JOINT REVIEW PANEL FOR THE ENBRIDGE NORTHERN … · Examination by Ms. Griffith Transcript Hearing Order OH-4-2011 --- (A short pause/Courte pause) 5381. THE CHAIRPERSON: I can confirm

JOINT REVIEW PANEL FOR THE ENBRIDGE

NORTHERN GATEWAY PROJECT

COMMISSION D’EXAMEN CONJOINT DU PROJET

ENBRIDGE NORTHERN GATEWAY

Hearing Order OH-4-2011

Ordonnance d’audience OH-4-2011

Northern Gateway Pipelines Inc.

Enbridge Northern Gateway Project

Application of 27 May 2010

Demande de Northern Gateway Pipelines Inc.

du 27 mai 2010 relative au projet

Enbridge Northern Gateway

VOLUME 109

Hearing held at

Audience tenue à

Columbus Community centre

7201 Domano Blvd.

Prince George, British Columbia

November 27, 2012

Le 27 novembre 2012

International Reporting Inc.

Ottawa, Ontario

(613) 748-6043

© Her Majesty the Queen in Right of Canada 2012

as represented by the Minister of the Environment

and the National Energy Board

© Sa Majesté du Chef du Canada 2012

représentée par le Ministre de l’Environnement et

l’Office national de l’énergie

This publication is the recorded verbatim transcript

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

official languages, depending on the languages

spoken by the participant at the public hearing.

Cette publication est un compte rendu textuel des

délibérations et, en tant que tel, est enregistrée et

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

officielles, compte tenu de la langue utilisée par le

participant à l’audience publique.

Printed in Canada Imprimé au Canada

Transcript Hearing Order OH-4-2011

HEARING /AUDIENCE

OH-4-2011

IN THE MATTER OF an application filed by the Northern Gateway Pipelines

Limited Partnership for a Certificate of Public Convenience and Necessity

pursuant to section 52 of the National Energy Board Act, for authorization

to construct and operate the Enbridge Northern Gateway Project.

HEARING LOCATION/LIEU DE L'AUDIENCE

Hearing held in Prince George (British Columbia), Tuesday, November 27, 2012

Audience tenue à Prince George (Colombie-Britannique), mardi, le 27 novembre 2012

JOINT REVIEW PANEL/LA COMMISSION D’EXAMEN CONJOINT

S. Leggett Chairperson/Présidente

K. Bateman Member/Membre

H. Matthews Member/Membre


APPEARANCES/COMPARUTIONS (i)

APPLICANT/DEMANDEUR Northern Gateway Pipelines Inc. - Mr. Richard A. Neufeld, Q.C. - Mr. Ken MacDonald - Mr. Bernie Roth - Ms. Laura Estep - Ms. Kathleen Shannon - Mr. Dennis Langen - Mr. Douglas Crowther INTERVENORS/INTERVENANTS Alberta Federation of Labour - Ms. Leanne Chahley Alberta Lands Ltd. - Mr. Darryl Carter Alexander First Nation - Ms. Caroline O’Driscoll BC Nature and Nature Canada - Mr. Chris Tollefson - Mr. Anthony Ho Doug Beckett Province of British Columbia - Ms. Elizabeth Graff - Mr. Christopher R. Jones Nathan Cullen C.J. Peter Associates Engineering - Mr. Chris Peter Canadian Association of Petroleum Producers (CAPP) - Mr. Keith Bergner - Mr. Lewis L. Manning Cenovus Energy Inc., Nexen Inc., Suncor Energy Marketing Inc., Total E&P Canada Ltd. - Mr. Don Davies Coastal First Nations - Ms. Brenda Gaertner Council of the Haida Nation - Ms. G.L. Terri-Lynn Williams-Davidson


APPEARANCES/COMPARUTIONS (Continued/Suite)

(ii) INTERVENORS/INTERVENANTS Daiya-Matess Keyoh - Mr. Kenny Sam - Mr. Jim Monroe Douglas Channel Watch - Mr. Murray Minchin - Ms. Cheryl Brown - Mr. Kelly Marsh - Mr. Manny Arruda Driftpile Cree Nation - Mr. Amyn F. Lalji Enoch Cree Nation, Ermineskin Cree Nation and Samson Cree Nation - Mr. G. Rangi Jeerakathil - Mr. Sean Fairhust - Mr. Brock Roe ForestEthics Advocacy, Living Oceans Society and Raincoast Conservation Foundation - “The Coalition” - Mr. Barry Robinson - Mr. Tim Leadem, Q.C. - Ms. Sasha Russell - Ms. Karen Campbell Fort St. James, District of - Mr. Kevin Crook Fort St. James Sustainability Group - Mr. Lawrence Shute - Ms. Brenda Gouglas - Ms. Candace Kerr Friends of Morice-Bulkley - Ms. Dawn Remington Gitxaala Nation - Ms. Rosanne M. Kyle - Mr. Robert Janes Government of Alberta - Mr. Ron Kruhlak Government of Canada - Mr. James Shaw - Ms. Dana Anderson


APPEARANCES/COMPARUTIONS (Continued/Suite)

(iii) INTERVENORS/INTERVENANTS Haisla Nation - Ms. Jennifer Griffith - Ms. Hana Boye - Mr. Jesse McCormick - Mr. Allan Donovan Kelly Izzard Kitimat Valley Naturalists - Mr. Walter Thorne - Mr. Dennis Horwood - Ms. April MacLeod MEG Energy Corp. - Mr. Loyola Keough - Mr. David A. McGillivray Northwest Institute of Bioregional Research - Ms. Patricia Moss Office of the Wet'suwet'en - Mr. Mike Ridsdale - Mr. David De Wit - Mr. Ken Rabnett Swan River First Nation - Mr. Jay Nelson - Ms. Dominique Nouvet United Fishermen and Allied Workers' Union - Ms. Joy Thorkelson - Mr. Hugh Kerr Terry Vulcano Josette Wier National Energy Board/Office national de l’énergie - Mr. Andrew Hudson - Ms. Carol Hales - Ms. Rebecca Brown - Mr. Asad Chaudhary


TABLE OF CONTENTS/TABLE DES MATIÈRES

(i)

Description Paragraph No./No. de paragraphe

Opening remarks by the Chairperson 5356

Preliminary matters brought forward by Ms. Griffith 5359

Haisla Nation Panel 4

Dr. Praveen Malhotra

Dr. Ellen Rathje

- Examination by Ms. Griffith 5370

- Examination by Ms. Shannon 5402

- Examination by the Chairperson 5758

- Examination by Member Bateman 5772

Government of Canada Panel 1

Dr. Caroline Caza Dr. John Cassidy

Dr. Barry Smith Dr. Andrée Blais-Stevens

Ms. Coral DeShield Mr. Bradley Fanos

Ms. Ailish Murphy Mr. Michael Engelsjord

Mr. Paul Gregoire Ms. Tracey Sandgathe

Mr. André Breault Mr. John Clarke

Ms. Lucy Reiss Mr. Alasdair Beattie

Ms. Manon Lalonde Dr. Judith Beck

Ms. Laura Maclean Dr. Bernard Vigneault

Dr. Douglas Maynard Ms. June Rifkin

Dr. Elizabeth Campbell Dr. Donna Kirkwood

Mr. Steven Taylor Ms. Catherine Nielsen

Mr. Steven Virc

- Preliminary matters 5796

- Examination by Ms. Thorkelson 5871

- Examination by Mr. Neufeld 6541

- Examination by Mr. Hudson 6623

- Examination by Member Bateman 6721

- Examination by the Chairperson 6734

- Examination by Member Matthews 6774


TABLE OF CONTENTS/TABLE DES MATIÈRES (Continued/Suite)

(ii)



Dr. Andrée Blais-Stevens

Dr. Donna Kirkwood

Mr. Bob Gowe

Dr. John Cassidy

Dr. Bill Santos

Mr. Eric Magnuson

Mr. John Clarke

- Examination by Ms. Anderson 6821

- Examination by Mr. Peter 6889


LIST OF EXHIBITS/LISTE DES PIÈCES

(i)

No. Description Paragraph No./No. de paragraphe

AQ49-A Northern Gateway – Seismic Hazard Map #1 – Natural

Resources Canada - 2010 National Building Code

of Canada 5693

AQ50-A United Fishermen and Allied Workers’ Union

– DFO Mandate 5957

AQ50-B United Fishermen and Allied Workers’ Union – DFO

Habitat Policy

AQ50-C United Fishermen and Allied Workers’ Union

– Practitioners’ Guide – to the Risk Management

Framework for DFO Habitat Management staff,

Version 1.0 – Habitat Management Program – Fisheries

and Oceans Canada

AQ50-D United Fishermen and Allied Workers’ Union

- Government of Canada document titled “A Framework

for the Application of Precaution in Science-Based

Decision Making about Risk”

AQ50-E United Fishermen and Allied Workers’ Union

– Cumulative Effects Assessment Practitioner’s Guide

dated February 1999

AQ51-A C.J. Peters Associates Engineering – ASTM G205-10

– Standard Guide for Determining Corrosivity of Crude

Oils 7087

AQ51-B C.J. Peters Associates Engineering – NACE International

- CFD Study of Solids Deposition in Heavy Oil

Transmission Pipeline including Velocity Magnitude

AQ51-C C.J. Peters Associates Engineering – Enbridge System

and Commodities Presentation by Ashok Anand dated

October 9, 2012

AQ51-D C.J. Peters Associates Engineering – NACE Conference

Papers dated March 1, 2012


RULINGS/DÉCISIONS

(i)



UNDERTAKINGS/ENGAGEMENTS

No. Description Paragraph No./No. de paragraphe

Preliminary matters


--- Upon commencing at 8:30 a.m./L’audience débute à 8h30

5356. THE CHAIRPERSON: Good morning, everybody.

5357. Are there any preliminary matters that parties wish to raise before we

get underway?

5358. Ms. Griffith?

5359. MS. GRIFFITH: I don’t know if it’s really a preliminary matters but

it just relates to the examination of our witnesses this morning.

5360. THE CHAIRPERSON: Go ahead.

5361. MS. GRIFFITH: So, first of all, I’d like to express the appreciation

of the Haisla Nation to the Joint Review Panel to Canada’s witness panels and to

Northern Gateway in accommodating the timing constraints of the Haisla Nation

witnesses.

5362. I’ve spoken with Ms. Shannon this morning and she’s agreed to

question our witnesses sequentially rather than as a panel to accommodate Ms.

Rathje’s timing restrictions. Ms. Shannon informs me that this will not affect the

amount of time that her questions will require.

5363. So with the Panel’s blessing, we propose that Ms. Shannon ask her

questions of Ms. Rathje -- Dr. Rathje, sorry -- Dr. Rathje first and then if the

Panel or Panel counsel has any questions of Dr. Rathje if these could be asked

once Ms. Shannon is complete with her questioning, this would address Ms.

Rathje’s timing constraints.

5364. And I leave it in your hands as to whether we should swear the

witnesses both now or whether we should swear them sequentially.

5365. THE CHAIRPERSON: Thank you, Ms. Griffith.

5366. The Panel has no troubles accommodating the proposal. What I would

suggest though is let’s swear both witnesses now and then we’re done that piece

of it.


Examination by Ms. Griffith


PRAVEEN MALHOTRA: Affirmed

ELLEN RATHJE: Sworn

5367. THE CHAIRPERSON: Good morning to both the witnesses.

5368. Ms. Griffith, will you proceed with the witnesses, please?

5369. MS. GRIFFITH: Thank you, Madam Chair.

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

5370. MS. GRIFFITH: I’ll first lead Ms. Rathje through her direct

evidence, or Dr. Rathje.

5371. DR. ELLEN RATHJE: Thank you.

5372. MS. GRIFFITH: Dr. Rathje, your personal written direct evidence

has been entered as Exhibit D80-87-2 and your curriculum vitae has been entered

as Exhibit D80-27-17 in this proceeding.

5373. Can you confirm that this evidence was prepared under your specific

direction and control and is accurate to the best of your knowledge and belief?

5374. DR. ELLEN RATHJE: I can and do.

5375. MS. GRIFFITH: And do you accept and adopt it as part of your

evidence in this proceeding?

5376. DR. ELLEN RATHJE: I do.

5377. MS. GRIFFITH: Madam Chair, the Haisla Nation is presenting Dr.

Rathje as an expert in the area of geo-technical engineering and we ask that she be

so qualified.

5378. THE CHAIRPERSON: Good morning, Dr. Rathje. It’s Sheila

Leggett speaking.

5379. Have you given expert testimony before a regulatory tribunal before?

5380. DR. ELLEN RATHJE: No, I have not.


Examination by Ms. Griffith


--- (A short pause/Courte pause)

5381. THE CHAIRPERSON: I can confirm that we’ve not received any

objections to having Dr. Rathje qualified as an expert witness for the purpose of

this proceeding. Are there any objections or comments at this point?

--- (No answer/Aucune réponse)

5382. THE CHAIRPERSON: Seeing none, the Panel accepts Dr. Rathje as

an expert to give opinion evidence in the area that you’ve identified, Ms. Griffith.

5383. MS. GRIFFITH: Thank you, Madam Chair, and I will now proceed

with the direct evidence of Dr. Malhotra.

5384. Dr. Malhotra, your personal written direct evidence has been entered

as Exhibit D80-87-3 and your curriculum vitae has been entered as Exhibit D80-

81-2 in this proceeding.

5385. Can you confirm that this evidence was prepared under your specific

direction and control and is accurate to the best of your knowledge and belief?

5386. DR. PRAVEEN MALHOTRA: Yes, it is.

5387. MS. GRIFFITH: Do you accept and adopt it as part of your evidence

in this proceeding?

5388. DR. PRAVEEN MALHOTRA: Yes, I do.

5389. MS. GRIFFITH: Madam Chair, the Haisla Nation is presenting Dr.

Malhotra as an expert in the area of seismic risk and we ask that he be so

qualified.

5390. THE CHAIRPERSON: Good morning, Doctor -- is it Dr. Malhotra?

5391. DR. PRAVEEN MALHOTRA: Yes, it is.

5392. THE CHAIRPERSON: Oh, thank you. Good morning, Dr.

Malhotra.


Examination by Ms. Shannon


5393. Can you tell us if you’ve given expert evidence before a regulatory

tribunal before?

5394. DR. PRAVEEN MALHOTRA: No, I have not.

5395. THE CHAIRPERSON: I confirm again that we’ve received no

objections to having Dr. Malhotra qualified as an expert witness for the purpose

of this proceeding.

5396. Are there any objections or comments on the qualification of this

witness here?

--- (No response/Aucune réponse)

5397. THE CHAIRPERSON: Ms. Griffith, the Panel accepts Dr. Malhotra

as an expert to give opinion evidence in the area that you’ve identified.

5398. MS. GRIFFITH: Thank you, Madam Chair.

5399. So I turn the witnesses over to Ms. Shannon now.

5400. THE CHAIRPERSON: Good morning, Ms. Shannon.

5401. Please proceed with your questions, first, of Dr. Rathje.

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

5402. MS. SHANNON: Thank you, Madam Chair, Panel members.

5403. And, Dr. Rathje, can you hear me okay?

5404. DR. ELLEN RATHJE: Yes, very well.

5405. MS. SHANNON: Thanks.

5406. So as I said, I am Kathleen Shannon, counsel for Northern Gateway.

5407. Dr. Rathje, I reviewed your CV and I see that you are quite an

academic. You have done a number of studies characterizing seismic hazards,




predicting earthquakes and predicting ground motion.

5408. I don’t see any experience in risk mitigation for pipeline projects; is

that correct?

5409. DR. ELLEN RATHJE: That’s true, I do not have experience

specifically for pipelines but I’ve worked on other critical infrastructure projects

such as nuclear power plants and in terms of the seismic hazard assessment.

5410. MS. SHANNON: Okay.

5411. DR. ELLEN RATHJE: One other thing I would want to point out is,

I do not predict earthquakes, I do predict the effects of earthquakes.

5412. MS. SHANNON: Thank you for clarifying that.

5413. DR. ELLEN RATHJE: Thanks

5414. MS. SHANNON: Nor do you have any experience in designing

pipelines in response to seismic risk; is that correct?

5415. DR. ELLEN RATHJE: That is true.

5416. MS. SHANNON: Dr. Rathje, in your written evidence -- and, by that,

I mean the document entitled “Geohazard Issues for the Enbridge Northern

Gateway Project” which is Exhibit D80-27-16 -- you describe some issues or

concerns you have regarding potential geohazards in the area of the pipeline and

how to assess and mitigate those risks.

5417. DR. ELLEN RATHJE: Yes, I do.

5418. MS. SHANNON: It appears to me that some of those

recommendations will need to be addressed by Northern Gateway during detailed

engineering but I believe a number have already been addressed in evidence filed

by Northern Gateway and in the testimony of the Pipeline and Marine Terminal

Design and Engineering Panel.

5419. And that’s what I’d like to ask you about today.

5420. DR. ELLEN RATHJE: Okay.




5421. MS. SHANNON: So, Madam Clerk, if you could bring up Exhibit

D80-27-16 and turn to Adobe page 2?

5422. Dr. Rathje, can you see that first bullet point?

5423. DR. ELLEN RATHJE: Yes, I can.


5425. So in your evidence here, you suggest that detailed maps of a 1:25,000

scale are required for a geohazard analysis.

5426. Is that correct?

5427. DR. ELLEN RATHJE: Yes.

5428. MS. SHANNON: Have you reviewed the seismic quantitative risk

assessment filed in response to JRP IR 8.1b, as Exhibit B75-2 filed by Northern

Gateway?

5429. DR. ELLEN RATHJE: Do you mean semi-quantitative?

5430. I believe you said “seismic”.

5431. MS. SHANNON: I’m sorry, semi-quantitative risk assessment, yes.

5432. DR. ELLEN RATHJE: Yes, I have.


5434. Ms. Niro, would you please pull up that document, it’s Exhibit B75-2?

5435. And go to Adobe page 143. Yep, thank you.

5436. So as part of that semi-quantitative risk assessment, there’s a failure

likelihood assessment and we see here, Section 2.8 and it states ---

5437. DR. ELLEN RATHJE: Yep.




5438. MS. SHANNON: Okay, it states:

“In order to assess the degree of threat that a pipeline will be

exposed to, a thorough evaluation of all information along the

length of the pipeline [was] […] completed. [To ensure

completeness this] […] review [included] […] published

information, such as soils maps, topographic maps,

hydrological maps, pipeline alignment sheets, incident reports

related to ground movement, hydrological events, and floods,

studies, texts, and engineering reports.”

5439. You’d agree with me that the approach Enbridge took for its

geohazard analysis included a review of many forms of data, not just maps being

1:25,000 scale or otherwise?

5440. DR. ELLEN RATHJE: Yes, this shows that a lot of information was

taken into account.

5441. The key is then presenting the results of that analysis in a visual form,

such as maps, so that we can fully understand the density of hazards along the

hazard route -- or along the pipeline route, excuse me.

5442. MS. SHANNON: So you don’t necessarily have an issue with the

way in which review was conducted or the assessment was conducted?

5443. DR. ELLEN RATHJE: Well, I’ve looked at the maps and they

certainly go a long way towards to visualizing and understanding the geohazards

along the route.

5444. A couple of issues that I just noted, for instance, is in some of the

previous documents that Enbridge has submitted -- Northern Gateway, excuse me

-- there has been identified maps -- mapped areas of sensitive marine clays and

rerouting around those, in particular near Iron Mountain, was done but just very --

but the rerouting took you basically just outside the area of those marine clays.

5445. Yet, when I looked at those maps that were developed, those areas of

marine clays, despite the fact that they’re just adjacent to the current route, are not

indicated.

5446. So while I think that this is a great step forward in terms of moving in




the right direction, it doesn’t seem like those maps yet are complete, at least to

evaluate right now the geohazards potential across much of the -- some of the

pipeline route, at least.

5447. MS. SHANNON: So again, the issue is the maps that have presented

in the evidence so far, not the assessment?

5448. DR. ELLEN RATHJE: Okay so, can you ask the question again

with respect to the maps?

5449. MS. SHANNON: From your testimony so far, it appears to me that

the issue you have is the scale of the maps that have been presented in the

assessment but you don’t have an issue with the assessment itself?

5450. DR. ELLEN RATHJE: No, it’s not -- it has nothing to do with the

scale, it has to do with the completeness.

5451. I was just noting that from previous information from Northern

Gateway, there was some geohazards identified adjacent to the pipeline and in the

maps I didn’t see one -- at least one important one: the sensitive clays was not

indicated.

5452. So I think, while their approach is getting closer, I’m not sure those

maps are complete at this time.


5454. And you understand that, at this time, Northern Gateway is in the

preliminary engineering phase on its assessment, rather than the detailed

engineering phase?

5455. DR. ELLEN RATHJE: I do -- I do understand that but if they had

evaluated the marine clays previously to look at the routing, I would have

expected that information to be included on this type of a map.

5456. MS. SHANNON: Okay, so you’re looking for the information to be

on the map?

5457. DR. ELLEN RATHJE: It’s a -- in my mind, it’s a geohazard that’s

within the one-kilometre route, you know, corridor and, therefore, I was just




surprised that it wasn’t there.


5459. And if we go back to your evidence, that’s Exhibit D80-27-16 ----

5460. DR. ELLEN RATHJE: M'hm.

5461. MS. SHANNON: --- you also note that Northern Gateway should be

assessing the geohazards in a five-kilometre corridor.



5464. MS. SHANNON: And have you reviewed AMEC’s report on

quantitative geohazard assessment for the proposed Northern Gateway pipelines

filed as part of the semi-quantitative risk assessment?


5466. MS. SHANNON: And, Ms. Niro, could we go back to that document,

Exhibit B75-2, and turn to page 162?

5467. So that first paragraph, Ms. Rathje, if you could just take a -- or, Dr.

Rathje, I’m sorry, if you could take a look and just review that.


5469. MS. SHANNON: And you’ll ---

5470. DR. ELLEN RATHJE: I’m familiar with this document.


5472. So you’ll agree with me that AMEC, who performed this assessment

for Northern Gateway, stated that it’s not limiting itself to a certain kilometre

width for the assessment?

5473. DR. ELLEN RATHJE: Yes, I was very pleased to read that when I




did look at this document.


5475. Ms. Niro, could we go back to Dr. Rathje’s evidence again, Exhibit

D80-27-16 and page to Adobe page 2?

5476. And here, Dr. Rathje, you discuss the need for identification of

mitigation measures and ---


5478. MS. SHANNON: --- specific information for those measures?


5480. MS. SHANNON: And I believe you described that, again, in

additional detail on Adobe page 7.

5481. Have you reviewed the Kitimat River Valley design, construction and

operations report filed as Exhibit B83-8, as part of Northern Gateway’s reply

evidence?


5483. MS. SHANNON: And, Ms. Niro, could we turn to that document?

5484. It’s B83-8 and starting on Adobe page 12.

5485. So if we look at that second point, starting with Field Validation, ---


5487. MS. SHANNON: --- you’ll agree with me, Dr. Rathje, that this study

includes an evaluation of mitigations proposed to address geohazards?

5488. DR. ELLEN RATHJE: Well, this document looks at at least six

examples of mitigation or places where mitigation can be applied.

5489. So, in those six cases, yes, they looked at detailed mitigation concepts.




5490. MS. SHANNON: And it is this kind of detailed mitigation measure

information that you are looking for?


5492. And however, we -- what would be useful would be for looking for --

at all the potential geohazards across the pipeline route, to have examples of the

mitigation measures for all of those types of potential geohazards.

5493. MS. SHANNON: And as you pointed out, this is just an example for

the Kitimat Valley area?

5494. DR. ELLEN RATHJE: Yes, and for six locations within the Kitimat

Valley Area.

