I showed you, and then into the St. Clair River. So a spill leak or discharge or an accident involving a release of crude or including heavy crude that got into the drain could cause serious adverse impacts to both the reserve lands as well as Talfourd Creek and the St. Clair River. Members of Aamjiwnaang continue, of course, to exercise Aboriginal harvesting rights in the St. Clair River by fishing for a number of species.

3457.

MEMBER RICHMOND: So then, just so I make sure I understand the concern is about the changed impact of a leak, not so much the likelihood of a leak; is that fair?

3458.

MR. S. SMITH: Well, the consequences of a leak as well. They’re quite different. There’s a number of reports that we put before the Board through Chief Miskokomon’s affidavit that suggest the environmental impacts of a release of heavy crude is substantially different and substantially more significant than light crude.

3459.

So if this new crude -- new species of crude were to spill, leak or discharge from the terminal, it could cause new and potentially more highly significant adverse environmental effects and, correspondingly, impair members of Aamjiwnaang’s ability to exercise their Treaty rights and harvesting rights in the area.

3460.

MEMBER RICHMOND: Thank you very much.

3461.

THE CHAIRPERSON: The Board has no other questions, but the Board notes the presence of Chief Plain, Chief Miskokomon, as well as other members of the Band. And we thank them for their participation and for coming to the hearing.

3462.

MR. S. SMITH: Thank you very much for your attention. We really appreciate the opportunity to appear here before you on behalf of both communities.

3463.

THE CHAIRPERSON: Thank you.

3464.

MR. SEAMAN: Thank you.

Transcript


Final argument Algonquin to Adirondacks Collaborative 3465.

THE CHAIRPERSON: Now, if I’m correct, we will proceed with the Algonquin to Adirondacks Collaborative and we are going to have Mr. Rob McRae come to the microphone.

--- (A short pause/Courte pause) 3466.

THE CHAIRPERSON: Welcome, Ms. Conger.

--- FINAL ARGUMENT BY/ARGUMENTATION FINALE PAR ALGONQUIN TO ADIRONDACKS COLLABORATIVE: 3467.

MS. CONGER: Okay, great. Thank you, Madam Chair and Board Members for the opportunity to present the final argument of the Algonquin to Adirondacks Collaborative or A2A as we call ourselves to you.

3468.

My name is Emily Conger and I am President of A2A.

3469.

I want to start by saying that having gone through much of the evidence of other intervenors, I believe that the evidence that I have submitted and the final argument that you will hear from me and from my colleague, Rob McRae, representing A2A, offer unique perspective, are well-researched and will, I hope, prove helpful in your deliberations.

3470.

But first, I was told -- I wanted to bring up a procedural issue. I was told by Enbridge officials when I went to an open house that they held in Gananoque, that Enbridge had not applied for the pipeline to carry bitumen oil and this led me to question what Enbridge had actually applied to do.

3471.

In Enbridge’s letter of June the 25th, 2013, which was quite nicely quoted earlier to you by Mr. Smith -- Mr. Scott Smith, it appears to me that Enbridge had applied only for approval of pump additions and modifications, as well as piping modifications at existing terminals and stations.

3472.

However, such an application cannot imply that permission is being sought to change the functioning of the entire length of Line 9 to accommodate reversal of flow, increased capacity and the carrying of different products.

3473.

Consequently, a proper application should have been made by Enbridge for approval of the line in its entirety and in all these three aspects. If

Transcript


Final argument Algonquin to Adirondacks Collaborative such an approval was not sought by Enbridge through the National Energy Board approval process, then I submit that Enbridge has no standing to ask for permission to reverse the flow, increase the capacity or change the products being carried in the line. 3474.

If you reject this preliminary submission and find that Enbridge has correctly applied to the National Energy Board and does have standing to seek approvals concerning the entire pipeline, then I make the following submissions:

3475.

And I'd like please to ask for the A2A map to be displayed on the screen. Thank you very much.

3476.

So it's a little hard to see because the lines that actually delineate our area of interest aren't coloured as deeply as they are. But our area of interest extends through both of these two large parks in Eastern North America, between them, and comes down roughly east of Cornwall -- just slightly east of -- yes, right around Cornwall area to the east, and then sweeps around and then comes back up through just east of Belleville and then up through and including Algonquin Park.

3477.

So that is what we call the A2A region. I will only be concerning myself with the Canadian part of the A2A region, and particularly the part that's closest to Lake Ontario and the St. Lawrence River.

3478.

The Algonquin to Adirondacks region is of extremely high significance biologically in Eastern North America for several reasons, as I have indicated in the evidence that I've submitted in document C6-3-1 and C6-5-1.

3479.

I wish to draw the Board's attention to our evidence that there is no other viable passageway for terrestrial wildlife in Eastern Canada other than the A2A region in a north-south or south-north direction, owing to the barrier effect of the Great Lakes, to the west, and the widening St. Lawrence River to the east; and also owing to the connected habitat made possible by natural forest and wetland cover and by the stepping stone effect of the Thousand Islands in the St. Lawrence River.

3480.

By connecting the Boreal Forest in Canada with the Appalachians in the United States, which go all the way down to Georgia, the A2A region functions on a continental scale. The A2A region also has a unique position in Southern Ontario, because it has retained much of its forests and wetlands, and

Transcript


Final argument Algonquin to Adirondacks Collaborative therefore its wildlife. 3481.

In our evidence C6-3-1, we show that the part of A2A closest to the St. Lawrence River, where development is most intense, still has 59 percent forest and wetland cover. That will be compared, say, to areas like North County, where there's 2 percent, as I understand it.

3482.

The A2A region, therefore, supports a rich and biodiverse ecosystem, as well as a large number of federally and provincially designated species at risk. In Thousand Islands National Park alone, listed at the end of my evidence C6-3-1 are a total of 57 confirmed species at risk, and those are federally designated.

3483.

The A2A region is the only place in Eastern Canada that has both extremely high biological diversity and north-south species movement potential.

3484.

Our evidence also shows that the A2A region is uniquely fragile, having water systems that are particularly vulnerable to contamination, owing to is shallow soils, fractured rock and geological formations that promote the quick movement of contaminants in groundwater into aquifers and that’s Appendix 1, C6-3-1.

3485.

I wish to Board to give weight to the importance of the evidence that we presented that the A2A region is unique in one other way: Since it allows for the movement of species from south to north, the region will play a key role in the mitigation of climate change. Without the ability to move to more favourable temperature regimes, which may be hundreds of kilometres away, many more species will become extinct. Therefore, maintaining connected natural habitat is essential to support species migration, both of plants and of terrestrial animals, allowing them to move, over generations, to areas where they can survive.

3486.

The degradation of habitat in the region through a spill of diluted bitumen or other products would have the impact of destroying some of this movement potential.

3487.

As I have pointed out in A2A's evidence -- and I'd like you to find for me please Enbridge's Map 100.

3488.

Okay, so that's basically the one we've all been looking at anyway. You can see that the A2A region overlaps the pipeline -- or the pipeline overlaps A2A region completely from Belleville to Cornwall, basically bisecting the A2A

Transcript


Final argument Algonquin to Adirondacks Collaborative region. This means that all of A2A southern part in Canada is subject to whatever spills may occur. 3489.

Now I would like to discuss the effects of diluted bitumen on biodiversity and human health.

3490.

The A2A Collaborative has significant concerns about the dangers posed to biodiversity by oil spills, and particularly by spills of diluted bitumen. We recommend that the Board recognize the importance of our evidence in our submissions, C6-5-1, pages 4 and 5, and that of other parties to these proceedings, which show that when oils spills occur, they kill plants and animals outright directly through contact with the oil; they kill plants and -- they destroy, possibly forever, the habitats on which these creatures rely, and they cause long-term mutagenic and carcinogenic effects that can affect the viability of the species.

3491.

A2A's evidence in the reference above shows that both benzene and toluene are recognized for their carcinogenic properties. From the National Resources Defence council’s submission, C11-4-2, page 6, I ask the Board to pay special attention to the evidence that diluted bitumen and drag reducing agents contain benzene, polycyclic hydrocarbons and n-hexane, which can affect the central nervous systems upon release into the environment.

3492.

A2A is also concerned about the biological amplification effects raised by Rising Tide Toronto in their submission, C24-3-1. As well, The MSDS sheets provided to Les Citoyens au Courant, Information Request 5.17.b, clearly indicate that the potential products to be shipped through Line 9 are extremely hazardous to human health.

3493.

I would also like to draw the Board's attention to Sustainable Trent's evidence, C26-2-1, in which they included as part of their evidence a series of articles entitled “The Biggest Oil Spill You've Never Heard of”, and I'm looking at Part 3 of that. It cites a study that compares species variety and abundance before and after the Enbridge spill at Talmadge Creek, Michigan. The study showed that the total number of fish had declined, but more importantly, the species diversity had dropped from 11 species to 3 species. It's a good illustration of how disturbances and oil spills reduce biodiversity.

3494.

I would also like to direct the Board's attention to evidence from the Natural Resources Defence council's submission, C11-4-2 describing the conditions in pipelines carrying diluted bitumen as being more dangerous than

Transcript


Final argument Algonquin to Adirondacks Collaborative those in pipelines carrying crude oil, for example. 3495.

Their evidence details how higher temperatures and pressures and the presence of sand in the product speed up corrosion; how leaks are difficult to detect, since pressure changes in the diluted bitumen mask leaks; and the particular dangers of the release of hydrogen sulphide in explosions, which their evidence states are more likely due to the quantity of natural gas in the diluted bitumen.

3496.

Thus, we not only have a dangerous product being carried but a greater likelihood of accidents due to corrosion.

3497.

Now, I would like you please to post from that picture from “The Biggest Oil Spill You've Never Heard of”, and it's at the beginning of each of those articles.

3498.

THE REGULATORY OFFICER: Which exhibit is that?

3499.

MS. CONGER: There's a photograph at the beginning of each of those articles.

3500.

MR. WATTON: Do you have the exhibit number by any chance?

3501.

MS. CONGER: It's the one I think you had on the screen, because you had that piece up.

3502. 3503.

It's from Sustainable Trent, I believe. Yes, C24-2-1. MR. McRAE: Maybe I could just mention, I think you have to scroll down on that list of evidence a little bit to the article there because it’s all in one document.

3504.

MS. CONGER: Thank you.


MR. RODIER: Could you again just describe where it is on that exhibit so she can locate it a little quicker? Thank you.

3506.

Transcript

MR. McRAE: It’s right there, 21.



MR. RODIER: Number 21?

3508.

MR. McRAE: Yes.

--- (A short pause/Courte pause) MEMBER RICHMOND: We’ve got it here on our screen if you

3509. want to --3510.

MS. CONGER: Okay. Good.

3511.

MEMBER RICHMOND: If you want to go ahead.

3512.

MS. CONGER: All right. You could maybe describe what you’re seeing on that screen so that others could get an idea of what we’re looking at.

3513.

MEMBER RICHMOND: It looks like some kind of heavy equipment cleaning up oil from some kind of water body.

3514.

MS. CONGER: Right. Yes.

3515.

Environmental integrity requires connected habitat. A spill could destroy areas of habitat in perpetuity.

3516.

I would like to draw your attention to a statement in the article “The Biggest Oil Spill You’ve Never Heard Of” that over and over large areas of habitat were destroyed in order to clean up the oil spill on Talmadge Creek and the Kalamazoo River in Michigan.

3517.

Enbridge dredged acres of riverbed, ripped out oil-coated islands and oil-coated logs, destroyed fish habitat and ruined underwater beds where mussels feed and breed. The presence of so many boats on the water caused unusual wave action which eroded the banks of the river; they fitted excavator buckets with rototiller blades; they pulled chain drags and air and water spraying wands and rototiller blades behind boats, and equipped pontoon boats with excavators that could pull chain drags. That’s from the article. I think that this illustrates the collateral damage that’s caused to habitat, not through the oil spills themselves, but through the attempts at clean-up.

Transcript



Large project Proponents often tell us that disturbed areas can be restored to their original state, but I would submit to you that this almost never happens. Oil spills present a significant threat to wildlife habitat and in turn to environmental integrity in the Algonquin to Adirondacks region.

3519.

A2A hopes this evidence will be given weight in the Board’s deliberations as it assesses pipeline proposals, particularly those that involve transporting materials as difficult to clean up and as toxic as diluted bitumen, but with other oils as well.

3520.

When I looked at Enbridge’s emergency response plan -- and that’s B22-19 -- for this project where dilbit would be one of the products transported, I found the following options were mentioned for clean-up, exclusion booms, diversion booms, sorbent booms, earth berms and dikes, water-filled dams and even fire. Fire was cited as a clean-up tool with all the health and environmental effects inherent in that choice, including clearing areas such as forest lands with big machinery to contain the fire but nowhere could I find mention in Enbridge’s emergency response plan of the methods that were used for bitumen clean-up in Michigan.

3521.

The issue I see here is that we’re dealing with very different products, with different responses required and therefore very different scenarios for first responders and long-term clean-up, especially given that products in the pipeline, as I understand it, will be changed from time to time, possibly from light crude to bitumen. I’m deeply concerned that there be in place a way for first responders to know on a day-by-day basis what products they’re dealing with, and I would recommend that the Board insist that this be a condition of licensing.

3522.

I am aware, from Enbridge’s testimony in Montreal on page 45, that Enbridge has contracted a group in Houston, Texas called The Response Group. I wonder how much they know in Houston, Texas about the Algonquin to Adirondacks region.

3523.

But when I go to Enbridge’s “My Online Training Program”, as it’s called, I find that it is password protected. Enbridge’s secrecy prevents me and other intervenors from knowing whether the information first responders are getting is appropriate for bitumen spills in the highly sensitive Algonquin to Adirondacks region.

3524.

Transcript

I would now like to address some specific evidence about the


Final argument Algonquin to Adirondacks Collaborative vulnerability of the A2A region’s water supply that we feel should be given highest consideration as you deliberate in this matter. 3525.

You will find the information I’m going to talk about on page 11 of C6-3-1 in Appendix 1. This is quoted from a letter or taken from a letter from the Cataraqui Region Conservation Authority. A2A believes the Board should give this evidence highest weight because the letter states that leaks and spills from Line 9 could have substantial negative effect on the environment of the Cataraqui region, and the Cataraqui region covers a fairly large part of the A2A region. It’s entirely contained within the A2A region and north of Kingston and to the east and west of Kingston and leading up to Brockville and a little further on I think.

3526.

I’m just going to go back a little bit. The letter states that leaks and spills from Line 9 could have a substantial negative effect on the environment of the Cataraqui region with resulting socio-economic effects and that those effects may be lasting in duration, especially where material is released and cannot be fully recovered from the environment.

3527.

This evidence states that groundwater aquifers in the region provide drinking water for about one-fifth of the residents, and that the current and proposed contents of Line 9, quote, “have the potential to permanently despoil groundwater via a leak or spill event”.

3528.

The letter cites studies to prove that almost all of the local groundwater in the Cataraqui region is highly vulnerable to contamination due to the fractured nature of the bedrock, lack of soil cover and the shallow depth of the water table and the presence of karst topography, which means caves and sinkholes, in some locations, adding to the vulnerability.

3529.

Therefore, activities and facilities at or near the surface, such as oil pipelines, can have a negative impact on groundwater, particularly given our inability to directly observe the condition of a buried pipeline such as Line 9.

3530.

In light of this evidence, A2A recommends that inline inspections and integrity digs must be thorough and frequent, whether or not Enbridge’s present application before the Board is approved.

3531.

Surface water: Line 9 crosses numerous watercourses in the A2A region. They provide fish and wildlife habitat and are used for drinking water sources, agricultural irrigation, livestock watering and other purposes. As an

Transcript


Final argument Algonquin to Adirondacks Collaborative example I would like to show one particular example, the Gananoque River. So I would like to see please Enbridge’s Map 100 of the Gananoque

3532. River. 3533.

Boy, that’s hard to see. Yeah, you’re not quite there. I think we need -- we need to see milepost 2084 to 2085. THE REGULATORY OFFICER: That’s the only map I’ve got

3534. there. 3535.

MS. CONGER: Pardon me?

3536.

THE REGULATORY OFFICER: That’s the only map I’ve got there. I don’t know which exhibit that is -- that you need.

3537.

MS. CONGER: I can’t actually see the Gananoque River there, but I know that we’re looking at the map in Enbridge’s -- that’s from B1-15, have you got that, pipeline engineering assessment?

3538.

Okay, well that’s coming up. Well, we’ll go to that in a minute but I want to just talk about the river itself. The Gananoque River crossing of the Enbridge pipeline is perfect illustration of what the Board should be aware of in the A2A region.

3539.

Enbridge has identified the area surrounding the pipeline as sensitive. A spill consequence into the Gananoque River will quickly end up in the St. Lawrence River, affecting the drinking water of perhaps millions of people.

3540.

So if you’ll go back to that slide that you just had up before, that was page 57 of the Pipeline Integrity dig -- Pipeline Integrity document, page 57. That’s the one, good.

3541.

Okay. But in this unique and vulnerable area of A2A, this geriatric quarter inch thick pipeline has been allowed to deteriorate to the point that Enbridge itself has identified over 600 defects just at the site of the river. [Milestones 2084-5]

3542.

And if you look at those really nice big spikes in the middle of the – middle of the second block there, that block represents most of what’s in the A2A

Transcript


Final argument Algonquin to Adirondacks Collaborative region, that center block. And you can see that the spikes there are really high and a couple of the highest ones are at 2080-2085 mileposts and that is the Gananoque River. 3543.

So as I read the document, it looks to me that there are over 600 defects. Some of which were dug up, which is shown I believe by the green part, but most of which have not been dug up.

3544.

We can see that the number of pipeline defects is greatest at the area -and if you look at the three -- the three blocks there now. Because these are -these are being -- these are the inline inspections, also called the PIG. So these are inline inspections that were done in the three segments between pumping stations of Line 9 -- and -- or line -- yes, Line 9. I guess Line 9 -- or not -- Line 9 or Line 9B. I get a little bit mixed up sometimes.

3545.

Anyway, so they -- as you can see that from -- and I can’t quite make out the part at the very top of that -- because it indicates somewhere where -- west north -- sorry, North Westover.

3546.

From North Westover to Hilton you can see that there are -- you know -- defects found. Then you look at that middle section and you see lots of defects and then you look at the section that -- from Cardinal to Terrebonne and there are fewer again.

3547.

So what we can see is that the number of pipeline defects is greatest in the area from Hilton to Cardinal, covering the majority of the A2A region. We can -- and we also see spikes in milepost 2084 and 2085 which are, I believe, the Gananoque River. You can see how the pipeline crosses the river and it almost grazes it again. Well if you -- If we had that up close picture of the -- of the river you would be able to see.

3548.

So, what we have here is an impact zone, where a breach of the pipeline could spew bitumen into a river from several different locations, resulting not only into spoiling the river itself but additionally, the spill could reach the St. Lawrence River very quickly; reaching the drinking water of the Town of Gananoque and the people down -- in downstream cities like Brockville.

3549.

In A2A’s submission C -- sorry, C6-3-1, we list the creek’s that follow the same north -- north to St. Lawrence or north to Lake Ontario pattern in -- just that are -- just exist in the Cataraqui region and there are lots more to the east and

Transcript


Final argument Algonquin to Adirondacks Collaborative west, which are crossed by Line 9. So Gananoque is only one example of many. 3550.

But I do find it very concerning that in the highly vulnerable Algonquin to Adirondacks region we have the highest number of pipeline defects. More defects, more vulnerable.

3551.

Woodlands. Woodlands are important -- or sorry. I missed something there. The wetlands. Many wetlands are crossed by Line 9 in the Cataraqui region, as detailed in Enbridge’s emergency response plan B22-19.

3552.

Most are designated as provincially significant. The Board should ensure that Enbridge’s proposed response to leaks and spills, within and adjacent to these and other wetlands, would unfold in a manner that has the least possible impact on their flora and fauna. This is where the heart of the biodiversity lives. This is where a lot of endangered species exist.

3553.

A2A recommends that the Board ensure that wetlands affected by an oil spill be restored to a clean revegetated condition in accordance with best practices.

3554.

Woodlands. Woodlands are an important component of the natural heritage system in this region. While the Line 9 project work itself may not affect woodlands directly, leaks and spills, and the response to them, would have negative effects as mentioned earlier.

3555.

Emergency leak response plan; in all cases, it is incumbent on the National Energy Board to ensure that prevention be paramount and that response time and practice be matched to the feature in question.

3556.

With Enbridge’s generic and highly redacted emergency response plan, B22-19, it is impossible to see that the surface water, aquifers, wetlands and woodlands in the A2A region, will receive the response they should in a timely manner. We anticipate that the response to a spill event, at or near a watercourse crossing, will vary depending upon the water levels.

3557.

Enbridge should be prepared to respond at times -- sorry. Enbridge should be prepared to respond, at times of high flows and water levels and in icecover conditions because I imagine that leaks can just as easily happen in the winter as in the summer.

Transcript



We note that no exercises concerning dealing with ice conditions in the A2A region have been undertaken by Enbridge. And they said that to us in their response, it’s B18-14, to our information request. We also note that no groundwater monitoring is planned, and that’s in B18-32, page 9.

3559.

A2A submits that both of these are necessary preconditions for licensing or should be. Groundwater monitoring in the A2A region is essential. Since water can move so quickly through the porous structures and cracked bedrock.

3560.

Enbridge needs to be able to anticipate where the oil will go in the event of a spill and groundwater monitoring will help them do that.

3561.

My colleague, Rob McRae, will be going into more detail in his portion of our presentation on emergency response planning.

3562.

I would now like to talk about the Thousand Islands National Park. The Thousand Islands National Park is entirely contained in the -- in Algonquin to Adirondacks region.

3563.

In Algonquin to Adirondacks evidence of C6-3-1, page 7, we state that the authorities at Thousand Islands National Park were never consulted by Enbridge during the consultation phase of this application despite the fact that streams from the -- lead directly into wetlands of the Jones’ Creek portion of the park, from where the pipeline crosses Jones’ Creek and other tributaries, and only a couple of kilometres away.

3564.

This is extremely relevant, since according to Enbridge’s own documents, nearby parks should be considered sensitive areas, and that’s in page 144 of B22-19.

3565.

The Jones’ Creek wetlands are identified as provincially significant and are areas of concern for biodiversity purposes. They are also home to 23 species at risk, just in the wetlands, including turtles, frogs, eels and other endangered fish, endangered plants and endangered birds, which I list on page 7 of A2A’s evidence C6-5-1.

3566.

Of particular concern to A2A is the lack of site-specific and speciesspecific planning in Enbridge’s emergency response plan. We have already recommended the need for recovery plans for these 23 species at risk which

Transcript


Final argument Algonquin to Adirondacks Collaborative would be most vulnerable to a spill, including training exercise -- training exercises that would help avoid damage to species at risk and to wildlife habitat. 3567.

As stated in that evidence, park personnel should be involved in working out how best to address these issues. A2A recommends that before any license is granted Enbridge work out these plans to the satisfaction of authorities at Thousand Islands National Park.

3568.

I would now like to argue that the Algonquin to Adirondack region be given special status. In B22-19, Enbridge identifies what constitutes sensitive areas.

3569.

Given its geography, biological attributes and uniqueness, I would argue that the entire A2A region fits this description, with perhaps the exception of the built up areas.

3570.

For example, Enbridge defines sensitive areas as habitat that includes species at risk, federal or provincial, check; significant wetlands, check; areas of natural and scientific interest, we have a lot; areas of concern for biodiversity purposes, areas of wildlife habitat conservation; areas promoting the conservation of natural heritage and biodiversity; sensitive hydrological features and vulnerability they mention, high aquifer vulnerability, 93 percent; areas designated as environmentally sensitive by a plan or a by-law, restoration area, area within or adjacent to a national or provincial park, area of wild life concentrations, significant habitat -- and they list certain ones; area identified or protected by government or non-government body; area identified or protected by -- oh sorry, I said -- have it in twice; significant water body; significant woodland; natural link and corridor; heritage site; buffer zone.

3571.

These terms describe the A2A region and in those portions, in the southeastern part of Ontario --sorry, I should just say that again.

3572.

These terms describe the A2A region in all portions of southeastern Ontario. Enbridge has only identified areas quite close to the pipeline as sensitive, but the fact is that oil spills spread, often in unpredictable ways, and most creeks and rivers in the A2A region head into Lake Ontario or the St. Lawrence River.

3573.

Therefore, it seems clear to me, and to the A2A board, that the entire region should have an enhanced status as uniquely sensitive, and with this status a

Transcript


Final argument Algonquin to Adirondacks Collaborative higher burden of proof of safety should pertain, as well as higher standards for response to oil spills. 3574.

An important tool that the Board should make as a condition of licensing is that Enbridge commit to environmental baseline conditions monitoring. Not only in the corridor of land over which it has right of way, but to a kilometre to the north of the pipe and down to Lake Ontario or the St. Lawrence, whichever pertains. This is reference from evidence in Toronto Region Conservation Authority's document C39-7-2.

3575.

I would now like to call upon my colleague, Rob McRae, to speak specifically about emergency response planning.

3576.

MR. McRAE: Thank you and good afternoon Madam Chair and Members of the Board.

3577.

The aspect that I will address on behalf of the Algonquin to Adirondacks Collaborative relates to Issue 6, and more specifically, the related topics of emergency planning, capabilities and training.

3578.

The first topic I will address is emergency response planning. A2A believes that comprehensive, well considered and up-to-date emergency response plans are indeed a prerequisite for the safe operation of any oil pipeline. We also recognize that they are required in fact, by section 32 of the Onshore Pipeline Regulations. [National Energy Board SOR.99-204]

3579.

