As the federal review of the Enbridge Northern Gateway Project enters its final stages, some difficult questions loom for the Joint Review Panel (JRP) overseeing the hearings, according to a report released today by the UVic Environmental Law Centre.
Unlike most other governmental entities involved in the hearings, the Government of British Columbia has registered as an Intervenor rather than a Government Participant. Nor has the BC Government tendered evidence — the deadline for doing so having expired almost six months ago. On this basis, BC is taking the position that it does not have to answer questions or produce witnesses for cross-examination at the hearing.
The Alberta Government and other Government Participants are subject to cross-examination on evidence they have led. They may also be cross-examined on other topics pre-approved by the JRP.
In May 2012, BC Premier Christy Clark indicated in the Legislature that BC is still deciding whether to call evidence. And in June 2012, it came to light that the BC Ministry of Environment is in possession of a 30-page technical assessment of the project.
“The BC Government’s decision to call no evidence, and the potential that it will reverse this decision, raises difficult and complex legal issues for this hearing process,” said Chris Tollefson ELC Executive Director and co-author of the ELC’s new report. “This report tries to clarify what is going on for the benefit of our clients and other British Columbians concerned about the Enbridge proposal and the hearing process.”
The ELC report concludes it is unclear whether BC will be allowed to tender late evidence should it apply to do so. The JRP’s decision will depend on the reasons offered to justify the delay, the length of the delay and the prejudicial impact on other parties.
Complicating matters, an Intervenor in the hearings (Coastal First Nations) has recently filed an application to the JRP to compel production of and require cross-examination on the technical assessment of the project reported to be in the possession of the BC Ministry of Environment. The JRP has yet to rule on this application.
The UVic Environmental Law Centre is a non-profit society that provides pro bono legal research, advice and advocacy on public interest environmental issues in British Columbia. The report released today was co-authored by ELC articling student Emma Hume and ELC Executive Director Chris Tollefson.[Read the Report:
The Government of BC and the Enbridge Northern Gateway Project Joint Review Panel: A Special Report into Emerging Procedural and Evidentiary Issues] [Read the Appendices]
For more information, contact Chris Tollefson, ELC Executive Director; Hakai Chair in Environmental Law & Sustainability; Professor of Law, University of Victoria: ctollef [at] uvic.ca.