5495. MS. SHANNON: Yes, exactly. Exactly, okay.

5496. Ms. Niro, could we go back to Exhibit D80-27-16 and back to Adobe

page 2 and scroll down a bit?

5497. So in the second point from the bottom there, Dr. Rathje, you suggest

that:

“A schedule for in-line inspection of […] pipeline[s] should be

developed particularly for areas of landslide potential.”


5499. DR. ELLEN RATHJE: Yeah.

5500. MS. SHANNON: Have you reviewed Northern Gateway’s

commitment table filed as Exhibit B165-3 in response to JRP IR 15?

5501. DR. ELLEN RATHJE: I’m not sure I have. Perhaps if you bring it

up I could take a look and see if I’ve read that part.

5502. MS. SHANNON: So Ms. Niro’s brought that up on the screen and if

we could turn to Adobe page 21, and focus in on commitment PI–04-02. It’s

quite hard to read so far, so we’ll have to zoom in a bit.




5503. Can we make that a little bit bigger? Sorry. Okay.

5504. And if we go -- I’m not sure if it’s farther up or down, we’re looking

for commitment PI-04-02. There it is. Yes.

5505. DR. ELLEN RATHJE: M’hm.

5506. MS. SHANNON: Okay. So here Northern Gateway has committed

to running geometry ILI tool prior to placing the pipelines in-service.

5507. DR. ELLEN RATHJE: Excuse me. Can you scroll to the right so I

can read -- okay. Thank you. Go ahead.

5508. MS. SHANNON: Okay. And there’s a second commitment on this

topic and that’s on Adobe page 25 --

5509. DR. ELLEN RATHJE: Well, did you have a question about this?

5510. MS. SHANNON: No. I want to -- I’d actually like to refer you to

both -- both commitments and then I’ll ask a question.

5511. DR. ELLEN RATHJE: Okay. Great.

5512. MS. SHANNON: So Ms. Niro, if you could scroll to Adobe page 25,

and here we’re looking for PI-06-03. So that’s on the screen now.

5513. DR. ELLEN RATHJE: M’hm.

5514. MS. SHANNON: And perhaps you could, again, scroll over for Dr.

Rathje.

5515. So in addition to -- in addition to running ILI prior to start-up,

Northern Gateway will increase the frequency of its in-line inspections across the

entire pipeline system by a minimum of 50 percent over and above the current

standards.

5516. And, Dr. Rathje, you’ll agree with me that Northern Gateway here has

committed to running ILI inspections with a focus on higher risk areas?




5517. DR. ELLEN RATHJE: I see that as true.

5518. Can you give me the exact rate of those inspections? Is it every year?

5519. MS. SHANNON: I believe what Northern Gateway is committed to

is a minimum of 50 percent over and above the current standards.

5520. DR. ELLEN RATHJE: I’m not familiar with what that exact

standard is so that’s why I was asking.

5521. MS. SHANNON: I am not sure of where that is on the -- in the

evidence. But you’ll agree with me that is over and above the standards ---

5522. DR. ELLEN RATHJE: It is.

5523. MS. SHANNON: --- that are set in Canada?

5524. Thank you.

5525. And can we go back again to Dr. Rathje’s evidence, Exhibit D80-27-

16, at Adobe page 2?

5526. And here you’ve stated:

“The return period for the design earthquake ground motions

has not been specified. The appropriate levels of shaking for

seismic design cannot be determined without the owner and

engineer deciding upon an appropriate return period. Current

building codes are based on a return period of 2,475 years.”

5527. And you describe this in additional detail at Adobe page 5, stating the

Canada and U.S. building codes are based on return periods of 2,475 years,

“which represents [...] a 2% probability of exceedance in 50 years.”


5529. DR. ELLEN RATHJE: That is.

5530. MS. SHANNON: So, I take it from your written evidence that a

design based on a 2,475 year return period would be acceptable to you?




5531. DR. ELLEN RATHJE: I don’t -- I’m not sure that is my decision to

make. I can tell you that that’s what the Building Code is designed -- is based on.

Nuclear power plants go to a much lower or longer return period.

5532. When you’re looking at critical facilities that have significant

environmental or societal impact, often you may go beyond 2,475. So -- but

being explicit in how those decisions were made and what values were -- those

were developed for is what’s important.

5533. MS. SHANNON: Dr. Rathje, you’ll agree with me that the risk to life

for nuclear power plant is quite different than the risk from a pipeline project?

5534. DR. ELLEN RATHJE: Absolutely. In terms of risk for life,

absolutely. And I’m not suggesting that you would use the same criteria for a

pipeline.

5535. MS. SHANNON: And you agree with me that 2,475 return period is

in the codes?

5536. DR. ELLEN RATHJE: It absolutely is.


5538. Dr. Rathje, have you reviewed Northern Gateway’s errata in response

to your concern? And that’s Exhibit B137-2.


5540. MS. SHANNON: Madam Clerk, if we could turn to Exhibit B137-2,

and go to Adobe page 5.

5541. So here Northern Gateway has corrected its evidence to be as follows:

“Further evaluation of these mechanisms will be completed in

detailed engineering, including potential for ground instability

failures induced by seismic ground motion, corresponding to a

2475 year occurrence interval.”

5542. You’ll agree with me that this confirms Northern Gateway will design




the pipeline to a mean return period of 2,475 years for seismic ground motion as

you suggested?

5543. DR. ELLEN RATHJE: Yes it does.

5544. MS. SHANNON: Those are all my questions for you, Dr. Rathje.

5545. DR. ELLEN RATHJE: Thank you.

5546. MS. SHANNON: Thank you.

5547. THE CHAIRPERSON: Dr. Rathje, it’s Sheila Leggett.

5548. Neither counsel for the secretariat nor the Panel have any questions for

you. We thank you very much for participating and providing evidence in this

review.

5549. DR. ELLEN RATHJE: Thank you very much. And again, thank

you for accommodating my schedule.

5550. THE CHAIRPERSON: Goodbye, Dr. Rathje.

5551. DR. ELLEN RATHJE: Bye-bye.

5552. MS. SHANNON: Good morning, Dr. Malhotra.

5553. DR. PRAVEEN MALHOTRA: Morning.

5554. MS. SHANNON: Dr. Malhotra, I understand that you worked for 12

years in the insurance industry developing tools for assessing, mitigating, and

transferring earthquake risk?

5555. DR. PRAVEEN MALHOTRA: That is correct, yeah.

5556. MS. SHANNON: So your foundational experience was in how to

mitigate seismic risk for insurers?

5557. DR. PRAVEEN MALHOTRA: Seismic risk in general. That is

correct, yeah.




5558. MS. SHANNON: Not -- and you didn’t have any foundational

experience in structural design of seismic risk?

5559. DR. PRAVEEN MALHOTRA: Well, see structural is only one

aspect of seismic risk. The seismic -- is what you do is you combine the

knowledge and the sciences which is geology and seismology with the knowledge

and engineering which is geotechnical, land structural; so you combine all this

information to assess the seismic risk.

5560. So structural is just one aspect of this. Yes, I use my knowledge in

geology, seismology, structural, geotechnical to assess the seismic risk.

5561. MS. SHANNON: So you have a lot of experience in assessing

seismic risk?

5562. DR. PRAVEEN MALHOTRA: That is correct.

5563. MS. SHANNON: But not in designing structural ---

5564. DR. PRAVEEN MALHOTRA: No, but when I say mitigating, that

means designing.

5565. See, my focus is on determining the risk based design criteria. So I

didn’t do nitty-gritty of the design you know ---


5567. DR. PRAVEEN MALHOTRA: --- which is more like a cookbook

approach. Anybody can pick up a code and design. But my focus is on assessing

the risk and then determining the design criteria to which you will design

structures which will make sense for the owner as well as other stakeholders.

5568. MS. SHANNON: Okay. And I see you have experience in seismic

assessment of tanks. I didn’t see on your CV any experience in seismic design of

pipelines. Is that correct?

5569. DR. PRAVEEEN MALHOTRA: Well again, like I said before you

know, my focus is not on design, it is on risk assessment.

5570. And the basic principles of science are the same, whether it is a tank or




is 150 storey building or is a nuclear structure or it is a pipeline. And no two

structures are the same and no two pipelines are all the same.

5571. So -- but the basic concepts in -- in geology, seismology, structural

geotech, they are the same. They apply to every structure.

5572. MS. SHANNON: But you understand that the impact from ground

motion on a tank would be quite different than the impact of ground motion on a

buried pipeline?

5573. DR. PRAVEEN MALHOTRA: Oh, that is absolutely right. Like I

said, no two structures are the same.

5574. MS. SHANNON: Okay. And I didn’t see in your CV any experience

on pipelines. Is that correct?

5575. DR. PRAVEEN MALHOTRA: Well, I have dealt with the pipes

you know, pipe racks, but not a pipeline to be specific. And no two structures,

like I said, you know, they are the same thing.

5576. MS. SHANNON: Okay. So you’ve dealt with pipe racks, pipelines --

5577. DR. PRAVEEN MALHOTRA: Pipe racks, yeah.

5578. MS. SHANNON: --- in an industrial area, but not a buried

transmission pipeline. Is that correct?

5579. DR. PRAVEEN MALHOTRA: Yeah, you can say that. Yeah.


5581. THE CHAIRPERSON: Could I ask both of you just to slow down a

little bit. It’s going to be a little hard for the transcript.

5582. MS. SHANNON: Thank you.

5583. DR. PRAVEEN MALHOTRA: Okay.

5584. THE CHAIRPERSON: So, if you could have one person ask and

one person answer and not talk over each other please.





5586. Dr. Malhotra, from reviewing your evidence and I think you’ve

already referred to this, my impression is that your view is that code-based

seismic design is not transparent enough and probabilistic seismic design is the

better design approach.

5587. DR. PRAVEEN MALHOTRA: Okay, let me clarify that.

5588. See, risk -- what is the purpose of codes? The purpose of codes is to

reduce the risk, and what is risk? Risk is the probability of a loss and the code

doesn’t tell you that. The code-based design is just a minimum requirement and

the codes make that very, very clear.

5589. That is just the minimum requirement and owners and other

stakeholders, they often times go well beyond the code. But code is just the

minimum requirement and it doesn’t tell you what risk you are taking when you

design something according to the code.

5590. MS. SHANNON: So it’s your opinion, in general, that a probabilistic

seismic design is better than a code-based design?

5591. DR. PRAVEEN MALHOTRA: Well, that is true, yeah. Because

when you’re talking about uncertainty, you know, you are -- it is probability.

5592. MS. SHANNON: And that’s your view ---

5593. DR. PRAVEEN MALHOTRA: Yeah.

5594. MS. SHANNON: --- in general, not just for this project?

5595. DR. PRAVEEN MALHOTRA: Oh, that is the view -- that is my

view in general and again, I’m not saying that you should not follow the code,

that is where you start. That is the minimum requirement, but you have to go

beyond that.

5596. MS. SHANNON: Okay. And Dr. Malhotra, since you filed your

written evidence, and by that I mean the document you wrote entitled

“Limitations of Code-Based Seismic Design” filed as Exhibit D80-27-14,




Northern Gateway has filed its reply evidence and additional responses to

information requests from the JRP.

5597. The Pipeline Marine Terminal Design and Engineering Panel has also

been questioned by intervenors and has addressed seismic issues. So that’s what

I’d like to talk to you about today. I’d like to see if some of that evidence has

addressed some of your concerns.

5598. Ms. Niro, would you please pull up Exhibit D80-27-14, Dr. Malhotra’s

evidence, and go to Adobe page 9?

5599. So, Dr. Malhotra, on this page you describe Enbridge’s seismic design

basis for the tanks. And -- so for those of us that don’t know about code-based

design loads, I’d just like to go through this and understand how you’ve described

the code-based design.

5600. So I understand here that the first thing you described is the mean

return period for the maximum considered earthquake; is that correct?


5602. MS. SHANNON: And the starting mean return period on which the

design is based is 2,475 years?


5604. MS. SHANNON: And you calculated that a mean return period of

2,475 years would result in a 1.2 percent chance of the maximum considered

earthquake ground motions being exceeded in 30 years?


5606. MS. SHANNON: Okay. You then note that applying a two-thirds

factor, as suggested in ASCE 7, the mean return period is actually 1,400 years?

5607. DR. PRAVEEN MALHOTRA: That is correct.

5608. MS. SHANNON: And that would result in a 2 percent chance of the

maximum considered earthquake ground motions being exceeded in 30 years?




5609. DR. PRAVEEN MALHOTRA: Yeah. That is correct, yeah.

5610. MS. SHANNON: Have you reviewed the errata filed by Northern

Gateway as Exhibit B137-2?

5611. DR. PRAVEEN MALHOTRA: I have looked at that, yeah.

5612. MS. SHANNON: Ms. Niro, would you please pull that document up,

B137-2, and go to Adobe page 6?

5613. So in its errata, Northern Gateway responded to your concerns and

those of Dr. Rathje, and partway down the paragraph in bold you’ll see “It should

read as”.

5614. In this first paragraph, Northern Gateway agrees that codes are based

on a mean return period of 2,475 years, and they describe the purpose of the

design basis; is that correct?


5616. MS. SHANNON: And I’ll just read a few sentences from the next

paragraph. It states:

“Seismic forces calculated according to the 2010 NBCC

[which is the National Building Code of Canada] for use in

facilities design do not apply this two-thirds scale factor and

other factors are applied to account for material over-strength

and ductility.”

5617. It then says:

“Scaling of the 2475 year return period input ground

motions...will not be applied.”

5618. You’ll agree with me that Northern Gateway has confirmed here that it

will not use the two-thirds factor?

5619. DR. PRAVEEN MALHOTRA: Yeah, that’s what it says there,

yeah.




5620. MS. SHANNON: So the mean return period for Enbridge is -- or for

Northern Gateway’s design will be 2,475 years, not 1,400?

5621. DR. PRAVEEN MALHOTRA: Yeah. Well again, you know, let

me clarify there. So this is where you are starting at, 2,475 years. But in a code-

based world there are many factors which are applied.

5622. See, I just mentioned the two-thirds factor, so when you apply the two-

thirds factor you are now taking more risk, you know, than what you think you

are taking.

5623. Then on top of that there is another factor in the code which is called

the R-factor, and that factor, you’ll be surprised, it is three or four and when you

reduce by that factor, now you are completely in the uncertain territory -- you

know, you don’t know what risk you are taking .

5624. And the code-based design does not say that there’ll be no damage to

the tank during the earthquake. It says that the damage will be there, but they

don’t quantify it for you. So that is why I was more focussing on -- you know --

doing a transparent analysis so you know what you will expect if you design it

according to the code and if you have to exceed the code criteria.

5625. So two-third factor is not the only factor which is applied in the code.

There are other factors also, like the R-factor.

5626. MS. SHANNON: Okay. So you’re telling me that you’re concerned

about other factors. You agree with me that two-thirds factor Northern Gateway

has committed not to apply?

5627. DR. PRAVEEN MALHOTRA: I understand, I think that’s a good

step, yeah, taking that out. So that brings some transparency into the process, but

now there are other factors also.

5628. MS. SHANNON: And your concern is that the code is not

transparent, but you agree with me that if an engineer goes through and follows

the code ---


5630. MS. SHANNON: --- in fact, all of the steps for calculation for the




design of the tank are quite well set out and are transparent?

5631. DR. PRAVEEN MALHOTRA: Well, yeah, the steps are all well set,

so then the average engineer can use it. But in the end, what do you get? That,

nobody can say unless you do more advanced analysis.

5632. MS. SHANNON: Well, you’ll agree with me that what you get is a

tank designed to meet the code?

5633. DR. PRAVEEN MALHOTRA: Well, you know ---

5634. MS. SHANNON: A consensus-based code.

5635. DR. PRAVEEN MALHOTRA: See, that is the only thing you can

say. It meets the minimum requirement, it meets the code. But beyond that you

cannot say anything. If somebody asks, you know, what risk am I taking, you say

if you don’t know we can’t tell you unless you do more advanced analysis.

5636. Now, if the insurance company wants to insure that tank, they say,

what is the risk, you know, how much premium you should charge for it? The

code doesn’t tell you. You’ll have to do some more analysis for that. So ---

5637. MS. SHANNON: So your concern here is what -- how the insurer

would view this risk?

5638. DR. PRAVEEN MALHOTRA: Not just the insurer, I was just

giving you an example. Any stakeholder, anybody -- you know, somebody who

lives near the tank, so he doesn’t know what risk is being taken because if you

design -- if you meet the code you have not eliminated the risk, the risk is still

there. So if the risk is still there than how much is the risk. The code doesn’t tell

you that.

5639. MS. SHANNON: When you apply a probabilistic seismic design, I

assume you choose a risk level and design for that risk level?

5640. DR. PRAVEEN MALHOTRA: That is right, yeah. You choose a

risk level what makes sense. What makes sense to all the stakeholders, and then

you select a design criterion to meet the risk, that particular risk level. And you

still meet the codes, because codes are the minimum legal requirements, but many

times you may have to go above and beyond that to satisfy the risk target.




5641. MS. SHANNON: So in a probabilistic design you have an eliminated

risk?

5642. DR. PRAVEEN MALHOTRA: No, you never -- you can never

eliminate risk but at least you know what risk you are taking.

5643. MS. SHANNON: And Dr. Malhotra, you referred to if a tank is

designed to code it doesn’t tell you whether there be a leak in the tank.

5644. DR. PRAVEEN MALHOTRA: It doesn’t tell you, yeah. See, I

can’t actually say, of course there will be a leak, but at what return period? So

what is the probability of a leak? So that it doesn’t tell you.

5645. MS. SHANNON: But if you follow the code you could calculate

what that mean return period would be?

5646. DR. PRAVEEN MALHOTRA: No, no, that’s exactly what I’m

saying, you cannot. If you design something according to the code, all you can

say is it meets the minimum code requirements. But you cannot say what risk you

are taking or what is the probability of a leak. You can be certain there will be a

leak, but what is the probability of that leak, the code doesn’t tell you that.

5647. MS. SHANNON: If a -- if the ground motions were -- the design

ground motions were to be exceeded, you’ll agree with me that what might

happen is plastic deformation of the tank with no leak occurring?

5648. DR. PRAVEEN MALHOTRA: If the design ground motion is

exceeded, will there be a leak in the tank? Yeah, there could be. But again, keep

in mind as I said before, there are other factors also in the code, you know. Code

is a cookbook approach, you know, because they apply some other factors like R-

factors, I was just saying before, a factor of four.

5649. So you really don’t know if the design ground motion is exceeded, will

there be leak, what will be the size of the leak; code doesn’t tell you that.

5650. MS. SHANNON: But it does tell you that if you design to code ---





5652. MS. SHANNON: --- and those ground motions are not exceeded,

there will not be a leak.

5653. DR. PRAVEEN MALHOTRA: No, no, it doesn’t tell you that also.

Because like I said before, those R-factors. There are those R-factors, you know,

these factors are up to four, so basically what they are saying is if you design

according to the code and if you don’t use the two-third factor, then for 2,475 year

return period ground motion, there will be some damage to the tank but will that

damage result in a leak? Code doesn’t tell you that.

5654. MS. SHANNON: Not -- there won't necessarily be a leak if those

ground motions are exceeded?

5655. DR. PRAVEEN MALHOTRA: Oh, they could be, there may not be.

5656. MS. SHANNON: Right.

5657. DR. PRAVEEN MALHOTRA: Yeah, it can be though, yeah.

5658. sorry, is a code that is consensus-based?

5659. DR. PRAVEEN MALHOTRA: Oh, yes, exactly. It is a consensus-

based, you know, so it is an average opinion of many people, you know, many

people who have a role to play in this; it could be engineers, it could be owners,

you know. So it is a consensus, then, that whatever everybody can agree on.

5660. MS. SHANNON: What many ---


5662. MS. SHANNON: --- seismic experts have agreed on? These are not

---

5663. DR. PRAVEEN MALHOTRA: Yeah these are experts.

5664. MS. SHANNON: --- just random?

5665. DR. PRAVEEN MALHOTRA: Yeah, these are experts, yes. Yeah,

these are very well qualified experts, but they have said, you know, these are the

minimum requirements we want everybody to meet.




5666. You know, not everybody is going to do a risk-based design, you

know, I fully agree with that, you know. You have a water tank, you know, a

small water tank, you just use the code-based design; we don't want to make it

very complicated for everybody. But when you have a large project with, you

know, very high consequences of a failure, then it is expected that you should go

beyond the code and assess the risk, quantify the risk.

5667. MS. SHANNON: You agree with me that the experts who have

agreed on the code have not said you should go beyond the code? They have

agreed that this is the code that tanks should be designed to?

5668. DR. PRAVEEN MALHOTRA: Oh, yeah, yeah, but they make it

very clear that this is the minimum requirement. They are not saying that if you

design according to this code it will meet your risk target. It is not mentioned in

the code anywhere. It just says this is the minimum requirement you have to meet

if you design a tank.

5669. MS. SHANNON: And you'll agree with me that -- you mentioned

consequence. Tanks do have and these tanks will have secondary containment?

5670. DR. PRAVEEN MALHOTRA: That is right, yeah.

5671. MS. SHANNON: Okay. And Dr. Malhotra, after your discussion of

ground motions for tanks you go on to discuss the probability of maximum

considered earthquake ground motions being exceeded on the pipeline; is that

correct?

5672. DR. PRAVEEN MALHOTRA: M'hm, yeah.

5673. MS. SHANNON: So if we could turn to Exhibit D80-27-14, that's

your evidence, and go to the bottom of page 9, continuing on to page 10.

5674. And here you say:

"The design accelerations for pipelines could have 10 times

greater chance of being exceeded in 30 years because pipelines

can experience earthquakes anywhere along their length."





5676. MS. SHANNON: You then go on to use the probability of 20 percent

to calculate a mean return period of 135 years for the pipeline. Is that correct?

5677. DR. PRAVEEN MALHOTRA: That is correct, yes.

5678. MS. SHANNON: Dr. Malhotra, if the pipelines were designed to a

mean return period of 2,475 years, as required by the National Building Code of

Canada, the probability of exceedence of the design ground motion would be

1.2 percent in 30 years.


5680. DR. PRAVEEN MALHOTRA: At any specific point along the

pipeline.


5682. DR. PRAVEEN MALHOTRA: But not anywhere along the

pipeline. See, that's the difference I'm trying to make here.

5683. MS. SHANNON: Right.


5685. MS. SHANNON: And Ms. Niro, would you please go to Adobe,

page 16 of this document?

5686. And here, Dr. Malhotra, you state:

"Enbridge has only shared the results of [its] site-by-site

hazard analysis…"


5688. DR. PRAVEEN MALHOTRA: That is correct. It's called site-

specific. You know, you're looking at one site at a time and you don't care what is

happening at other places.

5689. MS. SHANNON: And I'd like to refer you to seismic hazard maps for

the 2010 National Building Code of Canada from Natural Resources Canada.




These were provided to Ms. Griffiths on Friday. Did you review these?

5690. DR. PRAVEEN MALHOTRA: Yes, I did, yeah.

5691. MS. SHANNON: And, Ms. Niro, if you could pull those up?

5692. THE CHAIRPERSON: While we're at it, let's get an AQ number for

this please.

5693. THE REGULATORY OFFICER: That will be AQ49.

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

INTERROGATOIRE No. AQ49:

Enbridge Northern Gateway - Aids to cross-examination

5694. MS. SHANNON: And I understand that each of these five maps

shows spectral acceleration for firm ground conditions for a different period. Is

that correct?


5696. MS. SHANNON: And each is based on a probability of occurrence of

50 -- of 2 percent in 50 years?

5697. DR. PRAVEEN MALHOTRA: That is right, 2,475 years return

period.