As mentioned earlier by Ms. Conger, some of the planning for emergencies along Line 9 should reflect local conditions and issues, especially those pertaining to the watershed of an individual river or stream.

3580.

Now, keeping in mind that the potential spill volumes calculated by Enbridge for rivers and streams in Eastern Ontario per B18-15 [B18-15 Enbridge response to A2A IR 1.3.vii, p1], are in the millions of litres and we need to ensure that a spill of that magnitude never happens.

3581.

We wish to remind the Board of a helpful recommendation from the Toronto and Region Conservation Authority, in C39-7-2 [C39-7-2 TRCA written final argument, p9] for watershed specific environmental management plans. That Conservation Authority notes that such plans, and I quote:

Transcript


Final argument Algonquin to Adirondacks Collaborative “…will reduce response times, eliminate unnecessary delays caused by establishing response and mitigation plans at the time of a spill, and ensure that impacts are minimized.” [C397-2 TRCA written final argument, p10] Enbridge refers to these documents as, I quote, “Tactical Response

3582. Plans” 3583.

This topic was addressed by Enbridge in its final argument to you on October 8 at Montreal. At that time the company indicated that it has and will continue to prepare tactical response plans on a priority basis for high consequence areas, and notably for river crossings. th

3584.

A2A recommends that the Board place a condition on any approval of this application requiring Enbridge to do three things. Number 1, prepare tactical response plans for high consequence areas along Line 9 in a timely manner; involve local communities in the preparation of those plans, and within the plans include considerations for water flow, geohazards, flora and fauna et cetera, per the specific recommendations of the Toronto and Region Conservation Authority in C39-7-2. [C39-7-2 TRCA written final argument, p16]

3585.

Now, Enbridge will need a good body of information on which to prepare their tactical response plans, such as the data that would come from environmental baseline conditions reporting as spoken about by my colleague. A2A recommends that those baseline conditions be documented by the company.

3586.

We also note that the watercourse crossing management plans that would be prepared to satisfy your Draft Potential Condition 22 [A47-7 Draft Potential Conditions] would also inform that emergency response planning.

3587.

An up-to-date and overall emergency response plan for the whole of Line 9 we feel is also warranted to complement the watershed specific tactical response plans.

3588.

We are familiar of course with the heavily redacted emergency response plan for Line 9 that was published by Enbridge for B22-19. [B22-19 Enbridge response to Ontario IR 1.44.b.v, Attachment 1]

3589.

And as noted in the evidence that A2A submitted to the Board at C6-5, [C6-5 A2A written evidence, p8] the existing plan for Line 9, and I quote A2A,

Transcript


Final argument Algonquin to Adirondacks Collaborative “seems very general and could be a plan for anywhere in Canada”. Indeed the plan speaks of contaminant recovery in muskeg, [B22-19, Enbridge response to Ontario IR 1.44.b.v, Attachment 1, p115] which likely does not occur along Line 9. 3590.

So we respectfully disagree with Enbridge's position, and I'm quoting, “that no changes to the Emergency Response Plan are required as a result of the project”. And that appeared at B18-11. [B18-11 Enbridge response to MNCFN IR 1.1, p6]

3591.

So A2A believes that the overall plan should be updated to reflect the following: first, those watershed specific tactical response plans for high consequence areas, and lessons learned from those tactical response plans that could be applied elsewhere along Line 9.

3592.

Second, details about protecting sensitive areas such as fish and wildlife habitat, including the specific recovery plans for species at risk, and my colleague talked about some of those; third, the types of materials actually being carried in the pipeline as a result of the project.

3593.

On this last item, we understand from the company that diluted bitumen behaves differently in the environment than conventional oil, and this is outlined in B18-32 [B18-32 Enbridge response to Les Citoyens au Courant IR 1, p22] and may require a different response from conventional oil as outlined in C11-4-2. [C11-4-2 Council of Canadians evidence - Att 1: NRDC report Tar Sands Pipelines Safety Risks, 2011, p7]

3594.

So based on all of this, we recommend that the Board place a condition on any approval of this application for Enbridge to update its overall emergency response plan for Line 9, and importantly that this be done prior to receiving leave-to-open.

3595.

Furthermore, A2A believes that the public should have broader access to this document which affects public health and well-being, and the well-being of the environment along Line 9.

3596.

The next topic that I will address is emergency response capability with consideration for shut-off valves in the pipeline and of course response timelines.

Transcript



With respect to the valves, we do understand that Enbridge is reviewing its system of valves along the pipeline and note that your draft potential condition 15 would ask the company for an update on this type of work. [A47-7 Draft Potential Conditions]

3598.

We do support a very careful examination of the topic by the Board, particularly with regard to the uniqueness and vulnerability of the A2A region.

3599.

We've not had an opportunity to review the CSA standard for valve placement on pipelines, but we are concerned that the valves in the A2A region are currently separated by as much as 27 kilometres, per information provided by the company at B18-14. [B18-14 Enbridge response to A2A IR 1, p4]

3600.

So we would recommend that there be a significant reduction in the valve separation distance in the A2A region and perhaps elsewhere, to reflect the unique nature and vulnerable water resources. The company should install additional valves, especially at the west side of high consequence areas and ensure that all those valves can be remotely activated from its Edmonton control room.

3601.

We further recommend that emergency electrical supplies should be in place prior to leave-to-open, to operate all those valves in the case of a general power outage. And this may fall under the emergency shutdown system contemplated by your draft potential condition 14.

3602.

A2A believes that Enbridge must maintain an effective standing capability to respond to leaks and spills along Line 9 in a timely manner. We do acknowledge the company's acquisition of additional equipment, per their B18-12 [B18-12, Enbridge response to MNCFN IR 1.17] and are aware that it has crews and contractors for deploying that equipment.

3603.

But as the Board is aware, time is an important factor in emergency response. The faster the response, the less likely that there will be harm to people and the environment. And despite potential improvements in leak detection systems, a spill might not be immediately observed.

3604.

So on this, in reviewing this application and perhaps other proposals, the Board should consider the available suite of leak detection tools, from automated systems to on the ground inspections.

Transcript



Once a problem is observed, then the response clock starts ticking. And we feel that a response time of up to four hours is simply too long to sufficiently prevent harm to people and the environment, even if the current and perhaps new valves would be activated and despite the best efforts of responders.

3606.

We note the modelling work referenced by the Toronto and Region Conservation Authority at C39-7-2, which suggest that spilled oil could reach sensitive receptors in relatively short order. [C39-7-2 TRCA written final argument, p10]

3607.

And this is likely true at many locations along Line 9, including those within the A2A region.

3608.

We acknowledge that Enbridge is working to -- sorry, reduce its response times [Written record of Enbridge final argument at Montreal, p48] and has resources in place now, per B20, at Belleville, Kingston and Montreal, for example. [B20 Enbridge response to Ontario IR 1, p79]

3609.

However, we also note the company’s response at B18-46, and I’m quoting, that: “Local responders ([i.e.] fire, [and] police) are to secure the area only and […] not […] access the pipeline.” [B18-46 Enbridge response to TRCA IR 1, p5]

3610.

End quote.

3611.

If the Board agrees with this approach to emergency management, then having the right corporate response capabilities in place in proximity to these high consequence areas becomes even more important.

3612.

So we argue on that basis that the company should have effective standing capability in place between Kingston and Montreal, for example, in places like Gananoque, Brockville, Iroquois and Cornwall.

3613.

This concept reflects the inherent vulnerability of the A2A region, as outlined in detail by my colleague, and the presence of numerous high consequence areas within as identified by the company at B18-25. [B18-25 Enbridge response to Equiterre IR 1.3b, Attachment 1, p1-29]

Transcript



We recommend that the Board consider response timing when evaluating the effectiveness of response planning for Line 9. And more broadly, we also recommend that the Board consider the merits of a minimum regulated emergency response time for all pipelines in Canada.

3615.

The final topic that I’ll address this afternoon is emergency response training, and specifically for local responders. We believe that the company should involve local parties in all aspects of its emergency response preparations, including planning and training. And we note that sections 32 to 35 of the Onshore Pipeline Regulations call for this involvement.

3616.

The company has indicated, B41-2, that it has a public awareness that includes annual contact with local responders. [B41-2 Enbridge response to NEB IR 4, p22] It conducts an average of 15 exercises each year along the length of Line 9. [Ibid, p27] It’s introduced an online training tool [Ibid, p 27] and intends to meet with each Conservation Authority along Line 9 through Ontario. [Ibid, p 27]

3617.

Madam Chair and the Board, these are good things, but in our opinion, more must be done.

3618.

A2A recommends that the Board revisit its Draft Potential Condition 23 on this general topic, which would ask the company for a status report with 100 -- within 180 days of receiving leave-to-open [A47-7 Draft Potential Conditions] on the emergency planning and training.

3619.

We believe that a basic consistent level of training needs to be in place before leave-to-open is granted and that training needs to be both ongoing and regular.

3620.

So we recommend that the Board place a condition on any approval requiring Enbridge, prior to leave-to-open, to, at minimum, have conducted a table-top exercise in each municipality within the preceding 12 months.

3621.

Those table-top gatherings should be followed by a regular program of field exercises in each community, perhaps yearly in highly vulnerable regions such as the A2A. In our opinion this will foster a consistent level of understanding along the length of Line 9 and ensure that local responders are aware of the project, Enbridge’s evolving plans and capabilities for emergency response and the latest knowledge on emergency response control points.

Transcript



We suggest that perhaps some training would be appropriate on a watershed basis, bringing together parties for one river and stream system.

3623.

Earlier in both Ms. Conger’s remarks and my own, we cited evidence that diluted bitumen behaves differently in the environment than conventional oil and may require a different response protocol. [B18-32 Enbridge response to Les Citoyens au Courant IR 1, p22] [C11-4-2 Council of Canadians evidence -- Att 1: NRDC report Tar Sands Pipelines Safety Risks, 2011, p7]

3624.

Now, despite the stated preference that local responders only secure sites rather than respond to them, A2A wishes to reiterate our belief that they should be kept informed about what’s being carried in the pipeline at any given time. And so on that basis, we recommend that the Board place a condition on approval requiring Enbridge to inform local responders on a continual basis about what’s being carried in Line 9.

3625.

So at this time I’d very much like to thank the National Energy Board for listening to these arguments and will ask my colleague to offer some brief concluding remarks.

3626.

MS. CONGER: Thank you, Rob.

3627.

Before I conclude I would like to address some specific pipeline safety concerns that we have.

3628.

From B1-15, Attachment 7 of the Pipeline Engineering Assessment, section 4.35, in a section called “Results of the Crack Excavation Program”, we can see that Enbridge has done some extensive work excavating portions of the Line 9 pipeline. But the conclusion we must draw from their findings is hairraising at best.

3629.

Enbridge details how the company completed a total of 182 excavations along the pipeline and found a total of 1,042 “features”, the term they use for defects in the pipe, such as cracks. This startling piece of information is that they also found 200 features that their detection equipment had not reported.

3630.

In other words, for every dig on average, there’s one crack that they did not expect. This means that there must be a large number of cracks about which we know nothing on Line 9, which is typical of an aging pipeline. And

Transcript


Final argument Algonquin to Adirondacks Collaborative what Enbridge doesn’t know can have serious consequences. 3631.

And what is Enbridge’s solution? They say that based on the information -- on this information, CL or crack-like features not reported by the crack detection tool can be managed through ILI, inline inspections, feature detection enhancements, subsequent ILI and pipeline rehabilitation and do not pose an immediate -- immediate threat to the integrity of the pipeline.

3632.

In other words, Enbridge seems to be relying on some future technological advances that they don’t or cannot identify and repeating a flawed ILI process. But they say there’s no immediate threat because the cracks they did find still could withstand pressure, the pressure of the pipeline and more.

3633.

What they aren’t saying is that other cracks in other places are going undetected and nobody knows what pressure they can withstand. Enbridge doesn’t know and we don’t know.

3634.

And as I mentioned earlier, the company does not appear interested in proactive groundwater monitoring. So they won’t know where it goes.

3635.

What this points to is a clash of values. To Enbridge, the risks of Line 9 are acceptable. What I’ve outlined for you today is hardly reassuring news though, for people living near the line, nor for those of us who depend on nearby aquifers or groundwater to provide our drinking water, nor to those of us who care about the well-being of the Algonquin to Adirondack region or to any other place along 9 Line -- Line 9.

3636.

I don’t know if all the integrity digs that Enbridge does will ever suitably address the risk of using a badly designed aging pipeline in such an ecologically important and vulnerable area carrying such toxic products.

3637.

Let me say those words again -- aging pipeline with no means of identifying all its cracks or how serious they are, ecologically essential and vulnerable area, toxic products. These risks are just too high.

3638.

In conclusion, the National Energy Board, in your approval process, has the responsibility to protect people, wildlife, water and environmental integrity.

3639.

Transcript

I suggest to you that for due diligence to take place this pipeline


Final argument Algonquin to Adirondacks Collaborative should either one, be re-laid across the entire Algonquin to Adirondacks region using a better design and thicker walls and materials that meet today’s standards; or that two, the products being carried be far more benign for human health and the environment; or three, that the licence to Enbridge be denied. 3640.

Now, on a very different note, amidst all the difficulty of foraging out information and coping with what, for a newcomer like me, has been a truly confusing process, I would like to take a moment to thank Michael Benson, who cheerfully answers what must seem like silly questions from people like me, time after time. His help enabled me to be here today and represent the Algonquin to Adirondacks Collaborative, and I truly appreciate it.

3641.

And subject to any questions, that is my submission. And finally, I would like to thank the Board for your attention to my and to Mr. McRae's presentations.

3642.

THE CHAIRPERSON: Mr. Gauthier has a question.

3643.

MEMBER GAUTHIER: Thank you both for your presentation.

3644.

I just want to make sure that I understand clearly what you said before. You said that Enbridge never consulted your group about the project or regarding the -- in terms of communication, whatever?

3645.

MS. CONGER: No. I said that they never consulted the Thousand Islands National Park, and the park is a significant park within the Algonquin to Adirondacks region. So I might have confused you with that geographical reference.

3646.

MEMBER GAUTHIER: Okay. But did you have any consultation with Enbridge regarding the projects?

3647.

MS. CONGER: Oh, yes, we put in an information request, and I've quoted from it a couple of times in this -- in my final arguments.

3648.

MEMBER GAUTHIER: Did you have any meetings with them?

3649.

MS. CONGER: I did not.

3650.

MEMBER GAUTHIER: And did you request or?

Transcript



MS. CONGER: No.

3652.

MEMBER GAUTHIER: Okay.

3653.

MS. CONGER: I didn't know that was even part of the process.

3654.

MEMBER GAUTHIER: Thank you very much.

3655.


3656.

THE CHAIRPERSON: Mr. Richmond has a question as well. You're not finished.

--- (Laughter/Rires) 3657.

MS. CONGER: Oh, sorry.

3658.

THE CHAIRPERSON: Lunch is coming soon but not so soon.

3659.

MS. CONGER: Oh, okay.


MEMBER RICHMOND: A number of your recommendations focused on communications with local authorities.

3661. 3662.

MS. CONGER: Yes. MEMBER RICHMOND: Parks, staff, and first responders both to get information from them and to give information to them.

3663.

MS. CONGER: Correct.

3664.

MEMBER RICHMOND: You developed these recommendations, was it based on -- did you have discussions with local authorities and first responders in putting together your ---

3665.

MS. CONGER: I had extensive discussions with the authorities of Thousand Islands National Park, but I did not have conversations with local

Transcript


Final argument Algonquin to Adirondacks Collaborative responders. 3666.

I think probably Mr. McRae, would you like to address that at all?

3667.

MEMBER RICHMOND: Okay. Thank you.

3668.

THE CHAIRPERSON: Those are all our questions.

3669.


3670.

THE CHAIRPERSON: And rest assured that there is no -- all questions are valid questions. We have a complex process and we thank you for participating.

3671.

MS. CONGER: Okay. Thank you for your attention.

3672.

THE CHAIRPERSON: And before we leave for lunch, I think there are a couple of preliminary matters that we'd like to deal with.

3673.

MR. WATTON: I believe -- which I think one of the intervenors who was unable to register their appearance this morning is now in the room, possibly two.

3674.

Do we have Louisette Lanteigne here?

3675.

MS. LANTEIGNE: Hello.

3676.

MR. WATTON: If you could just come to the microphone and state your name for the record. Sorry.

3677.

MS. LANTEIGNE: My name is Louisette Lanteigne. I live at 700 Star Flower Avenue in Waterloo, Ontario. And I am a delegate.

3678.


3679.

And is John Quarterly here? I know he came in at some point; perhaps not. Okay.

3680.

The only other item I'd just raise is for -- just looking at the schedule, if the representatives for Great Lakes and St. Lawrence, Louisette Lanteigne,

Transcript


Final argument Algonquin to Adirondacks Collaborative Marilyn Eriksen, and possibly the Ontario Ministry of Energy, if you could just come see me for a couple of minutes, we can discuss scheduling matters, that would be great. Thank you. 3681. 3682.

THE CHAIRPERSON: Excellent. So now, we can break for lunch. When we return we'll have the Communications, Energy and Paperworkers Union of Canada, now called Unifor, and it's going to be Mr. Shrybman.

3683.

And we should be back at 1:30. Thank you.

--- Upon recessing at 12:31 p.m./L’audience est suspendue à 12h31 --- Upon resuming at 13:35 p.m./L’audience est reprise à 13h35 3684.

THE CHAIRPERSON: Good afternoon. Before we start -- sorry for being late, we got lost.


THE CHAIRPERSON: So, Mr. Watton has one administrative matter.

3686.

MR. WATTON: Just one short matter. One of our intervenors who was unable to register his appearance this morning is now in the room. So I've asked Mr. John Quarterly just to come up and read your name for the record. Thank you.

3687.

MR. QUARTERLY: Good afternoon, Madam Chair and gentlemen. My name is John Quarterly.

3688.

I would like to register for the hearing. But also I have a request; I actually got to be in court tomorrow. So I was wondering if my presentation could be on Friday please. Friday or Saturday, after tomorrow, anything that is convenient for -- I'm available after tomorrow with -- you know, I can be here all day and just plug in whenever you want to, if I could please.

3689.

MR. WATTON: One suggestion perhaps, and I had this conversation with Mr. Quarterly, is that we could add him at the end of the list, so that whenever we get to the end of the intervenors, it could be Friday, it could be

Transcript


Final argument Algonquin to Adirondacks Collaborative Saturday. 3690.

MR. QUARTERLY: Yes, that's fine.

3691.

MR. WATTON: But at the end of this. Okay.

3692.

MR. QUARTERLY: Yes, I'm quite happy with that.

3693.

THE CHAIRPERSON: You just have to monitor the proceeding to make sure that you know when the end is near.

3694.

MR. QUARTERLY: Yes, thank you.


THE CHAIRPERSON: Okay. Thank you.

3696.

MR. QUARTERLY: I could comment ---

3697.

THE CHAIRPERSON: No, no.

3698.

MR. QUARTERLY: --- my end might be closer than we really want.


THE CHAIRPERSON: Sometimes, my English is poor.

3700.

MR. QUARTERLY: Your English is very good.

3701.

Thank you.

3702.

THE CHAIRPERSON: You're welcome.

3703.

MR. WATTON: And that's it. Thanks.

3704.

THE CHAIRPERSON: Now, Mr. Shrybman, your turn.

Transcript


Final argument CEP - Unifor --- FINAL ARGUMENT BY/ARGUMENTATION FINALE PAR COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA - UNIFOR: 3705.

MR. SHRYBMAN: Thank you. Good afternoon, Madam Chair, Members of the Panel. My name is Steven Shrybman and as noted I represent the Communications, Energy and Paperworkers Union as it was then, which is when it applied for intervenor status in this proceeding. And as noted, in September, that Union merged with the Canadian Auto Workers and is now known as Unifor. So when I refer to this intervenor in the present tense, I'll use "Unifor; and when I refer to historic or recent events that have passed in this proceeding, I may use -- I may revert to "CEP", just to avoid any confusion.

3706.

So Unifor is now Canada's largest union of energy industry workers with tens of thousands of members who are employed in oil and gas extraction, transportation, refining, and the conversion of petrochemical and plastic sectors.

3707.

Its members work throughout Canada, from the Hibernia platform off the shore of Newfoundland to the refineries on the West Coast. In between, thousands of Unifor members are employed in the petrochemical industry of Sarnia, in Ontario, and in the oil sands in Fort McMurray, Alberta.

3708.

Unifor members have a direct interest in this particular application. They are engaged in both upstream production of bitumen and oil products from the Western Canadian Sedimentary Basin (WCSB) and downstream refining at the Suncor and Ultramar refineries in Montreal and Quebec City that will be served by the reversal of Line 9B, if that is approved.

3709.

Now, this Union prides itself in having a comprehensive and progressive energy policy; one that was adopted by the CEP unanimously at its convention in 2002, and updated in 2008. That policy is based on three cornerstones of what the Union contends should be Canadian energy policy.

3710.

The first is that we must ensure Canadian energy security. The second is that we should, in doing that, promote employment and value-added production in the energy sector, not simply be hewers of wood and drawers of water or, in this case, diggers of bitumen but also be exploiting the full value of our natural resources by building a diversified oil and gas industry to take advantage of the economic opportunity those resources present.

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Final argument CEP - Unifor 3711.

And the third is that all of that, most importantly, take place in a sustainable manner that reduces greenhouse gas emissions. The Union has been committed to doing whatever it can to encourage the federal government to reduce greenhouse gas emissions, including before repudiating the Kyoto Convention, living up to our international obligations under that convention.

3712.

Unifor fully understands the importance of supplying both domestic and foreign markets with energy resources. But when pipeline projects fail the public policy objectives that the Union believes must inform the development of our resources, it will oppose those pipeline projects, and indeed, it has, in proceedings before this Board in the Keystone -- I refer to it as the Keystone One hearing, the Alberta Clipper hearing, the Southern Lights hearings, the Keystone XL hearing and the Northern Gateway project. In each of those, CEP intervened to oppose the approval of the pipeline projects for having failed to meet any of the criteria that it argues should guide the Board’s judgment on Canadian policy.

3713.

So to Unifor, the approval of these pipelines projects reflected failed policies of deregulation that have characterized virtually every aspect of resource development in Canada, much to the prejudice of Canada’s economy. We argue, the planet’s ecology and in respect of the Kyoto Convention, its international reputation, being Canada’s international reputation to be a responsible member of the global community. Unfortunately the Board didn’t agree with us but that hasn’t deterred us from making the arguments and from presenting them again to you today.

3714.

As part of Unifor’s engagement in the pipeline hearings project before the -- before the Board, and for more than a decade, we have encouraged environmental and other groups to take an active interest in proceedings before the Board, on both sides of the border to engage in the regulatory processes in the United States as well. And we are pleased in respect of the Keystone XL project that groups have indeed come to that cause and intervened in a determined way to make their concerns known.

3715.

And so we fully understand why environmental and First Nations groups have intervened in these proceedings to oppose the reversal of Line 9B. But on this occasion, we don’t agree with them because in Unifor’s view, the reversal of Line 9B will increase Canadian energy security and support valueadded processing of Canadian oil resources. Both objectives are essential, in our view, of Canada’s energy path is to be put on a sustainable course.

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Unifor takes the position -- takes this position not unsympathetic to the concerns many have raised about pipeline safety and it wholly supports efforts to address that issue but all modes of transporting oil to markets are inherently dangerous, and as the derailment in Lac Mégantic tragically illustrates, extremely problematic.

3717.

The answer is, in our view, more stringent regulation, rigorous oversight and full transparency, whatever the mode of delivery.

3718.

Therefore, and with the important qualifications that any approval given ensure pipeline integrity, timely and effective spill response, and a full insurance of risks, Unifor supports the Line 9 reversal and -- Line 9B reversal and Line 9 expansion projects. In other words, this is a new experience for us, and for me, not to appear before the Board on a pipeline project but to actually appear before the Board and support one.

3719.

Unifor takes this position knowing that greenhouse gas emissions from the Western Canadian Sedimentary Basin continue to climb. And Canada has taken no meaningful steps, in our view, to reverse that trajectory.

3720.

While it appears that the reversal of Line 9 will predominantly deliver oil from the Bakken shale resource to eastern Canadian refineries, it will, we suspect or ultimately, increase the flow of oil resources from the Western Canada’s -- well, heavy crude oil resources from Western Canada as well.

3721.

But to oppose Line 9 -- this Line 9 project on this ground would be an error in our view because it so well serves the other two foundations for -- we argue are sound Canadian energy policy principles.

3722.

So I’m going to talk about two aspects, the two aspects of this project that find favour with Unifor. The first is the issue of Canadian energy security, the second -- the second concerns the question of value-added processing and jobs.

3723.

So to begin with, Canadian energy security. Most of the submissions I make and unless I otherwise indicate are based on the evidence that CEP filed in this proceeding. It’s Exhibit C-9-5-2. And where I give you another source, I’m referring to either exhibits filed by Enbridge, by Suncor, by Valero Energy or their responses to interrogatories, either from us or from other parties. And I’ll give you those references and I provided them to the Board as well -- the Board

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Final argument CEP - Unifor Secretary as well. 3724.