5698. MS. SHANNON: Okay. So on these maps the darker red is the

higher acceleration ---

5699. DR. PRAVEEN MALHOTRA: M'hm.

5700. MS. SHANNON: --- and the lighter yellow is the lighter -- is the

lower acceleration; is that correct?


5702. MS. SHANNON: And along the pipeline route here, in B.C. and

Alberta, you'll agree with me that the highest peak ground acceleration is at




Kitimat, there on the west coast?


5704. MS. SHANNON: And generally, the ground accelerations would

decrease moving to Alberta except on that one spot kind of in Northeastern B.C.?

5705. DR. PRAVEEN MALHOTRA: That is correct, but again, you

know, I -- let me clarify that a little bit. See in this map what they are showing is

that the hazardous height -- first of all, this is a site-specific hazard map. This is

good for the design of individual structures, you know, like buildings and all, but

when you're designing a distributed structure such as a pipeline, then this is not a

good map to look at. And it is well known, and I've published on that also, that

maps in the building codes they don't provide a true assessment of the risk.

5706. So -- but that is something we can discuss later, but here what I'm

trying to say is what you see is the red areas on the left side, so there the

geologists know where the seismic sources are. But on the right side, you know,

on the western side, geologists do not know where the seismic sources are. So

they know earthquakes are possible, but they don't know where the harms are, so

that is why that hazard kind of gets distributed, you know, so it is low.

5707. MS. SHANNON: But you'll agree with me that what this shows is the

higher seismic risk is on the west coast?

5708. DR. PRAVEEN MALHOTRA: A seismic risk at a single point.

See, if you had a small structure, which is entirely located at a single point, then

you can say. But again I will be very careful in saying that, because I said before

that these maps they do not provide assessment of the risk, you know, or they do

not really quantify the risk for you.

5709. So sometimes you can get very different pictures, you know. These

are just a design code maps, you know, maps in the design codes, and it is well

known, well established that they are not a true reflection of the risk. You can

look at two points which have the same design load but the risk is very different.

5710. MS. SHANNON: But this would be the starting point?

5711. DR. PRAVEEN MALHOTRA: Well, you can say that. So in this

case I would concede that if you were designing a single house, you know, a




single structure located at a single point, you know, you could say that the risk is

more on the western side than on the eastern side, you could say that. But when

you're designing a distributed structure, a pipeline, which can be damaged by

earthquake anywhere, then it is a different map you should look at. You should

not be looking at this map.

5712. MS. SHANNON: You'll agree with me that what this map shows is

that a point on the pipeline on the eastern end of the pipeline, say in Alberta,

would have a lower seismic risk than a point on the pipeline closer to Kitimat?

5713. DR. PRAVEEN MALHOTRA: Well, you know, that -- but that is

not a very good way to say -- you know, when you are talking about risk, you

know, you say risk to the entire pipeline. You have to aggregate the risk along the

entire length of the pipeline. It is not very helpful to say that, you know, risk at

this point is more and the risk at this point is higher. You look at the risk at the

entire structure. You have to aggregate it along the entire length of the structure.

5714. MS. SHANNON: But you'll agree with me that this is what this

diagram shows?

5715. DR. PRAVEEN MALHOTRA: Well, I wouldn't say ---

5716. MS. SHANNON: Risk at different ---

5717. DR. PRAVEEN MALHOTRA: --- that. I would -- only thing I

would say is the building code says if you're designing buildings, then you will

have to design them for higher loads on the western side and lower loads on the

eastern side. I would not say anything about risk to a pipeline based on this map,

because this type of analysis is not suitable for distributed structures like

pipelines.

5718. MS. SHANNON: Okay. And we talked before that you haven't had

experience in assessing pipelines before?

5719. DR. PRAVEEN MALHOTRA: Well, you see, I've -- with the

insurance company, you know, I know what means -- you know, when you have

to assess the risk where the risk is low and high and there it is common practice to

look at aggregate risk, you know. The insurance companies, they'll have

properties distributed over a large area so they're interested in knowing what the

aggregate risk is, so this is the same concept, you know. So I know the issues




there.

5720. MS. SHANNON: So the insurance companies are interested in

aggregated risk?

5721. DR. PRAVEEN MALHOTRA: Well, of course, you know ---

5722. MS. SHANNON: That's what you're telling me?

5723. DR. PRAVEEN MALHOTRA: --- anybody who is serious about

risk they will aggregate it, yeah.

5724. MS. SHANNON: Dr. Malhotra, have you reviewed Northern

Gateway's Exhibit B140-12?

5725. DR. PRAVEEN MALHOTRA: I -- could you remind me what it is

about, please?

5726. MS. SHANNON: We'll pull that up. This was given by Mr. McKay

in response to an undertaking. And I believe the concern that we referred to

before was that Dr. Atkinson, who provided the seismic assessment, did that

assessment for only eight points along the pipeline. And you'll agree with me that

this diagram shows those eight points that Dr. Atkinson assessed ---

5727. DR. PRAVEEN MALHOTRA: M'hm.

5728. MS. SHANNON: --- and also presents evidence from Natural

Resources Canada, and that's the solid line, for the risk along the entire route. Is

that correct?

5729. DR. PRAVEEN MALHOTRA: I have not seen this particular plot

before, but yeah, it seems to be okay. Yeah, this is what Dr. Atkinson has done.

She has assessed site-specific hazard.

5730. There is a very -- you know -- big difference between site-specific

hazard and aggregate hazard. So this is about site-specific hazard where she’s

looking at single points along the pipeline but she’s not looking at aggregate

hazard. That’s a different analysis all together.

5731. MS. SHANNON: All right. And you -- but you agree with me that




the solid line, which is from NRCan, and was provided by Mr. MacKay in

response to an undertaking, follows generally the same trend that Dr. Atkinson

provided in the dotted line?

5732. DR. PRAVEEN MALHOTRA: Yeah, but that is also for the

purpose of designing individual structures. This is a building code -- you know --

hazard -- hazard analysis for building codes, individual structures, one structure at

a time, where you don’t care about other structures, right. So -- yeah, so I’m not

surprised that they’re similar, because they’re both site-specific hazards.

5733. MS. SHANNON: Okay. And, Dr. Malhotra, I’d like to take you to

Northern Gateway’s reply evidence, Exhibit B83-2, and Adobe page 49, and if we

scroll down to line 36.

5734. Here Northern Gateway says:

“Seismic design threats to pipelines generally result from

ground movement hazards such as landslides, which are

dominant causes of failure in mountainous areas. Seismic

wave propagation is essentially no threat to the pipeline. The

proposed risk assessment would be of very limited value.”

5735. And this was the aggregate risk assessment that you are suggesting

occurs.

5736. DR. PRAVEEN MALHOTRA: Yeah, see, this question was

completely misinterpreted here, you know. I was not talking about wave

propagation at all so I don’t know why wave propagation came into the picture

here. I was talking about aggregate risk, you know. So it seems whoever wrote

this response didn’t quite understand the question.

5737. MS. SHANNON: So you are looking for a seismic aggregate risk

assessment?

5738. DR. PRAVEEN MALHOTRA: Yes, aggregate hazard analysis.

That is the first step. You know, first you assess the hazard then you go to risk.

5739. MS. SHANNON: And you understand that what Northern Gateway is

saying here is the seismic ground forces that result in shaking of a pipeline have

no threat to the pipeline? What the ground motions could result in is risk of




triggering a landslide?

5740. DR. PRAVEEN MALHOTRA: Well, see, even if it is a landslide

you still have to aggregate that hazard because a landslide can occur anywhere

along the length of the pipeline. Liquefaction can occur anywhere along the

length of the pipeline. The settlement of a foundation can happen anywhere along

the length of the pipeline.

5741. So this applies to all those hazards. See, earthquake is not a single

hazard, earthquake is a collection of hazards, and you have to aggregate all those

hazards along the entire length of the pipeline.

5742. MS. SHANNON: So let’s go to page 29 of Exhibit B75-2. And here,

Dr. Malhotra, you will see the results shown graphically of a probabilistic

aggregation of all potential threats to the pipeline. Dr. Malhotra, you suggested

an aggregate seismic hazard analysis of the pipeline. You’ll agree with me that

this shows all threats to the pipeline and is an aggregate assessment?

5743. DR. PRAVEEN MALHOTRA: Well, see, I’ve not even seen

aggregation of earthquake risk so I really cannot say whether this is aggregate risk

assessment. But I saw some components of that mentioned in the Semi-

Quantitative Risk Assessment where you were taking some risks, you know, and

they were being aggregated along different segments of the pipeline, but I’ve not

seen a complete aggregation yet.

5744. MS. SHANNON: Dr. Malhotra, you’ve reviewed this document?

5745. DR. PRAVEEN MALHOTRA: I have read parts of it, yeah.

5746. MS. SHANNON: Not the entire document?

5747. DR. PRAVEEN MALHOTRA: Well, I would say I’ve read enough

of this document to write my report. And I saw some components of aggregation

but I’m sure it was not completely aggregated along the entire length of the

pipeline.

5748. MS. SHANNON: So you don’t agree that this is a probabilistic

aggregation of all potential threats along the pipeline?


Examination by the Chairperson


5749. DR. PRAVEEN MALHOTRA: Like I said before, you know, I’m

not fully convinced that it is, because you see, there are several components

which were missing here.

5750. When you’re doing assessment of the risk number one is you have to

assess, you know, you have to quantify what is the maximum loss you can have,

which is in terms of dollars or the maximum size of the leak. I did not see that

there.

5751. And then the probabilities of different size of losses and probabilities

of different size of leaks I did not see that in that document. And I did not see

aggregation of the earthquake risks, because until you have done an aggregate

hazard analysis you cannot do that. So I don’t know how can you do an aggregate

risk assessment, even for earthquake, without doing an aggregate hazard analysis.

5752. MS. SHANNON: But you did not read this entire document?

5753. DR. PRAVEEN MALHOTRA: No, I’ve read it. I’ve read it, but

again -- I mean, I don’t claim to remember everything in that document. I read it

enough to form an opinion,

5754. MS. SHANNON: And you don’t view this as a probabilistic

aggregate threat assessment?

5755. DR. PRAVEEN MALHOTRA: Not the sense I would like it to be.

5756. MS. SHANNON: Okay. Those are all my questions, Dr. Malhotra.

Thank you.

5757. DR. PRAVEEN MALHOTRA: Thank you very much.

--- EXAMINATION BY/INTERROGATOIRE PAR THE CHAIRPERSON:

5758. THE CHAIRPERSON: Dr. Malhotra, the counsel for the Secretariat

have no questions, and I just have one question for you.

5759. I was wondering if you could tell us, in your opinion, what further

work would be required to do what I understand you’re asking for, which is a

complete aggregate hazard analysis, as well as an aggregate risk analysis?




5760. First of all, have I got that correct?

5761. DR. PRAVEEN MALHOTRA: Yes, Ma’am. Yeah, you have stated

that correctly.

5762. Number one, the pipelines, they have to be treated different from tank

farms. Tank farms are at a single location, so for those site-specific hazard

assessment and site-specific risk assessment is adequate.

5763. But pipelines of distributed structures they can be damaged by adverse

events anywhere along their length. You can have a rupture -- a ground rupture,

you know, at one location, another location, and that risk has to be aggregated, or

integrated, or accumulated along the entire length of the pipeline.

5764. So first step would be to assess the hazard -- aggregate hazard if it is

seismic. And even in seismic, I said, earthquake is not a single hazard it’s a

collection of hazard. An earthquake can cause ground shaking, an earthquake can

cause a settlement of the ground, it can cause liquefaction and it can cause a wave

propagation. So there’s many hazards associated with earthquakes so all those

have to be aggregated.

5765. And then from the aggregate hazard you get the aggregate risk, and

then you have to aggregate the earthquake risk with other risks from corrosion or

other things, you know, which I’m not really addressing here. But you have to

add all those risks and then in the end you present okay, this is the total risk from

the project, and then you select your design criteria, you know, where you want it

to be, what risk makes sense.

5766. So as you select a more robust design criterion, the risk reduces but of

course the cost of construction also increases. So you have to do a cost-benefit

analysis.

5767. And then, in fact, you know, unless you do the risk-based analysis you

don’t even know whether the project is viable because risk involves cost. There’s

a price associated with risk and that cuts into your profits. So all those things

which I have not seen yet.

5768. THE CHAIRPERSON: And so if you were working with what’s

existing now, the information that’s there, what -- on a high level, what additional


Examination by Member Bateman


analysis would you complete in order to deliver what you describe as an

aggregated hazard analysis?

5769. DR. PRAVEEN MALHOTRA: The very first step -- you know, let

us just discuss seismic. The very first thing I would do is to integrate the hazard

and obtain what we call a hazard curve, which tells you the probabilities of

exceeding different levels anywhere along the length of the pipeline. So that is

the very first thing I would do, to do an aggregated hazard analysis.

5770. And here, you know, I want to make clear that I’m not questioning the

geological data here. The geological data are already available from the Canadian

Geological Survey, you know. I’m not questioning the information they have.

But that is just the starting. And I’m not questioning the information provided by

the seismologists.

5771. But when you have to combine the geological information with the

seismological information to perform an analysis which is an aggregate hazard

analysis, and that I have not seen. That is the first step I would say, to perform an

aggregate hazard analysis rather than a site-specific hazard analysis which does --

just tells you what is the hazard at individual locations but does not aggregate it

along the entire length of that structure, which is very important in this case, I

think.

--- EXAMINATION BY/INTERROGATOIRE PAR MEMBER BATEMAN:

5772. MEMBER BATEMAN: Dr. Malhotra, I have a follow-up question.

5773. This analysis that you are describing -- the aggregate hazard analysis --

in your opinion, when would it need to be done, during the detailed design phase

or before?

5774. DR. PRAVEEN MALHOTRA: Well, as I said before, you know, it

is -- I take it as almost necessary to do it first.

5775. Any risk assessment has to be done before even the project is

undertaken. That is always a good idea because you want to know what risk you

are taking.

5776. And then, as I said before, there is a cost associated with risk and that

is going to come from the profits; you know? And what risk you are -- is it even a




good idea to undertake a project; you know? I’m not talking about just this

project; you know?

5777. So it is always better to have some idea of the risk -- a quantitative

idea, not in the qualitative sense, you know -- but you’re to quantify, you know,

what risk you are taking finally.

5778. So it is always a good idea to complete your risk assessment --

quantitative risk assessment -- even before the project is undertaken.

5779. MEMBER BATEMAN: In your experience, how much time would

be required to complete such an analysis in the -- at the front end, if I’m

understanding you?

5780. DR. PRAVEEN MALHOTRA: Well, for just the seismic -- just the

seismic part or over all years?

5781. MEMBER BATEMAN: No, the aggregate hazard.

5782. DR. PRAVEEN MALHOTRA: The aggregate -- aggregate seismic

hazard?

5783. The aggregate seismic hazard -- all the geological information is

already there and what has to be done is that has to be used to generate the

scenarios; you know?

5784. Again, I’m not sure if the Geological Survey of Canada have already

done that. For California, the USGS, they already have those scenarios; so, there,

it would be very simple matter to do an aggregate hazard analysis but for Canada,

I don’t know they have done it.

5785. It is possible some insurance companies may have done it who are

interested in aggregate risk. But it is also possible they haven’t done it because

these are remote areas. They may not have bothered because -- to do this kind of

analysis before.

5786. So all -- so I can’t say that, how long it’ll take. I cannot say that

without reviewing all the information those are already available.

5787. MEMBER BATEMAN: Thank you.




5788. DR. PRAVEEN MALHOTRA: Sure.

5789. THE CHAIRPERSON: Ms. Griffith, did you have any redirect?

5790. MS. GRIFFITH: No, Madam Chair.

5791. THE CHAIRPERSON: Dr. Malhotra, thank you very much for

attending and providing the evidence this morning.

5792. DR. PRAVEEN MALHOTRA: Thank you, Madam. Thank you,

everybody.

5793. THE CHAIRPERSON: You’re released from the Panel. Thank you.

5794. DR. PRAVEEN MALHOTRA: Thank you.

--- (The witness is excused/Le témoin est libéré)


5795. THE CHAIRPERSON: And so, as people are packing up, we’ll do

the change and reseat Government of Canada’s Panel Number 1. Thank you.


5796. THE CHAIRPERSON: Good morning to the team that I

affectionately call “Panel Number 1” -- Government of Canada Panel Number 1.

We have many, many Panel Number 1s.

5797. Can we, this morning, do a roll call and find out who’s on the

telephone and whether you’re connected to WebEx, please?


5798. THE CHAIRPERSON: Is there anyone on the telephone?



Preliminary matters


5799. THE CHAIRPERSON: Mr. Shaw, were you expecting witnesses to

join by telephone?

5800. MR. SHAW: Yes, Madam Chair, that is our expectation.

5801. This is a continuation of Panel Number 1 and I believe we had -- did

we have six witnesses by remote participation? My expectation is that they are all

there.

5802. THE CHAIRPERSON: Good morning. We’ve heard someone …

5803. Good morning, this is Sheila Leggett. Could individual witnesses who

are joining us remotely please let us know who’s on the line?

5804. MR. STEVEN VIRC: Hi, Steven Virc, from Environment Canada

with ---

5805. MS. MANON LALONDE: Manon Lalonde from Environment

Canada.

5806. MS. CATHERINE NIELSEN: And Cathy Nielsen from

Environment Canada.

5807. MS. JUNE YOO RIFKIN: Hi, and this is June Yoo Rifkin with

Environment Canada.

5808. THE CHAIRPERSON: Is Doctor Kirkwood on the line?

5809. DR. DONNA KIRKWOOD: Yes, I am.

5810. THE CHAIRPERSON: Thank you, Dr. Kirkwood.

5811. And, Mr. Breault, are you on the line?


5812. THE CHAIRPERSON: The -- are there any other individuals who

are on the line besides the five who have identified themselves?

5813. And are the five of you connected by WebEx?


Preliminary matters


5814. MR. STEVEN VIRC: Manon, Cathy and I, Steven Virc, we’re in the

process of connecting.

5815. Are we connected now?

5816. MS. MANON LALONDE: We should be fairly soon.

5817. MR. STEVEN VIRC: Yep.

5818. MS. JUNE YOO RIFKIN: And June Yoo Rifkin; I am connected by

WebEx.

5819. THE CHAIRPERSON: And Doctor Kirkwood?

5820. DR. DONNA KIRKWOOD: Yup, I just connected. You should be

seeing me shortly.

5821. THE CHAIRPERSON: Okay. Thank you.

5822. Thank you, Dr. Kirkwood.

5823. DR. DONNA KIRKWOOD: Welcome.

5824. THE CHAIRPERSON: So, Mr. Virc, are you and Ms. Nielsen and

Ms. Lalonde on the line -- connected by WebEx?

5825. MR. STEVEN VIRC: Yes, we are.

5826. THE CHAIRPERSON: Terrific. Thank you.

5827. Is Mr. Breault on the line? There he ---


5828. MR. SHAW: I believe we have him.

5829. THE CHAIRPERSON: Mr. Breault, can you hear me? It’s Sheila

Leggett speaking.


Preliminary matters



5830. MR. ANDRÉ BREAULT: Madam Chair, André Breault here; I just

logged in on the phone.

5831. THE CHAIRPERSON: Thank you very much.

5832. MR. ANDRÉ BREAULT: Thank you.

5833. THE CHAIRPERSON: Mr. Breault ---

5834. MR. ANDRÉ BREAULT: I’m still here.

5835. THE CHAIRPERSON: Yeah, could you – could you continue

speaking just for a minute while we do a sound check and get the volume adjusted

accordingly?

5836. MR. ANDRÉ BREAULT: Okay. André Breault, Environment

Canada and I had problem logging on the remote phone this morning but,

hopefully, this will work for you all.

5837. THE CHAIRPERSON: We’re now able to hear you; so I believe

that we’re ready to proceed.

5838. MR. SHAW: Thank you for your patience.

5839. THE CHAIRPERSON: Well, thank you to everybody at -- it’s great

to be able to -- to be using this remote participation alternative and it gives us all

an extra dimension to the hearing at some points in time.

5840. So I believe that we’re ready to proceed. Mr. Shaw, did you have

anything before we begin with continuing the questions?

CAROLINE CAZA: Resumed

BARRY SMITH: Resumed

CORAL DeSHIELD: Resumed

AILISH MURPHY: Resumed

PAUL GREGOIRE: Resumed

ANDRÉ BREAULT: Resumed

LUCY REISS: Resumed


Preliminary matters


MANON LALONDE: Resumed

LAURA MACLEAN: Resumed

DOUGLAS MAYNARD: Resumed

ELIZABETH CAMPBELL: Resumed

STEVEN TAYLOR: Resumed

JOHN CASSIDY: Resumed

ANDRÉE BLAIS-STEVENS: Resumed

BRADLEY FANOS: Resumed

MICHAEL ENGELSJORD: Resumed

TRACEY SANDGATHE: Resumed

JOHN CLARKE: Resumed

ALASDAIR BEATTIE: Resumed

JUDITH BECK: Resumed

BERNARD VIGNEAULT: Resumed

JUNE YOO RIFKIN: Resumed

DONNA KIRKWOOD: Resumed

CATHERINE NIELSEN: Resumed

STEVEN VIRC: Resumed

5841. MR. SHAW: Actually, yes. There are two matters; they’re not

preliminary. They deal with the substance of this ongoing panel.

5842. The first is, Madam Chair, I’m alerted to a request by Environment

Canada table to apply to correct evidence given on Friday, November 23rd

. I

believe I’ll ask Dr. Caza to address the Panel respecting the correction.

5843. Dr. Caza?

5844. DR. CAROLINE CAZA: Thank you. Caroline Caza, Environment

Canada.

5845. It’s a small correction in the testimony given by one of our expert

witnesses, Manon Lalonde. So I will turn it over to Manon so that she may tell

the Panel the -- the correction that she would like to make.

5846. Thank you.

5847. MS. MANON LALONDE: --- make is in Transcript Volume 107,

transcript date November 23rd

, Adobe page 184, number 3306. And the

correction I wish to make is to change the word “weekly” that I have said twice


Preliminary matters


for the word “daily”.

5848. And that’s all.

5849. THE CHAIRPERSON: Thank you, Ms. Lalonde.

5850. MR. SHAW: Yes, thank you, Madam Chair.

5851. Now, I don’t recall which esteemed counsel asked the question that

obtained the answer and my only concern is whether that counsel has any

questions arising out of the correction that would come to cross-examination.

5852. I believe it was a question put by counsel for Haisla Nation.

5853. MS. GRIFFITH: We don’t have any further questions arising out of

that correction.

5854. Thank you.

5855. THE CHAIRPERSON: Thank you, Ms. Griffith.

5856. MR. SHAW: And then one further brief matter, and that is, I believe

that the Department of Fisheries and Oceans is prepared to answer the

undertaking given yesterday, as I believe Undertaking Number 60 and I’ll ask Mr.

Engelsjord to address that matter.

5857. MR. MICHAEL ENGELSJORD: Brad Fanos will be answering

that.

5858. MR. BRADLEY FANOS: Good morning, everyone.

5859. So the response for the Undertaking 60 just referenced and the

question was for the Government of Canada to provide how long the hatchery

could operate without a river water supply for the Kitimat River.

5860. And the response -- I’ve conferred with our experts that operate the

hatchery to get the information to supply for this. The Kitimat River hatchery has

two water supplies, the Kitimat River and on-site groundwater well supply. The

length of time that the hatchery could continue to operate is dependent on the


Examination by Ms. Thorkelson


numbers and the types of fish on-site at the time that the river water may be

stopped or cut off, if you will.

5861. The number of fish on-site and the number of species on-site at the

hatchery varies throughout the year depending on the production cycles. If the

Kitimat River water is not available when the hatchery is at its peak operation and

capacity, there would not be sufficient water supply from the groundwater supply

to continue and maintain full operations.

5862. THE CHAIRPERSON: Thank you very much, Mr. Fanos.

5863. MR. SHAW: Again, I believe that question was posed by counsel for

Haisla Nation. Certainly Mr. Fanos is here and available for any cross-

examination on that undertaking.

5864. MR. McCORMICK: Good morning. Thank you, Mr. Fanos, for

providing that undertaking. The Haisla Nation has no further questions in relation

to it.

5865. THE CHAIRPERSON: Thank you, Mr. McCormick.

5866. MR. SHAW: Thank you, Madam Chair. That concludes the two

matters preliminary to the commencement of questions from, I believe, United

Fishermen.

5867. THE CHAIRPERSON: Thank you, Mr. Shaw.

5868. Good morning, Ms. Thorkelson.

5869. MS. THORKELSON: Good morning.

5870. THE CHAIRPERSON: Please proceed with your questions of this

panel.

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

5871. MS. THORKELSON: Thank you.

5872. First of all I’d like to introduce myself. I’m the northern

representative for the United Fishermen and Allied Workers’ Union, CAW, and




we represent fishermen and shore workers in British Columbia, not all of them,

but the majority of organized fishermen and shore workers belong to our union.

5873. I live in Prince Rupert and I have been in this job for probably over 30

years. So I have some understanding of the department. But I don’t know -- I

don’t believe that I’ve met any of the individuals and because, Madam Chair, I

didn’t -- I didn’t see them very well over the phone, I was wondering if the

witnesses for the Department of Fisheries and Oceans only can introduce

themselves.

5874. THE CHAIRPERSON: Absolutely, let’s have DFO witnesses

identify themselves please with your names.

5875. MR. MICHAEL ENGELSJORD: Good morning. It’s -- I’m Mike

Engelsjord. I’m with DFO in Vancouver office and I’m a Habitat Regulatory

Team Lead.

5876. MR. BRADLEY FANOS: Good morning. My name is Brad Fanos;

I’m the Regional Habitat Manager and I’m -- my office is in the regional head

office in Vancouver.

5877. MS. TRACEY SANDGATHE: Good morning. My name is Tracey

Sandgathe and I’m the Regional Manager of Major Projects and Environment

Assessment and I am also located in the Vancouver office.

5878. MR. ALASDAIR BEATTIE: Good morning. I am Alasdair Beattie

and I’m an -- I’m an Environment Analyst with the Major Projects Group, also in

Vancouver office.

5879. MS. THORKELSON: Thank you. And thank you very much. And

Ms. -- Ms. Antcliffe is not present today; is that correct?

5880. MR. MICHAEL ENGELSJORD: That’s right.

5881. MS. THORKELSON: And she is the -- she’s the Regional Director

of the Ecosystem Management Branch. Do you all report to her?

5882. MR. MICHAEL ENGELSJORD: Yes, we report up to her.

5883. MS. THORKELSON: Thank you very much.




5884. Mr. Fanos, I was a little bit interested in what your -- what areas of

expertise you have and I was wondering, you’re the -- you are the Regional

Manager of the Ecosystem Management Branch. Can you give us an overview of

where that is in the branch and your position within that branch, within the DFO

hierarchy?

5885. MR. BRADLEY FANOS: Yes. My position of Regional Habitat

Manager reports through to Bonnie Antcliffe who’s the Regional Director as you

just referenced. I’m responsible for coordinating the regulatory activities in the

five operational areas in the Pacific region. So I work with the various area

operations to conduct the regulatory habitat activities throughout the region.

5886. MS. THORKELSON: Do you work with the salmon enhancement

program?

5887. MR. BRADLEY FANOS: No, the salmon enhancement program

again reports through Bonnie Antcliffe, and they have a separate program that

reports up through Bonnie Antcliffe.

5888. MS. THORKELSON: Okay. Is anybody here -- anybody on that

panel -- on your panel with SEP.

5889. MR. BRADLEY FANOS: No, there’s nobody from SEP. Although I

would add that certainly within our department, within our program, we

coordinate as appropriate through other sectors and other programs to gain info in

support of the reviews that we do from a regulatory perspective.

5890. So although there’s nobody here on the panel, we certainly contribute

to our reviews with information that we collect from those various sectors. But

nobody here is on the panel today from SEP.


5892. One of the responsibilities of your present position, Mr. Fanos, is to

provide advice and direction on The Fisheries Act and the CEAA regulatory

responsibilities. Do I have that correct?

5893. MR. BRADLEY FANOS: Yes, that would be an -- a fairly accurate

assessment of my responsibilities which I would share some of those




responsibilities for the environmental assessment and the CEAA application with

my counterpart manager in the Environmental Assessment Major Projects Unit.

5894. MS. THORKELSON: Thank you. And previously you worked in

Resource Management where you provided coordination and support for the

implementation of the sustainable fisheries framework and precautionary

framework?

5895. MR. BRADLEY FANOS: That is correct.

5896. MS. THORKELSON: And so I imagine you’re familiar with the

wild salmon policy?

5897. MR. BRADLEY FANOS: Yes I am.

5898. MS. THORKELSON: Thank you. And are you also familiar with

the framework for the application of precaution and science-based decision

making about risk?

5899. MR. BRADLEY FANOS: I am generally familiar with the

document.


5901. I have questions generally about the Department of Fisheries and

Oceans section; not the Coastguard section but the DFO section of your

submission. And I was wondering, who authored this?

5902. Was it a joint effort or was it authored by an individual?

5903. MR. MICHAEL ENGELSJORD: It was a joint effort. We involved

the folks in DFO that we needed.


5905. And how far up the DFO hierarchy of responsibility was this report

vetted by?

5906. MR. SHAW: Madam Chair, I wonder about the relevancy of the

questions.




5907. The report is entered as evidence of the department and has been

passed through review. Interested parties have had a chance to cross-examine on

the qualifications of the witnesses and related matters.

5908. I’m just wondering where these questions are going and what possibly

relevancy they have to the filed evidence. Thank you.

5909. THE CHAIRPERSON: Ms. Thorkelson, can you help us understand

the relevancy of your line of questioning, please?

5910. MS. THORKELSON: Yes, the -- as we can see, that the Panel that’s

seated here is from the Habitat branch and, certainly, the Department of Fisheries

and Oceans is broader than the Habitat branch and I would suspect that other

branches of the Department of Fisheries would have some interest in this

submission, and I was wondering how far up it was reviewed.

5911. So if the RDG, Regional Director General for DFO and Pacific Region

had reviewed it, then we would reassured that more than the Habitat Department

had -- Habitat branch had reviewed this report.

5912. THE CHAIRPERSON: Mr. Shaw?

5913. MR. SHAW: I think the focus of cross-examination must be the

evidence that’s filed. I would ask that the questionnaire be restricted to the

evidence that is filed.

5914. Answers will be given; where they can’t be given, undertakings can be

given appropriate to the scope of the questioning and the issues that the Panel has

set.

5915. It may be a matter of interest as to who in the department may have

looked at the document but, again, the relevance escapes us but we are in the

Panel’s hands.

5916. Thank you.


5917. THE CHAIRPERSON: Ms. Thorkelson, we would ask that you go




right to the question which we understand is: Who was involved in the review of

the submission that has been provided to the Panel?

5918. MS. THORKELSON: I have no more questions on that issue.

5919. THE CHAIRPERSON: Well, ---

5920. MS. THORKELSON: I was ---

5921. THE CHAIRPERSON: ---that question is one that the Panel is

interested in ---

5922. MS. THORKELSON: Oh, sorry.

5923. THE CHAIRPERSON: --- having you hear the response to.

5924. MS. THORKELSON: Oh.

5925. THE CHAIRPERSON: And so -- but what I was saying is, just if

you could get directly to that question ---

5926. MS. THORKELSON: Okay.

5927. THE CHAIRPERSON: --- and then we can go on to the next

question.


5929. Was the Regional -- did the Regional Director General review this

submission?

5930. MR. MICHAEL ENGELSJORD: Yes, she did.

5931. The Regional Director General for DFO’s Pacific Region.


5933. And did the Minister’s office review this submission?

5934. MR. MICHAEL ENGELSJORD: Not to my knowledge.





5936. MR. BRADLEY FANOS: If I could just add to that? It’s Brad

Fanos here.

5937. The sign-off process was described accurately and, as I mentioned

earlier, there’s a process within the Project Review Process where various sectors

get an opportunity to comment and provide input to DFO -- Habitat Management

Branch who’s leading that review -- to get input and feedback from the various

sectors, as you were describing earlier.


5939. Sorry, I have to sort of organize myself. I like a nice, big desk. Thank

you.


5940. THE CHAIRPERSON: Ms. Thorkelson, just as you’re getting

organized -- because I don’t want to interrupt your train of flow -- could you

identify -- you know, somewhere around 10:00 o’clock -- a convenient time for us

to take a break with respect to your questioning? It’s only 10 to 10 at this point.

5941. MS. THORKELSON: That’s fine, thank you.

5942. THE CHAIRPERSON: Thanks.


5943. MS. THORKELSON: I was wondering if one of the witnesses can

express DFO’s mandate, mission and vision.

5944. MR. MICHAEL ENGELSJORD: We’ve described that in our

written evidence. It’s Section 1.2.

5945. If you had specific questions, we’d be happy to answer them.





5947. If we could turn to that section, I believe it’s on Adobe page 6?

5948. Thank you and it’s under 4? Thank you.

5949. And there’s not much emphasis on fisheries in this description of the

department’s mandate; is there?

5950. The word “fisheries”, I think, is mentioned twice: once in the first

sentence where it says that:

“The Department of Canada has exclusive -- or the

Government of Canada has exclusive authority for seacoast

and inland fisheries.” (As read)

5951. And then, the very last sentence talks about fisheries.

5952. And I was wondering, Ms. Niro, if we could have the aid to cross

“DFO Mandate”?

5953. THE CHAIRPERSON: Ms. Thorkelson, did you have a question

based on that point or are you going to pull it all together?

5954. MS. THORKELSON: It’s with the aid to cross. Thank you.

5955. THE CHAIRPERSON: Okay, thank you.

5956. And can we get an AQ number, please, when you have a chance, Ms.

Niro?

5957. THE REGULATORY OFFICER: AQ50



United Fishermen and Allied Workers’ Union - Aids to cross-examination

5958. MS. THORKELSON: So this is from the Department of Fisheries

and Oceans’ website and the -- there’s a fair difference between what you’ve --

what is described in the Department of Fisheries and Oceans’ submission and the

Mandate Vision and Mission on the Department’s website.




5959. And I put to you that, on the website, one of more -- of DFO’s more

prominent responsibilities is the maintenance of sustainable and prosperous

fisheries.

5960. THE CHAIRPERSON: Ms. Thorkelson, can you help with what the

question is?

5961. MS. THORKELSON: That was the question. Sorry, I should have

---

5962. THE CHAIRPERSON: I didn’t hear the question. Maybe you could

help us again and ask the question.

5963. MS. THORKELSON: According to the DFO’s website, as

differentiated from Section 4 of the Department’s submission, is one of the DFO’s

more prominent responsibilities, as expressed in the -- in expressed on their

webpage, the maintenance of sustainable and prosperous fisheries?

5964. MR. BRADLEY FANOS: I certainly see your question. I think I

understand it correctly.

5965. If you go to our evidence and it’s in paragraph 5, Adobe page 1 going

on to Adobe page -- sorry, Adobe page 6, going on to Adobe page 7, there’s

reference to your comment around specifically healthy and productive aquatic

ecosystems and sustainable fisheries aquaculture.

5966. We may not have referenced the evidence identical to the website,

however, we feel within the evidence at various locations, there’s the appropriate

references to the sustainable fisheries piece.

5967. MS. THORKELSON: I put to you that, on the website, proper --

prosperous fisheries have a far more prominent role in the “Mandate, Vision and

Mission of the Fisheries Department” than in the DFO submission regarding

pipelines?

5968. MR. SHAW: Before the witness answers the non-question, I would

submit that the questioner is engaging the witness in argument; not a proper line

of questioning, with respect.




5969. I really don’t like to interrupt the proceedings, I’ve done this twice

now in the first few minutes. I would simply ask the questioner to stick to

questions, not argument. And if there is a question, to please phrase it in the form

of a question and to abide by the Panel’s ruling that the subject matter is the cross-

examination of evidence by questioning.

5970. Thank you, Madam Chair.

5971. MS. THORKELSON: Madam Chair, a great deal of what I want to

question today on is the -- where I believe the -- where DFO has perhaps -- and

I’m trying to choose my words carefully because “misrepresented” is not exactly

the word that I would like to use but has not thoroughly -- thoroughly represented

what is -- thoroughly represented what the Department’s whole face is?

5972. And so, for example, the mandate does not talk very much about

prosperous fisheries, and so my question is really why is this not part of what the

department has reported in their submission?

5973. The -- it may be left that the Panel has the feeling that the Department

of Fisheries is just a representative of the habitat portion of the Department of

Fisheries, whereas clearly, if you read their mandate on the website, it is not.

5974. And I'm not a lawyer, I'm not experienced at how to put questions

together to try to clarify the difference between this and the difference between

the submission, and I'm trying to give the Panel the breadth -- have a look at what

the breadth of the DFO is. We live and die by their rulings in our industry, and

this submission, we believe, is not reflective of the department's responsibilities,

and that is part of what my -- line of questioning is.

5975. So I'm sorry if I'm awkward about that, but I am really not trying to

introduce evidence and I'm not trying to be argumentative. And so I -- please, I've

worked so hard in trying to produce questions that will -- that I'm hoping that you

will answer about the lack of information that is in there as well as the

information that's in there. So I apologize to counsel about the awkwardness of

my questions, and I will try to put a question reflection on the end of my question.

5976. But is it accurate to say that on this website ---

5977. THE CHAIRPERSON: Ms. Thorkelson, before you go on ---




5978. MS. THORKELSON: Yeah.

5979. THE CHAIRPERSON: --- let's just ask Mr. Shaw if he has further

comments.

5980. MS. THORKELSON: Sorry.

5981. MR. SHAW: We're certainly prepared to hear the questions that are

put. We're just concerned about the relevance of them. It is -- the whole thrust

appears to be in the nature of argument, and I won't discuss what the questioner

has just indicated to the Panel.

5982. We're certainly prepared to entertain reasonable questions that touch

and concern the evidence, but as the questioner pointed out at the very end of her

submission, she's concerned about what's not in the written submission more than

she's concerned about what's in the written submission. The written submission is

what the questioning must be about, so I think that, you know, that brings to a fine

point what the debate is.

5983. I'll simply leave it there.

5984. THE CHAIRPERSON: Ms. Thorkelson, we are here to question on

the evidence that's been submitted. And we recognize that you're not a lawyer

and we want you to be successful in your questioning. It's important for you to

understand that this isn't the time to present your views; that that time will come

at a different point.

5985. And so when you begin a question such as "I put to you" or something

like that, it's -- my -- the Panel's appreciation of it is that you're tending towards

argument as opposed to questioning the evidence.

5986. And you'll have your opportunity in argument to tell us what you think

of the evidence that's been submitted and any other viewpoints that you want to

express at that point. So what I'm going to suggest we do -- because it is just

about 10 o’clock -- let's take a break.


5988. THE CHAIRPERSON: And I'd ask you to just look at your

questions and have your questions focused on seeking to get evidence -- further




evidence on the evidence that has been filed. So seeking to ask questions on the

submissions that are in front of you that are the subject of the questions for this

witness panel. And I think that that will help guide you very well in being

successful on your questions.

5989. In addition to that, when you made your submission about wanting to

question the Government of Canada, the Panel ruled on the things that you

weren't going to be allowed to question on, and it related to government policies

and positions other than what's specifically addressed in the evidence, as well as

impacts on the project, Northern Gateway's proposed mitigation and regulatory

role, again, except what's discussed in the evidence.

5990. And -- so if you can have those factors in mind as you review your

questions, and even if you feel that you need more time than just 15 minutes, let

us know that so that you can have the -- you know, a reasonable amount of time to

refocus your questions to be directed to the evidence that has been submitted.

5991. So do you think 15 minutes is going to be adequate? Would you rather

we took a bit longer break or where are you at in terms of proceeding?

5992. MS. THORKELSON: No, I will try -- 15 minutes should -- is likely

enough for me to try to take out "is it accurate to say" and find a different way to

ask the questions.

5993. Thank you.

5994. THE CHAIRPERSON: The Panel notes the work that you've gone

to to be in these proceedings and we want you to be able to get the answers to the

questions that relate to the evidence. Thank you.

5995. So we'll take a break and come back at 10:15.

5996. Thank you, everyone.

--- Upon recessing at 10:04 a.m./L'audience est suspendue à 10h04

--- Upon resuming at 10:19 a.m./L'audience est reprise à 10h19










LUCY REISS: Resumed















JUNE RIFKIN: Resumed


CATHERINE NIELSEN: Resumed

STEVEN VIRC: Resumed

5997. THE CHAIRPERSON: Ms. Thorkelson, back to you and your

questions on the evidence.


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

(Continued/Suite)

5999. MS. THORKELSON: I'm going to -- I'd like to look at the DFO

submission, and Exhibit E9-6-13, on Adobe page 10, please.

6000. And you can see that this is -- talks about the policy for the

management of fish habitat. Is this the primary policy document for the habitat

management program?

6001. MR. MICHAEL ENGELSJORD: Yes, it is.




6002. MS. THORKELSON: Is this document referred to in many instances

during your submission?

6003. MR. MICHAEL ENGELSJORD: Yes, I'd say that's accurate.

6004. MS. THORKELSON: Ms. Niro, would you bring up the Habitat

Policy, which is an aid to cross? Thank you. Could you turn to page 6, Adobe

page 6.

6005. Madam Chair, as the Habitat Policy plays a large role in DFO's

submission, I would like to take a moment to read what this policy actually

applies to -- just very quickly:

"The policy applies to those habitats directly or indirectly

supporting those fish stocks or populations that sustain

commercial, recreational or native fishing activities of benefit

to Canadians." (As read)

6006. And that it:

"Recognizes its -- DFO recognizes its responsibility to protect

and increase fish stocks in habitats that have either

demonstrated potential themselves to sustain fishing activities

or a demonstrated ecological support function for fisheries

resources." (As read)

6007. Does this mean that the Habitat Policy only applies to those fish

habitats connected to fish stocks that sustain fisheries?

6008. THE CHAIRPERSON: Ms. Thorkelson, again, from the August 30th

letter, the questions that you were permitted to ask about government policy and

positions were just those that were specifically addressed in the evidence and so if

you could frame your question relevant to the evidence that the Government of

Canada has submitted.

6009. MS. THORKELSON: Has the evidence that Government of Canada

submitted applied only to those fish habitats connected with fish stocks that

sustain fisheries?

6010. MR. MICHAEL ENGELSJORD: For -- speaking for DFO




anyways, I would say our review focuses on those fisheries as directed by our

policy that you pointed out there.

6011. MS. THORKELSON: Is your submission connect fish stocks to --

connect fish stocks, which are connected to a fishery, are those the fish stocks that

you have examined in your examination for your submission?

6012. MR. MICHAEL ENGELSJORD: Just to make sure we understand

the question; could you clarify that?

6013. MS. THORKELSON: Well, the aid to cross, which is the Habitat

Policy which is the basis for your submission, says that there’s a connection

between fisheries and fish stocks and the habitat that the policy applies to.

6014. So I’m wondering did you, in your submission, have a look at -- when

you were examining the habitat, did you examine the habitat that only impacted

fish stocks that were fished?

6015. So if a fish stock -- stock of fish wasn’t fished, did you examine that

habitat in your submission?

6016. Did you take that into consideration in your submission?

6017. MR. MICHAEL ENGELSJORD: We certainly looked at all the

information that was provided by Northern Gateway and so, in that sense, we

definitely focused on fish habitat that supports a stock that supports fisheries.

6018. But I think all habitat -- or all impacts -- or potential impacts on the

fish habitat have been considered.

6019. MS. THORKELSON: So then, in Northern Gateway’s submission

that you reviewed, did they talk about which stocks supported fish -- commercial

fisheries or Aboriginal fisheries and which stocks did not?

6020. MR. MICHAEL ENGELSJORD: I believe they have information

on that.

6021. I don’t know off the top of my head where that’s located.

6022. MR. BRADLEY FANOS: And I would add to that, certainly within




the department, as you referenced earlier, we have expertise in terms of

knowledge of the important fisheries and fish stocks that are in the areas and

locations of the project.

6023. So that’s part of the departmental review process is to bring that

knowledge and expertise to understanding and reviewing that information.

6024. MS. THORKELSON: Was how well a stock is doing or how well a

fishery is doing an important factor in determining your risk analysis of the

project?

6025. MR. BRADLEY FANOS: Certainly, stock status is an important

element to consider when you’re doing reviews.

6026. I think from the departmental perspective, we certainly look at all the

impacts to all the stocks that support the fisheries in particular. So the status

becomes a secondary consideration.

6027. The first is: Are there even impacts to the species and the stocks that

support fisheries?


6029. Could we turn to Adobe page 14 of the Habitat Policy?

6030. And this sentence says:

“Furthermore, it will not be sufficient to proceed with Habitat

Policy implemation (sic) --implementation without fully

integrating fish habitat requirements with fishery objectives.”

(As read)

6031. So would it follow that stock status -- about how well a stock is doing

or how well a fishery is doing would be an important factor in determining the

risk a project might be to a stock?

6032. MR. MICHAEL ENGELSJORD: That is definitely a consideration

that would be taken into account before a decision would be made.

6033. MS. THORKELSON: So, in your submission, was there a direct




linkage between fisheries, fish stock objectives and habitat protection?

6034. MR. MICHAEL ENGELSJORD: Our submission doesn’t contain

specific information on fish stock objectives.

6035. MS. THORKELSON: I was wondering if you could tell me if the

submission took that into consideration and where it would be evidenced that it

took that into consideration?

6036. MR. BRADLEY FANOS: Just one moment, we’ll reference the

evidence if you could just give us a moment?

6037. MS. THORKELSON: Absolutely, thank you.


6038. MR. BRADLEY FANOS: So if I understand the question correctly,

you’re looking for evidence that we’ve presented that demonstrates where we’ve

considered fisheries management objectives?

6039. MS. THORKELSON: Yes.

6040. MR. BRADLEY FANOS: So, at this stage in the review, it’s largely

from the Environmental Assessment process, we’re looking at the information the

Proponent’s provided and we’ve certainly got an understanding of the fisheries

management objectives in the sense of looking for ways to avoid and mitigate any

impacts to the fish stocks that are potentially affected by the project.

6041. So that’s the first step we’ll take in the review process.

6042. In the Environmental Assessment, we’ll look at: Is there potential for

those to be impacted?

6043. And based on the information that we’ve reviewed and the mitigations

and offsets that have been provided, certainly, there’s linkage back to when we

make a regulatory decision step. Those more explicit fisheries management

objectives will be considered with the information that’s provided to ensure we

make appropriate regulatory decisions.

6044. So at this stage, the fisheries management objectives -- certainly, as we




understand them in the department for the various stocks that have potential

impacts -- have been considered.

6045. And there’s reference to that on 127, Adobe page 34 in our evidence.


6046. MS. THORKELSON: Yes, but that’s on marine fisheries.

6047. I was looking for the -- this -- I was looking for consideration of stock

status and habitat linkage with fisheries in -- with regard to freshwater fisheries.

6048. Freshwater fish impacts, freshwater fisheries.

6049. MR. BRADLEY FANOS: So I guess just -- we can find the more

direct linkage in the evidence if we have a moment to get that.

6050. But just to be clear here, when we’re doing the review of the

information, we are looking at what the potential and nature of impacts there will

be to fisheries. That’s the whole nature of our involvement in the review.