According to CAPP, Eastern Canada’s -- or as CAPP describes, Eastern Canada is predominantly dependent on offshore oil for its supply of this resource. Quoting from CEP submissions, which quotes from CAPP: “The total capacity refineries in Eastern Canada is about 1.3 million [barrels per day] and includes refineries located in Ontario, Quebec and Atlantic Canada. In 2012, Western Canada supplied 340,000 [barrels a day of that demand or roughly] 29 per cent of total refinery demand. Almost all of these receipts were delivered to Ontario. It should be noted, however, that the refineries in […] other eastern provinces have just started to receive Western Canadian Supplies [as well].”

3725.

The extent of rail supply to eastern Canada is uncertain, as is the future of such shipments given the horrendous accident at Lac Mégantic. But in any scenario, even with the expansion of Line 9 and the reversal of Line 9B, eastern Canada would still predominantly be dependent on offshore supply.

3726.

In our submission, that creates a certain vulnerability for Canada and in a way, Canada stands out from the United States and other countries that have taken steps to foster energy security for their citizens. Canada, by comparison, and in contrast, has been entirely committed to an export driven policy that ignores the needs of non-energy producing provinces. That failure has had very negative consequences for consumers and workers in eastern Canada and we believe this project begins to address some of those adverse consequences.

3727.

As the evidence in this hearing clearly confirms, eastern Canadian refiners pay substantially more for offshore oil than would be the case if they had access to oil from the U.S. Bakken or the Western Canadian Sedimentary Basin.

3728.

Such economic and competitive pressures lead to refinery closures. When that happens, consumers and workers suffer. The closure of major refineries in Ontario and Quebec illustrate the point.

3729.

In its evidence, Suncor describes the consequences of these competitive pressures noting that its:

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Final argument CEP - Unifor “Montreal refinery is the last operating refinery in the city which once had as many as six operating refineries. Most recently, Shell […] shut down its Montreal East Refinery in 2010 and converted it to a products terminal. Refinery closures and/or conversions to terminals [that] have […] been prevalent in the refining regions that IHS…” 3730.

I’m quoting from Suncor’s evidence in Exhibit 32-2-2, Adobe pages 4 of 12. The IHS is -- I add parenthetically, the consultants Suncor retained, have identified as being competitive with Suncor’s Montreal refinery in Atlantic Canada and the U.S. eastern seaboard.

3731.

This includes, for example, the recent decision by Imperial Oil to convert its Dartmouth, Nova Scotia refinery into a bus terminal, as noted in the IHS report.

3732.

To be sure eastern Canada markets for petroleum products can, and are, being served out by -- shipments from outside the country -- that is certainly the case, and continues to be the case, but the dearth of domestic refining capacity can lead to significant supply disruptions in Canada, and there is evidence of this, a case in point being the closure of the petrochemical Oakville refinery in 2005; that left Ontario dependent upon imports from Quebec in order to meet regional needs.

3733.

And when a fire broke out in the oil Nanticoke refinery in 2007 tight supply in the province led to gas shortages in southern Ontario that lasted several weeks, gas stations were closed and prices rose 10 to 15 cents per litre until the shortages were resolved.

3734.

So when you have a precarious balance between demand and supply, any disruption to the supply chain can quickly disrupt markets, limit access to fuel and increase prices significantly.

3735.

The tight supply that existed in Ontario and led to those consequences now exist in Quebec and Ontario, we argue, in consequence of the closure of the Shell refinery in Montreal, meaning that both provinces are now vulnerable to supply disruptions. And in the process of those closures, of course, thousands of workers lose high skill well-paying jobs.

3736.

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It is important then, that in describing the feasibility of the project,


Final argument CEP - Unifor Enbridge states that -- and this is exhibit -- this must be in its application. I’m sorry; I don’t have an exhibit reference for you, but I’m quoting: “Reversal of Line 9 to Montreal will provide western Canadian and U.S. Bakken producers access to Quebec refining market while reducing the reliance of Quebec refineries on crude oil from areas of declining or potentially unreliable supply. Upon reversal, a portion of the Atlantic Basin supply will be replaced with western Canadian and U.S. Bakken crude oil which has been priced at a steep discount to Atlantic Basin sourced crude supply over the past 20 months.” “While refined product supply may be sourced from outside the province... [Enbridge continues] ...of Quebec, these supplies would not provide the jobs, the spending, nor provide the petrochemical feedstock that Quebec refining operation does.” (As read) 3737.

So those are the advantages in terms of energy security and domestic processing of resources that Enbridge has identified in its evidence.

3738.

In these circumstances, it’s easy to understand why access to competitively produced crude oil is critical to the future viability of refineries in Quebec, a diversified oil and gas sector and ultimately the energy security of eastern Canada. And for these reasons, Unifor supports the applications before the Board.

3739.

Just before leaving the question of energy security, I want to address -because we’re aware of the fact that concerns have been raised about the use of Line 9B for export purposes, that in fact was the goal of the Trailbreaker Project which was cancelled in 2009 because of a lack of commercial interest, and our understanding is that the Trailbreaker is no longer being pursued by Enbridge and the company so states on its Web site. But if that project were to be revived Unifor would vigorously oppose it and any other effort to use Line 9B to facilitate exports from Canada in any manner.

3740.

Our support for this application is entirely dependent upon the exclusive use of this pipeline to serve Canadian needs.

3741.

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So the second issue I want to address and the other issue I want to


Final argument CEP - Unifor address is the whole question of value-added processing and jobs. Unifor has been a determined advocate for value-added processing of Canadian natural resources. We believe that a diversified oil and gas industry is far more conducive to sustainability than an industry that has all of its eggs invested in one basket, namely resource extraction for export. 3742.

Commodity prices are reciprocal, as no one would dispute. When prices decline pressures increase to hasten the pace of resource exploitation because of the lack of resilience in an industry that only has one dimension.

3743.

Moreover, governments dependent upon the tax and royalty flows from the resource base are often happy to facilitate, if not encourage, even more rapacious rates of resource exploitation. And it’s Unifor’s position that the pace of resource development in the oil sands is unsustainable and needs to be curtailed if Canada is to have any hope of meeting its obligations to reduce greenhouse gases.

3744.

Unfortunately, while lip service has been paid to the importance of value-added processing, the reality is far different. Massive capital investment in bitumen mining and in situ extraction since 2002 has increased bitumen production by 250 percent to 1.7 million barrels a day in 2011.

3745.

During the same period, upgrading of that raw resource has decreased from 60 to 47 percent of Canadian output. So while production has gone up the degree of value-added processing, which is upgrading this resource, has gone down, and those trends are predicted to continue with the industry saying that production of bitumen may actually reach five million barrels a day in the year 2035, and projecting that by then only 35 percent of that resource will be processed in Canada.

3746.

Unfortunately, the alacrity with which export pipelines have been approved by the Board have only exacerbated these pressures, in our view, and is undermining the potential development of a fully diversified and jobs rich oil and gas sector.

3747.

A recent report by the Alberta Industrial Heartland Association describes what’s at stake. In its Alberta plus agenda a coalition of business and municipalities have called for the investment in value-added production of bitumen that it says would increase the province’s gross domestic product by $6 billion a year and create 18,000 new jobs that pay 1.8 billion a year in salaries.

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Those are the kind of economic gains which this group of businesses and local governments in Alberta predict would follow from a commitment to value-added processing rather than a simple rip and ship of bitumen to export markets.

3749.

The last economic and employment and development potential associated with unprocessed bitumen exports has also been demonstrated by evidence we have called and introduced in previous Board proceedings. And, in particular, a study that was carried out by Informetrica and Mike McCracken, one of Canada’s leading economists, that in looking at the first Keystone project, which at the time sought approval for a pipeline that would export 435,000 barrels of petroleum products from Canada each day -- it subsequently grew.

3750.

But at the time that Mr. McCracken carried out his analysis it was that size. And the modelling that he carried out predicted that the simple upgrading of that quantity of bitumen would create 18,000 -- coincidentally the same number that the Heartland Institute in Alberta arrived at consequence of its estimate -18,000 permanent jobs, either direct jobs, indirect jobs, which would be the contractors -- the many contractors that work for refineries, or induced jobs, the jobs that would exist in the economy because you had all of those people working directly or indirectly in the industry.

3751.

We introduced that evidence updated in a subsequent proceeding before the Board, it was the Enbridge Southern Lights project, and in neither of those instances was any doubt cast on the validity of the math and modelling that Infometric had done, in order to paint a picture of the economic potential that would be foregone, if simple -- if these pipelines simply served the purpose of exporting raw resources from Canada.

3752.

Now, Enbridge has stated that the project -- this project, its proposed project, allows refineries in Quebec to access lower cost crude oil supplies from Western Canada and the U.S. Bakken region, increasing the competitiveness of those refineries, and that over the next 30 years, refinery cost savings would be approximately $23 billion.

3753.

That type of economic aim helps secure the future of these refineries and -- which in turn ensures Eastern Canada with a domestic supply of oil products and local economy -- and the local economy with jobs.

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On the question of jobs, and as part of its estimate of the economic impacts of the project, the application indicates that over a 30-year period, through 2043, the project is expected to result in socio and economic benefits including labour income -- a labour income increase of nearly $350 million, mostly in the Provinces of Ontario and Quebec and employment increases of approximately 5,500 person years, mostly in the Provinces of Ontario and Quebec.

3755.

But in response to a question from the Board staff and a question from CEP, Enbridge confirms -- and the citation for this is Exhibit B11-2, Board IR 2.1, at page 1. And I think in response to ours at Adobe 3 of 14, confirms this: “It is important to note that the labour and employment numbers included on Adobe page 25 of 54 of the Application pertain solely to the economic impacts of the project as they relate to pipeline development, construction and operations, and do not factor in the impact of the project on the Québec refining market. Any potential refinery benefits would be felt predominantly in Québec.”

3756.

So it’s really just looking at the jobs and the economic employment gains that would result from the construction of the pipeline. In projecting those employment gains Enbridge includes direct, indirect and induced employment, the same approach used by Mr. McCracken.

3757.

But while the approach is sound the parameters for the analysis ignores the fact that many more jobs hang in the balance of this particular proceeding, including most of the workers employed in Suncor -- the Suncor and Valero refineries, because both of the companies have made it very clear that the future viability of their refineries and their ability to compete will depend upon their access to the discounted oil resources of central Canada.

3758.

And I’ll refer you to their evidence in this respect. According to Suncor’s evidence, it directly employs 450 salaried unionized workers at the refinery, and at any one time between 300 and 400 contractors working on the site of the refinery. The number can reach as many as a 1,000 when significant maintenance or specific projects are underway. This Suncor informs us of at Exhibit 32-2-2, page 2.

3759.

Valero, for its part, is a much larger refinery. They don’t give us gross

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Final argument CEP - Unifor employment numbers for workers at its refinery. But it does indicate that it’s poised to make significant capital investments if Line 9B is reversed and that will increase again the complement of workers of that refinery. And the reference for that is Exhibit 34-2-2, Valero’s evidence at page 2. 3760.

When the economic spinoff effects are taken into account that Unifor asserts, securing the competitiveness of the Suncor and Valero refineries means long-term employment related economic gains many times greater than those associated with building and operating a pipeline.

3761.

It is Unifor’s position that it is -- because we failed to persuade the Board on previous occasions, we’ll try again here today. That it is entirely at odds with any rational conception of the public interest to conceive of Line 9 as entirely disconnected from both the upstream and downstream oil and gas economy which it exists to serve.

3762.

Unfortunately at this point and time, you know, the Board has been reluctant to look beyond the immediate job picture associated with construction and operation of a pipeline. This explains the modest estimates that Enbridge has put before you which simply ignores the much larger economic gains that can be derived from ensuring domestic value-added processing of Canadian, and in this case to some extent, U.S. oil resources.

3763.

And we note, in this regard, that the indifference to upstream and downstream effects mirrors the Board’s approach, which we argue is unfortunate to the environment, where the Board has refused to consider upstream environmental impacts associated with the development of oil resources to be transported by the pipeline projects before it.

3764.

We believe that it has been incorrect to do so and that it is part of its public interest mandate to not only consider those impacts but to fully take them into account in making a decision about a pipeline project.

3765.

We’ve made this point before, as I’ve noted, and most recently had pointed out the disparity in the approach taken by U.S. regulators and Canadian regulators with respect to the same pipeline project.

3766.

The issue came up in the United States around Keystone XL when the State Department carried out its assessment of that project. And the argument was made that U.S. regulators needed to take into account upstream

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Final argument CEP - Unifor environmental impacts associated with the pipeline and the State Department agreed. 3767.

So you have the difficult situation in which Canadian regulators have approved the pipeline ignoring upstream impacts while U.S. regulators have decided those need to be considered before any approvals can be given in that jurisdiction.

3768.

Now, it’s been over three years since the Keystone XL project was approved, without taking those upstream consequences into effect. And in our view, it was that flawed regulatory process that left Canada vulnerable to the kind of situation that’s ensued in the United States since then.

3769.

Indeed the pointed remarks of Ambassador Jacobson, in February of 2013, when he said that Canada must do its part in GHG reductions, underscored this market reality.

3770.

So Unifor, with respect, takes the position that we are at our peril in ignoring the clearly connected consequences, both economic and environmental, of pipeline projects and pipeline approvals and ultimately those chickens come home to roost and that is precisely what’s happened in the case of Keystone XL.

3771.

In the present case, Enbridge has identified the oil resources of the Bakken shale, which is located in the U.S. as you know, as likely -- most likely source for Line 9 shipments.

3772.

Nevertheless, we appreciate the concerns many intervenors have raised about the significant environmental impacts associated with resource extraction in the oil sands, which Unifor believes, neither the Alberta nor federal government have taken adequate steps to address.

3773.

As the current imbroglio surrounding Keystone XL pipeline amply demonstrates, they must do so if they hope to find and maintain export markets for Canadian oil. Developing a credible strategy for reducing greenhouse gas emissions must be a central part of that effort.

3774.

To be sustainable, a strategy for properly addressing the environmental impacts of oil sands development must be situated, Unifor contends, within a larger energy strategy for Canada that ensures energy security for Canadians, does so in a manner that substantially reduces greenhouse gas emissions with the

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Final argument CEP - Unifor burden of all of that being equitably shared. 3775.

While the strategy has obviously yet to be developed, Unifor believes that the expansion of Line 9 and the reversal of Line 9B will achieve important substitution goals that are essential to meeting Canadian energy security needs and is warranted on that account, notwithstanding the persistence of Canada in taking the position that determined efforts to reduce greenhouse gas emissions are not necessary.

3776.

Now, I’ve listened to the submissions of, I believe it’s A and A, this morning, and I commend the work that it has done on exposing the important issues concerning the integrity of a pipeline, the transparency of the spill and safety response that Enbridge apparently has developed, and echo A and A’s concerns, we don’t support its -- I think it gave you three options; either they required that the pipeline be exhumed and replaced, that there be some constraint imposed on what it might carry which I believe is entirely beyond the scope of the Board’s practice at least with respect to pipeline approvals, or that it not be approved.

3777.

We can’t go that far, but we’re grateful for the work that it has done and I also know that following me will be the City of Toronto, making submissions to you with respect to integrity, accountability, safety, clean-up and insurance issues as well. So providing adequate insurance and financial assurances with respect to the consequences of any pipeline accident, even a small one, let alone a large one is a fundamental condition of approval from our perspective as well.

3778.

We haven’t done the hard digging into those issues. We commend the city and A and A and others who have done that and strongly urge you in fashioning the conditions to any approval to apply the precautionary principle and to ensure that accidents don’t happen, that there be full transparency of the regime, that seems to us to be fundamental, of inspection and spill response, and that ultimately if there are costs to be borne as a result of accidents or spills or simply monitoring and maintenance, that those costs be borne by shareholders and by consumers, and not by communities, not by First Nations, not by farmers, not by the innocent victims.

3779.

So to conclude, because the reversal of Line 9B and the expansion of Line 9 would increase Canadian energy security and facilitate value-added

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Final argument City of Toronto production of Canadian natural resources, Unifor supports the present application, subject to the qualifications I’ve just noted. 3780.

Thank you very much for your patience and listening to me and giving me the opportunity to address you. If you have any questions, I’ll try to answer them.

3781.

THE CHAIRPERSON: Mr. Shrybman, you were very clear, so we have no questions for you.

3782. 3783.

MR. SHRYBMAN: Thank you very much. THE CHAIRPERSON: Now it’s City of Toronto’s turn, which was announced by Mr. Shrybman.

--- FINAL ARGUMENT BY/ARGUMENTATION FINALE PAR CITY OF TORONTO: 3784.

MR. REMPE: Thank you very much, Madam Chair and Members of the Board.

3785.

I do have some materials which I would ask Madam Registrar to distribute. So I have a case and -- that I will be referring to and I have a written version of the oral argument. And so, I’ve provided cases or copies for the Board and my colleague is leaving copies at the back for the members of the public that may be interested in looking at that.

3786.

And I should say as a preliminary, that the written version of the oral argument, I did not but should have written on that, check against delivery because obviously, that’s what governs. And I should also say that I have provided a copy of that written version to the court reporter and so I don’t propose to refer at all to the exhibits or maybe the odd exception, but I have set them out there for your assistance and the assistance of the court reporter.

3787.

And I’d like you to know I’m putting my Blackberry here not to check it, but rather just to keep an eye on the time.

3788.

So Madam Chair and Members of the Board, thank you on behalf of the council and staff of the City of Toronto as well as the Toronto Transit Corporation -- or Commission for the opportunity to make submissions before

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Final argument City of Toronto you today. 3789.

And the Toronto intervention is very much based on a community safety perspective. And to illustrate that perspective a bit, I’d like to draw to your attention, without necessarily having you turn it up, to the Spraytech v. Hudson case, which is the one that I’ve provided to you. This is a case in which the Supreme Court reviewed the role of municipalities in the very important area of protecting the environment.

3790.

And I’d like to mention a couple of paragraphs. First, paragraph 3 where the Court refers to the environment as a major challenge that requires action by government at all levels. The Supreme Court here refers to the principle of subsidiarity which suggests that local governments, being the closest to the people, should be empowered to exceed not lower national norms. Now that’s a bit of a different case because it was a regulatory issue, but in our submission, the principles still apply.

3791.

I’d also like to refer you to paragraph 27, [on p.265] right at the end, on the role of municipalities in relation to matters of local health and environment, in other words, the community safety perspective.

3792.

Here we have the Supreme Court quoting the Court of Appeal for Ontario on the role for municipalities as "trustees of the environment". Now, that is not to suggest that the municipality is the only one with that role, there are many with that role, and principally in this case, of course, that’s you. I raise it simply to reinforce the city's submission that municipalities do have an important role in aspects of community safety and environmental protection, and that’s why we are here today.

3793.

Municipalities such as Toronto are key stakeholders in pipeline projects. They own land and infrastructure. Toronto, for example, owns $28 billion worth of water infrastructure. [C40-7-2, at p.1, FN 1] Municipalities have an obligation to provide clean, safe drinking water. Toronto provides that water for some 3.2 million people both in Toronto and in the regions around Toronto. [Ibid, p.17]

3794.

Municipalities are usually the first responders if there is an emergency and these services would be critical in the event of a major discharge from Line 9.

3795.

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Municipalities are also -- to use the language from the Hudson


Final argument City of Toronto decision -- the "closest to the people". Folks may not be familiar with the workings of Enbridge or of this Board, but they sure know where City Hall is. 3796.

Now, there’s a great deal of public concern about what can happen if there is a problem with Line 9. Everybody has some idea of the worst case: the 2010 spill in Marshall. In that case, a pipeline of the same size, of the same vintage, owned by the same company, discharged some 3 million litres of dilbit into a waterway which was surging due to recent rains. Contamination was widespread. The clean-up is still underway years later, with costs approaching $1 billion, billion with a B.

3797.

The Marshall spill was followed by a National Transportation Safety Board or NTSB as I’ll refer to it report and review and report which was strongly critical both of Enbridge, and of the U.S. regulatory authority, the P-H-M-S-A or PHMSA as I’ll refer to it.

3798.

The Marshall spill raises concerns about integrity management, spill response and financial assurance, exactly the issues that have been flagged by city council and by the councils of other municipalities as deserving of the highest level of attention. [COT Evidence, EX. C40-7-2, paras. 5-14]

3799.

We would like to highlight for the Board that Toronto has organized through this process a liaison group with a number of municipalities and Conservation Authorities to present this Board with issues that are of concern to all.

3800.

We have pooled our internal expertise in areas such as water supply, firefighting and emergency response planning, and we have shared the cost of experts, who have provided us with assistance in reviewing those aspects of the application where we lack internal expertise. And we hope that our combined efforts will assist this Board in crafting the right decision that will truly serve the public interest.

3801.

I’ll divide our presentation into three areas that reflect the three issues identified by city council. [[Ex. 40-7-3, pp. 21-25]

3802.

These issues are, one, integrity; in other words, let’s prevent a Marshall or any other kind of spill. Two, spill preparedness; should the worst happen, let’s be certain that we are prepared to deal with it quickly and effectively. Three, financial assurance; should the worst happen, let’s make sure

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Final argument City of Toronto that funds are available to fully compensate those who have suffered losses. 3803.

And so we’ll review these issues and we’ll provide this Board with our observations on how they mesh with the NEB’s proposed conditions [Ex. 47-7] and offer our own proposals for conditions in areas where we believe they are merited.

3804.

Our first issue then is pipeline integrity which falls under your Issue List numbers five and six.

3805.

First, there’s been much speculation about the risk of corrosivity associated with the transportation of dilbit material and presumably synbit and dilsynbit, these other related heavy crude materials.

3806.

We have received expert advice on this issue based on the documents filed by all parties. We have carefully reviewed both the NTSB report on Marshall [Ex. C59-10-2] that I referred to, and the Transportation Research Board Report 311 on the Effect of Dilbit on Transmission Pipelines [Ex. B25-5] which is also in evidence.

3807.

We are of the view based on this review that, subject to the imposition of conditions as proposed by the NEB [Ex. A47-7] and subject to amendments we will outline, the risks of corrosion associated with the operation of the pipeline can be managed.

3808.

We rely on the NEB to impose and oversee stringent integrity management programs and procedures in ensuring that aspect of community safety.

3809.

In addition to the proposed NEB conditions, we are in favour of the following conditions being fully met prior to applying for leave-to-open.

3810.

Proposed Condition 15 provides that Enbridge must file with the Board an evaluation of its Mainline valve system. We propose an amendment to add after the first sentence in that condition, quote, “That evaluation should include consideration of remote shutdown valve placements adjacent to the east branch of the Don River”. End quote.

3811.

This valve placement and system modification will lower the maximum volume out at that location to approximately 7,000 barrels or less. The

Transcript


Final argument City of Toronto current maximum at the east branch of the Don River is almost 12,000 barrels, and that, by my calculation, is nearly 2 million litres, which is roughly the ballpark of Marshall. 3812.

We understand that Enbridge is engaged in an intelligent valve placement study and that two valves are being installed in the Don Valley. We support this program of course, however, it is our view that all major watercourses should have valves that prevent the release of any significant amount of material.

3813.

The Board’s Proposed Condition 16 provides for a geohazard study and Conditions 17 and 22 for a watercourse crossing management plan. Again, we fully support these.

3814.

We also request, however, a condition that will ensure that Enbridge completes, at least 30 days prior to LTO, the replacement of cover or other corrective actions required at the three locations I’ve referred to here are Newtonbrook Creek, the Dawn River and the Honi -- I’m not sure if I’m pronouncing that right but H-O-N-I Lands as referred to by Enbridge [Ex. B19-29, at p. 34] in the evidence.

3815.

We understand that these activities will be complete in 2013, and so this requirement could, in our submission, be added as a new Condition 17A.

3816.

Toronto also submits that the following conditions could apply to postconstruction and operation of the Line. Enbridge has provided a timetable to complete a study of leak sensitivity. In other words, the estimated maximum volume of product that can be released before a leak is detected by January the 31st, 2014. [Ex. B35-3, p32]

3817.

Accordingly, we request a Condition 19A, that Enbridge file with the Board the results of that study within 30 days following LTO.

3818.

There are some remaining knowledge gaps in the corrosivity of dilbit and heavy crude oil. The Alberta Innovates Corrosivity Comparison Study, filed by Enbridge in these proceedings, recommended more work on sludge formation, deposition and under-deposit corrosion. [Ex. B1-12, pp. 21, 43]

3819.

Transcript

Enbridge’s Pipeline Engineering Assessment also states that:


Final argument City of Toronto “A prevention program has been planned to displace corrodents through routine maintenance via in-line cleaning tools.” [Ex. B1-15, p. 50 of 96] 3820.

So sediment and water or S&W monitoring is critical to understanding under-deposit corrosion. Toronto, therefore, requests a Condition 24A, that Enbridge be required to report annually on S&W testing to the NEB and that that report should also include upset conditions causing the S&W level excursions above the limit, as well as pipeline injections that are not tested for S&W prior to injection.

3821.

And as a further condition, and really a proposed modification to Condition 24, Enbridge, we’re asking, must modify its integrity management plan to include analysis of collected S&W and measures taken to mitigate its presence. In other words, a mechanism for this Board to keep an eye on what’s going on in that important subject.

3822.

We also request a new Condition 25A, that Enbridge file with the NEB a procedure to report to the Board on all material balance system or MBS alarms or imbalance alarms and any unusual event pipeline shutdowns. And further, that Enbridge start that reporting within 18 months following LTO.

3823.

And a little background on that. Misinterpreted imbalance systems were a problem at Marshall [Ex. C59-10-2, findings 13-15 at p. 119] and at a 2009 spill in Odessa, Saskatchewan [NEB Report P09H0084, B19-29, p. 48] to which we’ve referred in the evidence. And in that latter case, the MBS misinterpretation was associated with the addition of DRA material.

3824.