6051. As I said, the first step is: Is there likely there to be impacts to the fish

and the fish stocks and the habitats that support them?

6052. And again, in our evidence, we’ve referenced that, based on the

information that we’ve reviewed, the project’s certainly providing the avoidance

and the mitigations and the offsets that it’s our position that we think there should

be very little, if any, impacts on those fisheries at all.


6054. Could we turn to DFO’s submission, Adobe page 10 to 11, paragraph

24?

6055. And it says:

“The Habitat Policy emphasises integrated resource planning

… taking into account DFO’s or the relevant province’s Fish

Habitat Management Plans and/or Integrated Fisheries

Management Plans.”




6056. Are there Integrated Fishery Management Plans for salmon?

6057. MR. BRADLEY FANOS: Yes, there are.

6058. MS. THORKELSON: And what would they be?

6059. The north coast and south coast, would that be correct?

6060. MR. BRADLEY FANOS: That’s correct.

6061. MS. THORKELSON: And what is an Integrated Fisheries

Management Plan?

6062. Could you give us just a brief overview of what it would entail?

6063. MR. BRADLEY FANOS: Yeah, I mean, it’s not part of our evidence

but, certainly, they provide the foundation for managing the fisheries and making

fisheries decisions on the information that’s relevant for managing the fisheries.

6064. MS. THORKELSON: And did you take into account Fish Habitat

Management Plans and/or Integrated Fisheries Management Plans in your

submission?

6065. MR. BRADLEY FANOS: Just one moment, please.


6066. MR. BRADLEY FANOS: So at this stage in the review, certainly,

they’re considered in the review process.

6067. But we’re waiting for -- excuse me, we’re waiting for the actual

regulatory decision stage to ensure the relevant fisheries management objectives

for that particular year in time when the project’s being regulated are being

considered and ensure that, through the regulatory process, we make the

appropriate decisions.

6068. So at this stage, certainly, they’ve been considered.

6069. MS. THORKELSON: Again, I was wondering where there was




evidence of consideration?


6070. MR. BRADLEY FANOS: I guess the simple answer to the question

is it’s not directly referenced in the evidence in terms of a reference to the

Integrated Fisheries Management Plans that you reference.

6071. However, I would add that they -- as I mentioned before, are a

consideration in terms of us doing our review as a standard course of operations

and business within the Habitat Management Program.

6072. We’re conducting reviews on projects that have potential impacts to

fish and fish habitat and, inherent in that and underlying that, the premise is to

ensure we do reviews on projects that have the potential to impact fish habitat that

support fisheries.

6073. So that’s the nature of our engagement on the reviews is to look at

those projects from that context.

6074. MS. THORKELSON: And so that is this -- when you do that, when

you’re looking at that, are you looking at the stock status?

6075. MR. BRADLEY FANOS: In a general sense, we have an

understanding of the stock statuses and the various areas where the project would

impact.

6076. MS. THORKELSON: Because the IFMP or the Integrated Fisheries

Management Plan -- is your understanding that stock status would be an important

thing in the Fisheries Management Plan?

6077. MR. BRADLEY FANOS: Yes, I would concur.

6078. MS. THORKELSON: And would you that -- agree that, then, the

Integrated Fisheries Management Plans in relationship to your determination,

according to Habitat Policy of the risk of a project, the risk to the stock and the

risk to the fisheries would be an important consideration?

6079. MR. BRADLEY FANOS: Yes, it would be.




6080. And to add to that, when we’re doing the reviews, there’s more than

just the Integrated Fisheries Management Plans that guide our decision making

and/or advice that we provide.

6081. There’s other fish stocks that might not have integrated fisheries plans

but, as an inherent part of the work that we do and the expertise that we bring to

the reviews, we have an understanding of those different fisheries and fish stocks

to provide the advice within that process.

6082. MS. THORKELSON: So is the -- when you were looking at risks to

the fish, say, on the Fraser system, did you consider the risk when you were

preparing this submission?

6083. Did you differentiate between the risks to a plentiful stock as opposed

to a stock that there were conservation concerns expressed in Integrated Fisheries

Management Plans?


6084. MR. BRADLEY FANOS: When we -- the first step when we’re

looking at the project is to look at the risks to the fisheries and the stocks that

support the fisheries.

6085. The second step would be to consider where there’s more sensitive

habitats and/or stocks that might be susceptible to those potential impacts, as

you’ve referenced.

6086. And certainly, within the review process to this date, there has been

some consideration for more sensitive areas to ensure that there’s trenchless

methods, for example, that would mitigate and avoid the types of impacts that we

might expect on some of the more sensitive -- for example, salmon habitats that

you’re referencing here.

6087. So, yes, as part of the review process, there was considerations for

particularly sensitive fisheries and stocks to make recommendation with regard to

avoiding and mitigating those impacts.


6088. MS. THORKELSON: Within the -- would it be fair to say that the




Department of Fisheries rates the different salmon stocks as red, yellow or green

and develops commercial harvest plans based on the stock status?

6089. MR. BRADLEY FANOS: It’s my understanding that the Fisheries

Management Plans are significantly influenced by the stock status, as you’ve

referenced.

6090. MS. THORKELSON: And could a spill or other negative impact on

a salmon stock reduce the status of a stock from the green benchmark where

harvest is permitted to the red benchmark where no harvest is permitted?

6091. Would that be a possibility?

6092. THE CHAIRPERSON: Ms. Thorkelson, could you point us to

where this is in the evidence of the Government of Canada?

6093. MS. THORKELSON: The evidence of the Government of Canada is

that they rely on the Habitat Policy for their submission and that they are in

compliance of the Habitat Policy.

6094. And what we’ve tried to do is bring up an aid to cross which is the

Habitat Policy which states that they have to take into consideration the relevant

Integrated Fisheries Management Plans.

6095. And the Integrated Fisheries Management Plans are the plans that set

the fishing plan and are dependent on the status of the stock. If the stock is not

doing well then, obviously, the fisheries management plan would restrict our

fisheries. If the stock is doing very well, there are fewer restrictions on our

fisheries.

6096. And the Fisheries Management Plans are -- that’s why I really miss

Ms. Antcliffe because she was very familiar with Integrated Fisheries

Management Plans as part of her past history within the department.

6097. And so it may be difficult for these people from the Habitat Branch

who may not have that experience although Mr. Fanos was in the Stock

Assessment Branch for the Lower Fraser River so I would assume he has some

familiarity with the Integrated Fisheries Management Plan.

6098. And that’s where the linkage is. The Habitat Policy says they’re




supposed to take it into consideration and I’m trying to explore how far they did

take it into consideration when making their submission -- since they say they are

relying on the Habitat Policy.

6099. THE CHAIRPERSON: We seem to be delving quite deeply into

something based on an AQ rather than based on the evidence.

6100. And so that’s where I was just asking you if you could bring us back to

the evidence and let us know where that linkage is that you’re now questioning

on, based on the evidence itself.


6101. MS. THORKELSON: Well, the submission says -- and they’ve

testified that they rely on the Habitat Policy for the creation of their submission.

6102. And so that’s what I’m relying on is that they -- and I’m not going to

go through the Habitat Policy line-by-line but, certainly, this -- this is a very

important part of the Habitat Policy to the commercial fisheries sector.

6103. And if the department is saying that they have, in their submission, as

was testified, that they believe that there is no risk to the commercial fishery, that

is why I’m trying to examine why they -- the integrated fisheries management

plan which determines what the fishery shall be. I don’t have very many

questions more on this.

6104. THE CHAIRPERSON: Thank you. If you could focus your

questions to the evidence where it discusses the integrated fishery management

plans and ask your questions on the evidence it would be helpful to the Panel

6105. MS. THORKELSON: Thank you. We’ll just move on and --

rescued.

6106. The -- do you say anywhere in your submission that you have taken

the integrated fisheries managements plans into consideration?

6107. MR. BRADLEY FANOS: I don’t believe explicitly anywhere in the

evidence we’ve referenced the integrated fisheries management plans. We have

certainly made numerous references to fisheries and stocks that support fisheries

throughout the various locations in the evidence to tie back to, again, the




departmental mandate for managing sustainable fisheries.

6108. So I don’t believe there’s references directly to integrated fisheries

management plans, however, there is direct references back to fisheries and

potential impacts. So I hope that answers that.

6109. MS. THORKELSON: So if we go back to -- if the stock status is

near the lower benchmark or in the red zone below the lower benchmark, is it

likely that the management plan will be restricted to restrict harvests on that stock

of salmon?

6110. MR. BRADLEY FANOS: In an effort to answer your questions --

like I don’t think it’s in our evidence but I certainly would like to try and get to

your questions and provide meaningful answers.

6111. Certainly there isn’t reference to the benchmarks in our reviews.

However, where there are fishery stocks that have the potential to be impacted

negatively by a project, we always are looking to avoid -- in our project reviews

we’re looking to work with the Proponents to avoid and/or fully mitigate those

impacts.

6112. So that’s the nature with how we deal with this isn’t directly within the

integrated fisheries management process. The department has a habitat

management program that conducts reviews trying to ensure our legislative

responsibilities are met and also that the decisions we make don’t compromise or

negatively impact integrated fisheries management processes and plans.


6114. I’d like to turn now to Adobe page 9 of the DFO submission, and I’d

like to move down to paragraphs 15 and 16, please. And this paragraph 15 and 16

talks about the extra protection of a Species at Risk Act or SARA designation.

What is the general procedure for a stock of salmon to become listed under

SARA, just generally?

6115. MS. TRACEY SANDGATHE: It’s Tracey Sandgathe here for

Fisheries and Oceans.

6116. I think, to put it very generally, the COSEWIC Committee, the

Committee on the Status of Endangered Wildlife in Canada would consider the




stock and do a report, do a scientific-based report, and that report would be

forwarded at some point to the Minister of Environment, and DFO at that time

would provide advice to the Minister of Environment and consideration and

advice to the Government of Canada to determine whether listing would be

appropriate.


6118. Has DFO ever not listed a salmon conservation unit under SARA in

spite of COSEWIC recommendations?

6119. MR. BRADLEY FANOS: I don’t -- if you could point us to where

that’s in our evidence that would be helpful.

6120. MS. THORKELSON: Well, it’s not in your evidence, that’s why I

was -- it was a general question. You’ve talked about species at risk are listed

under SARA and I was just wondering if there are species at risk that perhaps

were recommended by COSEWIC that were not -- are not covered by that, if you

know the answer to that.

6121. MS. TRACEY SANDGATHE: I’m aware of at least one.

6122. MS. THORKELSON: Which would be the?

6123. MS. TRACEY SANDGATHE: That would be the interior Fraser

coho.


6125. And is there -- and this was -- just to be clear, it was recommended by

COSEWIC but the Department of -- the Minister of Fisheries recommended

against it and therefore it was not listed by an agreement with the Minister of

Environment as a SARA’d species; is that correct?

6126. THE CHAIRPERSON: Ms. Thorkelson, the Panel is having a hard

time understanding ---

6127. MS. THORKELSON: Sorry.

6128. THE CHAIRPERSON: --- the relevance of this and where it’s found




in the evidence of the federal government.

6129. MS. THORKELSON: Well, the evidence says that species that are

listed under SARA are given special consideration and are actually under a

different -- have different impacts, and the department -- one of the federal

departments has to ensure that there’s a different section of the Act applied.

6130. And the -- one of the stocks was recommended under COSEWIC, as

we’ve heard, just given evidence, and that -- but was declined by the Minster of

Fisheries in -- and so I’m trying to examine what -- if it has any special status.

Even though it was recommended to be SARA’d it was not SARA’d and so did it

have any special stock status under their review.

6131. THE CHAIRPERSON: So it sounds like the question that you’re

wanting to ask is whether it had any special stock status as a follow-up to the

evidence that’s been filed?

6132. MS. THORKELSON: Correct.

6133. MS. TRACEY SANDGATHE: So my apologies, could you repeat

the question?

6134. MS. THORKELSON: Did the interior coho receive any special

consideration under the department’s submission?

6135. MR. MICHAEL ENGELSJORD: In a general sense, at this stage

our review is focused on identifying where there may be potential risks to fish

habitat and trying to ensure that those are. if possible, avoided or mitigated

through -- or offset, if necessary, through measures taken by the Proponent.

6136. Certainly when DFO -- if the project proceeds to the regulatory phase,

if DFO is faced with a regulatory decision whether or not to issue an

authorization, then any specifics to do with the stock status of the fish that rely on

that habitat would be taken into consideration before that decision was made.

6137. MR. BRADLEY FANOS: And I would add; there’s

recommendations that we’ve made within our evidence that certainly are making

recommendations of the Proponent to avoid the impacts in the sensitive salmon

habitats through trenchless methods.




6138. So in that sense when you’re referring to connecting it back to interior

Fraser coho, it would be included within that recommendation to have avoidance

of the potential impacts to salmon stocks which would include Fraser interior

coho.

6139. MS. THORKELSON: Can we turn to DFO’s page 38, and I’m

looking at paragraph 140. It says:

“The Proponent has also taken a risk management approach

similar to DFO Habitat Risk Management’s framework.” (As

read)

6140. And so, I would now like to turn to Exhibit B309, which is Enbridge’s

Volume 6a, Adobe page 52.

6141. And if you could just scroll down just a little bit further?

6142. So we have rarity and -- sorry, first of all, I should ask you: Is this the

Proponent’s -- part of the Proponent’s risk management approach that is similar to

the Department’s?

6143. MR. MICHAEL ENGELSJORD: Yes, I believe so.


6145. And do you -- would you give the interior Fraser River Coho, for an

example, as 0, under the category of “Rarity”?


6146. MR. MICHAEL ENGELSJORD: I think that’s not really for DFO

to answer, this is the Proponent’s methodology.

6147. Granted, they have attempted to base it on the framework that DFO

provides for its staff to do risk assessment but I think that’s perhaps a better

question for the Proponent.

6148. MS. THORKELSON: The Department has endorsed -- I would

suggest has endorsed the risk management. It says in their conclusions that your

-- that you have accepted that their risk management -- the results of their risk




management assessment and that has led you to say that there will be no -- that

the risk is acceptable?

6149. We can turn to your conclusions and find that quote if you would like.

6150. And so, therefore, if you’ve accepted the risk management framework,

in general, in order to make your assessment of what the Proponent’s conclusions

are, then -- and you are saying that it is similar to theirs, if you did not use this

chart, what chart did you use, which you haven’t provided?

6151. I was assuming it was the similar chart from you evidence.

6152. And if you used your own chart to determine that, then -- and did your

chart include “Rarity”?

6153. MR. MICHAEL ENGELSJORD: In our evidence, DFO stated:

“We are generally satisfied with the Proponent’s approach to

risk management.” (As read)

6154. DFO does have its own risk management framework that directs our

staff in our reviews and, if the project proceeds to the regulatory phase, DFO will

be making its own decisions on the level of risk and taking the appropriate

management actions from that.

6155. Sorry, I know your -- there was maybe more in your question, so if

I’ve missed some parts, can you maybe just remind me?

6156. MS. THORKELSON: Sure.

6157. Is this risk management chart out of the Practitioner’s Guide?

6158. MR. MICHAEL ENGELSJORD: You’re referring to the one that

DFO uses?


6160. MR. MICHAEL ENGELSJORD: Yes, that’s right.

6161. The risk management framework -- DFO’s risk management




framework is what guides the approach taken by DFO’s staff.

6162. MS. THORKELSON: And is “rarity” included in that risk

management guide?

6163. MR. MICHAEL ENGELSJORD: Yes, it is.

6164. MS. THORKELSON: And is the -- are the determinants the same?

6165. So do you have security, the populations or presence in -- sorry,

populations or prevalence of the habitat type?

6166. Is that part of your -- is that similar as well or exactly the same? Do

you know?

6167. MR. MICHAEL ENGELSJORD: I think something I could offer

for that is DFO’s risk management framework is more general. It’s more of a

communication device.

6168. And I don’t want to speak for the Proponent but I -- from this type of

information, it seems they’ve tried and gone into more detail specific to their

project than our risk management framework does.

6169. MS. THORKELSON: Okay, when the Proponent created a risk

management matrix, which has the conclusions that they have based this on and

the conclusions that they’ve based another chart on, and they plotted against each

other and that is what is advised in your practitioner’s manual and -- to determine

whether the risk is high, low or medium -- and on a very colourful chart that is in

the department’s guide, Practitioner’s Guide -- and they have used this listing to

determine that -- the placement on that chart and of each stock of fish and is that

not the methodology that is in the practitioner’s -- is in the Practitioner’s Guide?

6170. MR. MICHAEL ENGELSJORD: Generally.

6171. I think one key difference is that DFO’s risk management framework

is a framework for the purposes of communications of the risk. It’s not a

quantitative analysis.

6172. MS. THORKELSON: Sorry, could you -- you lost me there, what

would the difference be? Sorry.




6173. MR. MICHAEL ENGELSJORD: Well, it appears by their ranking

of details -- that the Proponent does -- and attaching numeric values to that,

they’ve -- they’re attempting to make it quantitative to -- for the purposes of their

description of the risks whereas DFO’s risk management framework is just that;

it’s a framework, it’s not a quantitative analysis.

6174. MS. THORKELSON: But you’re satisfied with the outcome of their

analysis?


6175. MR. MICHAEL ENGELSJORD: DFO is generally satisfied with

the Proponent’s risk management analysis.

6176. We have, throughout our involvement in this, provided feedback to the

Proponent, including recommendations where we think that a particular habitat --

it’s perhaps more valuable than it’s been classified in the Proponent’s analysis.

6177. In particular, where that’s -- where they proposed a more invasive

types of stream crossings, for the important habitats, DFO has made the

recommendation to the Proponent that they are really diligent in exploring

whether or not they can use trenchless methods to cross streams so that these

impacts or potential impacts can be avoided.

6178. MS. THORKELSON: So just to explore this just a tiny bit further,

you would not take an individual stock such as the Fraser River Coho and apply

this risk matrix to it, because it’s just a communications tool?

6179. MR. MICHAEL ENGELSJORD: In DFO’s risk management

framework, the “y” or, sorry, the “x” axis, which is “Sensitivity of Fish and Fish

Habitat”, we would consider a stock like the interior Coho to be at the higher end

of that.

6180. MS. THORKELSON: And that’s because of the -- because you

would look at the holistic part of the stock?

6181. How would you make that determination?

6182. MR. MICHAEL ENGELSJORD: Because of the stock status,




because we’re aware of challenges with that stock.

6183. MS. THORKELSON: Right.

6184. So the stock status would be the important consideration, probably one

of the more important considerations?

6185. MR. MICHAEL ENGELSJORD: Yes, it’s a very important

consideration.


6187. So this hearing is held under the sections of the Environmental

Assessment Act and you refer to the CEAA on page 9 of your submission and I

imagine that you’re familiar with Section 19 of the Act, which says that the

Environmental Assessment:

“…must take into account the effects and significance of

malfunctions or accidents, as well as routine operations.” (As

read)

6188. And I was wondering: Where is the Department of Fisheries’ analysis

of the effects of -- or significance of a spill on the commercial fishery?

6189. MR. MICHAEL ENGELSJORD: DFO hasn’t conducted that

analysis.

6190. MS. THORKELSON: Has anybody?

6191. MR. MICHAEL ENGELSJORD: I believe the Proponent has, in

their submission.


6192. MS. THORKELSON: Would you please scroll down to Adobe page

34, and it’s paragraph 124. Sorry, it’s -- thank you, paragraph 124. Thank you,

Ms. Niro.

6193. The -- and it says:




“The Proponent has conducted its ecological risk assessment

under multiple hypothetical scenarios […] [and] to identify

risks to fish, fish habitat and fisheries resources. In DFO’s

view, the Proponent has [considered] conducted a reasonable

risk assessment and provided useful information on the risks

that an oil spill [will] pose to fisheries resources in freshwater

and marine environments.”

6194. And so you have come to your view is that they’ve conducted a

reasonable risk assessment and provided useful information. Did Enbridge

include in its risk assessment fisheries management objectives?


6195. MR. MICHAEL ENGELSJORD: Sorry for the delay.

6196. Yes, our understanding is the Proponent has included or has

considered important certainly -- the importance of the various fish species and

that in their analysis.

6197. MS. THORKELSON: What about fisheries, the importance of

fisheries management objectives?

6198. MR. MICHAEL ENGELSJORD: I believe they’ve discussed that.

Up to what degree they’ve considered that, it may be a better question for the

Proponent.

6199. MS. THORKELSON: But you have stated that the Proponent has

conducted a reasonable risk assessment; correct? And so would a reasonable risk

assessment include fisheries management objectives?

6200. MR. MICHAEL ENGELSJORD: It certainly could.

6201. Just for some context, that conclusion or view by DFO in paragraph

124, it’s important to remember that DFO’s review for this project is seen through

the lens of impacts to the fish habitat, the physical fish habitat. The effects on

water quality and toxicology that may affect fish that way, that’s not part of

DFO’s review.

6202. And just one other component there, in terms of our view on that, we




did look at the Proponent’s analysis and identified that they had followed the

general steps that should be included in an ecological risk assessment. That

doesn’t necessarily mean we’ve looked in great detail at how they’ve conducted

the analysis for each of those steps.

6203. MS. THORKELSON: So the part of the habitat policy that says that

you’re to look at integrated management fisheries plans, you’re not aware of the

Proponent looked at the integrated managed fisheries plans before you -- before

you’ve come to the conclusion that the Proponent has conducted a reasonable risk

assessment?


6204. MR. MICHAEL ENGELSJORD: Sorry for the delay.

6205. I just want to provide maybe a little bit of context. DFO’s policy for

the management of fish habitat and specifically the -- the guiding principle which

is when we refer to no net loss of habitat, that policy is intended to guide DFO in

its regulatory decisions whether or not and what conditions to attach to an

authorization.

6206. And certainly all of the information that the policy guides us to

consider will be taken into consideration before a regulatory decision is made on

whether or not to issue an authorization and allow certain harmful impacts to fish

habitat.

6207. So -- I mean your concern about spills, I think I understand, but the

part of the policy that’s driving DFO’s decisions on Fisheries Act authorizations

doesn’t really apply to spills because these are not things that are authorized by

DFO.

6208. MS. THORKELSON: So when you have looked at a reasonable risk

assessment, you have not looked at a reasonable risk assessment regarding the

impacts on the commercial fishery of a spill?

6209. MR. MICHAEL ENGELSJORD: As I mentioned before, we just

identified that the Proponent had the -- the general steps which are traditionally

included in an ecological risk assessment. We -- we didn’t conduct any analysis

of the parts of that that are not related to DFO’s regulatory mandate which is

impacts on physical fish habitat.




6210. MS. THORKELSON: The Act says, unless I read it wrong, that the

environmental effects of malfunction or accidents have to be taken into

consideration as well as the significance of the effects. And I’m wondering then

who looked at the significance of the effects of impacts of spills on salmon

habitat, fish, and particularly commercial fisheries within the Government of

Canada if it were not you.

6211. MR. MICHAEL ENGELSJORD: You’re referring to, like, an

environmental assessment type determination and that’s not DFO’s role in this,

we’re just here to provide our expert advice to the Panel.

6212. MR. BRADLEY FANOS: And I would add, I guess we could

reference back into -- and caucus over lunch to -- to look back into the evidence

just to maybe answer that question more appropriately or maybe to fill in the

answer to the degree that we can for you here today.

6213. MS. THORKELSON: Thank you. So -- so if you can answer that

more thoroughly after discussing at lunch that would be -- that would be fine. But

is anybody else from the Government of Canada able to tell me who else -- who

looked at the effects of malfunctions and spills and the significance of those

effects on the commercial fishery? Is there anybody who did that?

6214. DR. CAROLINE CAZA: Caroline Caza, for Environment Canada.

6215. Environment Canada did not conduct a review of that aspect of the

project. No.


6217. Did anybody else?

6218. MR. JOHN CLARKE: John Clarke for Natural -- sorry, John Clarke

for Natural Resources Canada.

6219. No, that’s not part of our mandate.

6220. MS. THORKELSON: Is there anybody whose mandate it was?

Thank you.




6221. So we looked at the department’s mandate earlier, and it was to

provide Canadians with a sustainable fishery resource that provides for an

economically viable and diverse industry.

6222. And is there anything in the DFO’s submission that looks at the

impacts of the whole of the pipeline, including the risks of malfunctions, on a

sustainable fisheries resource for an economically viable and diverse fishing

industry?

6223. MR. MICHAEL ENGELSJORD: Certainly where the project had

the potential to effect fish habitat, DFO has reviewed these parts of the project.

6224. MS. THORKELSON: And I’m curious about your comment about a

spill in paragraph 124, where you say:

“In DFO’s view, the Proponent has conducted a reasonable

risk assessment and provided useful information on the risks

that an oil spill [will] pose to fisheries resources…”

6225. What useful information -- why was the information useful and what

information did they supply that you found to be useful?


6226. MR. MICHAEL ENGELSJORD: Sorry for the delay on that.

6227. MS. THORKELSON: That’s okay.

6228. MR. MICHAEL ENGELSJORD: So in our review, and what led us

to that view, is the Proponent did conduct an air assessment pathways of effects

analysis to identify different types of effects that could result from the project.

They conducted assessments of these, they identified mitigation measures to

reduce or avoid or -- these adverse effects and we noted that their analysis did

include consideration of effects on fisheries.

6229. So in some of the specifics, like in the example of spills, DFO didn’t

conduct an assessment of how they -- how the Proponent did their assessment of

spills and that, but we note that these things were done.

6230. MS. THORKELSON: Maybe over -- maybe DFO could take an




undertaking to show me where Enbridge had any reference to commercial

fisheries in any of their volumes regarding risk assessment.

6231. MR. SHAW: Madam Chair, before dealing with that undertaking

request, it appears that whatever evidence is filed by Enbridge on the point is on

the record and it would be a rather useless waste of time for this panel to look at

something that the questioner is also able to look at, satisfy herself and then cross-

examine perhaps on the points that she feels is deficient.

6232. Otherwise, every volume of the Enbridge -- or the NGP filing is going

to have to be the subject of a rather useless review, with respect.

6233. MS. THORKELSON: Madam Chair, the reason I ask this question is

because I have examined every volume of the Enbridge Pipeline -- part of the

pipeline submission and there is reference to recreational fisheries and there is one

reference, I believe, in one of the TDRs to commercial fisheries.

6234. But we’ve just heard evidence that they believe these pathways of

effects have said that they have -- have mentioned commercial fisheries. I don’t

see that and so if the department believes that this is the case, and they’ve based

their risk assessment on this -- that they’ve taken into consideration commercial

fisheries -- then I would like to know where they found that information.

6235. I don’t need to know chapter and verse; I would just like to know if

that’s generally true. They’ve just testified to that.

6236. THE CHAIRPERSON: Ms. Thorkelson, I would encourage you to

just ask the question as opposed to seeking an undertaking. The evidence is all

available for all of us to be able to go through. And so if you have a further

question of the panel on this, I would encourage you to ask that.

6237. MS. THORKELSON: Where in the pathways of effects did they

show consideration of the commercial fishery?


6238. MS. THORKELSON: Madam Chair, this is taking some time, we

can move along -- I just -- if ---

6239. THE CHAIRPERSON: Ms. Thorkelson, you read my mind. I was




just going to say unless this is important for your line of questioning perhaps the

witnesses could address this over lunch and come back after lunch with the

response to this particular question for you.

6240. MS. THORKELSON: That would be fine with me.

6241. THE CHAIRPERSON: Thank you, Ms. Thorkelson.

6242. MR. BRADLEY FANOS: Yes, we could do that and get back after

lunch. Thanks.

6243. MS. THORKELSON: Okay risk -- I’d like to return to Adobe pages

11, 12, paragraph 29, please of the DFO evidence.

6244. It discusses how DFO conducts a risk assessment. And it says:

“[DFO uses the] extent, duration and intensity) and the…

(species sensitivity, species dependence on habitat, rarity, and

habitat resilienc[e]) to arrive at a risk classification. The Risk

Assessment Matrix incorporates these two factors in order to

characterize the level of risk…"

6245. And that's that chart that we were speaking about earlier. And I was

wondering, when you were looking at your risk assessment matrix, where are the

olfactory impacts from oil, chemicals, leachates placed in that risk assessment?

6246. MR. MICHAEL ENGELSJORD: So DFO's risk management

framework is intended to guide DFO's review to assess impacts on the physical

fish habitat, which if these can't be avoided or fully mitigated may be considered

for an authorization to allow some harm to fish habitat. So like a water quality or

a toxicological effect on fish basically can't be authorized, DFO doesn't have a

mechanism to authorize that, so for this framework it's not considered.

6247. MS. THORKELSON: Is there another framework where olfactory

impacts on fish is considered?

6248. MR. MICHAEL ENGELSJORD: The water quality and those type

of effects are -- would more neatly fit into 36.3 issues, which DFO doesn't

administer.




6249. MS. THORKELSON: Who administers those?

6250. MR. MICHAEL ENGELSJORD: That's Environment Canada.

6251. MS. THORKELSON: May I ask Environment Canada if

Environment Canada considered olfactory impacts from oil, chemicals or

leachates on returning salmon?


6252. DR. CAROLINE CAZA: Caroline Caza, for Environment Canada.

6253. Environment Canada does administer section 36.3 of the Fisheries Act.

That section is a general prohibition against the deposit of a deleterious substance

into fish bearing waters.

6254. So similar to what DFO was saying, it's not a permitting system, it's a

prohibition. And Environment Canada would enforce that prohibition in

circumstances potentially where there might be a spill that might cause harm that

Environment Canada would investigate through its enforcement branch. And that

is an investigative process that considers a number of things that collects evidence

on the circumstances around that spill, whether the spill actually qualifies as the

deposit of a deleterious substance.

6255. So under section 36.3, it's not a case where we would be proactively

looking at those factors as part of a risk assessment.

6256. Does that answer your question?

6257. MS. THORKELSON: Yes. So there is nobody in the Government

of Canada who determines olfactory impacts from leachates or a spill or a

malfunction, or accident on fish and the commercial fishery, on salmon in

particular?

6258. MS. LAURA MACLEAN: It's Laura Maclean here with

Environment Canada.

6259. I would not agree with that statement. Environment Canada

participates in the Canadian Council of Ministers of Environment Process, which

is, among many things, responsible for publishing the Canadian Aquatic




Guidelines for Freshwater Life -- Canadian Water Quality Guidelines, I'm sorry,

for Freshwater Life, which do establish guideline levels that are intended to be

protective of many uses of water, including the protection of fisheries resources.

6260. So that is a role that Environment Canada plays. We play that role

along with the provinces and those guidelines are publicly available.

6261. MS. THORKELSON: Thank you. And I do believe that there are

guidelines and I do believe that there are -- what you're talking about in fines or

consequences for deleterious releases. I'm asking -- this is about risk I'm talking

about. So who has done a risk assessment on the pipeline having oil or leachates

that will affect the return of the spawning salmon?


6262. MS. LAURA MACLEAN: So it's Laura Maclean, with Environment

Canada again.

6263. I think it's important perhaps to point out that the responsibility for

conducting this environmental assessment rests with the Joint Review Panel that's

been established by the Minister of the Environment. So ultimately the Panel

needs to have the information that it feels that it requires with respect to all of the

potential environmental effects that could result from the project.

6264. So we're here, as federal departments, with certain different types of

expertise, to assist the Panel in that regard. Environment Canada has contributed

certain information with respect to the potential behaviour, fate and effects of a

spill in the marine environment, and we will be dealing with that in much more

detail at the hearings upcoming in Prince Rupert.

6265. In terms of the ecological and human health risk assessment, the report

that addresses potential effects of spills from the pipeline, to this point in the

process we have not been -- our review of that information has not been

specifically requested by the Panel. However, as we've noted previously on the

record, we do have some expertise that could be brought to bear should that be

helpful to the Panel in future.

6266. MS. THORKELSON: Can we have an undertaking for somebody,

Environment Canada or a combination of Environment Canada and the

Department of Fisheries, to come up with the consequences of olfactory impacts




on spawning salmon and the risk of chemicals, oil, or leachates would pose?

6267. MR. SHAW: With respect, Madam Chair, the request for an

undertaking does not relate to any of the evidence filed by the Government of

Canada. That is very far afield.

6268. I think the Panel's been -- certainly our tables and the Panel have been

very patient in allowing these questions that are far afield to be answered,

sometime with great difficulty, with great struggle, but asking for such an

undertaking is far beyond what the government evidence is about, and certainly

beyond anything that is reasonable that comes out of cross-examination. We

would not agree to an undertaking, of course subject to the direction of the Panel.

6269. MS. THORKELSON: The question, Madam Chair, of olfactory

impacts was raised with Enbridge, and Enbridge said the reason that they didn't

look at them was because it wasn't on the risk matrix of the Department of

Fisheries and Oceans. And I can find that out at lunch if we need that direct

quote.

6270. But that is the -- they said they did not consider it because it wasn't in

the department's matrix. And the department has said that they don’t consider it

in their matrix because it doesn’t fall into -- is a deleterious subject -- substance

that falls into the ocean -- that falls into Environment Canada.

6271. Environment Canada hasn’t considered it in their risk matrix and all I

can say is -- is the Union, particularly, doesn’t care who comes up with this

information but we believe this information is key to returning salmon and key to

the health of the commercial fishery so that if there is either leachates from the

various pipeline operations or whatever -- oil spills or this kind of impact --

nobody seems to want to address it or take responsibility.

6272. The Union doesn’t care who does. We just think that that needs to be

a consideration.

6273. THE CHAIRPERSON: Ms. Thorkelson, again, you’ll have your

opportunity to provide argument at the argument stage, which is exactly the kind

of comments that you were just making would be classified as argument.

6274. As far as the undertaking itself, it is -- it has been established from this

Panel that that type of undertaking would be outside any of the mandates of the




departments and also outside any of the evidence that’s been filed.

6275. I would encourage you to go back again and read Ms. Maclean’s

answer as far as the roles and responsibilities of this Panel in the assessment that

they must carry out.

6276. And perhaps you might want to speak further with process advisors to

understand how the process unfolds and works completely so that you can

position yourself well when it comes time for final argument to understand fully

the responsibilities and the roles of each of the various parties who are involved in

this review.


6278. THE CHAIRPERSON: So we will not grant that undertaking based

on the fact that that evidence is outside the scope of the mandate of the

government departments that you’re requesting it from.


6280. If we could turn to the Practitioners Guide to the Risk Management

Framework for DFO Habitat Management staff, Version 1.0? And that was an

aid to cross.

6281. Is this the background document that guided the Department of

Fisheries and Oceans in preparing the habitat risk management framework that

they’ve talked to in their submission?

6282. MR. MICHAEL ENGELSJORD: Yes, this guide’s referenced in

our submission.


6284. So this is -- in this document, this is the process that the Department

described in your evidence regarding pathways of effects, mitigation measures

and risk ranking that was adapted from this guide?

6285. MR. MICHAEL ENGELSJORD: Yeah, this is our -- what’s

referred to as our risk management framework and it includes those items you

mentioned.





6287. And is this same guide -- is this the same guide that Enbridge used as a

basis for their risk assessment regarding habitat?

6288. THE CHAIRPERSON: Ms. Thorkelson, that would be a question

for Northern Gateway, not for Government Panel.

6289. MS. THORKELSON: I think it’s in their evidence that that is the

case, that they used this.


6291. MR. MICHAEL ENGELSJORD: Yes, that’s our understanding is

that the Proponent -- at least to some degree -- based their risk assessment

analysis on our framework.

6292. MS. THORKELSON: I just wanted to make sure it was a version

and there’s not another version that I was missing.

6293. Thank you.

6294. Could we turn to Adobe page 4, please?

6295. And on the third paragraph, down where it’s highlighted, it says that:

“It is essential that habitat protection is linked closely with

[the] meeting fisheries management objectives in the areas

where [the] development is proposed.”

6296. So we’re wondering: Did the DFO follow what the guide said is

essential to do?

6297. Did it link habitat protection closely with meeting fisheries

management objectives in the risk assessment?


6298. MR. MICHAEL ENGELSJORD: This guide is intended to provide




a framework for DFO staff in their regulatory review under section 35 and 32 of

the Fisheries Act.

6299. So, I mean, at the end of a regulatory review, DFO may be faced with

a decision to issue, or not, an authorization to allow adverse impacts to habitat.

And all the information described in here would be considered prior to taking that

decision.

6300. MR. BRADLEY FANOS:: And I would add actually to that, I think

we’ve talked about this before just to be clear, certainly, when we’re conducting

our reviews even in an environmental assessment stage we’re looking at avoiding

and mitigating impacts so that we do meet fisheries management objectives.

6301. The objective of our reviews would be to certainly look at all the

avoidance and mitigations and if there are potential impacts where residual

impacts reside, then we’d be looking for the offset.

6302. So it’s inherent in how we do the review to ensure that, from a policy

perspective, we’re meeting the fisheries management objectives.

6303. MS. THORKELSON: I understand that.

6304. So when you talk about the Proponent conducting a reasonable risk

assessment -- and we’ve agreed that the Proponent has used this document as its

basis for conducting a risk assessment and the Department has used this document

as a basis for discussing risk assessment and that -- and it’s in your view that

they’ve conducted a reasonable risk assessment, does a reasonable risk

assessment include what we see in this, that fisheries management matters have to

be included in a risk assessment?

6305. THE CHAIRPERSON: Ms. Thorkelson, can you help the Panel

understand how this question is different than previous questions you’ve posed to

this Panel?

6306. MS. THORKELSON: Well, this is the -- this is the assessment that

DFO has followed and so the questions -- it may be repetitive of the questions but

they have said they’ve followed this and this again says that they were supposed

to do that and I thought that maybe they could show us where that they have done

that.




6307. MR. BRADLEY FANOS: I can appreciate the complexity of some

of the documents and how it relates to our environmental assessment and future

potential regulatory roles but I think, as we referenced earlier, the Fisheries’

management explicit reference in the risk management framework would come in

at the third stage which is before we make a regulatory decision.

6308. So it’s the risk management piece in terms of making sure at that point

we’re not compromising fisheries management objectives or impacting them to

the degree that we can’t mitigate or offset those impacts.

6309. So I think it’s maybe a step later in the process where it’s more explicit

in terms of bringing fisheries management objectives in.

6310. Certainly, at the environmental assessment stage, there is those

considerations. As I mentioned earlier, we’re using the habitat impacts that

support the fisheries in making our advice and recommendations.

6311. If there are no -- or if we have an understanding of what the potential

impacts are to the habitat, we have an understanding of the potential impacts to

the fisheries which the habitat is supporting.

6312. So it’s a different stage where the fisheries management objectives

would explicitly come into this process.

6313. MS. THORKELSON: And so is the -- when you say they’ve

conducted a reasonable risk assessment, would you say that the risk assessment

that the Proponent has conducted is reasonable up to this point because they --

you’re saying that you’re going to look at fisheries values later, so are you

expecting that they’re going to look at fisheries later as well?

6314. Or is that only part of the DFO’s -- you say their risk assessment is

reasonable. You’re saying that yours is going to change as you go into the third

stage. Should theirs change when they go to the third stage?

6315. MR. BRADLEY FANOS: So they’ll be providing the information as

we go through the process that’s required for us to complete the risk management

framework, and the last step in that would be making a risk management decision

and that will be a departmental decision around our obligations under the

Fisheries Act for the harmful alteration of fish habitats.




6316. So that’s where we land on the final level of information to make sure

that we can make an appropriate regulatory decision.

6317. But again, as we’ve said earlier, the information that we’ve collected

or that we’ve assessed, the Proponent’s provided, is a reasonable risk assessment,

in terms of applying the principles that are in the document we’re referencing.


6319. On Adobe page 13, at the bottom of this -- Adobe page 13, at the

bottom, this is the Practitioner’s Guide to the Risk Management Framework for

Habitat. The Practitioner’s Guide refers to another policy and it’s talking about

the precautionary principle and it says -- it refers the reader to another policy

called “A Framework for the Application of Precaution in Science-Based

Decision Making about Risk.”

6320. So I would like to turn to this document, “A Framework for the

Application of Precaution in Science-Based Decision Making about Risk.” It’s

what I’ve provided is an aid to cross.

6321. THE CHAIRPERSON: Ms. Thorkelson, we seem to be spending a

lot of time on AQs as opposed to the evidence itself.

6322. Can you help us understand the relevance of this line of questioning to

the Application that’s in front of us now and the stage of review that we’re at?

6323. We’ve heard from DFO that, should the project proceed, that there

would be other regulatory authorizations that would be under the purview of

DFO. I’m just concerned that we’re digging into a direction that isn’t relevant to

the review for the stage that we’re at now.

6324. MS. THORKELSON: Madam Chair, we will not have another time

-- chance, to question the Department of Fisheries and Oceans, I don’t believe, on

their final -- their final determination about the risk and about values to fisheries.

6325. All of these things that are of concern, we -- to ourselves, and we

believe our likely of concern to the Panel and part of their evaluation is going to

be done on the basis of the precautionary principle. At least that’s what the guide

says that they’re going to be doing, and this is the document from the Privy

Council of Canada, which has a framework for the application of precautions on -




- in science-based decision-making about risk and I am interested in how the

Department is going to be applying that in -- to what they have applied and to

what you say that they’re going to apply in the future.

6326. THE CHAIRPERSON: And so perhaps you could go directly to

your question based on the written evidence that’s in front of us.

6327. So what I understand that you’re wanting to understand is that

application of certain documents in forming the evidence that DFO has brought in

front of this Panel.

6328. MS. THORKELSON: In this AQ, it says that the precautionary

principle is characterized by three basic tenants: the need for a decision, the risk

of serious or irreversible harm, and a lack of full scientific certainty.

6329. Would you say that that described the situation with the Enbridge

Pipeline?

6330. That there is a need for a decision, a risk of serious irreversible harm,

and a lack of full scientific certainty?

6331. MR. SHAW: Madam Chair, the question now goes to the entirety of

the project.

6332. That’s far beyond the evidentiary -- the evidence filed by these three

tables. Perhaps the question could be restricted to the evidence filed by these

three tables and not some generalized request whether or not the whole project is

being managed under the application of the science-based provision.

6333. MS. THORKELSON: Is the Department of Fisheries and Oceans’

risk assessment and critique of the Enbridge risk assessment based on the three

basic tenants: the need for a decision, a risk of serious or irreversible harm and a

lack of full scientific certainty on the outcomes of the pipeline -- sorry, on the

pipeline?

6334. MR. MICHAEL ENGELSJORD: So I think maybe the best way to

answer this, or at least in my opinion right now, is that this framework for the

application of the precautionary approach, that’s been taken into account in

DFO’s -- in the development of DFO’s risk management framework that guides

our staff in conducting the regulatory reviews.




6335. So the information from this framework on the precautionary

approach, which is a whole of government guidance document, has been

incorporated into DFO’s specific guidance, the risk management framework that

guides our reviews.

6336. MS. THORKELSON: So is there sufficiently sound science, in your

opinion, to show that a risk of serious or irreversible harm does not exist from

either a pipeline spill or for construction or routine operations?


6337. MR. MICHAEL ENGELSJORD: Yes, DFO feels that it has for the

purpose of the EA and that’s in our summary conclusion, which is paragraph 155.

6338. We do feel that the impacts or potential impacts to fish habitat can be

managed by the Proponent through application of appropriate mitigation and, if

necessary, offsetting measures.



6340. MS. THORKELSON: The Canadian Environmental Assessment Act

is clear that an environmental effect includes the effect of any change to health

and socio-economic conditions.

6341. The Act also says, as we discussed earlier, the environmental

assessment must also take into account the environmental effects of malfunctions

or accidents of the project and the significance of the effects.

6342. Where are the socio-economic effects to the commercial industry

taken into consideration?


6343. MR. MICHAEL ENGELSJORD: Could you just ask the question

again, please?

6344. MS. THORKELSON: Sure.




6345. Where are the socio-economic effects to the commercial industry

taken into consideration?

6346. MR. SHAW: Madam Chair, before the witness provides an answer, I

note that this Panel told Alexander First Nation that it was not approved to ask

questions on socio-economic effects of the project unless specifically addressed in

the evidence.

6347. I’d submit that the same would apply to the present questioner, even

though it wasn’t prohibited from that, because it obviously didn’t appear in their

proposed list of questions or area of questioning.

6348. So I bring that to the Panel’s attention that the socio-economic effects

have not been addressed in the evidence and, therefore, no questions on that topic

would be permitted.

6349. Thank you.

6350. THE CHAIRPERSON: Mr. Shaw, I -- my assumption was that Ms.

Thorkelson’s question was in relation to the written evidence and so it was up to

the Panel to answer the question based on what’s in the written evidence that’s

been provided by the Government.


6351. MR. MICHAEL ENGELSJORD: So DFO’s written evidence from

December, 2011 doesn’t include an analysis of socio-economic effects on fishing.

6352. I believe we received an information request that we responded to on

this subject too and we’re just looking that up right now. So, hopefully, the

answer to that, which has already been filed, will provide some clarity.


6353. MS. THORKELSON: While they’re looking for that, Madam Chair,

can we just move on?

6354. If -- is it people in the back who are looking for you, so I can ask

another question?




6355. Is that all right? Thank you.

6356. If you could turn to page -- I’m not quite sure. I believe it’s page --

Adobe page 38. It’s line 139, thank you -- paragraph 139:

“DFO has applied the Department’s Habitat Risk Management

framework to the review of the proposed project. This review

considers a range of proposed project activities including

cumulative effects as well as accidents and malfunctions, the

key pathways of effects, the proposed mitigation, habitat

compensation, fish and fish habitat sensitivities, the scale of

negative effects, and the risk ratings.” (As read)

6357. Now, I’m asking if there was a socio -- if -- and if there was a study of

the socio-economic impacts to the commercial fishery of any of these things.

6358. MR. MICHAEL ENGELSJORD: No, there wasn’t. Not by DFO,

anyways.


6360. MR. BRADLEY FANOS: If I could add to that, it’s just more

context for the question.

6361. We certainly, as I’ve said earlier, provide the analysis and advice in

this process to see if there’s impacts to fish and fish habitat.

6362. And again, it’s on the record in the evidence, in terms of our position

and advice with respect to the potential for impacts to fish that support fishery on

the project.

6363. MS. THORKELSON: The -- this paragraph also serves -- paragraph

also says that you’ve considered accidents and malfunctions.

6364. In what context did you consider accidents and malfunctions?


6365. MR. MICHAEL ENGELSJORD: The main comment DFO made




related to this in our written evidence was our comments on the use of block

valves.

6366. I can find a reference for you, if you like.

6367. MS. THORKELSON: Yes, I’m aware that you said that they should

have more block valves and that should be less than 2,000 cubic metres of oil --

possible oil spill.

6368. So that’s the only accident and malfunction that you considered?

6369. MR. MICHAEL ENGELSJORD: We did review the whole project

and consider it -- that’s the one that we found warranted a comment.


6370. MS. THORKELSON: And what would the pathway of effect on

spawning salmon be or did you examine the pathway of effect of spawning

salmon on a oil spill -- of a spill?

6371. MR. MICHAEL ENGELSJORD: As I mentioned before, DFO

didn’t conduct any analysis of probability, fate, oil spills.

6372. MR. BRADLEY FANOS: And to add to that, we certainly did

provide advice and recommendations around citing and avoiding impacts to

particularly sensitive habitats.