The addition of DRA material is an important part of the current application. Enbridge indicated that: “Specific procedures have been created to manage the types of changes that can be performed [on the MBS system] during DRA injection.” [B19-29, p. 49]

3825.

However, there’s no reporting to the NEB of these imbalance alarms or occurrences when they are overridden or occurrences when the pipeline shuts down. And without such reporting, the NEB lacks important information on system performance and hence, that proposed condition.

Transcript


Final argument City of Toronto 3826.

Those then are the additions we would suggest to the Board’s conditions pertaining to integrity management.

3827.

We draw comfort from the Board’s conditions and from the Overland Pipeline Regulation, particularly the amendments made in March of 2013, as well as CSA Z662-11, the standard applicable to oil and pipeline systems. Together, these should provide a regulatory framework that can manage the risks inherent in the operation of this facility.

3828.

We also appreciate and look forward to the active role of the NEB in monitoring the implementation of these measures, including all of the measures committed to in the information responses from Enbridge, through the commitment tracking table that’s referred to in NEB proposed Condition 5. [Ex. A47-7]

3829.

I’ll now move to the second area of concern, the spill contingency issue which relates to NEB Issues 6 and 9. And I’ll divide this issue into emergency preparedness, drinking water and what I’ll call the TTC issue.

3830.

The first area I’ll discuss will be emergency preparedness. Many of the municipalities with whom we have worked on this project had similar concerns in this area. That’s hardly a surprise. These are hazardous materials; they are being moved in great quantities. They are moving through the most densely populated areas in Canada. In the event of a spill, there may be significant delays for Enbridge crews to arrive on scene. And at those times, it will fall to local emergency staff to respond, and they do so, within minutes.

3831.

This response is often dangerous, complex, costly. Municipalities do not and will not shy away from fulfilling this role. They do want to be sure though, that all necessary measures are in place in advance to facilitate their response, and that this Board enshrines those measures in its conditions.

3832.

The NTSB report on Marshall stated that a contributing factor to the accident was “failure to identify and ensure the availability of -- and I’ll pause to underline -- “well trained emergency responders” -- and again underline -- “with sufficient response resources…” [Ex. C59-10-2, p 121]

3833.

It’s not fair to suggest that there has been no emergency planning and liaison. There has been, and the evidence spells out what. But the question we all want answered is, is it enough.

Transcript



And of course what the public wants, and what the municipalities want in addressing this community safety perspective is the highest level of planning and preparedness. We want the Cadillac version, not the Chevy. Not to denigrate Chevy’s. I actually drive one.


MR. REMPE: But I think you get the point.

3836.

Let’s be more tangible, though. What do firefighters and emergency responders expect? The Toronto expectations are set out in paragraphs 15 through 19 of the Toronto evidence. [Ex. C40-2, at pp. 4-5]

3837.

I pause to note that District Chief Noormahamud, who prepared that portion of the evidence, is very experienced in hazardous material and emergency preparedness planning, as you can see from his qualifications which are also filed. [Ex. C40- 7-9, at p.6] His advice, and that of other firefighters and emergency personnel, should be taken very seriously and given great weight. They reflect a level of expertise in emergencies and in the local context, and how this information can shape and improve emergency response plans.

3838.

So what does the Toronto Fire Service ask for? That meetings take place involving municipal officials; that response mechanisms be developed to spell out specifically -- and I underline that -- how municipal emergency personnel will be involved; that documentation be prepared based on this discussion, and made available to the municipal staff. Detailed specifications of these requirements are spelled out in our paragraphs 19 and 20 to 24 within our evidence. [Ibid, pp. 4-6]

3839.

Now, you may ask, why not rely on the proposed conditions to achieve this, particularly Conditions 13 and 23. [Ex. 47-7, pp. 4,6] We are concerned that there is a bit of a one size fits all approach. What makes sense in rural north Westover may not make sense in urban North York or vice versa, and that is the heart of the matter. Hands on exchange of ideas and plans tailored to the locale are what’s called for.

3840.

So we ask the Board to ensure through its conditions that the consultation referred to in Condition 23 be, and I quote, “specific, meaningful, ongoing and iterative”, and that municipal responders not simply be presented

Transcript


Final argument City of Toronto with a fait accompli. And we ask that municipal responders be provided with up to date copies of key documents. 3841.

We also suggest that a new Condition 21j be added to the Engagement Report requirement proposal from the Board to require, and I quote, “details regarding discussions with municipal emergency responders”. So let’s get it on the record.

3842.

Now, Mr. Richmond, you’ve asked a number of questions of the municipal intervenors throughout the proceedings about the information that they have received and the liaison that they have had, and I believe you too, monsieur Gauthier, and I’ve anticipated that you may have the same questions for Toronto, so good on me. So let me try and address them for you.

3843.

First, did we get the USB key with the emergency information? Well, the answer to that is yes and no. District Chief Noormahamud provided me with this one. I’ll just hold it up so folks can see what it is. I cannot advise how many copies the city got of this but we certainly did have a copy. And I did have a chance to look at it, and what it shows is, I think, illustrative of the Fire Service concern that the level of detail that’s really needed isn’t there.

3844.

The key has a summary of MSDS sheets or material safety data sheets for products carried in the Enbridge system. These include crude. However, the actual MSDS sheet for crude is not on the key but there are other MSDS sheets on that key. So we see this one size fits all approach and the crucial information would seem to be missing.

3845.

Now, in fairness, Enbridge has provided municipalities with a paper version, or at least the City of Toronto with a paper version of the crude MSDS but I think it would be very helpful if this information contained it.

3846.

The key also has maps of Line 9. They’re not at the detail that are provided in response to the Board’s queries. [Exs. B21-4,5 and 6] I think it’s 127 from memory, but the maps on the key are better than nothing, to be sure.

3847.

But the better approach may be to provide either a link, or a CD to emergency staff with the more detailed version. I understand that there may be a problem with the technology here but, as with all things electronic, a solution can surely be identified. Perhaps, if we wait for three weeks there will be some sort of upgrade provided. That’s what seems to happen with this electronics these days.

Transcript



Toronto has, I mentioned parenthetically, provided Enbridge with GIS mapping [Ex. C40-7-7] that is at the level of detail we think is appropriate in a large urban area. These maps show catch basins. And I pause to mention that both TRCA and Mississauga felt that this information was crucial, and I think probably everyone shares that concern, because those catch basins run into the rivers which in turn run into Lake Ontario. They also show hydrants. They show land uses relative to the pipeline, including densities, and types of use. They are, in our submission, a useful planning tool.

3849.

By the way, the one that’s shown up there is not a particularly good example. We had it printed. Really the best way to see these things is actually get onto them through your computer and then you can look in great detail. This one, if you blow it up, it just becomes blurred. So it’s something that’s meant to be reviewed online.

3850.

The key also contains the pamphlet that Enbridge has been distributing for many years. This pamphlet shows maps of continental North America and that sort of thing. It’s very generic; it’s interesting, but not very helpful in a fire or evacuation. The entirety of the safety information can best be summarized as common sense. And there is certainly nothing wrong with that. But it is precious little help in the way of preparation for emergency responders should the worst happen. Something more, we submit, is in order.

3851.

The key also has two movies on it. I regret to say neither of them is “Gravity” or “Rush”. But there is a very snazzy production called CSI 811. This is about call before you dig programs. The 811 number unfortunately is a U.S. number and doesn’t apply in Canada. And no number is provided for Line 9. But even if the number were provided, of course, it really doesn’t have very much to do with how firefighters or police should respond.

3852.

And finally, there is a second movie which is really a recap of the pamphlet. Lots of promotional stuff but little that would actually aid responsers (sic); basic instructions. Responders I should say.

3853.

Ultimately, the advice is, as we’ve heard, simply secure the area and assist with evacuation if need be. Well, that’s pretty slim if it’s supposed to constitute an emergency plan. And it contains no discussion at all of what may need to get done if oil is gushing into a waterway for four hours while the Enbridge response crew is fighting traffic on the 401.

Transcript



The key and the pamphlet then are a good start but they don’t equal an emergency management plan along the lines of what was suggested elsewhere. And so we have a concern where counsel is noting that we have this material and the Board is asking about it, that there not be an impression left that everything that is needed is there because, in our submission, it isn’t.

3855.

We also obtained a version of Enbridge Book 7 “Emergency Response” that was referred to earlier. We did not get this volume as a matter of course. We were not consulted in its preparation, we were not provided with a copy. In order to prepare for this hearing, we asked Enbridge for a copy, and we were provided with a reference from the Phase I hearing to the old copy that was out of date within, I think, two weeks of our having been referred to it as a result of the regulatory amendment I mentioned.

3856.

We were not consulted on the revised version. We were not provided with a copy of the revised version. We got that through the information request process. Hopefully, Condition 23, as we proposed amendments, will improve the availability of this information.

3857.

Now, we’ve had a long, hard look through the current version [Ex. B22-19] working our way through what I can only really summarize as in a sense a puzzling array of redactions and areas where whole pages are being blanked out. And we looked for information and details that would explain how Toronto or other large urban settings would be addressed in a major spill situation. We found nothing of that sort.

3858.

The need for it, though, is obvious. One need do no more than look at the pictures that were filed with the Toronto evidence. [Ex. C40-7-6] These are Mr. Monroe’s pictures, and I believe he’s an intervenor here. And when you look at those pictures you can see this is not a green field like the one in the CSI 811 movie. A Marshall style leak here has major implications.

3859.

And don’t take me to say that pipelines cannot co-exist with subways and apartment buildings as they’re shown in those pictures. They can and they do. Rather, our submission is that where they are close by, the emergency plans in place need to be that much more detailed. Generic plans are fine, but we all know that the devil is in the details, and the details here are missing.

3860.

I’d also like to comment on some remarks made -- observations made

Transcript


Final argument City of Toronto by Mr. Crowther in Montreal that the response time issue is not regulated, and in any event, the predicted times here are better than the 6 to 12 hours allowed by the regulatory authority in the U.S. PHMSA. 3861.

We urge this Board to avoid any sort of lowest common denominator approach to emergency response. I’d like to quote from again the NTSB investigation of Marshall where they conclude in their finding 23 that, quote, “PHMSA's regulatory requirements for response capability planning do not ensure a high level of preparedness…”-- end quote. And they go on that PHMSA’s, quote, “weak regulation” - -end quote -- was a contributing factor. [Ex. C59-10-2, pp 120-121]

3862.

So the bottom line is it’s cold comfort to say that no one’s forcing us to meet deadlines and, in any event, we’re better than the weak regime that contributed to the Marshall disaster.

3863.

Firefighters and other emergency officials are expected to respond to fires in a matter of minutes. In our submission, it’s a recipe for disaster to say that a crude leak, with the potential, as we have tragically and so recently seen, to level entire sections of a city can wait for up to four hours.

3864.

We’d also like to refer to the exercises that have been carried out. We participated in one big one, and we’re grateful for that, on the Don River, and we participated in several other table-top exercises.

3865.

That is the, if I can, hands on stuff, which is what is needed and for which meetings with political staff is not a substitute, although we certainly don’t in any way suggest that those meetings are not necessary as well, just not a substitute. The majority of the exercises are table-top exercises. We don’t denigrate those exercises, we simply stress that they are not a substitute for the in vivo exercises such as the one on the Don. And that’s what we’d like to see more of.

3866.

We acknowledge the reasonable concern I believe that you expressed, Madam Chair, in Montreal, about repetition or overlap among different fire departments. We all look for methods to keep our costs at a prudent and financially responsible level. The reality is that just as the conditions on the ground in each municipality differ, so too do the challenges faced by its emergency responders. They are unique at many different levels. While it may be time consuming and expensive, there is no substitute for local input, planning,

Transcript


Final argument City of Toronto and training. 3867.

The documents referred to in Condition 23 need to be prepared in consultation with the municipal first responders along the Line to reflect in detail the requirements of those municipalities. They must have an appropriate level of specificity. Each municipality should be provided with copies of the documents as amended from time to time. In other words, more specificity, more hands on liaison.

3868.

I now turn to drinking water protection. Before I do I’m going to have a little sip of our own Toronto delicious drinking water here.


MR. REMPE: The Toronto and region source protection area is shown at our paragraph 43 of our evidence. [EX. C-40-7-2, p. 11] It’s a densely populated area projected to grow substantially in a short period of time. A significant oil spill in this region would have potentially catastrophic impacts on people, businesses, and the environment.

3870.

One of Toronto’s chief concerns is the effect a spill would have on the quality of the city’s drinking water. This is a concern that is shared by many other municipalities that draw water from Lake Ontario. [EX. 40-7-4, pp. 2, 8-9, 18, 20, 37]

3871.

I’d like to highlight briefly, as an aside for the Board, the qualifications of the city witness that prepared this evidence, Michael D’Andrea. His CV has been filed. [Ex. C40-7-9, pp. 1-5] And he has extensive experience in infrastructure and environmental planning, especially as it relates to Toronto water and wastewater systems. So we hope that his evidence will be of value and assistance to the Board.

3872.

The source water protection plan for the Credit Valley, Toronto and region, and Central Lake Ontario, or the CTC source protection area -- and what’s happened here is as a result of the incident in Walkerton, Ontario where there were deaths as a result of contamination, there was an enactment of a Clean Water Act in Ontario which required these planning zones to protect drinking water. This is all set out in our evidence but just as a little background for now.

3873.

Transcript

And as a result, each source protection area is required to develop a


Final argument City of Toronto plan and policy. In other words, exactly the kind of, if I may, prophylactic approach to problems, let’s figure out what they might be and put policies in place. 3874.

So a policy was prepared using computer simulation modelling, based on the 2010 Marshall spill. This policy was mandated by provincial legislation and endorsed by city council. [Ibid, paras. 41 and 67, at pp. 10, 16] And most significantly, this policy identifies a petroleum pipe spill as a potential threat to water quality.

3875.

Enbridge, in our submission, can only benefit from ensuring that its environmental plans and policies, as they relate to waterways, are consistent with those policies, which are intended to provide -- to protect the area’s drinking water quality.

3876.

The Board has encouraged, and Enbridge has expressed a willingness to discuss these CTC policies. Given that willingness, we reiterate our request that Enbridge be required, through an amendment to Condition 23, to have regard for and include the CTC LOPIPE -- that’s what they’re called -- LOPIPE policies. It’s set out, again, in the evidence -- in developing its own emergency procedures manual, plans and policies.

3877.

Now, to step back a little bit, an oil spill that enters a water treatment plant is a threat primarily because the benzene in the material is not removed by the treatment process used at municipal plants. So operators may need to shut pumps down to prevent the stuff from getting in.

3878.

It’s critical, in our submission, for Enbridge to incorporate modelling information that estimates travel times for a spill from 9B to reach the treatment plants under different circumstances. Primarily under different weather conditions and flow rates, and I believe this is something TRCA is also encouraging.

3879.

Toronto is concerned that Enbridge has not shown that its targeted response time of 1.5 to 4 hours is appropriate without having conducted that sort of modelling.

3880.

The application notes that "the frequency of -- and this is part of the ESEIA document.

Transcript


Final argument City of Toronto “The frequency of extreme weather events such as heavy downpours, floods, heat waves, droughts, tornadoes, and snowstorms [--sounds like a terrible world we live in, doesn’t it --] are predicted to increase, with data already showing trends in this direction." [Ex. B1-20, p. 27] 3881.

Now, should a spill occur during these extreme weather conditions, treatment plants could become more vulnerable to contamination. So again, such events should be considered in the range of possibilities, through this modelling exercise and so we will be requesting that Condition 13 be modified to specify spill modelling as a requirement of the environmental framework that the Board proposes.

3882.

We’d also like to discuss briefly the excellent -- in my submission -conditions proposed by the Toronto Region Conservation Authority or I’ll say the TRCA on this subject. We were a little disappointed to hear counsel for Enbridge in Montreal almost casually dismiss them. These folks are the experts. Their submissions and conditions were carefully crafted to give us the highest standard in this oh so important area.

3883.

Enbridge should be embracing these conditions. These are the sorts of standards that will inform, for example, courts considering due diligence. They fit right into the "culture of safety" that we understand Enbridge to support and understand that Enbridge wishes to reinforce. Generally, we support all of the TRCA’s proposed conditions. I think they really break down into three principal ones.

3884.

Specifically, we support the TRCA on the need to monitor for cover near waterways [Ex. C39-7-2, para. 14, p 4], and the use of their erosion control monitoring program [Ibid, para. 17, p 7]. We support a condition that would require monitoring consistent with that program. [Ibid, para. 19, p 8]

3885.

Similarly, we support the continuation of assessment of the shutoff valve placement location based on updated information as it becomes available [Ibid, para. 21, p 8] and the submission that Enbridge be required to obtain and assess baseline environmental information available from TRCA. [Ibid, para. 24, p 9]

3886.

And you can see in their evidence at paragraph 24, they set out quite a long, and in my submission, very useful list of what this baseline information

Transcript


Final argument City of Toronto includes. And one may ask the question, how can you properly plan to deal with a problem unless you know what the baseline is in the first place, which is why we emphasize this condition. 3887.

Enbridge itself has identified Lake Ontario as a "high consequence area" [Ex. B19-29, p. 81] and has performed an analysis to determine which segments of the pipe, if ruptured, could potentially impact the lake. We’re encouraged that this type of analysis is being undertaken, but further work needs to be done, including that modelling that I’ve been referring you to.

3888.

Toronto is also encouraged that Enbridge has prepared a tactical response plan for the Don River and will be developing a similar plan for the Humber River. In our view, these plans need to be in place for all significant watercourses and they must take into account all potential weather conditions. And it is our hope and expectation that the Board’s conditions can assist in addressing that.

3889.

We support the TRCA request for detailed spill plans for each watershed through which the line passes. [Ex. C39-7-2, para. 28, p 10] We agree and we request that this be added, again, as a modification to Condition 13. These plans should include the factors set out in detail in the TRCA submissions. [Ibid, p 11]

3890.

And we agree with the TRCA that watersheds should be assessed and prioritized for the purposes of spill response planning, and these include the rivers; the Don, the Humber, the Rouge, and the creeks; Duffins, Etobicoke, Mimico, Petticoat, and Carruthers and Highland Creeks in the Toronto region. [Ibid, p. 12 paras. 31, 33-34]

3891.

And finally, there’s a proposal for an additional GTHA -- and that’s the Greater Toronto and Hamilton Area, which we now say, I guess, instead of the Greater Toronto Area -- and I do pause parenthetically to mention and thank for their input my colleagues from the Municipality of Hamilton who have been quite active in assisting us -- prepare for these proceedings.

3892.

A spill response team -- an additional GTHA spill response team was suggested both by the TRCA [Ibid, para. 35, p 12] and by Mississauga [Ex. C459-2, para. 7(vii), p. 3] and we support both. The evidence suggests that the time to mobilize spill response is about the same as the time it would take a spill to reach the lake and obviously that is not good enough. [Ibid, paras. 29–30, p.10-

Transcript


Final argument City of Toronto 11] 3893.

It should be a shorter time period and there should be certainty that the right people are informed to make the decisions that need to be made, for example, shutting off the water in the water intake plants, if need be.

3894.

We do understand that a new spill response team -- and we’re grateful to Mr. Crowther for pointing this out -- is going to be put in place in Mississauga and we would like to be sure that this is enshrined in the Board's conditions as new Condition 25b. And we would also ask, in a general way, that the NEB to revisit these spill response times in the future to see how we’re doing with them.

3895.

Finally, a few words about what I’ve called the TTC issue, which has received a fair bit of attention. Concerns were expressed about the proximity of Line 9B to the Yonge Street subway line. Similar concerns would apply to the University/Spadina subway extension. This is the new piece that they’re building up through York University, which also crosses Finch Avenue, and therefore Line 9B.

3896.

As a result, the TTC required assurance that the highest standards of risk avoidance be employed. They requested that Enbridge conduct a site-specific risk assessment and an emergency response plan for the Finch station area. Similar planning should be conducted in relation to the new -- the university crossing and really anywhere where there’s a major transit facility nearby. [COT Evidence, EX. C-40-7-2, paras. 25-28] This is all part of the specificity that we feel may be lacking in some of this generic material.

3897.

We are advised that a meeting has been scheduled with Enbridge -- I believe next week -- with TTC and Toronto Fire to follow-up on this issue. This is very good news. There will also be discussions about other transit facilities.

3898.

Nonetheless, in order to ensure all concerned that this exercise is underway, we are requesting an amendment to Condition 13 to provide that Enbridge be required to consult and develop specific emergency response provisions applicable to subway crossings in the event of a spill.

3899.

The third and final issue, having gone through the three spill preparedness pieces, is that of financial assurance. As is evident to everybody, a rupture in the GTHA would impact a large number of people, property and businesses, and the costs would be enormous. And I’m probably understating it

Transcript


Final argument City of Toronto there. 3900.

Enbridge has confirmed that it would pay for not just containment and remediation costs, but also evacuation costs, should evacuation be necessary [Exhibit B35-3, p. 43] and the provision of drinking water if that water quality is compromised [Exhibit B35-3, pp. 49-50]. So again that’s good news.

3901.

Enbridge may also be responsible for fines and penalties, as well as related legal costs and all of that adds up to a lot of money. [Ex. C21-8-7, pp. 67]

3902.

And as such, like many other municipalities, Toronto strongly supports a condition, which I propose as new 25C, that would ensure that a report is prepared and submitted to the Board, explaining how adequate financial resources are in place to address all costs arising from a major spill of this pipeline.

3903.

And as an aside, I would also refer you to the answers provided to the Board’s Request Number 1 to Équiterre at pages 8 to 15 of their response document. I’m sorry I do not have the reference for that. But they talk about financial insurance -- assurance and what sort of nuts and bolts you might be looking for.

3904.

We know Enbridge has comprehensive property and liability insurance through 2014, with a current aggregate limit of 685 million U.S. [Exhibit C21-87, p. 7]

3905.

Further financial resources need to be committed to provide assurance that Enbridge would be able to cover all costs arising from a major spill.

3906.

It’s not enough to say that Enbridge is well capitalized since the level of capitalization is of course vulnerable to the vagaries of the market which today may be a very significant consideration. Hopefully not by the end of the day, I’m just thinking of the events in the U.S. Congress.

3907.

The other point I would makes is -- as an aside, is this is, I believe, consistent with an announcement by the Minister of Natural Resources, Minister Oliver, in June -- June 26th, who has talked about a minimum financial capability of 1 billion being in place. So something along those lines is definitely, in our submission, in order.

Transcript



Financial resources dedicated to the potential cost of a major spill is prudent to avoid shortfalls that may occur if you had more than one spill at a time. That’s another concern, if we had a big spill here, two weeks after a big spill in Marshall, Michigan, when would we be then -- where would we be then, would everything just be split down the middle?

3909.

So we’d like to see some provision for that and accordingly we request, again, a specific condition to ensure financial security be set aside to cover 9B costs. And in our submission, this is a reasonable condition, even if it’s never been imposed in the past.

3910.

So I approach the end of my submissions. To sum up, we listened with interest to the submissions made by all in Montreal. We could not help but observe the number of occasions on which the Applicant pointed out that there was no regulatory requirement to take certain actions. For example, preparation of tactical response plans. [Transcript, Oct 9, para. 413] No regulatory requirement. But handy if you had a spill into, say, the Rouge River in the east end of Toronto, whereas you may be aware, they are putting in a big national park -- urban national park right now.

3911.

Another example; a requirement to arrive at the scene of an emergency within a specified time and we’ve heard others refer to that. No regulatory requirement. [Ibid, para. 432]

3912.

But handy -- again, if you had a million litres of oil draining into the Rouge River, you would want someone there very quickly. Another example is a fund to ensure that Enbridge has the sufficient financial resources to fulfill its obligations. No regulatory requirement. [Ibid, para. 446]

3913.

It is absolutely vital to know though, if the worst happens, that funds are in place, and not find out as others recently have, that there is no money available when it’s really needed.

3914.

Enbridge also was somewhat dismissive of the input from TRCA on its erosion control or ECMP program that I referred to earlier. And we expect probably roughly the same reaction with respect to the city’s -- the CTC’s LOPIPE policies. Again, as: "not required, and not necessary". [Ibid, para. 527]

3915.

But we are assured by Enbridge that, notwithstanding the tongue lashing it received from the NTSB as a result of Marshall, that everything is going

Transcript


Final argument City of Toronto to be fine partly because, as counsel summarized, the recent actions taken by Enbridge include a: "reinforcement of safety culture". [Ibid, para. 407] 3916.

These are nice words but actions speak louder. The concern of the NTSB in its 2012 report was that Enbridge's actions suggested, quote: "…a systemic deficiency in the company's approach to safety." [Ex. 59-10-2, p. 114]

3917.

Inadequate public awareness, inadequate firefighter training, inadequate spill preparedness. [Ibid, pp119-120]

3918.

We appreciate that a lot of steps have been taken by Enbridge at great cost since Marshall. If only they had not been necessary.

3919.

We have proposed measures that we believe are consistent with the “safety culture framework”, we understand the NEB is currently working on as part of its “Action Plan on Safety and Environmental Protection”. [see NEB press release of 13/08/27]

3920.

We respectfully request this Board to impose those and other conditions in order to ensure that we end up with the Cadillac and not the Chevy version of pipeline safety.

3921.

The City of Toronto concludes that, provided the conditions advanced by the NEB, as amended by our submissions are met, and provided there is ongoing consultation and review with emergency response stakeholders, the necessary due diligence is in place for the proposed operation of this facility.

3922.

Toronto looks forward to a continuing and productive working relationship with Enbridge staff in developing the procedures, policies and training to ensure that the problems of Marshall will never, never be visited upon the GTHA or anywhere along Line 9.

3923.

Now, I have attached as an appendix to these submissions, a list of the proposed conditions. I think I have covered them mostly verbatim. I’m reluctant to read them into the record. I can imagine how interesting that would be for you, but I can do so if there’s any reservation of ---

3924.

Transcript

THE CHAIRPERSON: I would rather you read onto the record.



MR. REMPE: Yes.

3926.

THE CHAIRPERSON: Because transcripts, you know, if they’re on our site. They’ll ask ---

3927.

MR. REMPE: Absolutely, Madam Chair. What I will do is, I’ve listed them here as they came up in my argument. But what I will simply do is address the proposed condition numbers. So I may jump around a little bit so forgive me for that.

3928.

So Condition 21, we’d like to add a new sub-clause -- oops, I think I’ve jumped ahead of myself one page. Pardon me.

3929.

Condition Number 15 we would like to add, after the first sentence quote: “That evaluation should include consideration of valve placements adjacent to the east branch of the Don River."

3930.

End quote.

3931.

We propose a new paragraph 17A, quote: “At least 30 days prior to applying for LTO, Enbridge will confirm that it has completed the corrective actions referred to in Toronto IR No. 1.14. [Ex. B19-29, p. 34]”

3932.

End quote.

3933.

We propose a new Condition 19A, quote: “Enbridge shall file with the Board within 30 days following LTO the leak sensitivity study referred to in IR No. 2.21. [Ex. B35-3, p. 32]”

3934. 3935.

End quote. We propose the following be added to the end of paragraph 24 -Condition 24, quote:

Transcript


Final argument City of Toronto "The plan shall include analysis of sediment and water collected during pig runs, and shall provide for measures to mitigate the presence of these materials." 3936.

End quote.

3937.

We propose a new 24A: “Enbridge shall be required to report annually to the Board on sediment and water testing, excursions above S&W limits, and injections that are not tested for S&W content.”

3938.

End quote.

3939.

We propose a new 25A, quote: “Enbridge shall file within 30 days of LTO a procedure to report to the Board on all MBS alarms and unusual event shutdowns. Enbridge shall start reporting under this procedure within 18 months of LTO.”

3940. 3941.

End quote. We propose to add to Condition 23, after the word “consult” in the last line, quote: “…in a meaningful -- sorry. In a specific, meaningful, ongoing and iterative fashion.”

3942. 3943.

End quote. In addition, the following should be added to the end of the clause after the word “manual”, quote: “…and shall provide municipalities with a copy of the manual as updated, from time to time.”

3944.

Transcript

We propose a new sub-clause (j) to Condition 21, quote:


Final argument City of Toronto “Details regarding discussions with municipal emergency responders.” 3945.

End quote.

3946.

We propose to add at the end of clause 23, quote: “Enbridge shall, in developing a manual, have regard for and include the CTC LOPIPE policies referred to in the Toronto Evidence at paragraph 64.”

3947.

End quote.

3948.

We proposed an addition to the end of clause 13 as follows, quote: “The framework shall include spill modelling and detailed spill pans for each watershed through which Line 9 passes, and shall have regard for and include the available baseline environmental information and the erosion control monitoring program available from TRCA.”

3949.

End quote.

3950.

We propose a new 25B, quote: “Within 15 days of LTO Enbridge shall establish an additional spill response team in or around Mississauga.”

3951.

End quote.

3952.

We propose a new paragraph at the end of Condition 13. Quote: “As part of the framework, Enbridge shall consult with the TTC and Toronto Fire Services, and develop an emergency response plan applicable to the Toronto subway system where Line 9 crosses it.”

3953.

And finally, we propose a new 25C, quote: “Within 30 days of LTO Enbridge shall prepare and submit to

Transcript


Final argument City of Toronto the NEB a report explaining how adequate financial resources are in place to address all costs arising in the event of a Line 9 spill and how financial security has been set aside to cover all such costs related to Line 9.” 3954.

And so Madam Chair and Members of the Board, I do appreciate your attention, and particularly in the length of that last piece, and am available if you have any questions that we can assist you with.

3955.

THE CHAIRPERSON: Just if you give us a few minutes, please?

3956.

MR. REMPE: Certainly.


THE CHAIRPERSON: Mr. Richmond will go first this time.

3958.


3959.

So I’ve got a number of questions. I hope you won’t take from my questions that we don’t value the contributions you’ve made this morning. We certainly do and obviously, as you can understand, my questions are related to those specific points where I do have more questions on these things now.

3960.

MR. REMPE: Of course. Yes, sir.

3961.

MEMBER RICHMOND: Don’t take it as anything more than that.

3962.

But first with respect to the subway and the Finch subway station, so it’s my understanding that Line 9B passes above the station and adjacent to the stairs. And I also understand from the submissions that the station was open one year prior to the construction of the pipeline.

3963.

So in 1975 when that happened, did the TTC or the city give Enbridge permission to put the pipeline there?

3964.

MR. REMPE: I can’t answer that question. I can tell you that one of the concerns was that we didn’t have as-built or the TTC didn’t have as-built drawings, and in one of the information requests we did get some information from Enbridge about what as-built conditions are.

Transcript



I really can’t answer what happened at that time. You know, it would largely depend on what was the planning regime at the time.

3966.

And I think one of the issues to me that it highlights is that there is a lot of stuff going on and over time it may be that differing approaches are appropriate and yes, exactly, there’s stacking going on and, you know, it may be that it could have been done in a different fashion back then than it would have made sense.

3967.

I suppose our submission today is let’s get together and make sure that the appropriate considerations are in place today.

3968.

MEMBER RICHMOND: You also refer to the new subway line, I guess up the Spadina side. So presumably, the location of that tunnel and your stations is within TTC’s control and not within Enbridge’s control?

3969.

MR. REMPE: Absolutely.

3970.

MEMBER RICHMOND: So I guess my question would be as between TTC and Enbridge, whose responsibility do you think it would be to ensure that the subway is not at risk from the pipeline?

3971.

MR. REMPE: I would very much look at it the other way, sir. I mean, the difficulty is there’s tank farms, there’s trucks, there’s all kinds of materials. Our expectation, and speaking not particularly for the TTC because they’re not here, and I’m probably speaking more generically for the city, but we would certainly hope and expect that those who are making their living from the handling of these hazardous materials would be the ones to take that initiative and would sort of give us the latest detail. I’d stress again that -- or the appropriate levels of detail and measures.

3972.

I stress again that we have -- we have had these discussions, there are a number of these types of activities that are there. Ultimately, we’re looking now that this issue is -- has been raised to get the best in place. But we’re not saying -I don’t think anybody is saying that, you know, you can’t have a pipeline anywhere near the subway because that would just be, you know, completely impractical.

3973.

So I think it’s a bit of an exercise in just making sure that everything is

Transcript


Final argument City of Toronto now as good as it can be. And we hope that this Board will assist in achieving that objective, at least with respect to this particular infrastructure. There’s lot of other infrastructure out there and perhaps we can look at some of that in greater detail as well. 3974.

MEMBER RICHMOND: I guess my question is if the pipeline is there now and not near a subway because there’s no subway and then TTC or the city goes and builds a subway right next to the pipeline, would it be then your suggestion you’d want to -- you’d want us to tell them they’ve got to change their pipeline to make -- because it’s now next to a subway?

3975.

MR. REMPE: No, and we’re not asking for changes to the pipeline, I don’t think. What we’re asking for is that spill response mechanisms be considered and put in place.

3976.

It boils down to that specificity business that, you know, we want to make sure that that’s -- we’ve got the appropriate level of detail.

3977.

MEMBER RICHMOND: Still on the subway question. So I -- I hear your critique that Enbridge needs to have a site-specific emergency response plan and needs to share it with the city and its location with the TTC. I would have also presumed that the TTC has an emergency response and evacuation plan for its entire system at all stations ---

3978.

MR. REMPE: Yes, it does.

3979.

MEMBER RICHMOND: --- including Finch. So has the TTC shared those with Enbridge?

3980.

MR. REMPE: I think -- I’m not sure again what the sort of exchange is. Again, what we’re asking the Board to do today is to endorse specific exchange on this. And we’re not -- I don’t think we’re asking for this to be a onesided piece.

3981.

As I said, you know, we have tank farms, we have an airport, we have railway lines, et cetera, et cetera. So we have lots of different operations and it would be very difficult for the city or the TTC to take into account all the aspects of those hazardous operations that it might need to.

3982.

Transcript

However, if there is an opportunity now to get into a higher level of


Final argument City of Toronto specificity, we think this is the appropriate time. And generally, that’s an appropriate thing to do. 3983.

MEMBER RICHMOND: Right. And I just -- if I can infer from your comments earlier that coordination is important. So -- and that exchange of information goes two ways. That’s the one thing I wanted to highlight and make sure you’re aware of it.

3984.

MR. REMPE: Oh, absolutely. And if I can assure you that if the TTC staff are there with the -- and the fire staff with Enbridge, it won’t be exclusively to say, you know, you’re completely in the driver’s seat here. Everyone has a role to play. I think the importance is that we just all agree that that role needs to be acted upon.

3985.

MEMBER RICHMOND: I want to move to the financial assurances portion of your argument.

3986.

I don’t want to get into at the moment how much Enbridge would have to compensate. I think that’s fact specific scenarios, but once a legal determination is made as to the number, can you expand on or provide concrete suggestions as to what you would like to see to give you the comfort that you said that Enbridge has financial capacity to pay whatever the number is that’s legally determined? In particular, in your evidence -- in your written evidence, you state that Enbridge should have adequate resources including coverages that are, and I quote, “quickly available”. So what types of resources would fit that bill for you?

3987.

MR. REMPE: Well, I think obvious one is insurance. There might be others, sort of letter of credit or line -- or letter of credit kind of instruments that are available and could be drawn upon. There are others as well.

3988.

And again, I refer you to the Équiterre submissions where they, I think, set out in quite a bit more detail.

3989.

But what we’re looking for basically, one, is something that is not sort of fluctuating too much and two, is something that would have some level of commitment to this particular piece of infrastructure so that, as I said, if we had an incident at one location or on one line and then one very closely thereafter another that we -- you know, we would minimize the amount that either would be prejudiced by financial access.

Transcript



MEMBER RICHMOND: In your submissions and today you’ve explained -- done a good job of explaining the history and development of the local water source protection plans.

3991. 3992.

MR. REMPE: Yes. MEMBER RICHMOND: And in paragraph 64 of your evidence you list 13 requirements set out in the source protection plan --- there you go ---

3993.

MR. REMPE: Oh, thank you.

3994.

MEMBER RICHMOND: --- from an oil pipeline incident ---

3995.

MR. REMPE: Yes.

3996.

MEMBER RICHMOND: --- related to an oil pipeline incident.

3997.

So I wonder if you can expand on that. How many, if any, of these 13 requirements have -- are -- have been satisfied with respect to Line 9B either thanks to Enbridge’s cooperation or without Enbridge’s ---

3998. 3999.

MR. REMPE: Yeah. MEMBER RICHMOND: --- cooperation because it doesn’t necessarily require it.

4000.

MR. REMPE: Well ---

4001.

MEMBER RICHMOND: Sorry.

4002.

MR. REMPE: Sorry. Well, Mr. Richmond, you know, to not take too much of the Board’s time because I could probably sit down and go through them one by one. It’s certainly fair to say that some of these objectives have been accomplished by Enbridge. There are others that we would look to have a little more detail on that and we would look to have that included in their preparation of their emergency planning and an opportunity for some feedback on that, which is why we included that have regard for and include provision in our draft language.

4003.

Transcript

If it’s of some assistance to you, I could perhaps identify and report


Final argument City of Toronto back to the Board tomorrow as to specifically which conditions we think would be of help. It might be -- there might be some that are somewhat fulfilled and others that aren’t. I’m in your hands. 4004.

MEMBER RICHMOND: If that’s something you’re able to specify in more detail tomorrow that would be helpful. Just so we know where to -- what to really focus on in this list.

4005.

MR. REMPE: Yeah. I can certainly undertake to do that.

4006.

MEMBER RICHMOND: And I guess the other question would be for those that we need to focus on, because they’re not there yet, has Enbridge been sort of formally asked to provide these ---

4007.

MR. REMPE: Well outside of the -- outside of the -- this process, the petrol industry has been a participant, certainly in the development of these policies.

4008.

I should say now, as I’m sure Mr. Crowther is going to later on, that the CTC policies have been developed for -- it’s a large number of these source protection areas and submitted to the province. They haven’t been approved by the province. I would invite you not to take anything from that because I think the problem is the province has got a whole whack of stuff and they’re going to work through it in due course.

4009.

So these are not approved by the province as yet. They have been approved by the council and, in any event, our submission would be they are provisions that make sense. They are provisions that inform the very exercise that we certainly hope that Enbridge would be interested in anyway because our understanding is that, you know, they don’t want these kinds of problems either. So it’s really a question of how we get there. But I’ll try and elaborate a little on that tomorrow morning if that’s satisfactory to you, Madam Chair, Mr. Richmond. MEMBER RICHMOND: That’ll be great.

4010. 4011.

You suggested that there should be a requirement upon Enbridge to do an assessment to determine sort of what that lag time is between a release and the time it hits the drinking water ---

4012.

Transcript

MR. REMPE: Yes.



MEMBER RICHMOND: --- intake. So in the absence of that at the moment, do you have any sense of, I guess in particular in relation to the 1.5 to 4hour window, I guess was my question, is that, in your view, completely out of whack or in the ballpark or ---

4014.

MR. REMPE: Sorry, is there 1.5 to 4 hours out of whack or ---

4015.

MEMBER RICHMOND: When you compare ---

4016.

MR. REMPE: --- with respect to dealing with a water problem?

4017.

MEMBER RICHMOND: When you compare it to the time it would take ---

4018.

MR. REMPE: Yeah.

4019.

MEMBER RICHMOND: --- to monitor effects ---

4020.

MR. REMPE: Well, all I can say is that the modelling that was done as the basis for the CTC plan identified this as a threat based on the Marshall kind of numbers. So it’s not really a hypothetical. And we rely largely on the evidence of the -- pardon me, of the TRCA in the times appear to be close.

4021.

If -- and it depends largely -- which is why we were stressing the modelling, it depends on what’s going on in that river. If that river is -- it’s a nice day and it’s flowing at low volume, probably no problem or less of a problem. If, on the other hand -- and that was the problem at Marshall -- you’ve just had a heavy rain before and the Rouge River’s running like the Niagara Gorge, it’s going to be a different kettle of fish.

4022.

So what we’re looking at I think fairly is those worst case scenarios. But I think there is an alarm bell definitely here and that’s what we’re trying to get at.

4023.

MEMBER RICHMOND: And a final question. The commitment to place an incident management team in Mississauga, does that help alleviate your concerns or are you looking for something in the City of Toronto properly?

4024.

Transcript

MR. REMPE: Well I think, you know, we’re being realistic about


Final argument City of Toronto this. I mean, we can’t expect actual spill response teams every hundred metres along the Line, although we might like it. 4025.

But certainly, the Mississauga location is a lot better than -- I think they have a contractor at Stoney Creek and then they have their own facility I believe at North Westover. And those are significantly further away.

4026.

MEMBER RICHMOND: Those are my questions. Thank you.

4027.

MR. REMPE: Thank you, sir.

4028.

MEMBER GAUTHIER: Mike’s questions covered mine also. Thank you.

4029. 4030.

MR. REMPE: Oh, thank you, sir. THE CHAIRPERSON: Those are all our questions but I would just like to acknowledge and note that we saw that there was a liaison done with the different municipality.

4031. 4032.

MR. REMPE: Yes. THE CHAIRPERSON: That’s very much appreciated and the Board encourages parties to get together whenever they can so that we get a more efficient process. So we thank you very much and we’ll see tomorrow morning if you have something for us.

4033.

MR. REMPE: Yes.

4034.

THE CHAIRPERSON: Thank you.

4035.

MR. REMPE: Thank you very much, Madam Chair, Members.

4036.

THE CHAIRPERSON: You’re welcome.

4037.

I see the time running. So maybe we should take a 20-minute break and reconvene at 10 to 4:00 and then we will hear from Mr. Doug Anderson from DurhamCLEAR.

Transcript


Final argument DurhamCLEAR --- Upon recessing at 4:29 p.m./L’audience est suspendue à 15h29 --- Upon resuming at 3:50 p.m./L'audience est reprise à 15h50 4038.

THE CHAIRPERSON: Welcome back.

4039.

And now we have Mr. Anderson.

--- FINAL ARGUMENT BY/ARGUMENTATION FINALE PAR DURHAM CITIZENS LOBBY FOR ENVIRONMENTAL AWARENESS AND RESPONSIBILITY INC. - DurhamCLEAR: 4040.

MR. ANDERSON: I decided to -- because ---

4041.

THE CHAIRPERSON: Go ahead.

4042.

MR. ANDERSON: I'm at an age where I've got two pairs of glasses, and none of them work at a podium.

4043.

Anyway, good afternoon, Madam Chair and Members of the Board, I want to thank you for the opportunity to address this hearing.

4044.

I'm sure I need not remind you that the Board's mandate is largely to protect the public interest. The purpose of every regulatory agency is to ensure that certain standards are met; in this case, to ensure that Enbridge and the oil industry behave in a manner which will have the least possible impact on the public for the maximum good. Corporate interests are inevitably governed by the bottom line, and this, all too frequently, is in conflict with the public interest.

4045.

Our focus at DurhamCLEAR is principally on Durham region, which is a regional municipality just east of Toronto with a population of roughly half a million. This population is -- lives in -- primarily in five local municipalities located along the North Shore of Lake Ontario and through which Line 9 passes.

4046.

Our first awareness of Line 9 came in the form of an email from Environmental Defence and when I reviewed the contact logs submitted by Enbridge that appears to have been the prevalent situation with most of the municipalities along the route. These municipalities got a letter from Environmental Defence, which was followed by a letter from Enbridge to refute it. I think we all owe a debt of gratitude to Environmental Defence for shining a light on this project.

Transcript


Final argument DurhamCLEAR 4047.

DurhamCLEAR is an environmental organization, and as has already pointed out, the CLEAR part stands for Citizens Lobby for Environmental Awareness and Responsibility. We have a broad interest in a number of issues and this is just one of them.

4048.

Our initial impression of Enbridge's application was probably typical of many, where is this pipeline? After 35 years without any problems, hardly anybody knew anything. However, the more we and others have found out about Line 9 the greater the apprehension. When we decided to seek intervenor status and began directing questions to Enbridge, the more concerned we became with this project. Since these hearings are about the public interest, we felt it was appropriate to find out directly what the public thought and to use that to help shape our own position.

4049.

We held three public meetings in three different areas of the region and these meetings were advertised to the extent that we could afford. Unfortunately, the attendance was not as great as we had hoped but overall I think the results reflect the views of the community at large.

4050.

I should point out at this point that the Region of Durham submitted a letter of comment, as did two of the constituent municipalities, and the positions taken in these three letters are in broad agreement with our position and with the positions expressed from our questionnaire.

4051.

Can I have the first slide, please, which is our Exhibit A, it's our questionnaire. I'm not going to go through it in any great detail, but there are a few questions here which I think we should -- I should highlight.

4052.

One of the questions, probably one of the most important was: "Assuming that oil will continue to be transported in large quantities, rank the following options as the most appropriate transportation method for oil?"

4053.

One being the best, hence the largest numbers -- hence the larger numbers are the least favourite.

4054.

The preferred option by a wide margin was a new modern pipeline built farther north away from the populated areas and avoid environmentally

Transcript


Final argument DurhamCLEAR sensitive areas with a low score of 34. The next best was a new pipeline along the current alignment rebuilt to modern standards with a score of 49. Road and rail was third with a score of 64. The current pipeline, as is, with increased safety, more valves, better leak detection, emergency response with a score of 66, and the current pipeline, as is, was dead last with a score of 87. 4055.

I should note that this was about three weeks after the Lac Mégantic accident and road and rail still ranked well above the current pipeline.

4056.

We asked about regulation. Most participants regarded Canada’s regulation of all forms of transportation of hazardous materials as grossly inadequate. A majority also felt that avoidable spills of hazardous materials should be regarded as criminal acts with executives subject to heavy fines and possible imprisonment.

4057.

The world is changing and the public is far less tolerant of corporate shortcuts. If extreme remedies, such as expressed in the above answer, are the only things that corporate executives will respond to, then such measures need to be implemented.

4058.

We ask specifically about the three applications from Enbridge before the Board and I will come back to these responses later.

4059.

As an environmental organization, DurhamCLEAR monitors processes whereby potentially damaging projects are approved. The standard for approval of even minor projects is an environmental assessment. We went through Enbridge’s current application and was surprised that the only environment that they were acknowledging were the tiny patches of land at the terminal’s densitometer station and four pump stations.

4060.

It was clearly Enbridge’s preference and intention to confine these hearings to those tiny patches of land. And I commend the NEB for recognizing a public interest beyond those tiny patches and for recognizing that this was not an application about construction but rather about changes to a line which affected every kilometre, all the land and all the people along the land.

4061.

I have read the comments of Darko Matovic of the Ontario Pipeline Probe from the hearings last week and I am hoping that his interpretation of these hearings are incorrect. However, they are a concern.

Transcript



Enbridge has not been transparent, and clearly we’re hoping that because the pipeline was pre-existing that it could get a pass on most aspects of their application.

4063.

We undertook to find out what had been done back in 1975 in terms of an environmental assessment. It was part of the NEB mandate back then, as it is now. But looking through the documentation, we’ve been able to uncover we do not believe it ever had a sufficient EA.

4064.

Can you give me the next slide, please?

4065.

THE REGULATORY OFFICER: What did you want?

4066.

MR. ANDERSON: The next slide. It’s the C12-6-4, which was the IPL decision. That’s the one. Right. Okay. This is just the title page of it.

4067.

To investigate, I went to the original NEB proceedings in 1975 and read the decision that allowed its construction, and even the Board at the time commented on some of these things, and I quote -- so you can go to the next one, which is page 30.

4068.

And I quote: “The environmental report of the Applicant’s consultant for […] Ontario […] of the pipeline contained generalized information [of] the existing environmental setting...”

4069.

A little farther down it says: “It included general descriptions of sites having commercial, recreational, scientific, historic, archaeological, aesthetic and conservation values.”

4070.

And a little bit farther down again it says: “It also contained general statements on environmental considerations with respect to various components of the environment...”

4071.

Transcript

Next page, which is page 31. The next page discusses the Quebec


Final argument DurhamCLEAR portion of the line and there is a substantial change in tone. Note that the Quebec portion of the line is only about 10 percent of the whole. “The environmental report of the Applicant’s consultant for the Quebec portion of the pipeline described the existing physical, biological and land-use (socio-cultura1) environmental setting as well as the potential impacts of the proposed pipeline on these environmental components. The report also included recommendations regarding measures to mitigate such environmental impacts. The Applicant’s consultant also recommended possible re-routing of the pipeline in order to avoid certain potential adverse effects on the environment.” 4072.

Now onto page 34. Further -- no, that’s not the -- page 34, it’s the Adobe page 34. That’s right. Yeah -- no. Anyway: “Further, the Applicant’s consultant [probably the one from Ontario] emphasized that the environmental work for the proposed pipeline would be carried out in four phases, in relation to the phases of the pipeline project, as follows:...”

4073.

Phase I, which was the pre-application one, which was filed along with the application; Phase II was to be submitted before construction began; Phase III was to be during construction and Phase IV was to be after construction.

4074.

Then if you go on to page 45 -- Adobe page 45, we see the comments that the Board made on this, which is -- the Board comments on this phased approach: “It is noted that the Applicant plans to conduct environmental studies in four phases. While such studies could be carried out in four phases in relation to corporate planning and decision making in [relation] of the project the scope of the phased studies as outlined in the evidence is inappropriate and inadequate in relation to the Board’s regulatory procedure. The Board believes that more definitive work could have and should have been included in phase one of the environmental program which is the phase available to the Board and interested parties at the time of hearing the Application.”

Transcript



As the Board indicated, what was done was not how an environmental assessment was meant to be performed. Generally speaking, the environmental assessment should have considered, in detail, a number of possible routes. There is in the ruling a mention that two other routes were considered, a route from Sault Ste. Marie and another from Manitoba north of Lake Superior, however, these were rejected because of higher capital costs and time of construction. And believe me, there’s only just a sort of a one line thing that mentions those two.

4076.

Having made the decision to go directly from Sarnia to Montreal, IPL selected a route which was pretty much the shortest distance between two points, and, in quotes, “it parallels existing utility and pipeline corridors”. The result is a pipeline that goes through the most densely populated part of Canada and through numerous environmentally sensitive areas. And we’ve heard from a couple of those today.

4077.

It is our contention that a route that went well north of Toronto and north of the Oakridge’s moraine would have been preferable, and it’s our contention that a proper environmental assessment -- if a proper environmental assessment had been done such a route might have been selected.

4078.

And if you go to the next one, which is the attachment to Équiterre, BB18-20, Attachment 1 to Équiterre 1.j -- that’s the one. Right. Okay.

4079.

DurhamCLEAR’s particular concern with this route is illustrated with this chart which Enbridge submitted in response to an information request from Équiterre. The vertical blue lines represent water crossings. And that section near the left-hand side -- sorry -- this little section here. My light isn’t working very well, but anyway at that section -- is Durham region, which shows visually you can see that Durham region has the highest concentrations of water crossings on all of Line 9B.

4080.

Next slide, which is D40-2-2, Corporation Town of Whitby.


THE REGULATORY OFFICER: D?