6373. MS. THORKELSON: So we are talking about uncertainty and

uncertainty, I imagine, is -- would you agree that -- is uncertainty that you’re

talking about in paragraph 140 determined by the precautionary principle?


6374. MR. MICHAEL ENGELSJORD: The precautionary approach

identified in that whole of government framework is, as I’ve mentioned before, it

is considered in the development of the risk management framework that DFO

follows in its regulatory reviews.

6375. MS. THORKELSON: So if you could, please, just explain to me the

relationship between your comment -- DFO’s recommendation that the -- that




you’re just referring to, that the valves be changed so that a spill of less than 2,000

cubic metres would be a possibility because a spill of a 1,000 cubic metres, you

explained in the -- in your evidence, impacted the Pine River negatively.

6376. So is that -- is -- that is a recommendation that you have made but it’s

not necessarily a recommendation that Enbridge has said they’re going to apply.

6377. So how is it that you have determined that your risk -- that their risk

assessment is satisfactory, in your view?


6378. MR. MICHAEL ENGELSJORD: DFO understands -- not because

we have expertise in this but from others -- that the likelihood of a spill is low.

6379. The Proponent has identified, as a contingency in the unlikely event

that there is a spill, that they have these block valves to -- if I understand it

correctly, it’s to limit the amount of or the volume of oil that would be spilled.

6380. So our comment was, as we understand that’s a contingency to limit

that, to request that the Proponent look into whether then can go further with that.

And as we identified in our recommendation there, we have some first-hand

experience with a spill that was lower than the volume that they had proposed

there, that could cause -- or in the case that we referenced, did cause significant

damage to fish habitat value.

6381. So we’ve put that to the Proponent to see if they can improve that

contingency and I don’t remember off the top of my head but I believe the

Proponent has at least committed to looking into this further.

6382. MS. THORKELSON: And because the Proponent commits to

looking into this further, you think that’s a satisfactory risk management -- you’re

giving their -- your -- in your view that their analysis is satisfactory?

6383. MR. MICHAEL ENGELSJORD: Well, we understand that the risk

is low even with the block valves incorporated as they originally proposed.

6384. The overall -- whether that particular detail is satisfactory, I don’t

think is up to DFO, it’s an Environmental Assessment determination.




6385. MS. THORKELSON: So you’re accepting -- so you’re going on

face value that you’re accepting the level of risk that the Proponent has said?

6386. THE CHAIRPERSON: Ms. Thorkelson, I believe your question has

been asked and answered so I would encourage you ---


6388. THE CHAIRPERSON: --- I think it seems -- it’s just at noon now so

perhaps, now that I have interrupted you, this might be an appropriate time to take

a break.

6389. Before we do that, can you give us an idea of how much time you have

remaining for your questions, Ms. Thorkelson?

6390. MS. THORKELSON: Probably half an hour.


6392. And we understand that there are two aspects that the Panel is going to

-- the witness panel is going to look up and report back when we come back after

lunch.

6393. So with that, we’ll break for lunch and come back at one o’clock.

Thanks everyone.


--- Upon recessing at 12:05 p.m./L’audience est suspendue à 12h05

--- Upon resuming at 1:03 p.m./L’audience est reprise à 13h03

6395. THE CHAIRPERSON: Good afternoon, everyone.

6396. Does anyone have any preliminary matters they wish to raise before

we continue with questions?

6397. Again, I see no race to the microphones. Ms. Thorkelson, please finish

up with your questions of this Panel.

6398. MR. SHAW: Pardon me, Madam Chair, I don’t think we have our




full array of witnesses.

6399. THE CHAIRPERSON: Sorry about that.

6400. MR. SHAW: We’re sorry about that too.

6401. THE CHAIRPERSON: It looked like there was a lot of faces there

and I just didn’t do the chair count.

6402. MR. SHAW: We’ll send out a rescue party.

6403. THE CHAIRPERSON: Thank you.

6404. While we’re waiting for the rescue party in Prince George, can we just

confirm who’s on the line remotely?







LUCY REISS: Resumed















JUNE YOO RIFKIN: Resumed





6405. MR. STEVEN VIRC: Hi, Steven Virc from Environment Canada.

6406. MS. CATHERINE NIELSEN: Cathy Nielsen from Environment

Canada.

6407. MS. MANON LALONDE: Manon Lalonde from Environment

Canada.

6408. MS. JUNE YOO RIFKIN: June Yoo Rifkin from Environment

Canada.

6409. DR. DONNA KIRKWOOD: Donna Kirkwood from Earth Science

Sector, NRCAN

6410. THE CHAIRPERSON: Is Mr. Breault here on the line?


6411. THE CHAIRPERSON: Mr. Breault?


6412. THE CHAIRPERSON: And are the other five of you connected via

WebEx?

6413. MR. STEVEN VIRC: Cathy Nielsen, Manon Lalonde and Steven

Virc are.


6415. MS. JUNE YOO RIFKIN: June Yoo Rifkin is.

6416. DR. DONNA KIRKWOOD: And Donna Kirkwood.

6417. THE CHAIRPERSON: That’s great.

6418. I think Mr. Breault’s joined us.

--- (Laughter/Rires)




6419. MR. ANDRÉ BREAULT: Excuse me, Madam Chair.

6420. THE CHAIRPERSON: That’s fine.

6421. Mr. Breault, are you connected via WebEx as well?

6422. MR. ANDRÉ BREAULT: I am activating my camera instantly.

6423. THE CHAIRPERSON: Perfect, thank you.

6424. We’re just waiting for a couple of more witnesses here in Prince

George to -- and then we’ll be ready to resume.

6425. MR. ANDRÉ BREAULT: Thank you.


6426. MR. SHAW: Madam Chair, I wonder if, while we’re waiting, the

witnesses -- we do have the full complement of DFO witnesses. I think if the

questioner is restricting her questions to DFO, perhaps we could continue with

questioning and, hopefully, everybody else will arrive shortly.

6427. THE CHAIRPERESON: Thank you, I was thinking the same thing

but noticed we were missing Mr. Beattie and he arrived just as you were speaking.

6428. So I believe now we do have the full complement of the DFO folks.

6429. MR. SHAW: Okay.

6430. THE CHAIRPERSON: And perhaps, do the DFO witnesses have

the answers to the questions that you were looking up -- further -- additional

information on over the lunch hour?

6431. MR. MICHAEL ENGELSJORD: Yes, we have something to

provide.

6432. THE CHAIRPERSON: Ms. Thorkelson, would it be all right with

you if we go ahead with that piece first? Okay.

6433. MR. MICHAEL ENGELSJORD: Okay, we’ve had a look at the




Proponent’s documents to find where they reference potential -- where they

reference commercial fisheries and it’s in their marine documents.

6434. I’ve got a couple here: Exhibits B40 and B41. These are the

Proponent’s Marine Fisheries Technical Data reports.

6435. And a third one: Exhibit B3-22 and this is Volume 7c of the EIS,

entitled “Risk Assessment and Management of Spills of the Kitimat Terminal”.

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

(Continued/Suite)

6436. MS. THORKELSON: Sorry, is it okay if I ask some -- just some

questions on that?

6437. I just -- did you find any freshwater references?

6438. MR. MICHAEL ENGELSJORD: No, to the best of our knowledge,

the Proponent for freshwater impacts hasn’t made the connection to or the linkage

to a commercial fishery -- downstream commercial fishery.

6439. They have to recreational and Aboriginal fisheries.


6441. And I -- they did not make reference to inland First Nations fisheries --

commercial fisheries either?

6442. THE CHAIRPERSON: Ms. Thorkelson, I remind you that you’re

not here to give evidence but just to ask questions.

6443. MS. THORKELSON: No, I’m asking that. Sorry, that was a

question.

6444. THE CHAIRPERSON: Oh, I’m sorry.

6445. MS. THORKELSON: Did they -- sorry.

6446. Did you find any reference to commercial fisheries on salmon in -- on

the Skeena River -- in-river fisheries -- inland fisheries -- commercial economic




inland fisheries?


6447. MR. MICHAEL ENGELSJORD: I’m not sure I can answer that

question in that detail as to whether there’s a -- they’ve considered a specific

fishery.

6448. MS. THORKELSON: That’s fine.

6449. Do they have answers to second questions?

6450. MR. MICHAEL ENGELSJORD: We have some information.

6451. Maybe just to help with the flow of things, do you recall your -- the

question about that?

6452. MS. THORKELSON: No.

6453. MR. MICHAEL ENGELSJORD: Oh, okay.

6454. Okay, I’ll do my best to sort of step through. So on the freshwater

effects side, from the pipeline, the -- our -- to the best of our understanding, the

Proponent hasn’t made this linkage to effects on commercial fisheries that would

generally occur far downstream.

6455. They have some analysis of potential effects of accidents and

malfunctions like spills and in the freshwater environment, and assessment of the

effects of that on fish and fish habitat but not -- I don’t believe specifically on

commercial fisheries that would occur downstream.

6456. MR. BRADLEY FANOS: I was just going to add, I think when we

looked at the evidence, we certainly were looking at two types of considerations

for impacts to socio-economics and it was around the construction and operation

piece which, certainly, we put our minds to and there’s evidence provided that

indicated the unlikely nature of the impacts to fish habitat and fish associated with

construction and operation.

6457. And we’ve made remarks with respect to the mitigation and offset

measures to provide that advice to the Panel.




6458. In terms of the accidents and malfunctions, I think that’s the area

where we’re looking for the Environmental Assessment process to provide the

sort of assessment, if you will, on the likelihood of those types of scenarios and

then the downstream impacts.

6459. MS. THORKELSON: So may I -- just to clarify that, you’re saying

that you’re looking to the -- this environmental assessment process -- meaning the

Joint Review Panel process to provide information on the downstream effects of a

spill on the commercial fishery? Sorry.

6460. MR. MICHAEL ENGELSJORD: Just in the context of

consideration of accidents and malfunctions -- the -- that’s one of the -- as you

pointed out, that’s one of the things required under CEAA and is part of the

environmental assessment.

6461. MS. THORKELSON: And in spite of all of the advice in the habitat

policy and in the guide and in -- that DFO has no evidence to submit to the Panel

on that issue of socio-economic impacts or downstream impacts on the

commercial fishery of a malfunction or spill?

6462. MR. MICHAEL ENGELSJORD: Just to put that in context, the

DFO’s habitat management policy, specifically the part of it that provides some

direction for when DFO is conducting reviews, the section 35 and DFO’s guide

on risk management framework, these are documents to provide guidance to our

staff in conducting regulatory reviews under those sections of the Fisheries Act.

6463. So that regulatory review is not complete and we will be ensuring we

have all the information necessary before a decision is made on issuing an

authorization or not.

6464. MS. THORKELSON: So that’s a stage three that you’ve talked

about?

6465. MR. MICHAEL ENGELSJORD: Yeah, at the regulatory review

stage.

6466. MR. BRADLEY FANOS: I just want to add the context as well. So

in terms of the environmental assessment process, we’re not making assessments

on the risks and probabilities of the oil spill. We certainly have advice to provide




with respect to potential impacts to a fishery, but in terms of the likelihood and

the scenarios described, we don’t have the expertise to provide that kind of

information to the Panel.

6467. MS. THORKELSON: I was looking on the -- the effects on the

fishery. I have noted that the department says it doesn’t -- in your submission that

you don’t -- I can’t remember exactly what it was, whether you had the capacity

or the expertise to determine the impact fate and effects of oil, right? And I’ve

read that in there and we could find the paragraph if we need to clarify that.

6468. But what I’m wondering is the impacts on fisheries. So you see if

there is a spill and it impacts fish, then there are varied effects on fisheries, would

you agree with that?

6469. MR. BRADLEY FANOS: I would characterize it as should an

unlikely event like a spill occur there is the potential for a spill to impact fish.

And as such, depending on quite a number of variables, ---


6471. MR. BRADLEY FANOS: --- time of year, location, all these other

scenarios, that will result in potential impacts to downstream fisheries, which

those fishes would contribute to. So again, I think the challenge is the variables to

determine what the nature of that impact would be.

6472. MS. THORKELSON: And I think that we would agree with that.

6473. Okay, I’d like to move on I think, then to the -- to paragraph 135 of the

DFO submission, please. Sorry, sorry about that, it’s on page 37. Thank you.

6474. And on 135, it says:

“…DFO is of the opinion that the Proponent’s approach to the

cumulative effects assessment for [water shore cross -- sorry,

for] watercourse crossings is reasonable.”

6475. And then on 136, it says:

“In offering this opinion, DFO has followed the guidance

provided in the Canadian Environmental Assessment Agency’s




‘Cumulative Effects Assessment Practitioners Guide’ that

[emphasizes] biophysical effects (such as effects on fish and

fish habitat) rather than socio-economic effects…”

6476. Is this what the -- is this what the guide says that you should do, is not

deal with socio-economic effects?

6477. MR. MICHAEL ENGELSJORD: Our understanding is socio-

economic effects are considered when they arise from an environmental effect,

like a biophysical environmental effect. I think that’s what that’s referring to.

6478. MS. THORKELSON: If we could -- if we could actually turn to the

Cumulative Effects Assessment Practitioners Guide, which is aid to cross. And if

we could turn to Adobe page 2 -- sorry, Adobe page 8. Sorry about that. And is

this Adobe page 8?

6479. And under “Biophysical versus socio-economic effects” -- is this the

Practitioners Guide?

6480. THE CHAIRPERSON: Ms. Thorkelson, is this what you’re looking

for?

6481. MS. THORKELSON: I’m just trying to see. It’s called -- there’s so

many guides that -- the one I’m referring to is a Cumulative Effects Assessment

Practitioners Guide.

6482. Thank you. And it’s Adobe page 8. Thank you.

6483. And this says “Biophysical versus socio-economic effects”. And the

last sentence says:

“The advancement of CEA practice should include more

frequent recognition of social consequences and the

connections between those consequences and the environment

because environmental effects [also] lead to socio-economic

effects…”

6484. Did you take that into consideration when you were making this

opinion -- offering your opinion?




6485. MR. MICHAEL ENGELSJORD: Yeah -- yes, I believe this is the

guide that we refer to in our paragraph 136.

6486. MS. THORKELSON: And it says in paragraph 136 that you follow

their guidance, and I was wondering if you followed that part of the guidance?

That last sentence there in that highlighted paragraph.

6487. MR. MICHAEL ENGELSJORD: That sentence is kind of a -- I’m

not sure how you’d describe it. There may be some guidance or not, but DFO

focused on the biophysical effects.

6488. MR. BRADLEY FANOS: I can add to that perhaps. I mean, I think

we’re -- try and get to the point I think, is the biophysical assessments that we did

didn't suggest any residual effects that couldn't be offset or mitigated for, and as

such, the cumulative effects assessment falls out of that.

6489. So the impacts, if you will, on the socio-economics were considered

but weren't considered to be, at least in terms of the construction and operation,

significant because we were able to offset from a biophysical perspective any

impacts.

6490. MS. THORKELSON: But on spills, which is part of the assessment

on risk, would you say the same?

6491. MR. MICHAEL ENGELSJORD: I just want to clarify, our

comment on the cumulative effects is only referring to cumulative effects on fish

habitat that are predicted effects from the project, not cumulative effects of

accidents or malfunctions such as spills.

6492. MS. THORKELSON: So if there is a low risk of a spill that does not

mean no risk of a spill; is that correct?

6493. MR. MICHAEL ENGELSJORD: Yes, that's my understanding.

6494. MS. THORKELSON: So if there is a risk from a spill then shouldn't

there be some analysis of that risk?

6495. MR. SHAW: If I may speak on that point. I think the question has

been asked and has been answered. This is now getting to be more

argumentative. I think the witnesses have clearly stated what they took into




account and the basis upon which they took it into account. They’ve dealt with

spills as being something that was not considered in the process they were

engaged in, so another question about did you take into account spills, simply

re-asks the question in a different form of words. It's simply re-asking and

re-asking the same question time and time again.

6496. MS. THORKELSON: I have -- I guess I ask the same question time

and time again because the policies that we're following say the same thing time

and time again. So I will accept -- I'm -- the reason I'm asking the question is

because the policies that they're supposed to be following, that they said they

follow, say they're supposed to do certain things, so I'm just asking if they

followed those things that they did.

6497. So that's why I'm asking the question. Did they consider it was spills?

And if the answer is the same, no, they didn't consider under cumulative effects

because cumulative effects are different than a risk assessment, did they consider

them under the cumulative effects?

6498. THE CHAIRPERSON: Let's have the panel answer this question,

please.


6499. MR. MICHAEL ENGELSJORD: So if I remember the question

correctly, DFO's comments on the cumulative effects assessment did not consider

or we don't make comments in that context regarding accidents and malfunctions

such as spills, just on the predicted effects on fish habitat from the routine

construction operation.


6501. And then I'd like to turn lastly -- you'll be happy to know that this is --

all be happy to know -- I'll be happy to tell you this is my last page of questions,

which is on habitat compensation.

6502. So if we can turn to Adobe page 10, paragraph 23 of the DFO

submission please. It's page 10, paragraph 23. Thank you.

6503. So how does one -- this one says -- geez, I have a hard time reading

that screen. Sorry, paragraph 23 says:




"Another consideration in determining the acceptability of

compensation measures is the certainty [of] likelihood of -- is

the certainty or likelihood of success in achieving [no net loss]

of productive capacity."

6504. How does one determine the certainty or likelihood of -- how did you

determine the certainty or likelihood of success in achieving no net loss?

6505. MR. MICHAEL ENGELSJORD: So in that paragraph we've got

the word “acceptability”, and at the point where a fish habitat compensation plan

would need to be acceptable to DFO is where we would be making a regulatory

decision on whether to issue an authorization. So that's one piece of information.

6506. And the other is at this stage the Proponent's fish habitat compensation

plan is conceptual, so it's not a final plan with the maximum amount of certainty

you would have beyond actually building it and seeing how it works is at the final

plan stage, which is not where the Proponent's plan is right now.

6507. So while they have made some promising progress towards the final

plan, before DFO could make a decision and authorization we would be expecting

to see the final fish habitat compensation plan.

6508. MS. THORKELSON: Could we turn to -- I'm sorry, I -- it's

paragraph 148, Ms. Niro.

6509. Thank you very much.

"In assessing the risk to fisheries, the Proponent has provided

a general description of the baseline setting relating to

fisheries resources and [the] assessment of potential effects of

[…] bitumen. In addition, the Proponent has committed to

developing a long-term monitoring plan [in order] to establish

a benchmark and to monitor the effects of a spill […] over an

extended period of time and DFO is supportive of this

commitment."

6510. And so that would be as well with the compensation, that you would

have monitoring of the compensation that would occur?




6511. MR. MICHAEL ENGELSJORD: No, this one doesn't relate to

habitat compensation because it's in the section on accidents and malfunctions.

DFO would not be giving an authorization for an accident such as a spill. And so

the compensation element comes in when DFO's providing an authorization, and

that is just for unavoidable habitat impacts.

6512. An accident such as a spill is not predicted by the project even though

there's a small chance it could occur. So we would not be permitting a spill.

6513. MR. BRADLEY FANOS: I was just going to add to that. Certainly

from a regulatory perspective when we give authorizations and include

compensation measures there is monitoring that's attached to that which helps us

understand the effectiveness of the compensation that's being included in the

authorizations.

6514. MS. THORKELSON: So in the event of a spill would you have a --

would there be a compensation plan?

6515. MR. MICHAEL ENGELSJORD: Not a compensation plan as

we've been talking about it. A compensation plan that we're referring to is a plan

that will offset the predicted and authorized harmful impacts to fish habitat. A

spill like -- that occurs through an accident, it's not a predicted effect. It's like a --

there's some risk that an accident could happen but it's not a predicted effect. So

we wouldn't be giving an authorization so there's not compensation in that respect.

6516. MS. THORKELSON: The reason I was asking is because it says in

that paragraph 148:

"In addition, the Proponent has committed to developing a

long-term monitoring plan to establish a benchmark and to

monitor the effects of a spill (should one occur) over an

extended period of time…"

6517. And so I assume that there would be -- that Enbridge -- sorry --

Enbridge has made a commitment to have compensation, in an event of a spill,

and would you be monitoring this compensation as well if there were a spill?

6518. MR. MICHAEL ENGELSJORD: I think the context for that

baseline information is to have an understanding of the baseline conditions so that

in the vent of a spill -- and there may be some clean-up activities, perhaps some




restoration of habitat that occur -- if we understand what the baseline conditions

are, you have kind of a reference point for where you would like to get back to.

6519. A spill would still be an unfortunate accident that would be potentially

under a couple of sections of the Fisheries Act illegal.


6521. And on Adobe page 12, in paragraph 30, it says that under -- it says

that these are the tools -- risk management tools that DFO has and 2 says:

“… Fisheries Act authorizations, which also include conditions

for monitoring and compensation and may contain conditions

for financial securities. These conditions are generally

commensurate with a level of risk associated with the proposed

development.” (As read)

6522. And I was wondering if you are recommending or when the

recommendation -- when the timeframe for the recommendation regarding

financial securities will be -- would take place?

6523. MR. MICHAEL ENGELSJORD: So that would occur at the

regulatory decision.

6524. So once we understand the specifics -- the Proponent’s final

submission and we understand the specifics of that, then we would expect to have

the appropriate type of monitoring to evaluate that.

6525. And it’s quite common for DFO to hold a financial security when we

issue an authorization so that, in the event that the Proponent is, for some reason,

unable to complete their obligations -- by that, I mean complete their

compensation plan -- DFO is holding some financial security from the Proponent

and we could undertake it on their behalf with that money.

6526. MS. THORKELSON: So if there is a spill and there is necessary

compensation for a spill, would the DFO, in your regulatory arrangements, hold a

financial security for habitat restitution and compensation in the event of a spill?

6527. MR. MICHAEL ENGELSJORD: No, again, this is in the context of

when DFO would issue an authorization to allow the Proponent to cause some




unavoidable harm to fish habitat.

6528. We’re never in a position where we issue an authorization to cause

harm to fish habitat or other fishery resources through a spill -- an accident like a

spill. That’s a different situation.

6529. MS. THORKELSON: So if there is a risk of a spill and risk to -- and

risk and uncertainty -- there’s risk and uncertainty whether there’s a spill or not,

the Act does not provide the Department to hold financial securities even though

there is a risk of a spill?

6530. I’m not saying that you’re authorizing it, but is there anything in the

Act that permits holding of compensation for the potential of a deleterious

impact?

6531. MR. MICHAEL ENGELSJORD: No, not specifically. That’s just a

-- that’s prohibited under the Act.

6532. MS. THORKELSON: Thank you. That concludes my questions.

6533. THE CHAIRPERSON: Thank you very much, Ms. Thorkelson.

6534. MS. THORKELSON: I’d like to thank you guys -- the DFO Panel

very much. I think it was difficult and I want to thank you very much.

6535. And I hold no disrespect for you or your positions. Thank you.


6536. THE CHAIRPERSON: So, next, we’ll call Northern Gateway.


6537. THE CHAIRPERSON: Good afternoon, Mr. Neufeld.

6538. Please go ahead with your questions of this Panel.

6539. MR. NEUFELD: Good afternoon, Madam Chair.


Examination by Mr. Neufeld


6540. There are a lot of witnesses here. I know how some of my friends

must have felt. In fact, I think I have fewer questions than witnesses so,

hopefully, we’ll be able to get through this fairly fast.

--- EXAMINATION BY/INTERROGATOIRE PAR MR. NEUFELD:

6541. MR. NEUFELD: I just want to ask a few questions in the area of the

DFO permitting process and what we might see in the future should this project

proceed, and a couple of questions regarding caribou management. So with that I

think, hopefully, I can get through this fairly quickly.