4082.

MR. ANDERSON: D40-2-2. It’s the attachment to their letter of comment.

Transcript



It’s a map.

4084.

Ah ha, yes.

4085.

To illustrate our concern further, here is a map of just one of those five local municipalities in Durham. This is Whitby. And this map was submitted as an attachment to their letter of comment.

4086.

The blue lines are obviously watercourses. The lighter blue are hazard lands. The dark green are provincially significant wetlands. The lighter green are environmentally sensitive areas. The pink is the Lake Iroquois Beach, which is another geological feature left over from the last ice age, which is important for groundwater collection and flows, and the red line through the middle of it is Line 9 and it passes right through the most sensitive areas.

4087.

If you count the water crossings, there are 12. The width between the purple lines is approximately 7.5 kilometres. Twelve (12) water crossings in 7.5 kilometres.

4088.

Are we to seriously believe that this route underwent an environmental assessment? Can we seriously believe that a proper assessment could not have found a better route? The route here happens to be a hydro right-of-way. Wetlands and rivers are not an issue when you’re putting overhead wires in but they most certainly are an issue if you’re putting in a 30-inch, high pressure oil pipeline which is buried three feet deep.

4089.

Let’s say the current route for Line 9 was expediency, rather than based on any environmental considerations. I would ask the Board to note that the environmental consultant for Quebec, that IPL engaged, did recommend changes in the route, in that small section that runs through Quebec, and that the route was changed in order to mitigate certain environmental considerations.

4090.

Now, after having read the order from the NEB that allowed the construction to proceed, I decided to look for Phases II, III, and IV that IPL was required to file as work went on, because even though they would have been after the fact, they would have constituted part of the EA according to the Order.

4091.

I asked Michael Benson where I might find the documents, and he directed me to the NEB library, and thus began a series of emails back and forth that went on for two months.

Transcript



If you can’t find them, that’s fine. It doesn’t really matter, because I’m not going to actually refer to it.

4093.

These emails are filed as evidence. They make boring reading but they show that many of these -- those documents either never existed and/or do not exist in the NEB library, or for whatever reason, can’t be found.

4094.

In fairness, because I was looking primarily for documents that had some specific reference to the pipe in and near Durham region, there may have been a few more general documents that slipped through the cracks, although they did send me many documents which had no reference to Durham.

4095.

The documents that they sent me appeared to be consolidated somewhat by date and the titles were such that the only way to figure out what was -- what they were about was to go through them page by page.

4096.

One of the documents was designated, “M-O75” and appeared to be a Board Order dated June, 1975 which listed many studies which IPL was being required to file with the Board prior to commencing construction. Many of these doc -- many of the documents I received seemed to fit the general descriptions in this Order. Collectively, these may have been the Phase II report, although none of them contained any designation, as such, and all were pretty general in terms of the environment.

4097.

Although I asked repeatedly, I received none of the environmental reports related to the construction phase and none related to the post-construction, as IPL had stated it would provide and as ordered by the NEB. Unable to find the EA documents from the NEB, DurhamCLEAR submitted an information request to energy -- to Enbridge and this was our IR 1, Question 4.C.

4098.

The question was, quote: “Please provide all environmental studies done by Enbridge or by Inter Provincial Pipelines concerning the section of the pipe within Durham region, including studies done as part of the approval process of Line 9 in 1975. Include all studies and reports which pertain to Durham region, either specifically or more generally.” (As read)

Transcript



And the report I got was: “No environmental studies were completed within the Durham region as part of the project because no project work is taking place within Durham region. Any environmental studies that may have been completed in 1975 are not relevant to the issue in this proceeding.” (As read)

4100.

We felt this answer was inadequate and we asked the NEB to require Enbridge to answer, but unfortunately, the NEB sided with Enbridge.

4101.

So given the fact that the NEB library cannot produce the documents requested and Enbridge refuses, DurhamCLEAR is forced to conclude that one, they do not exist, and two, that a proper environmental assessment was not completed at the time of construction.

4102.

And, as Enbridge’s environmental studies for the current application only apply to the tiny parcels of land, which -- where actual construction will take place, we conclude that an environmental assessment has never been done.

4103.

We believe that the environmental risks are certainly no less than they were in 1975 and the current application makes those risks significantly greater. And hence, the Board should require a full environmental assessment of the entire line as a condition of approval.

4104.

If it does not, we will continue to press for such an assessment at the provincial level. As I indicated earlier, one of the questions we asked the participants at the public meeting was about regulation. They considered that regulation of all forms of transport for hazardous good, whether pipeline or rail or road, are -- should be much stricter. I am not an engineer but I know enough that it is entirely feasible to build a pipeline today, which to all intents and purposes, is leak-proof, barring some kind of catastrophic event, such as an earthquake.

4105.

It would be more expensive but through the use of thicker steel, more corrosion resistant steel alloys and better coatings, tougher and less likely to delaminate, a leak-proof pipe can be built. And in the public interest, the National Energy Board should be requiring that all pipelines under their jurisdiction should be upgraded to such a standard within, say 10 years. I understand that Enbridge was touting such a standard in the hearings for the Northern Gateway pipeline.

Transcript



In order to assuage concerns over that line, I would urge Enbridge and the NEB to implement those standards starting right here in the most populated area of the country. Enbridge, to all intents and purposes, is a public utility. It enjoys a monopoly along the Line 9 corridor. The NEB is the regulator and if you tell Enbridge to build a better pipe, they have no option other than to comply or close down.

4107.

Any extra costs they incur they can pass on to their customers, which amortized over 30 to 40 years life of the pipe, would result in only marginal price increases. Enbridge has reported that there were only 11 leaks on 9B in the 37 years since it was built. I’m not an engineer, once again, but how thick would the walls have to have been in order to eliminate all of those particular leaks?

4108.

I would suspect that the relationship between wall thickness and potential ruptures is exponential and hence, it probably wouldn’t take much extra thickness to dramatically increase the safety. What other modifications might help eliminate those leaks? How many leaks would there have been if the entire pipe had been a half inch thick walls instead of only a quarter inch?

4109.

Thicker walls would also reduce the risk of those catastrophic events that I mentioned and even -- hopefully not but terrorist risks, which are becoming more likely too. Let’s be forward; all the benefits of this pipeline accrue to Enbridge and the oil companies, while the municipalities, landowners and residents along the route bear most of the risks.

4110.

I realize that the standards for pipeline construction are defined by the Canadian Standards Associations, Canadian in standard CSA Z662. So what I’m really asking for is a rewrite to strengthen that standard. I don’t know how such things get started. Certainly the pipeline companies aren’t going to request it but I suspect that a regulatory agency like the NEB is in a position to make that happen.

4111.

Regulations exist to protect the public interest and in the absence of regulation, all corporations, not just Enbridge or other pipeline companies are ruled by the bottom line. When a company says that it is meeting all standards, what it is really saying is we’re doing the absolute minimum that we can legally get away with. Businesses do not exceed standards unless it will save them money.

4112.

Regulations can never be voluntary. They must always have clearly defined benchmarks and timelines. For pipeline companies, leaks and ruptures

Transcript


Final argument DurhamCLEAR are just a cost of doing business. While people are having their lives turned upside down, the shareholders continue to make money. 4113.

And if you can give me C12-6-3, which is the Enbridge stock chart. That’s the one.

4114.

As evidence, I give you this graph of Enbridge’s stock price at the time of the rupture at Marshall, Michigan. The rupture occurred on July 25th. The stock went down a whole dollar in the next few days and then a week later it was right back up again.

4115.

I remind the Board that their function is not to protect the shareholders of Enbridge but rather, the landowners and the residents like those in Michigan, whose lives are -- have still not returned to normal.

4116.

When you read Enbridge’s application, there is very little information on the operating pressures except to say that they were happy with and wanted to continue with to have a maximum operating pressure of 1,000 psi.

4117.

Well, that begged the question -- and this is Question 5(a) from our first Information Request, so it's IR 1.5(a): "Has the pipeline ever operated at the 1,000 psi during its time of service? If so, please advise when and for how long?"

4118.

We got a one-word answer: "No."

4119.

So we asked a second -- in the second round of question: "Can you advise as to what the highest psi in Line 9B has operated at and for how long?"

4120.

And the answer was: "In the past 10 years, the highest pressure on Line 9B was 666 psi at Cardinal Station on October 23rd, 2005 for approximately five minutes."

4121.

So it took two rounds of questions to find out that the pipeline doesn't operate anywhere near the maximum pressure -- anywhere near the maximum

Transcript


Final argument DurhamCLEAR pressure that they want to have. 4122.

Obviously, there was some reluctance to give us that information. Also, since we asked for the maximum psi ever, I think it's a fair assumption that it has never operated higher than 666 psi, even before the reversal of the -- in the late nineties. We believe that in the absence of definitive testing of some kind to prove that the pipeline is capable of withstanding 1,000 psi, the approved maximum pressure should be reduced to 666 psi.

4123.

We also have very serious concerns about the number of valves along the route, as do many other people. We acknowledge the announcement that Enbridge made in the Opening Statement that it would install 17 new valves along the route before the reversal, if permitted, goes into effect.

4124.

Enbridge must be feeling some heat and has decided to cut some ground out from under its critics. However, those 17 valves are nowhere near enough. I have checked the location of those valves, and two of them are in Durham, but I come back to the chart of water crossings, which is the Équiterre chart again, which is B18-20.

4125.

The green dots across the end, the little green diamonds actually, diamonds, those are the locations of the current valves. And this one here is in Scarborough and these are the two that are in Durham region currently.

4126.

Now, the other thing -- the other interesting feature of this graph is the green line, which is the elevation along the pipeline, this green line right here. The bottom line is sea level, and the elevation of Lake Ontario is 74 metres, which is roughly about there.

4127.

The first of the current valves appears to be pretty much at the lowest point in Durham region, which is right about there -- if you run it up, it's pretty much close to that; it's pretty much the bottom point -- at approximately 35 metres above the lake.

4128.

The highest point appears to be around 125 metres, which is right about here above the lake level. At that point, there would be 90 metres of head or almost 300 feet with no valves between there and the bottom point. There are 71,300 barrels between those valves.

4129.

Transcript

But Enbridge tells us that their valves are carefully positioned


Final argument DurhamCLEAR according to what they call "intelligent valve placement". Well, when you cut through the baffle gab, I would challenge Enbridge to explain the intelligence of the valve placements in Durham region. 4130.

At least one other intervenor asked for an explanation of intelligence valve placement and got an answer, which failed to answer the question. Subsequently, I found out the location of valves is governed by CSA Standard 662.07, Section 4.4, and one of the -- and you know, frankly, the valve placements on here don't follow that either; so it's fairly general.

4131.

One of the things that is mentioned in that standard is consideration should be given to the installation of check valves to provide automatic blockage of the pipeline. I assume this refers to gravity actuated blocks to prevent backflow, and it sounds like a good idea.

4132.

Why aren't there any? Why not have a dozen of them between -- in that place there, where it has a 300-foot drop? I believe that Enbridge should frankly be consulting the municipalities through which the pipeline passes and get their opinion as to where valves should be placed.

4133.

I further am somewhat leery of Enbridge's commitment to install these valves before the reversal, if approved, goes into effect. And I think Toronto also echoed that, that they wanted it added in as a condition that they do it, and Enbridge is not well known for filling commitments.

4134.

I think that those two things that I mentioned there together should form a condition of approval; that Enbridge consult with and obtain agreement from all municipalities along the route as to the number and placement of valves and that all installations must be completed prior to operation.

4135.

I now come to leak detection. In Enbridge's Opening -- yes, this is Enbridge's Opening Comments, Enbridge -- I don't have a reference on that one, but anyway, it's their Opening Arguments. Anyway, I'll just quote it.

4136.

In Enbridge's Opening Comments last Tuesday, in Montreal, they specifically challenged the assertion that Durham made in our written evidence that: "Their much touted leak detection system..." [this is quoted] "...much touted leak detection systems next to useless." (As

Transcript


Final argument DurhamCLEAR read) 4137.

So let me explain why we consider their leak detection next to useless, and the Board can draw their own conclusions.

4138.

In Enbridge's response to NEB Information Request 3.10.C, they acknowledge that their computation pipeline monitoring system, CPM: "...will not detect a leak below 70.5 [cubic metres], 443 [barrels] over a two-hour period".

4139.

That works out to 3.7 barrels per minute.

4140.

I was puzzled by the way the answer was worded as in "70.5 cubic metres over a two-hour period.", but after more investigation, I realized that not only does it have to leak at 3.7 barrels per minute but it has to do so for two hours before the folks in the control centre out in Edmonton will declare, "Ah-ha! We have a leak!"

4141.

Now, I would conclude that a leak detection system that won't detect a leak of less than 443 barrels is pretty useless. Perhaps from Enbridge's point of view, 443 barrels, it's small potatoes, given that the pipeline carries hundreds of thousands of barrels a day. But to any resident along the pipeline, the thought of 443 barrels flowing down their driveway or a local stream is pure devastation.

4142.

Enbridge has come out of -- has to come out of hiding and see the world as the people along their lines see it. When people question Enbridge's CPM system, Enbridge they then -- Enbridge then changes gears and talks about their other overlapping leak detection methods.

4143.

Firstly, they have a plane that apparently flies over once a week. Depending on what sort of instrumentation they have, that could be useful, but as they replied to our Information Request 2.6 1(a), they found only one leak on Line 9 this way.

4144.

They also say they do ground patrols in Toronto but not in Durham. But the most stunning admission is that more than 30 percent of the releases in Line 9 were first reported by third parties, and third parties are considered one of their overlapping leak detection methods. When they have to rely on us, I say that Enbridge's leak detection system is next to useless.

Transcript



So is this just Enbridge or is this the state of the industry? And if you can give me -- actually, I'll just refer to it. It turns out there is a report, Leak Detection Study provided by Kiefner & Associates just in September of last year. And it was prepared for the U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration. I am sure the Board is aware of it and I am sure Enbridge is too.

4146.

In their analysis of the current industry, well, it turns out it isn't just Enbridge, poor leak detection runs in the family. The statistics that they gather from leaks in the United States were remarkably similar to the stats from Line 9. And I quote: "…based on data reviewed between January 1, 2010 and July 7, 2012 for hazardous liquid pipelines were:"

4147.

Their conclusions: "1. The pipeline […] control room identified…"

4148.

-- releases only 17 percent of the time. "Air patrols, operator ground crew and contractors were more likely to identify a release than the pipeline controller control room."

4149.

Number three: “An emergency responder or a member of the public was more likely to identify a release than air patrols, operator, ground crew and contractors.”

4150.

And skipping down to number six because the -- four and five are pretty technical.

4151.

Number six: “Brass liquid pipelines, SCADA and CPM...” [which is what Enbridge uses] “...systems by themselves do not appear to respond more often than personnel on the right-of-way or

Transcript


Final argument DurhamCLEAR members of the public passing by the release incident.” 4152.

Hardly a ringing endorsement of what the pipeline industry touts as state-of-the-art.

4153.

On page 24, it states it is acknowledged that pressure flow monitoring, which is what CPM is, will catch at best large ruptures. But is this the way it has to be?

4154.

And if you can actually go to the -- page 183 in that.

4155.

And the answer to that is, absolutely not. There are many additional leak detection systems -- that’s it there, right, which work far -- which -- anyway, which work well.

4156.

And the Board -- and the report lists several of them such as acoustics, infrared optic hydrocarbon sensing fibre, temperature fiber optic, liquid sensing cable and vapour sensing tubing.

4157.

On page 185, it describes the external acoustic sensors, and quote: “…they are rated at a sensitivity of 0.1 gallons per minute with location and -- with location accuracy rated at plus or minus two percent of sensor spacing. They are also a continual monitoring method, and therefore suitable for leaks that are sporadic as well as small.”

4158.

The study undertook to survey current actual use of the various leak detection systems. They managed to get the participation of nine liquid pipeline operators, 10 gas pipeline operators and 12 suppliers of leak -- LDS, leak detection systems.

4159.

All acknowledge the dominance of the internal CPM systems but it was acknowledged by all operators -- this “was acknowledged by the operators not to be generally a sensitive method. It is effective only for large ruptures, and even then not consistently so.” End quote.

4160.

However, other quote: “CPM is a relatively inexpensive addition to an existing metering infrastructure.” Only a few of the external leak detection systems were installed and all of the operators referred to them as being pilots or

Transcript


Final argument DurhamCLEAR experimental. 4161.

Yet, they say, that these technologies have been known for 25 years, since the late eighties, all are readily available, some are even described as being mature. So why aren’t they being installed?

4162.

And I quote again from the report: “Standardization and certification are -- was universally regarded as an issue. Operators seek standard solutions that give guaranteed levels of performance, according to some certification. No current leak detection technology provides this level of predictability. A similar gap…”

4163.

And I believe that also applies to the CPM but I might be wrong here. “A similar gap may be described by the desire of pipeline owners to operate, and not engineer, their systems.”

4164.

The result is an entire pipeline infrastructure all over North America that either can’t or perhaps won’t detect so-called small leaks. As a regulator, the National Energy Board has the power to correct this problem.

4165.

A company as large as Enbridge should be a leader and it certainly has the capacity to work with suppliers and designers to develop and test these systems and find out what works best and to help develop the certification of such systems so that all people in the vicinity of pipelines can have the assurance that leaks can be detected quickly.

4166.

I think that a condition of any approval of Line 9 should be that Enbridge implement a leak detection system, capable of detecting leaks as small as 10 gallons in real time, starting with the GTA area and working outward with priority on populated areas -- populated and environmentally sensitive areas.

4167.

I’m being very generous at 10 gallons because, as I quoted before, there are systems that will detect far, far, less than that.

4168.

And further, that Enbridge must share their data on leak detection to the broader industry so that all, including the general public and the environment can benefit.

Transcript



As we know from various sources, there were a couple of stream crossings in Toronto that became exposed by erosion. This is clearly a cause for concern. The exposure on the Rouge River is particularly troubling, as one person who hikes regularly in the Rouge River has told me, that it was exposed for an extended period of time.

4170.

And he quoted -- he said five years. But let’s say -- whatever you say, basically, we can conclude that the walking patrols that Enbridge claims to be conducting weren’t very effective.

4171.

We asked a follow-up question with regard to Durham water crossings and our request was, “When last were the multitude of river streams and creeks in Durham region served for -- surveyed for erosion? What was found”.

4172.

The response was: “All water crossings in Durham region will be surveyed for erosion during the summer of 2013 and prior to that a depth of cover survey was conducted in 2009 and there was no threats at that time.” (As read)

4173.

Evidently, the pressure of these hearings are causing all sorts of catchup work to be done. Clearly nothing was done in Durham between 2009 and this year. And I’m not exactly sure what a depth of cover survey it is and while one expects -- would expect that such a survey would detect erosion around a pipe, the answer doesn’t actually say that.

4174.

Enbridge appears to have a policy of telling local authorities absolutely nothing. We were informed by a witness that Enbridge had relocated a section of Line 9 in order to accommodate construction of the new Highway 407. And so we submitted an information request about it and we got the answer: “Enbridge objects to the request as the information sought is not relevant to the issues in this proceeding.” (As read) I’m sure many other intervenors are familiar with that answer.

4175. 4176.

What we wanted to establish is whether replacements were using the same standard of pipe as was used in 1975 or do they use a higher standard of

Transcript


Final argument DurhamCLEAR pipe. 4177.

I phoned up the Planning Department in Clarington where this section was and was surprised they knew nothing about it, that they don’t have any jurisdiction and that Enbridge never tells them anything. I got similar answers from other municipalities and that’s a great lead-in into consultation.

4178.

As I mentioned -- as I indicated earlier, we in most municipalities first found out about the application from the environment -- from Environmental Defense and after that Enbridge went on a PR blitz.

4179.

Ken Hall started by making the rounds of the Durham municipalities. It didn’t really help. People wanted answers and he was delivering platitudes.

4180.

Through these hearings, and in the written evidence, the comments from municipalities are nearly unanimous, that prior to about February or March of this year, they had no contact from Enbridge. The concerns are remarkably consistent too. Poor emergency response planning, not enough valves, inadequate leak detection and yes, poor consultation.

4181.

The attitude of Enbridge is best characterized by the word “arrogance”. We’ve all heard -- we’re all tired of hearing the phrase “in the unlikely event of a release”. We want to know what they are prepared to do about it. We don’t want to be told about intelligent valve placements, where there’s no sign of intelligence. We don’t want to be told that 90 minutes to 4 hours is a reasonable response time for a leak.

4182.

The more we pursued the issue -- the Line 9 issue, the greater our concerns. We found out the municipalities knew next to nothing. The pipe was on the maps in the planning departments and it was on the do not dig lists but that was about it.

4183.

The Conservation Authorities seemed to be somewhat more aware but Enbridge had never asked them to provide river flows so that they could plan ahead about an accident. And that was confirmed by our Conservation Authority.

4184.

Even the fire departments were in the dark and that brings me to emergency preparedness and response.

4185.

Transcript

When Ken Hall told our regional council, that response times to an


Final argument DurhamCLEAR accident in Durham would be minimum to 90 minutes, there was silence. Then the questions and criticisms start. 4186.

Initially Mr. Hall said he -- said that the local firemen should not be involved in the spill at all. He even said that they should do nothing until Enbridge arrived. Well, that went over like a lead balloon. You've heard similar stories from many other municipalities and now Enbridge is promising to train some first responders.

4187.

In their opening statement to these hearings, Enbridge announced that a maintenance group in Mississauga would provide emergency response to any pipeline incident in the GTA. That doesn't really help very much because it may be slightly physically closer than Belleville but the response time would be about the same.

4188.

Frankly, I think that Enbridge's thinking on -- in emergency response is ass-backwards. All of these municipalities have some sort of fire department, all of the urban areas have professional fire responders on duty 24-hours a day, some also have specific emergency measures personnel.

4189.

These people know their communities like the back of their hand. They know where the hazards are; they know how to evacuate people. They know how to deal with all sorts of injuries; they know how to deal with a host of hazardous chemicals, whether they're burning or just lying on the ground. I would suspect these people are far better qualified to handle almost any kind of emergency than Enbridge's response teams.

4190.

It would seem logical that these people should be the front line. That Enbridge should provide special training to a small group from each department and that these people should -- would take charge in case of a pipeline leak. Enbridge would provide coordination, equipment and training, and would pay each municipality and appropriate sum for the use of their personnel.

4191.

Of course, Enbridge would have to do a fair bit of fence mending before this would work, but it would also ensure that there would be an ongoing channel of communication between the municipalities and Enbridge in perpetuity. In addition, these first responders would be ideally placed to develop the sitespecific response plans that many municipalities are asking for.

4192.

Transcript

I note that section 33 of the National Energy Board Onshore Pipeline


Final argument DurhamCLEAR Regulations specifically requires that: "A company [Enbridge in this case] shall establish and maintain liaison with the agencies that may be involved in an emergency response on the pipeline and shall consult with them in developing and updating the emergency procedures manual[s]." 4193.

Section 35 requires that: "...a company shall develop a continuing education program for the police, fire departments, medical facilities and other appropriate organizations and agencies and the public residing adjacent to the pipeline to inform them of the location of the pipeline, potential emergency situations involving this pipeline and the safety procedures to be followed in case of an emergency."

4194.

It seems that Enbridge has been completely ignoring this and it seems that the National Energy Board has failed to enforce their own regulations.

4195.

Durham region has a particular hazard that no other location has, and we were particularly surprised at the insensitivity that Enbridge displayed. Durham has two nuclear power stations, large nuclear power stations, and they rely on Lake Ontario for their cooling water. We asked about this in our Information Request 1.6k: "What information has been provided to Ontario Power Generation (OPG) with regard to contamination of cooling water supply from Lake Ontario in the event of a spill? Has OPG used this information in preparing an Emergency Response Plan which ensures the health and safety of Workers [of] the plant and the Public at large? Has this information been shared with Enbridge? If so, please provide copies of all such documentation relating to this matter.

4196.

In their response, and you can probably predict this, they said: "In the unlikely event of a release, Enbridge would work with OPG to manage water issues and protect water intakes."

Transcript



That's it.

4198.

We followed with another more specific question and got: "Enbridge cannot comment on OPG operations or the potential effects of oil entering the cooling water in a nuclear reactor. In the unlikely event of a release, Enbridge would initiate emergency response procedures as described in Attachment 1 to Ontario IR 1.44...."

4199.

Can you see an emergency responder doing this consultation: "These procedures include notifying the public and those who may be directly affected, monitoring release behaviour and extent to contain the release and identifying water intakes in the area. As a result, OPG would be contacted if there were to be a risk of oil entering [the] cooling water intake.

4200.

So OPG would only be contacted if Enbridge, after arriving on the scene, let's say optimistically 90 minutes afterwards, and then takes, let's say a minimum of an hour to figure out that the water is flowing down one of Durham's many streams at a rate that will get it to the lake in X hours, and by the time they notify OPG, well, it's already there. And clearly Enbridge has no idea what would happen if oil went into the cooling intakes.

4201.

I would point out in connection with my previous suggestion for emergency response that all the local first responders are intimately familiar with what to do in case of various nuclear accidents and they've done simulations and various things. And once again, the most logical people to develop the necessary response plans are the current first responders.

4202.

I want to talk briefly about dilbit. I don't want to get into too much of the conflict because it's been gone over many, many times, and I don't really ---

4203.

THE CHAIRPERSON: Mr. ---

4204.

MR. ANDERSON: --- don’t like the stuff.

4205.

THE CHAIRPERSON: Mr. Anderson, we've read your ---

Transcript



MR. ANDERSON: Yeah, okay.

4207.

THE CHAIRPERSON: --- submission. So if you can go quicker on some of the parts.

4208.

MR. ANDERSON: Yeah, okay, yeah. Well, this one -- on the subject dilbit, I think the more interesting question than what dilbit is, whether it's gross or et cetera, is does anybody down the line want the dilbit. We sent information request to Suncor and Valero and the answers we got were both -from both refineries, that both refineries were primarily focused on light crude.

4209.

Suncor went on to quote at some length in their argument last week to say that they could process dilbit, but never really said they wanted to. They said that they had processed a small amount of imported heavy crude and I guess there's nothing to stop them from importing more heavy crude if somebody wanted some asphalt.

4210.

The big market for oil is in the production of gasoline, and from the information I have that requires coking and if you're going to start from dilbit. Neither Suncor nor Valero has coking capabilities and from their answers no intention to install them.

4211.

Mr. Smith from Suncor dodged the question last week from Mr. Richmond as to whether Suncor would close its refineries if any of Enbridge's applications were denied. Instead, he launched into a treatise on price competition. In the absence of any evidence that anybody downstream wants the dilbit, clearly NEB should deny that part of the application.

4212.

So what does all this lead to? To answer that, I return to the results of our questionnaire that we put to citizens in Durham region: "In terms of reversal, a narrow majority said they would support reversal but subject to strict conditions. Those were: One, upgraded to modern structural standards; two, better emergency response times; three, more frequent inline inspections and timely correction of defects; four, better detection of leaks; and five, an increase in the number of remotely controlled valves and the preferred option was that there would be valves on both banks of all watercourses."

Transcript


Final argument DurhamCLEAR "In terms of the application to increase the capacity, two thirds of the participants preferred the rejection of the application, but in the alternative, if the NEB approves the increase [in] capacity then a similar set of conditions as outlined above." 4213.

In terms of the transported dilbit, essentially the same is for the increase in -- ah, look at that -- so in terms of conditions, we have read the conditions, the proposed conditions of the Board and we find them basically too weak, too tentative in a sense -- too tentative in most cases.

4214.

One of the things that I would like to point out is terms of tentativeness, you -- in some cases you are letting Enbridge define its own benchmarks, which I find very inappropriate, and I refer you to your proposal number 22, which is the criteria to identify the major watercourse crossings along Line 9 from Sarnia to Montreal.

4215.

Well, so you're asking them to define their criteria. Well, we -basically we know from the original application in 1975 that their criteria was navigability. And at that time, that you did that you -- the Board commented and said, specifically: "Navigational use of a river as a basis for the identification of major river crossings is not necessarily consistent with environmental aspects. The Board feels that what is important is that relevant environmental considerations be taken into account in locating and designing river crossings regardless of whether such crossings should be designated as major minor from a particular viewpoint."

4216.

Well, basically Enbridge ignored that and, essentially, if you use the suggested conditions that you’ve done here, I suspect they would ignore that too. The -- so in terms of the conditions that we would like to put in -- and I think I’ve outlined them a little bit before -- the NEB should require a full environmental assessment of the entire line.

4217.

And number two, that the portion of Line 9 that passes through the GTA should be relocated north of the (inaudible) and should avoid environmentally sensitive areas. The new pipeline should be built to modern standards, thicker walls, corrosion resistant steel and better coatings.

Transcript



In the alternative, if the NEB does not require relocation, that the existing alignment through the GTA be rebuilt to modern standards, the same criteria.

4219.

And the condition three, that Enbridge implement a leak detection system capable of detecting leaks as small as 10 gallons in real time, starting with the GTA area and working outwards with priority on populated and environmentally sensitive areas.

4220.

Number four would be that they consult with and obtain agreement from all municipalities along the route as to the number and placement of valves, and that all installations must be completed prior to operation.

4221.

And five, that Enbridge develop, in cooperation with the municipalities along the Line 9 route, a new emergency response plan which would have the first responders, fire fighters, et cetera, in each municipality trained, equipped, and coordinated by Enbridge as the primary responders to any pipeline accident.

4222.

And that’s all and if you have any questions I’d take them and…

4223.

THE CHAIRPERSON: Give us a few moments.

4224.

MEMBER RICHMOND: When you raised your concern about the maximum pressure that’s been in the line, the 666 psi and the maximum allowable, 1,000, in your view, is there anything -- looking at conditions, is there anything that could appear in a hydrostatic pressure testing program, as described in our Draft Condition 11 that would address your concern?

4225.

MR. ANDERSON: I know from -- I’ve listened in to the comments that Enbridge made about hydrostatic pressure in Montreal. I recognize that it’s -it very, very nicely outlined the limitations of it So you know, in a sense, what I -- you know, I would have loved to have had a third round of questions because there might have been a few questions that would have come out of that.

4226.

I frankly do not know enough about hydrostatic pressures to really -hydrostatic testing to know what it -- you know, whether they would find anything or not.

Transcript


Final argument Ms. Emily Ferguson 4227.

MEMBER RICHMOND: I appreciate the frankness of your response. Thank you.

4228.

THE CHAIRPERSON: Mr. Anderson, those are all our questions.

4229.

MR. ANDERSON: Okay.

4230.

THE CHAIRPERSON: And we want to thank you for your involvement and participation in this proceeding.

4231.

MR. ANDERSON: And I want to thank you for having these. They basically are -- I wish all such proceedings worked as well as this.

4232.

THE CHAIRPERSON: Good. Excellent, thank you.

4233.

Now it would be the turn of Ms. Emily Ferguson if she’s here?

--- (A short pause/Courte pause) --- FINAL ARGUMENT BY/ARGUMENTATION PAR MS. EMILY FERGUSON: 4234.

MS. FERGUSON: Is it good now? Perfect. Thank you very much.

4235.

Good afternoon, Madam Chair and Members of the Board. My name is Emily Ferguson. I am a concerned citizen who opposes the Enbridge Line 9 project. I am here to present my own views. I am not paid by or affiliated with any organization, interest group or political lobby.

4236.

My sole purpose of being here today is to express my concern for my community and all other communities along Line 9. Although we may not find common ground in ideology, we are built upon the foundation of similar values; we all want to be safe, happy, healthy and have a secure economic future. Most of us also place an incalculable value on the environment and the overwhelming benefits which a healthy biosphere provides.

4237.

I must note that it is unfortunate that the scope of this project has been so limited. By excluding the environmental and socio-economic effects associated with upstream activities, the development of oil sands and the downstream use of the oil transported by the pipeline, we are attempting to debate

Transcript


Final argument Ms. Emily Ferguson an energy project as if it is disconnected from the bigger picture of climate change and our addiction to fossil fuels. 4238.

In accordance with the procedural guidelines before me, I will keep my comments herein restricted to the following issues; Issue Number 5, 6, 8, and 9.

4239.

I grew up in Glenburnie, just north of Kingston, Ontario and attended Glenburnie Public School, which is within 200 metres of the pipeline. I later moved on to attend post-secondary education in both North York and Hamilton, all the while having no idea I was living along the Enbridge Line 9 right-of-way.

4240.

Having spent my entire life near the pipeline, I am extremely concerned about the lack of public awareness and community consultation completed by Enbridge. I had many conversations with Glenburnie residents this spring. When I realized that not one, not a single one of them even knew the pipeline existed, there was much more work to be done.

4241.

Residents were fully aware of the TransCanada gas line but they were shocked, angered, in total disbelief that oil was flowing through their communities without their knowledge.

4242.

Please keep in mind that these reactions encompass public schools, personal businesses, the local fire department, homeowners of 20 plus years and management at Glenhaven Memorial Gardens.

4243.

I stand before you as an individual but I am here in sprit with my grandmother, Eva Simpkins who passed away in April of this year from cancer and now rests at her memorial at Glenhaven, less than 600 metres from the pipeline. I sincerely thank you for the opportunity to participate in this hearing and I’m grateful to be standing before you today.

4244.

I am worried about the integrity of the aging pipeline and preparedness of Enbridge and communities along the line in the event of a spill. If so many people were left in the dark, knew nothing about the mere presence of the pipeline, how would they be expected to react to a spill? While completing my studies at McMaster University, I attended Line 9 meetings in Hamilton and Burlington.

4245.

Transcript

At the Hamilton Conservation Authority meeting, I asked Enbridge


Final argument Ms. Emily Ferguson representatives if I could have the same information provided to council. They were more than happy to provide me with this package. It contained very useful information about the exact pipeline route and valve location in that local area. However, when I requested one of these packages at the Halton Conservation meeting, it was a very different story. 4246.

After the presentation to council, I approached the same Enbridge representatives and asked for a locally relevant package. Rather than provide the information as was done in the first meeting, I was asked, “Who are you working for”. I explained that I was a concerned citizen and was trying to learn more about the proposed project but was told I could not be given a package for security reasons and instead, was asked for my name, address, and contact information for future follow-up from the company.

4247.

I went home that night thinking, if this is how Enbridge treats people in the community, no wonder my friends and family in the Kingston and Greater Toronto Area knew nothing of the pipeline. I realized someone had to provide detailed maps to the over nine million people living along the pipeline. My mandate was simple; I just want people to know. They have the right to know what is flowing through their communities. They have the right to ask the tough questions and Enbridge has the moral responsibility to provide them with complete answers.

4248.

As I polled communities along the line, their number one question was the exact location of the pipeline. Enbridge was not providing the answers. I took it upon myself to map out the entire Line 9B pipeline using Google street view.

4249.

I then cross-referenced my maps with the Enbridge maps document found at B11-4, Attachment 1 to the NEB IR 2.7. Suddenly, this became a much bigger project than polling residents in my childhood neighbourhood. I moved beyond Glenburnie and in an attempt to inform all communities along the pipeline, I created the Web site line9communities.com to raise awareness and promote a community discussion.

4250.

In the past seven months since I launched the Web site, there have been 1,649 views on local maps alone. This demonstrates that many people along the entire length of the pipeline are unaware of its location. Visitors to the web site were looking for basic information on location and pipeline integrity. They wanted to know, is it in my community and is this project safe? Enbridge was not

Transcript


Final argument Ms. Emily Ferguson providing them with satisfactory answers. 4251.

This is one of the many examples where communities along the line had very valid concerns which were not properly addressed by Enbridge. Communities want to know that the pipeline is in top condition and free of cracks, dents and corrosion.

4252.

The website received 637 views to pipeline integrity pages. On these pages, I took my local maps and added the mile post references found again on the Enbridge maps document at B11-4, Attachment 1 to the NEB IR 2.7. I created an excel spreadsheet to compile operations and maintenance activities that Enbridge had filed with the NEB. This data was collected back to 2005, which is the furthest back made public on the NEB site.

4253.

If I could just ask you to please bring up document C49-4-35, which is titled "Attachment 34 to Emily Ferguson Written Evidence". This is my spreadsheet updated until August 7th of 2013. If you could just please scroll down slowly until page 9 of the document. This is where the 2013 integrity digs begin. If I could ask the Board to please pay special attention to the amount of cracks, corrosion and dents which will require excavation in this year alone.

4254.

This is unprecedented, when compared to the last eight years of operation and maintenance notifications by Enbridge on Line 9. However, we should not feel reassured by the amount of work and money being spent investigating these anomalies and pipeline integrity. Instead, I urge the NEB to take a step back and consider the frightening prevalence of problems along the aging and under used line.

4255.

As referenced in my final written evidence, paragraph 81, I indicated that I would: "...continue to update the pipeline integrity chart and highlight important features and locations which were most relevant at the time of the hearing"

4256.

Since submitting this spreadsheet to the NEB, there have been an additional 129 cracks, 22 dents and one corrosion issue filed by Enbridge along Line 9. To date, this brings the integrity issues along Line 9 to 266 cracks, 56 dents, and nine corrosion issues announced in 2013 alone.

Transcript



On the Line 9 communities web site, I broke the local maps down into five mile segments and then posted the corresponding integrity data below. By publishing this information in a clear, concise, and easily understood manner, I was able to provide communities along the line with some answers to their concerns. Unfortunately, the data is not the least bit reassuring. As of October 7th, 2013 between mile post 1970 and 1980 there were 61 cracks and three dents which will require excavation.

4258.

Let's take a moment to consider that this is just one 10-mile stretch of the pipeline with 61 cracks.

4259.

The problem is citizens do not understand mile posts and Enbridge operations and maintenance activities do not make reference to the cities where the digs are located. To Enbridge, mile post 1970 to 1980 represents work sites. To the public, mile post 1970 to 1980 represents the communities between Port Hope and Cobourg.

4260.

I urge the NEB to pay special attention to these integrity digs and whether there are multiple features along the same area of pipe.

4261.

If I could ask you to please bring up document number C21-3-5, titled "Attachment 3 Part I to the NTSB Report" and scroll down to the page xii titled "Executive Summary". Sorry, xii, just two. Scroll up to the last page -- there we go -- to where the three bullet points are.

4262.

So regarding the Enbridge Line 6B disaster -- quote: "The rupture and prolonged release were made possible by pervasive organizational failures at Enbridge..."

4263.

I would like to draw your attention to the three bullet points but specifically the first and the third. The NTSB clearly states that there were -quote: "Deficient integrity management procedures, which allowed well-documented crack defects in corroded areas to propagate until the pipeline failed."

4264.

In other words, Enbridge knew they had a problem in the aging Line 6B pipeline and did not react in time.

Transcript



The NTSB further explains in bullet point three that there was -- quote: "Insufficient public awareness and education, which allowed the release to continue for nearly 14 hours after the first notification of an odour to local emergency response agencies."

4266.

I would like to bring us all back to my childhood community, Glenburnie. Much like small town Marshall, Michigan, Glenburnie is rural, close-knit and residents know nothing about the Enbridge pipeline. Computerized monitoring systems do not catch 100 percent of leaks. So Enbridge relies on eyes on the ground to notify them of suspicious odours or oil slicks.

4267.

In communities such as Glenburnie, the failure of Enbridge to adequately raise public awareness could result in a situation much like the three million litre Line 6B spill. If residents are not even aware of a pipeline in their community, how would they know to contact emergency officials about an oil-like odour rather than check their car or lawnmower for a leak?

4268.

In the PHMSA enforcement action against Enbridge for the 2010 Michigan oil spill, Enbridge was fined a $3.7 million civil penalty in part due to their lack of public consultation. As mentioned by many other intervenors in this process, I do not believe that Enbridge has improved their public awareness program.

4269.

If you could please bring up document C49-4-21, titled "Attachment 20".

4270.

THE REGULATORY OFFICER: C49?

4271.

MS. FERGUSON: C49, correct.

4272.

THE REGULATORY OFFICER: And what dash?

4273.

MS. FERGUSON: Dash 4-21, entitled "Attachment 20". Thank you.

4274.

It is no wonder that people in communities along the line are unaware. Not only is there a lack of personal contact with Enbridge, but the pipeline is poorly marked and seemingly forgotten under parking lots, community gardens

Transcript


Final argument Ms. Emily Ferguson and businesses. There are numerous cases where large items, including barns, sheds, trailers, vehicles and pavement encroach on the right-of-way. 4275.

In addition to this photo, I respectfully request that you review all other pipeline photos I submitted as attachments in my final written evidence.

4276.

In terms of notification of Enbridge open houses, when asked about the poor attendance at a Corbyville open house Enbridge officials declared that -quote "people just don't care". However, through multiple conversations with residents along the line I am convinced people do care. The difference is that people are lacking information.

4277.

If you could please bring up document C49-4-10, and its attachment number 9. Thank you.

4278.

Prior to the Corbyville open house, I knocked door to door in the area to make sure that residents, whose houses backed right onto the right-of-way seen here in this picture, that they knew about the open house. None of them had any knowledge of the meeting and some residents didn't even know the Enbridge Line 9 oil pipeline shared the right-of-way with the TransCanada gas line behind their homes. Once again, this was largely due to inadequate signage.

4279.

Enbridge had published an ad in a few newspapers in the Belleville area, which is just south of Corbyville, but they didn't bother to notify the people who have the pipeline literally in their backyard.

4280.

Additionally, on June 4th of this year, 2013, I notified the Glenburnie area city councillor about the June 5th Enbridge Kingston open house. Regardless of the fact that he is a councillor for the affected area, and that he resides in the community, Enbridge did not invite him to the meeting.

4281.

If this is any indication of Enbridge's notification of other open houses, the lack of attendance is not surprising. Enbridge conveys the idea that people don't show up to the open houses because they don't care. They quote: “…have other things on their radar”.

4282.

I handed out small paper slips during the Kingston Canada Day parade. These slips had a few quick facts about the project and the line9communities.com Web site. After handing out almost 500 slips, the Web

Transcript


Final argument Ms. Emily Ferguson site saw no increase in visits. This experiment proved what Enbridge already knows; when you reach out to a population who is not directly affected, they show very little interest in the information being provided. 4283.

The failure of gaining visitors to the site through this method reflects the lack of attendance at Enbridge open houses after they filed the required general newspaper advertisements.

4284.

In terms of information requests, it is important to note that numerous of my information requests were not adequately answered by Enbridge. Like many other intervenors, I was told I was engaging on a fishing expedition when I asked direct and relevant questions.

4285.

The role of an intervenor in this process in engaging the Proponent into meaningful discussion is questionable at best.

4286.

Enbridge failed to provide me with a copy of their Canadian Public Awareness Policy or PAP. This is an essential document because the public availability of the PAP is essential to holding Enbridge accountable for public safety and consultation.

4287.

Being a publicly traded company Enbridge must uphold any statements made in print. In other words, a publicly available PAP would ensure that residents know what is expected of Enbridge, and as a result, Enbridge would be held accountable to maintain high levels of public awareness.

4288.

In Emily Ferguson IR 1.2, Enbridge stated: “Enbridge educates the public about pipeline safety and the location of the pipeline through a public awareness program, as well as landowners within 60 metres of the pipeline right of way according to regulations. Enbridge notifies the public within 200 metres of the pipeline of proposed changes in pipeline operation.”

4289.

This statement is not true. I have made contact with residents living within 200 metres of the pipeline who knew nothing about the proposed changes.

4290.

I would like to draw your attention to important information that was answered in Enbridge's response to intervenors. The MSDS sheets provided to

Transcript


Final argument Ms. Emily Ferguson Les Citoyens au Courant, IR 5.17b, clearly indicated that the potential products to be shipped through Line 9 are extremely hazardous to human health. The risk of sending these products through an aging pipeline is too high. 4291.

There has been mention in this proceeding that the drag reducing agent injected at pumping stations along the line will not be hazardous to human health and has been used safely in other Enbridge pipelines. However, I urge you to question this statement: “Small leaks in pipelines can go undetected and leach into the soil and groundwater.”

4292.

Residents in the Glenburnie area and many rural communities along the line rely on well water. I urge you to question how the failure of leak detection systems and the addition of DRA could impact these communities if pinhole leaks slowly leach toxic chemicals into the drinking water of communities along the line.

4293.

Consider this; until Rachel Carson raised the red flag about the potential long-term health effects of DDT we continually exposed our communities to small doses of this carcinogenic chemical.

4294.

In Emily Ferguson IR 1.33, 1.34 and 1.35 Enbridge explained that out of 51 valves along Line 9B, only 43 can be closed automatically by the Edmonton control centre. This leaves eight valves which would require a field technician onsite in the event of an emergency.

4295.

As other intervenors have already pointed out, some of these manual valves are located in rural areas where the only access road is snow covered and impassable in the winter months.

4296.

In Emily Ferguson IR 1.40 Enbridge stated: “After pipe repairs are complete, the steel is cleaned of deleterious materials and abrasively blasted. Coating is then selected and applied in accordance with CSA Z662”.

4297.

Please note, the original pipeline coatings still exist on much of Line 9. This single layer of polyethylene tape met the standards of CSA Z183, 1973 but is now known to disbond from pipelines in moist conditions. The single layer of

Transcript


Final argument Ms. Emily Ferguson polyethylene tape coating does not meet the present day engineering standards of CSA Z662. 4298.

If we know that there is a better pipeline coating option, why are we not demanding that Enbridge upgrade and recoat the entire line in order to protect our communities.

4299.

In Emily Ferguson IR 2, Question 3B response, Enbridge admitted that they do not conduct foot patrols in the Belleville to Brockville area.

4300.

How can Enbridge fulfill the promise of monitoring the pipeline properly, as outlined in this application, if they do not conduct foot patrols along the entire line?

4301.

Enbridge denied to provide a response to the following important question that I raised in Emily Ferguson IR 1.26. My question: “Please provide details of what was completed during the excavations of Line 9B which took place at the following mileposts as filed to the NEB on the following dates.”

4302.

And I had a list. “If a repair was required, please indicate whether it was sleeving, re-coating, pipeline replacement et cetera, and the date of when the repair was finished.”

4303.

Essentially I wanted to know if integrity digs were resulting in actual repairs to pipeline defects or just taking a closer look and determining cracks, dents and corrosion did not meet the Enbridge threshold for repair.

4304.

I urge the NEB to have Enbridge publicly provide results of Line 9 integrity digs, including whether a repair was completed, and details of the remedy.

4305.

I would like to draw the NEB's attention to the length of pipeline between valves. For example, valve 25 would have been in the Glenburnie area but it was never installed. Enbridge did not respond to my requests to provide a reason for this, or what the proposed location of this valve was.

Transcript



Additionally, valve 24 is located in Odessa, Ontario and valve 26 in Glenburnie, Ontario. As per the answer to Emily Ferguson IR 1.36, there are approximately 12 miles between these valves. At 187,472 U.S. gallons per mile, this represents 2,249,664 U.S. gallons of oil between the valves at 300,000 barrels per day.

4307.

If there was a rupture between these valves there is the potential for three times the amount spilled during the 2010 Line 6B disaster to be spilled in my community.

4308.

In order to gain knowledge about the 2010 Line 6B Kalamazoo spill, I travelled to Marshall, Michigan in July of 2013. Population 7,000; clean-up expense to date, over $1 billion.

4309.

I wanted to get a first-hand account of the clean-up efforts and how residents were affected. I was also curious to judge whether Enbridge had changed or improved their public awareness since the incident.

4310.

While touring the Kalamazoo River area I came across numerous information boards with Enbridge documents about the health of the river and what to do when you come in contact with oil.

4311.

Enbridge closed a portion of the Kalamazoo River, actually on the third anniversary of the disaster, clearly exhibiting that the clean-up of diluted bitumen was proving more difficult than expected.

4312.

There are stark similarities between the events leading up to the 2010 Kalamazoo disaster and the current condition and public awareness surrounding Line 9. I would encourage the NEB to carefully consider the findings of the NTSB final report, and question whether Enbridge has truly made substantial improvements to their public awareness policy and pipeline integrity programs.

4313.

In conclusion, I respectfully appreciate the patience of the NEB in the entirety of this process and for the helpful guidance provided by NEB staff to myself as a first time intervenor.

4314.

Madam Chair and Members of the Board, you are now left with a huge task at hand; the moral responsibility of making a decision in the best interest of all communities along Line 9.

Transcript



I would like to leave you with a brief quote: “The choice, after all, is ours to make. If, having endured much, we have at last asserted our ‘right to know’ and if, knowing, we have concluded that we are being asked to take senseless and frightening risks, then we should no longer accept the counsel of those who tell us that we must fill our world with poisonous chemicals; we should look about and see what other course is open to us.”

4316. 4317.

Rachel Carson I strongly urge the NEB to reject the Enbridge Line 9B application and thank you very much for your time.

--- (Applause/Applaudissements) 4318.

THE CHAIRPERSON: Mr. Richmond -- Mr. Richmond has questions.

4319.

MEMBER RICHMOND: Ms. Ferguson, first I want to thank you. You’ve done -- clearly you’ve clearly done a tremendous about of homework leading to this point and provided us with a lot of information to digest and that’s always helpful, obviously the more information, the better. So I want to thank you for the work you’ve done.

4320.

What I’d like to ask you at this point is based on all the information that you’ve learned throughout this exercise that you’ve been engaged in, do you have any specific suggestions you can make, short of not approving the pipeline? We got that that’s your main suggestion but short of that, do you have any other specific suggestions as to conditions we could impose to address some of your more pressing concerns?

4321.

MS. FERGUSON: Unfortunately, I can’t say that I do. In order to make a decision in the best interest of all communities along this line, I would say to reject the pipeline.

4322.

Transcript



Final argument Ms. Louisette Lanteigne 4323.

THE CHAIRPERSON: Ms. Ferguson, these are our questions and I will echo what my colleagues are -- you know -- saying, is that we commend you for the tremendous work you’ve done and thank you for your participation in this hearing.

4324.

MS. FERGUSON: Thank you very much.

4325.

THE CHAIRPERSON: Now we’ll hear from Madame Louisette Lanteigne.

4326.

Madame Lanteigne, I think you have quite a few slides so ---

4327.

MS. LANTEIGNE: Oh no, I don’t have to show all of them.

4328.


4329.

MS. LANTEIGNE: I’ll give specific reference when there’s one that I’ll need. Otherwise, it would take too long, yeah. So I’ll basically be reading as much as I can. The first one I’ll need to show though because it’s a map.

--- FINAL ARGUMENT BY/ARGUMENTATION FINALE PAR MS. LOUISETTE LANTEIGNE: 4330.

MS. LANTEIGNE: I am Louisette Lanteigne, resident of 700 Star Flower Avenue in Waterloo, Ontario. I am a concerned citizen of Waterloo region and I’m Métis. I’m a former delegate of the Phase I hearing for Enbridge Line 9A reversal hearing. After -- oh, hang on. I’ll just begin here.

4331.

So my concerns about Line 9 are as follows; number one, pipeline integrity; number two, lifetime of a pipeline, and number three, drinking water protection.

4332.

Number one, pipeline integrity; as a delegate at the previous Line 9 hearing, I continued to correspond directly with Enbridge afterwards to share concerns about pipeline integrity issues.

4333.

A -- section 1 (a); seismic activity and pipeline integrity. C55-2-2, I would like to see that posted.

4334.

Transcript

This is page one. It’s information provided by the Natural Resources


Final argument Ms. Louisette Lanteigne Canada Web site in a section titled, “Earthquake Zones in Eastern Canada”. If you could scroll down to the first map. Okay. 4335.

Now, there was concern raised about a corridor previously, in regards to one of our earlier speakers mentioned Hilton to Cardinal, suffered a lot of anomalies along the pipeline. I would like to emphasize that the area that she had mentioned is very dense with seismic activity. So there’s -- they may be a correlation into the incidences of pipeline anomalies with that particular zone that is crossing Lake Ontario in the map. I wanted to give reference to that.

4336.

So the map shows locations of seismic activity in Eastern Canada within the same area as Enbridge Line 9. In the second paragraph of this page, it states: “Each year, approximately 450 earthquakes occur in Eastern Canada.” (As read)

4337.

It also gives reference to the fact that over each decade, there is an average of three earthquakes over Magnitude 5. A recent example of Magnitude 5 or higher in Eastern Ontario includes June 23rd, 2010 when a Magnitude 5 earthquake took place in Buckingham, Quebec. And on May 17 th, 2013 this year, there was a Magnitude 5.2 earthquake in the Ottawa Valley that was felt all the way to Toronto. On page 4 of the same report, the last line of “Historical Seismicity”

4338. states:

“An earthquake occurs in Western Quebec seismic zone every five days on average.” (As read) 4339.

It’s at the very end of Historical Seismicity. Every five days there is an earthquake. Whether or not people feel it is irrelevant to the fact they’re taking place and it could have a structural effect.

4340.

C55-2-3, page 2 is a U.S. Geological Survey produced report titled, “Shakeout Scenario Supplemental Study” prepared by Donald Balantyne. The first paragraph states: “There is a long record of oil and gas transmission pipeline failures in California earthquakes due to ground shaking and

Transcript


Final argument Ms. Louisette Lanteigne liquefaction. The large majority of these have been joint failures where the joints were constructed using oxy-acetylene welds installed prior to approximately 1930.” 4341.

The same report, page 4, third paragraph states: “Buried pipelines are vulnerable to permanent ground deformation and wave propagation [that’s earthquake] […]. Ground deformation can include fault rupture, landslide, […] liquefaction and associated lateral spreading and settlement. Pipe damage mechanisms include: compression/wrinkling, joint weld cracking/separation (particularly for oxy-acetylene welds), bending/shear resulting from localized wrinkling, and tension.)”

4342.

And I’m not sure if this is a direct quote or not -- yeah sorry. Like -never mind, that was a note I had made but then I did find that was exactly as stated.

4343.

The same report, page 5 states -- third paragraph. It’s page 4 of the report but page 5 of the PDF: “Historically, steel pipelines with high quality electric arc welded joints perform very well in this shaking environment. Pipelines with joints using oxy-acetylene welds can have failure rates nearly 100 times greater than those with electric arc welded joints.”

4344.

So there are methods that can be used to help circumvent risk. Section 1(b); risk from existing oxy-acetylene gas lines. Ontario has a lengthy oil and gas well drilling and production history dating back to 1858. According to the Ontario Ministry of Natural Resources, tens of thousands of wells have been drilled in Southwestern Ontario prior to modern well design and plugging regulations that were enacted in 1958.

4345.

If this pipeline is in proximity to an old oxy-acetylene gas line or contains sections welded with an oxy-acetylene process, it poses a risk. During the Source Water Protection Act in the Grand River watershed, I witnessed Waterloo regional staff stating that unregistered gas lines were identified as a risk to source water protection. They exist along the watersheds where Line 9 passes.

Transcript



Does Enbridge or the NEB have any information regarding the location of existing oxy-acetylene gas line in proximity to Line 9? Is it possible to confirm beyond the shadow of a doubt that Line 9 itself is free of oxy-acetylene welds?

4347.

Section 1(c); degrading microorganisms in pipeline. C55-3-1, page 1 -- that’s the gas explosions by the way. So C55-3-1, page 1. Now, a student by the name of Daniel Burd won a science contest. The hypothesis is that if PE degrading microorganisms exist in -- do exist in nature, then it will be possible to isolate them and use them for the degradation of plastic bag, otherwise known as PE plastic.

4348.

Last line of the same page states: “A few soil samples were collected at the local landfill in Waterloo Ontario, then mixed together and used as a source of potential PE degrading microorganism.”

4349.

Okay, the PE tape is how they prevent corrosion on these pipelines.

4350.

Page 5, same report, it shows in Table 6 that after 6 weeks’ time 43 percent of the PE film strip were consumed by two naturally occurring bacteria. First paragraph of “Conclusions” identifies the bacteria as sphingomona and pseudomonas.

4351.

C55-2-5 page 10, I sent an email on February 15th, 2013, to Enbridge solicitor Mr. Durnford, in order to inform Enbridge about -- about the seismic risks, the oxy-acetylene welds and the finding of Daniel Burd’s PE eating bacteria.

4352.

Page 10 illustrates how the Kalamazoo pipeline ruptured due to disbonded PE tape.

4353.

Page 11 questions: “Is there any data to either prove or disprove the roll that sphingomona and pseudomonas may play in regards to the “tenting” issues regarding PE tape which can result in tears leading to corrosion issues? Is it reasonable to predict the

Transcript


Final argument Ms. Louisette Lanteigne lifespan of an oil pipe or PE tape in the absence of this data?” 4354.

So section 2, lifetime of a pipeline. Can you go to C55-2-6? Thank you.

4355.

In paragraph 8, on February 13th, 2013, an article titled “Enbridge Officials Grilled About Pipeline Plan”, Mr. Ken Hall, Senior Advisor of Public Affairs for Enbridge was quoted saying the following: “The way we look at our pipeline is that it basically doesn’t have a lifetime -- it is indefinite. It is only that way because you have to take care of it. If we maintain our pipeline out there, it can last for hundreds of years. We’re always in the process of renewing it -- that’s the purpose of the integrity management program. For us a pipeline that is 40 years old is not old by any means.”

4356.

C55-2-7 is a page -- the Web site of the Canadian Energy Pipeline Association’s Web site regarding the history of pipeline. It states, last sentence of the first paragraph: “In 1862 Canada would complete one of the world’s first pipeline, from the Petrolia oil field in Petrolia Ontario to Sarnia.”

4357.

Same page, first line, second paragraph states: “By 1947 only three oil pipelines moved product to market…”

4358.

Based on the information provided by the Canadian Energy Pipeline Association, it is reasonable to state that there is a lack of empirical evidence to suggest that an oil pipeline can function for “hundreds of years”.

4359.

C55-2-6, page 2, paragraph 5, the very last sentence of -- yeah, the very last sentence of this article if you could. Or no, sorry. Sorry -- yes. I’m sorry I’m getting disoriented here.

4360.

“Enbridge Officials Grilled about pipeline plan”, Senior Advisor of Public Affairs Ken Hall states: “Shutoff valves are not on non-navigable waters”.

Transcript



Okay, that’s absolute. He says they “are not on non-navigable waters”. That’s straight from Enbridge. It -- does not give exception. He explained: “The pipeline wall’s width of a ¼” increases to ½ [an inch] when it goes under various bodies of water.”

4362.

C55-2-8, Item 26. When the federal government approved the Omnibus Bill C-45, they removed 90 percent of Canada’s tributaries that were previously protected by the Navigable Waters Act, including reaches of the Grand River and other tributaries that flow where Enbridge Line 9 crosses.

4363.

The vote for -- for Bill C-45 happened without reasonable scientific evidence to support the abolishment of the protective legislation. It passed without proper consultation with First Nations communities, which is, in my view, illogical, unethical and unlawful.

4364.

I sent an email on February 15th, 2013 to Enbridge solicitor Mr. Durnford, inquiring about the location of shutoff valves and the location of the nearest emergency response team should a spill impact the Grand or the Nith River where I live.

4365.

Solicitor Margery Fowke responded in an email sent on March 15th, 2013, C55-2-9 sections 1 and 2 at the top of the page. She states: “Enbridge has an isolation valve on the east side of the Grand River and an isolation valve 4.8 kilometres, that’s 3 miles to the west of the Nith River.”

4366.

She also wrote: “Enbridge has an emergency response team in Flamborough. This is the closest response team.”

4367.

C55-2-10 is a map, if I could see that one. Dash two, dash 10. It’s a map of the Grand and Nith Rivers.

4368.

Now, if you intersect a line going east of Cambridge and straight up from Caledonia, that’s approximately where Flamborough is located.

Transcript



According to MapQuest, it is a 45-minute drive to get from Flamborough to Ayr, where the pipeline crosses the Grand River, and it is reasonable to state the driving time from Flamborough to reach the shutoff valve 4.8 kilometres to the west of the Nith, would take over one hour. The Nith is the bottom river on the left-hand side.

4370.

C55-2-6 page 1, is the last sentence of the article. In the article “Enbridge Officials Grilled About Pipeline Plan”, Barry Callele, Director of Pipeline Control Systems and Leak Detection at Enbridge said: “A leak of 2 percent of the pipeline would release approximately 14,000 litres in 5 minutes. The capacity of the line is 300,000 barrels a day.”

4371.

Using that math in a scenario for the Grand River, an hour of leak of 2 percent of the pipeline equals 168 -- 168,000 litres, so roughly 1,057 barrels of oil. That’s one hour. That’s just the drive.

4372.

Section 3, drinking water protection; the Grand River is the main water supply for Brant, Brantford and Six Nations. Brantford only has a reservoir capacity of two days.

4373.

Should the intake of the Grand be closed for an extended period of time, these communities would be challenged to find an alternative water supply. That’s for their whole community.

4374.

The flow of the Grand discharges into Lake Erie, the most shallow and vulnerable of the Great Lakes. Contaminates in the Grand could also end up in the intake of the proposed Lake Erie pipeline.

4375.

C55-2-9, page 3, second-to-last paragraph. As noted in a letter of March 6, 2013, I sent an email to Solicitor Fowke: “There are significant flood risks for the Nith River based on the data by the Grand River Conservation Authority. This river is excluded from the Navigable Waters Act, therefore there is no federal mandate to have a shutoff valve in spite of the recognized flood risk. The Nith discharges into the Grand.

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Final argument Ms. Louisette Lanteigne That’s the link to the Grand River’s information.” 4376.

The next one, C55-2-11, features a map, it’s a brochure created by the Grand River Conservation Authority titled “Preparing for Flood, A Guide for Residents of New Hamburg”. There’s the map of the Grand River and there are dots featured on it. The second-to-last dot is Ayr. Here, I’ll show you a -- can I walk up? Okay.

4377. 4378.

So over here is where Line 9 crosses in Ayr. Over here is New Hamburg. This is a community where the housing is literally in the flood zone. So if the debris should come through here it could contact the pipe which is only buried a metre deep. And this is also an area of significant ice jams as well. You can see how wiggly it is. So when the ice is cracking up, it really bunches up and it scours the bottom of the river systems.

4379.

So this guideline was made for the residents of New Hamburg. The illustration features the Grand River watershed. On page 2 of this particular guide -- that's the next page of that there -- you'll see the housing that's in the flood zone. They're all the coloured areas. Those are the properties at risk. This is upstream from Line 9.

4380.

C55-2-9, page 4, in the March 6th email to Solicitor Fowke, I gave her the link to the Toronto Future Weather and Climate Change Driver Study by the Toronto Environmental Office produced on October 30th, 2012.

4381.

C55-2-12, page 15, says Toronto's Future Weather and Climate Driver Study states first paragraph, first sentence: "Using a weather-climate model approach, this study projects the future weather changes that Toronto may expect in 2040 [and] 2049."

4382.

That's very fast.

4383.

On the same page, last sentence of the second paragraph it states: "...the model predicts more extreme rainstorms and marked rainfall increases..."

Transcript



July it's going to be over 80 percent more precipitation; August 50 percent more.

4385.

C55-2-13, page 3 and 4: During the first NEB hearing for Line 9, Phase A, as a delegate, I secured a written response from Enbridge regarding their Integrity Management System. To monitor pipes, they conduct aerial patrols approximately every two weeks, underwater survey of water body crossings and depth of cover surveys. They state in the last paragraph: "Such surveys are generally conducted at five year intervals."

4386.

We have more floods than once every five years in the Nith or the Grand. A five-year creek inspection -- once every five years, that's not reasonable.

4387.

C55-2-14, page 1: In an article published June 26th, 2013 in iPolitics titled "Alberta flooding made a bad month worse for oil and gas pipeline", it references multiple spills associated with the Alberta flood, including a rupture of a line carrying processing water owned by Apache Canada near Zama City on May 19th, 2013.

4388.

And then there was a leak of produced water by Penn West Petroleum in the hamlet of Red Earth on June 19, 2013. Then there was the rupture of the Legacy Oil and Gas Limited gas line due to debris slamming into the gas line where it crossed the river in Turner Valley.

4389.

On page 2, second and third paragraph, it states: "There was a second potentially flood-linked spill near Cheecham just south of Fort McMurray on Saturday from Enbridge Pipeline Inc.'s oil-carrying Line 37.

4390.

Enbridge believes around 700 barrels spilled before the leak could be sealed."

4391.

So there's a lot of spills. It doesn't matter which company, there's a lot of spills when the flood happens. So there's a system-wide issue that has to be addressed. It's nothing personal against one company.

4392.

Transcript

C55-2-15, the second paragraph of a Globe and Mail article entitled


Final argument Ms. Louisette Lanteigne "Enbridge restarts Wood Buffalo pipeline closed following Alberta's flooding" states: "The company says the leak of Line 37 was caused by heavy rainfall which triggered ground movement on the rightof-way." 4393.

So that's the rain. It doesn't take a rupture; sometimes it just takes rain to cause the problem.

4394.

Currently, 80 percent of Waterloo region's water supply is from the groundwater, 20 percent is from the Grand River, and for communities downstream that's 100 percent from the Grand. Provincial growth targets expand the population from 553,000 to 742,000 over the next 18 years. Okay, so we're expecting 159,000 people in Waterloo region with many of the proposed developments encroaching upon our recharge areas.

4395.

So regional officials are considering now a Lake Erie -- a pipeline to Lake Erie to increase our water volumes to support future growth and the waste waters will be diverted back through the Grand River.

4396.

The current design constraints of Enbridge Line 9 as installed in 1976 secured a coverage of 1 metre of soil on top of the pipe to protect the system. And that's according to Enbridge's flyer. I received this this year. It's in the flyer that they sent to me.

4397.

So it's basically a Line 9 -- it's called "Delivering Energy to Quebec and Ontario Refineries". That's the name of the publication by Enbridge. So that depth has little regard for the extra flow and flow rate from urban growth, from stormwater runoff, from sprawl over recharge, from increasing human effluent, a possible Lake Erie pipeline and climate change variable. One (1) metre is not going to cut it.

4398.

Line 9 crosses multiple aquifer systems throughout Ontario and Quebec, including the Waterloo Moraine, the Galt Paris Moraine, the Oak Ridges Moraine. All of these areas have similar growth issues.

4399.

Line 9 oil pipeline, built in 1976 in the pre-Walkerton era; back then planners believed natural clay was totally impervious, and since that time scientists realize it only slows the rate of flow, it doesn't stop it.

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In 1970's people didn't have the tools to identify the location of vertical fractures or to delineate zones of influence from the draw down impact that pulls contaminants towards wells, towards our well systems. Our well systems are like vacuums for contaminants. We have road salt going into our wells in spite of topography; it's still being drawn to wells in the subsurface layers.

4401.

They had a lack of data regarding unpredictable sediment composition of complex multilayered aquifers such as the Paris Galt and the Waterloo Moraine. Back in the seventies, many believed if you put a gas on sandy soil it magically evaporated, not realizing they we're actually contaminating bedrock aquifers.

4402.

So we've come a long way in terms of hydrogeological analysis and the assessment of contamination risk. The need is there to revisit the baseline data that allowed this pipe. We need new bore holes, new sediment studies, 12-month creek analysis and updated flow and flow rates if we are to plan with regard to the actual post development impacts since 1976.

4403.

The fate of our municipal water supplies should not be left to the discretion of companies or engineering firms who choose to use outdated data to save a buck.

4404.

A proposed dump in Tiny Township, a proposed quarry pit expansion at Mount Nemo in Burlington, the Highland Quarry in Melancthon, the Capital Paving in West Montrose and the St. Mary's Quarry in Flamborough were all cancelled projects. All of these projects failed due to inadequate monitoring to accurately calculate existing runoff condition, infiltration condition, groundwater discharge; therefore, the components of the water balance may be grossly inaccurate.

4405.

The same issues repeat and are, in my view, the same for Enbridge Line 9, and in all cases they were using the exact same engineering firm, the same one that's going to make the money from a Lake Erie pipeline. I've been following the work for years. It's a pattern. It's a pattern they use to undermine risk and it repeats over, and over, and over again, and it's got to stop.

4406.

The reason the situation happens over and over again is because Canada lacks policy to mandate reasonable test time and methodology. The need

Transcript


Final argument Ms. Louisette Lanteigne is there to establish that. We need criteria defined not by industry, by scientists, to protect the public interests. 4407.

The advantage -- you know, the advantages if the NEB were to facilitate more dialogue with municipalities, and First Nations, and the provinces, and the public would be the discussion about how anticipated growth and climate change scenarios will impact the existing pipeline infrastructure, particularly in regards to flow and flow rates. We can design better. We just need the political will to make it happen.

4408.

I would like to recommend mandatory pipeline closures during incidents of heavy flooding, ice jams or seismic activity, along with inspection of the pipelines and tributaries after these events in order to assure system integrity before the lines are turned back on.

4409.

The need is there to establish reasonable criteria for the mandatory placement of shutoff valves, particularly in areas where tributaries are prone to ice jam, flooding and severe erosion issues.

4410.

We cannot allow industry to govern itself nor should we permit the use of discretionary powers of elected officials to avoid the use of safety protocols. To allow the removal of protective strategies poses a national security risk. It's a threat to our economy, to our communities and the Great Lakes.

4411.

So there is a need to establish the criteria for reasonable design and design constraints that can withstand anticipated growth and climate change impact in order to build a safer more resilient system for the long-term.

4412.

We know we need these resources so let's learn to build it right and build it safe for us and our kids.

4413.

As a Métis, I am concerned about the inequity of enforcement protocol for violations of environmental law in proximity to First Nation's reserves. I'm friends with the people of Aamjiwnaang.

4414.

If toxic discharges occur in Ontario municipalities, the average citizen has the right to report the incident to the MNR or the MOE and the matter can be investigated and charges can be laid. If it happens again, the company may be fined higher as an incentive to prevent future incidents.

Transcript



However, if an incident occurs on a First Nation reserve, the province lacks jurisdictional power to get the offence processed because it's considered a federal issue. It's not their jurisdiction. The federal government often responds saying, “It's pollution, it's a provincial issue”. So it's not their jurisdiction either.

4416.

As a result, First Nations are systematically blocked from enforcement protocols that are afforded to other Canadian residents, and this is unreasonable and inequitable. It doesn't matter, race, creed, colour, if an oil pipe or contamination risk happens, we gotta to deal with it. It's a moral and ethical right thing to do.

4417.

But without the first charges laid there's no cumulative damage costs for repeat offenders on reserves. The result is a situation that gives a vantage for polluting firms to set up next to reserves, in spite of the fact it creates a tort damage against the First Nations people.

4418.

In order to mitigate this power inequity, I implore the NEB to adopt the following: create a clause in the draft agreement to provide First Nations community with a letter of credit worth 100 percent the value of the pipeline that crosses the area of their territorial lands.

4419.

Should there be a spill or rupture of the pipeline due to poor maintenance, structural or mechanical failure, they reserve the right to cash that cheque and to use the fund at the discretion of their own community, to adjust however they need to, to the circumstances.

4420.

This procedure does not negate standard protocol but is added on top of standard protocol to provide an additional economic benefit to an otherwise fiscally and procedurally disadvantaged group should a spill occur. This will also help to provide an economic incentive to assure that the pipeline systems are functioning as designed.

4421.

So that's all I have to offer, and I thank you very much for the opportunity to share with you.

4422. 4423.

THE CHAIRPERSON: Mr. Richmond? MEMBER RICHMOND: What would you define as "heavy rainfall" or "heavy flooding" that merits a precautionary shutdown of the pipeline?

Transcript



MS. LANTEIGNE: Well, it's based on the sediment of the watershed. It has to be a localized approach because some watersheds, it could be a gravel basin and not much of a problem. Others, it could be total silt, and you could see erosion happening quite quickly. It depends on how much debris is in the creek if it's a flood.

4425.

So it's really -- it has to be something that is established in partnership with municipalities and the Conservation Authorities because they know these tributaries better than anybody else.

4426.

MEMBER RICHMOND: If we do shut the pipeline down during those heavy flooding or heavy rainfall, there's still oil in it.

4427.

MS. LANTEIGNE: Yes. Yes, but at least the volumes are better controlled, because if we were to mandate valve on both sides and we know there's an issue in the river, we can close it at both ends and prevent, right there. And that's how we got to go.

4428.

Because the thing is, it's not good enough to have it just on one side. If we know the river is the source, then we can stop it at the source. And that's the most likely vulnerable source because it has the risk of most exposure.

4429.

Build something on the land, the erosion risks are less; build something in the water, erosion risks are high.

4430.

MEMBER RICHMOND: On the subject of valves, if we refer to your submissions, there's some statements made by Enbridge regarding valves in the 9A process.

4431.

MS. LANTEIGNE: Yeah.

4432.

MEMBER RICHMOND: That process is complete now and not within our mandate here but ---

4433.

MS. LANTEIGNE: The thing is the scenario that it revealed for me is reflected in other communities all up and down the pipeline. It's not localized, but it facilitated my knowledge on it and that's why I included that hazard; not because I want to address that as a specific but just as a general issue, it's a system-wide issue that we need to work on.

Transcript


Final argument Ms. Louisette Lanteigne 4434. 4435.

I mean I also included the flood of Turner Valley. MEMBER RICHMOND: I was going to try and draw your focus to 9B and stay what we’re focused on.

4436. 4437.

MS. LANTEIGNE: Sure. MEMBER RICHMOND: And in this 9B process, I think you'll find if you look at the transcripts from last week, in their opening statement, Enbridge made similar statements to the ones you're referring to in 9A.

4438.

MS. LANTEIGNE: M'hm.

4439.

MEMBER RICHMOND: So I want to focus on the 9B statements that they made where they -- in response to a number of intervenor concerns, they pointed to their valve replacement improvement process but then they said that that valve replacement process is not part of this project, as defined. And so just focusing on those statements then, is your ---

4440.

MS. LANTEIGNE: Yes, what I found really curious was the absolute nature of how they stated that shut-off valves are not on non-navigable waters. They said that as an absolute, which conflicts with the concept that they have a flexibility on the valve placement.

4441.

MEMBER RICHMOND: Okay.

4442.

MS. LANTEIGNE: Thank you.

4443.

THE CHAIRPERSON: Thank you, Ms. Lanteigne, and I noted that you expanded on your subject matters from the Phase 1.

4444.

It's late but when I look at the next presenter, I think it's possible to hear her. So Marilyn Eriksen, if she is still here?

4445.

MR. WATTON: Madam Chair, I'm not certain that she's available this afternoon.

4446.

Transcript




MR. WATTON: So we may have run our course on available presenters for the day.

4448.

THE CHAIRPERSON: Good, okay.


THE CHAIRPERSON: So it was a long day and a lot of presentations.

4450.

So I will ask Mr. Watton to walk us through who might be showing up tomorrow and in which order.

4451.

MR. WATTON: Sure. And one of the things that we'll try to do for all the parties who are present in the room, because we did have a number of parties who requested to present tomorrow and Friday, we'll do an updated List of Appearances and leave it in the back of the room for everybody so that they can check against that tomorrow.

4452.

But I will just read it out now verbally as it appears at the moment, subject of course to change.

4453.

But tomorrow, we do have a couple of follow-up undertakings to deal with the City of Toronto, which we can deal with at your convenience. But the order of new appearances would be Dr. Nicole Goodman, the Grand River Indigenous Solidarity, the Great Lakes and St. Lawrence Cities Initiative, Sustainable Trent, Ms. Marilyn Eriksen, the Ontario Ministry of Energy, the Ontario Petroleum Institute, the Ontario Pipeline Landowners Association.

4454.

And assuming that we're in the range of the time estimates given, we will likely get to start with Rising Tide Toronto as well.

4455.

And again, that may carry over into the next day, and then the remaining intervenors on the Order of Appearances will be Ms. Sarah Harmer, the Council of Canadians for York University, the Équiterre Coalition, Ms. Carrie Lester, and Mr. John Quarterly. And following that, we move to reply argument from Enbridge.

4456.

Again, subject to any change, but that's the order as it stands at the moment, and we'll try to provide a written update of that in the back of the room

Transcript


Final argument Ms. Louisette Lanteigne for everybody tomorrow. 4457. 4458.

THE CHAIRPERSON: So thank you for the updates. So thanks to all the participants today, it was a fulsome day. So we'll see you back tomorrow at 9 o'clock.

4459.

Thank you very much.

--- Upon adjourning at 5:53 p.m./L’audience est ajournée à 17h53

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