6542. So I’ll start with the DFO permitting process that we’ve heard

discussed by Mr. Fanos and Mr. Engelsjord.

6543. First of all, I take it, gentlemen, that you’ve reviewed or you read the

Northern Gateway Reply Evidence responding to the evidence of the Department

of Fisheries and Oceans earlier this year?

6544. MR. MICHAEL ENGELSJORD: Yes, we have.

6545. MR. NEUFELD: At that time, DFO had requested draft or additional

draft habitat compensation plans for marine and freshwater environments as well

as mitigation summary tables.

6546. Can we agree that additional plans were, in fact, filed in July

contemporaneous with the Reply Evidence?

6547. MR. MICHAEL ENGELSJORD: Yes, we’ve seen both those plans.

6548. MR. NEUFELD: And also that additional detail on those plans and

mitigation summary tables have been provided directly to the Department of

Fisheries and Oceans?

6549. MR. MICHAEL ENGELSJORD: I just want to make sure, what do

you mean by “provide directly to”?

6550. MR. NEUFELD: In meetings in August of this year.

6551. MR. MICHAEL ENGELSJORD: Yeah, we did meet with Northern

Gateway in August.




6552. MR. NEUFELD: Right.

6553. And additional detail was provided in respect of the compensation

plans and the mitigation summary tables?

6554. MR. MICHAEL ENGELSJORD: We received a draft.

6555. So the freshwater fish -- conceptual fish habitat compensation plan that

was filed in July. After our meeting in August, DFO did receive a draft version

2.1 of that plan that had a few additional details over the one that was filed in

July.

6556. MR. NEUFELD: Okay. Thank you, Mr. Engelsjord.

6557. And I take it that, as well as all of the evidence in this proceeding,

would be available then at a later time if this project should be approved and

proceed to what you’ve referred to as the permitting stage under the Fisheries Act

and, included in that, would be final compensation plans; is that right?

6558. MR. MICHAEL ENGELSJORD: Yes, we’d be expecting to see a

final compensation plan before making decisions on the -- regulatory decisions on

whether we issue authorizations.

6559. MR. NEUFELD: Okay.

6560. Now, I want to talk to you briefly about streamlining. There was a

discussion with Ms. Griffith on the process for considering requests for HADD

authorizations.

6561. So to start with, HADD authorizations I think, as you’ve indicated, are

typically issued and considered following the completion of the environmental

assessment.

6562. Is that right?

6563. MR. MICHAEL ENGELSJORD: Yes, that’s right.

6564. We’re required to -- we can’t issue those until the environmental

assessment is completed.




6565. MR. NEUFELD: Okay. In this case, sir -- and I don’t want to get

into much detail on this, but I think it’s quite relevant -- there is an adjacent

pipeline proposed, particularly for the segment of the pipeline in the Kitimat

River Valley and in fact, going back to Prince George in the form of the Pacific

Trails Pipeline; are you aware of that?

6566. MR. MICHAEL ENGELSJORD: I’m generally aware of that

project.

6567. MR. NEUFELD: Now that was a project that went through the

environmental assessment process some time ago, and as I understand it would

have to then go through your permitting process to the extent that HADD

authorizations are required; is that right?

6568. MR. MICHAEL ENGELSJORD: Yes, if they’re -- if -- if HADD

authorizations are required.

6569. MR. NEUFELD: And, sir, for the -- excuse me, I’m having -- got

something in my throat.

6570. For the Kitimat River Valley component of those two projects, we’re

talking about virtually contiguous rights-of-way, so they’re crossing the same

watercourses; is that right?

6571. MR. MICHAEL ENGELSJORD: I -- I don’t know specifically for

the -- the other project, but…

6572. MR. NEUFELD: Okay. I guess then you haven’t had the

opportunity as yet to consider HADD authorizations for the other project?

6573. MR. MICHAEL ENGELSJORD: DFO didn’t file any evidence in

these proceedings on that other project. So it’s -- it’s not in our evidence.

6574. MR. NEUFELD: All right, let me try you on this one. Have you had

-- you talked with Ms. Griffith about least risk periods and setting -- working with

a Proponent to establish or look at some site-specific least risk periods. Have you

had the opportunity to set specific or site-specific least risk periods in the Kitimat

River Valley in respect of that adjacent pipeline proposal?




6575. MR. MICHAEL ENGELSJORD: I’m not aware and I don’t think

the folks that we brought here are aware of that because we didn’t bring people to

speak to that project.

6576. MR. NEUFELD: Okay. Let’s talk then about streamlining

specifically, and I was going to -- I was going to take you back to the application

but Ms. Thorkelson did me a favour this morning by filing as an aid to cross-

examination -- I guess -- AQ50-C, excuse me, the Practitioner’s Guide to Risk

Management Framework.

6577. Now, as I understand it that framework distinguishes between low,

medium and high risk development proposals in respect to fish habitat. Is that

fair?

6578. MR. MICHAEL ENGELSJORD: Yes, I’d agree with that.

6579. MR. NEUFELD: And there was a discussion about blanket

authorizations that took place, I believe between Ms. Griffith and Mr. Anderson

and then again between Ms. Griffith and yourself.

6580. Madam Niro, if you could turn up, please, AQ50-C, to Adobe page 21.

I think we can shorten this up quite a bit. Adobe page 21. All right, now if you

could scroll down to “Medium risk”.

6581. Maybe if you just have a look at section 3.3.2, Mr. Engelsjord.

6582. So I guess -- have you read it?

6583. MR. MICHAEL ENGELSJORD: I’m familiar with that section,

yeah.

6584. MR. NEUFELD: Okay. So when we’re talking about -- whether

we’re talking about blanket authorizations or streamlined authorization processes,

would you agree that the practitioner’s guide contemplates that medium risk

development proposals are usually routine in nature which lends itself to the

application of a streamlined authorization process; that’s what the guide says?

6585. MR. MICHAEL ENGELSJORD: Yeah, that’s right.

6586. MR. NEUFELD: Okay. And that streamlined process, they give




examples, they could be class authorizations as developed in Ontario for

agricultural drain maintenance and in the Yukon for placer mining; is that right?

6587. MR. MICHAEL ENGELSJORD: Yes.

6588. MR. NEUFELD: And then there could also be template

authorizations.

6589. Now, my understanding, and you can correct me if I’m wrong, sir, is

that this approach of a single authorization with multiple crossings dealt with has

been used in the Lower Mainland?

6590. MR. MICHAEL ENGELSJORD: If by that you mean a single

authorization to identify -- or to authorize a number of sites?

6591. MR. NEUFELD: Yes.

6592. MR. MICHAEL ENGELSJORD: Yes, that’s been used on other

projects.

6593. MR. NEUFELD: Right. So that would have been used, for example,

on the Port Mann/Highway 1 project where there were hundreds of crossings?

6594. MR. MICHAEL ENGELSJORD: Yes, projects like that is quite --

it’s fairly common for linear projects.

6595. MR. NEUFELD: Right. And the Sea to Sky Highway would be

another example?

6596. MR. MICHAEL ENGELSJORD: Yes, I believe so.

6597. MR. NEUFELD: Okay, thank you, Mr. Engelsjord.

6598. Just a couple of questions then turning to the caribou management

issue, and I’ll throw this out to the panel as a whole and the people here or on the

phone as the case may be might respond. I’m going to speak specifically about

the Southern Mountain caribou.

6599. I understand -- I’ll start with you, Dr. Smith, and you can kick it back

if you wish -- that the Southern Mountain caribou recovery strategy is still a year




or two out?

6600. DR. BARRY SMITH: It’s -- it’s a ways out. It’s hard to put an exact

final date on it. We mentioned on Friday, I think, that we aspire to have it done in

about a year.

6601. MR. NEUFELD: All right. Earlier in this proceeding there was filed,

the recovery strategy for the woodland caribou, boreal population in Canada, and

that’s Exhibit E6-2-2, and I’d like to just ask you one or two questions about that.

6602. Madam Niro, if you could turn to Appendix I in that document, which

is hard copy page 85. I believe that equates to about page 96 Adobe. Keep going,

you’re on Table H. Yes, here it is.

6603. Now, I appreciate that these mitigation techniques and examples are

developed in the context of the woodland caribou boreal population, but is it fair

to say that most, if not all of these mitigation techniques are ones that we could

expect also to see in the Southern Mountain caribou strategy once it’s issued?

6604. DR. BARRY SMITH: Just let -- excuse me, just let me take a

moment just to read them through carefully.

6605. MR. NEUFELD: Sure, please do.


6606. DR. BARRY SMITH: Perhaps we should scroll up a bit too, thanks.

And a bit more.


6607. DR. BARRY SMITH: Thank you for your indulgence.

6608. Yeah, we would agree that, generally, speaking these techniques could

be applied to Southern Mountain caribou even though they’ve been developed

under the recovery strategy for boreal caribou.

6609. I would just like to point out that they are two separate populations

assessed differently under COSEWIC and, therefore, the specifics of mitigation

could very well differ between the two populations.




6610. MR. NEUFELD: Very well, and I take that point. And perhaps let

me just ask you this as well, while we’re on this page. As I see this, we have a

number of techniques and strategy, some of which would be undertaken by a

Proponent and some of which would be undertaken by resource managers.

6611. For example, the difficult one of killing of predators is not something

you would expect a Proponent to undertake; is that right?

6612. DR. BARRY SMITH: I think actually, I would defer that question to

somebody in the province. Because it’s a species that’s being managed from the

province -- or by the province, excuse me, I think those types of questions would

have to be asked of the provincial managers to determine what they’re policy

would be with respect to that.

6613. MR. NEUFELD: Fair enough. If we look at the ones that would -- or

could be addressed by a Proponent clearly, we also see a distinction between

things like habitat restoration which may have a longer timeframe and more

immediate measures such as linear feature removal and management. Do you see

that?

6614. DR. BARRY SMITH: Sorry, which ---

6615. MR. NEUFELD: I’m simply drawing your attention sir, to the fact

that these mitigation measures talk to different timeframes. Some of the

timeframes are longer timeframes, such as the habitat restoration and others

provide immediate benefits in terms of removal of access and access

management.

6616. DR. BARRY SMITH: Certainly there would be -- you know -- short,

medium and long-term timeframes to the various mitigation measures.

6617. MR. NEUFELD: Okay. And in this case the suite of mitigation

measures that we’ve heard discussed in this proceeding are ones that speak to

both the short and the long-term; is that right?

6618. DR. BARRY SMITH: Yes, that’s true.

6619. MR. NEUFELD: Thank you, panel.


Examination by Mr. Hudson


6620. Those are all my questions, Madam Chair.

6621. THE CHAIRPERSON: Thank you, Mr. Neufeld.

6622. Mr. Hudson?


--- EXAMINATION BY/INTERROGATOIRE PAR MR. HUDSON:

6623. MR. HUDSON: Good afternoon, panel members.

6624. I didn’t plan my questioning in cooperation with Mr. Neufeld but I do

have questions for DFO and I do have questions for -- about caribou, and in that

order. Great minds think alike.

6625. Start with the -- the updated conceptual plan regarding compensation

which you’ve already spoke with Mr. Engelsjord with Mr. Neufeld. And one of

my questions was has Northern Gateway consulted with DFO regarding this plan?

And I dare you to say “no” because I understand you have met and discussed it,

and I presume that you’ve reviewed this Version 2 and maybe even a 2.1 that we

haven’t seen.

6626. And my question relates to how this impacts on this process, not

necessarily how it impacts on your own regulatory process which as I understand

-- and you can correct me if I’m wrong -- will continue after -- after we’re done,

presuming that there is a certificate that’s issued for the project.

6627. So for our -- our purposes, my questions are very simple. Has DF -- is

DFO now satisfied with the approach that Northern Gateway has proposed to

you?

6628. That was the question. I’ll ask it again. Is DFO satisfied now with the

conceptual approach that Northern Gateway is proposing with regard to the

compensation strategy?

6629. MR. MICHAEL ENGELSJORD: Could I ask you what you mean

by satisfied?




6630. MR. HUDSON: If you could -- if you could issue your regulation

tomorrow, you’d rubberstamp it.

6631. MR. MICHAEL ENGELSJORD: Okay.

6632. MR. HUDSON: Because my next question is are there outstanding

concerns that you can tell us today about?

6633. MR. MICHAEL ENGELSJORD: Okay, from the regulatory

decision perspective which would happen in a potential future regulatory phase,

the plan’s not complete. It’s -- I mean, the title includes the word conceptual. At

that stage we’d be looking for all of the details including, you know, everything

you would need to construct those plans. And that’s not what they’re -- is in that

plan right now, it’s of a more conceptual nature.

6634. MR. HUDSON: And are you -- I guess to the extent that you can

answer -- I don’t want the details, I want to know whether the general approach is

satisfactory at this stage knowing that you’re at this stage.

6635. MR. MICHAEL ENGELSJORD: Yeah, at this stage the general

approach is satisfactory, yes.

6636. MR. HUDSON: And are there any concerns with that that you’re in a

position to tell us about now?

6637. MR. MICHAEL ENGELSJORD: No concerns to mention but just

-- you know, the qualification is, for this stage we’re satisfied.

6638. MR. HUDSON: Thank you.

6639. Now, in DFO’s written evidence -- and I don’t know that we need to

go there -- DFO recommended Northern Gateway employ a trenchless crossing

method for all streams crossing -- stream crossings that have risk categories of

medium to high, all stream crossings where there is no least risk period, and

where important anadromous fish habitat occurs.

6640. And Northern Gateway, in their reply evidence, said that it is currently

reviewing all of the proposed trenched pipeline watercourse crossings that have

been assessed in each of these three categories; identified that there are about 83

of them, and then they committed to have an update on the crossing methods and




timings for all of these pipeline water crossings under review prior to the

completion of these hearings. Is that correct?

6641. MR. MICHAEL ENGELSJORD: I don’t recall off the top of my

head exactly what they said but if -- I think you’re reading it right there, so it

sounds correct, yes.

6642. MR. HUDSON: See I get to give evidence too.

6643. Northern Gateway went on to state that the crossings fall into one or

more of five categories which determine -- which will determine how Northern

Gateway progresses with regard to the review.

6644. And my question is similar to the one that I had previously, has DFO

reviewed Northern Gateway’s approach -- again not the detail, but the approach

of how they’re proceeding? And can you comment upon that approach and its

ability to satisfy DFO?

6645. Am I vague enough for you?

6646. MR. MICHAEL ENGELSJORD: Well, if I understand right, I think

you may be referring to -- it was a table they included in their reply evidence

where they gave kind of an update on some of the proposed crossing methods, is

that correct?

6647. MR. HUDSON: Yes, that’s correct.

6648. MR. MICHAEL ENGELSJORD: Yeah. So we have -- we have

reviewed that and when Northern Gateway and their consultants met with us in

August, they just walked us through to explain that and other parts of their reply

evidence that were relevant to DFO.

6649. And I guess in a very general sense, we’re encouraged where they

have kind of gone back to the drawing board, so to speak, and have either found a

way to do a trenchless crossing. We see that as positive because it’s the lowest

risk stream crossing you can do for a pipeline.

6650. On my -- I think there’s some other examples where they are still, kind

of, at the drawing board and are seeing whether they can come up with trenchless

methods and we’re encouraged by that and would encourage them to thoroughly




explore that.


6652. Now, in an update to the application that was filed in January of this

year, Northern Gateway stated, as requested by DFO and Environment Canada,

Northern Gateway will evaluate the possible relocation of the pipeline route from

KP 1022 to KP 1028 further away from the Morice River. And this work will be

undertaken during detailed engineering. You’re aware of that.

6653. And then later in response to one of JRP IR’s, it’s 11.10, is indication

that this evaluation has been completed in a revised pipeline route and corridor for

this time a longer section, KP 996 to KP 1048, has been identified and will be

included in pipeline Revision V, which is to come, and that the re-route provides

additional separation from the Morice River.

6654. Has DFO been consulted on this new route with Northern Gateway?

6655. MR. MICHAEL ENGELSJORD: We’re aware of it. I’m just trying

to think of the different ones. The -- I think it’s Route U was maybe the one we

were talking about at our meeting in August, if I remember correctly.

6656. MR. HUDSON: I can show you a map of the re-route -- maps of the

re-route if that would be helpful to you. I think it’s the next iteration which is ---

6657. MR. MICHAEL ENGELSJORD: Right.

6658. MR. HUDSON: --- Route V.

6659. MR. MICHAEL ENGELSJORD: Yeah.

6660. MR. HUDSON: I think Route U is the one that’s on the record now.

And this one has not yet been filed as I understand it.

6661. MR. MICHAEL ENGELSJORD: Right. And we are generally

aware that they’re looking into this and trying to find ways to find a better

routing, at least from the perspective of reducing impacts or potential impacts on

fish and fish habitat.

6662. MR. HUDSON: Does DFO have any views with respect to this




pipeline route that is further away from the Morice River or are you still just

examining it?

6663. MR. MICHAEL ENGELSJORD: I don’t think we’ve conducted

any detailed review of the -- the Version V.

6664. I mean we are encouraged if insomuch as these may reduce risks and

potential effects on fish habitat by moving them -- the route further away from the

more value -- more highly valued areas of fish habitat. That’s encouraging.

6665. MR. HUDSON: You’re not at a stage yet to have particular

outstanding concerns with regard to that route are you?

6666. MR. MICHAEL ENGELSJORD: No, I don’t think so. And as I

said, I -- we haven’t conducted a detailed review of that.


6668. Ms. Niro, if I could get you to go to Exhibit E9-6-32, and that would

be -- will be Adobe page 53, paragraph 175.

6669. And it’s the first bullet there, and I’ll just read it briefly:

“Environment Canada recommends that the Project, where it

crosses the Little Smoky local population range, be located in

areas of fire disturbance within the last 40 years and/or in

unbuffered anthropogenic footprints in order to reduce the risk

of the Project destroying habitat that is proposed as critical

habitat in the proposed national recovery strategy.”

6670. Now, hold that thought while I have you go through to Exhibit E6-2-2

which is the recovery strategy for woodland caribou, boreal population, page --

Adobe page 110. And if you could just scroll down.

6671. Under the Roman numeral ii) Amount: Quantity of critical habitat,

right-hand of that table under the heading “Amount of Critical Habitat” it states:

“Existing habitat that would contribute to at least 65%

undisturbed over time.”




6672. By this statement in this recovery strategy, does Environment Canada

take the position that all existing Little Smoky caribou habitat is to be considered

critical habitat?

6673. DR. BARRY SMITH: So what I’d like to do at this time is introduce

you to Mr. Steven Virc, who is on video, and has been patiently waiting in Ottawa

to address a question such as this.

6674. My other colleague who may be involved in the answer is Mr. Paul

Gregoire who’s behind me. It’s a little awkward to coordinate the two but I will

start with Mr. Virc.

6675. MR. HUDSON: Hello, Mr. Virc.

6676. MR. STEVEN VIRC: Hi there. Thank you.

6677. Okay, so in the recovery strategy, okay, critical habitat is defined, and

it includes three components which are the range -- okay -- the area. It includes

the amount which we’ve spoken about or that at least is identified in the recovery

strategy as a target of 65 percent -- at least 65 percent undisturbed habitat, and

also biophysical attributes.

6678. Now, in this instance where you were referring to on the image in front

of us, there is a high level of disturbance resulting in very little undisturbed

habitat. In this instance the initial critical habitat is the existing habitat.

6679. And so that means the statement that you see in front of you, existing

habitat that would contribute to at least 65 percent undisturbed habitat over time,

is the amount of critical habitat that the recovery strategy targets for these types of

ranges that are highly disturbed.

6680. MR. HUDSON: When you say “over time”, what time period are you

referring to?

6681. MR. STEVEN VIRC: Well the recovery strategy also speaks -- has a

temporal component. Recognizing that there are a number of factors that will

effect how quickly we can achieve the population distribution objectives that are

in the recovery strategy.

6682. So for example if you were to restore habitat to a certain state, for




example an old growth forest, planting a tree or a forest will take many, many

years. Fifty (50) to 100 years for example, or there are other considerations that

would come into play.

6683. So it would depend on the specific local population range and the

unique or specific local conditions. And that’s what you’d have to factor in when

you’re considering the statement over time.


6685. Given the recently filed recovery strategy that we’re talking about,

does Canada’s recommendation regarding boreal caribou need to be updated?

6686. MR. STEVEN VIRC: It is Canada’s position that the advice that we

currently have is fine and does not have to be changed.

6687. DR. BARRY SMITH: And to clarify, you’re referring to the advice

that we submitted as part of our evidence specifically?

6688. MR. HUDSON: Yes, as part of that evidence that’s in E9-6-32 that

we -- that I read earlier in the question.

6689. DR. BARRY SMITH: Okay.

6690. MR. HUDSON: In Northern Gateway’s response to JRP Information

Request 3.18 -- and I don’t think we need to go there but if we do, let me know --

Northern Gateway provides its rationale for using 1.8 kilometre per square

kilometre as the metric for determination of significant effects on caribou.

6691. Environment Canada states in its written filed in December 2011 --

and again I could take you there but I don’t think we need to -- states that it is

important that approaches to measuring habitat disturbance be based on range,

reflect total area disturbed, not just linear, and account for cumulative effects at

the scale of the range.

6692. As such, would Environment Canada’s recommended ratio of 4:1

habitat restored to habitat destroyed be sufficient to address potential cumulative

impacts to woodland caribou from an area perspective rather than just a linear

perspective?




6693. DR. BARRY SMITH: I’m going to refer that question to my

colleague, Mr. Paul Gregoire behind me.

6694. MR. HUDSON: Hello, Mr. Gregoire.

6695. MR. PAUL GREGOIRE: Hi, how are you today?

6696. MR. HUDSON: Just fine.

6697. MR. PAUL GREGOIRE: So you’re speaking specifically to the

boreal caribou herd in Alberta, the Smoky?


6699. MR. HUDSON: I think the 4:1 applies to both the Little Smoky and

also to the Bearhole-Redwillow portion of the portion.

6700. So if there’s a difference between the two maybe you can tell me both,

but I think we were thinking from the Bearhole-Redwillow point of view.

6701. But if it applies to both let us know, or Mr. Virc can let us know.

6702. By all means.


6703. MS. CORAL DeSHIELD: Could I first ask for you to repeat the

question, please?

6704. MR. HUDSON: Would Environment Canada’s recommended ratio

of 4:1 habitat restored to habitat destroyed be sufficient to address potential

cumulative impacts to woodland caribou from an area perspective rather than a

linear perspective?

6705. MS. CORAL DeSHIELD: So this is Coral DeShield, Environment

Canada.

6706. I would say that that recommendation still applies. The 4:1 ratio is put

forward as a conceptual item. It is chosen based on a number of considerations.

The fact that the population is threatened, both the boreal woodland caribou as




well as southern mountain caribou have a status of “threatened”. There are a

number of herds that are decreasing. Habitat disturbance in some situations is

very high.

6707. And as well, because restoration, at least at the landscape level, is

somewhat uncertain, it’s not proven, always that techniques will -- that techniques

will automatically be effective and, because of that, that approach was selected

and it’s still considered to be valid.

6708. MR. HUDSON: In Siep and Jones 2012, Exhibit D12-23-4, they refer

to the Bearhole-Redwillow portion of the Narraway herd while Environment

Canada’s written evidence refers to the Bearhole-Redwillow area of the Quintette

herd.

6709. Please clarify if the Bearhole-Redwillow local population is part of the

Quintette herd or the Narraway herd.

6710. MS. LUCY REISS: This is Lucy Reiss with Environment Canada.

6711. Our current understanding is that the Bearhole-Redwillow is a sub-

herd of Narraway. At the time that we submitted our evidence, we were under the

impression it was part of Quintette.

6712. I think if you look at the figure that’s within Seip and Jones 2012, you

can perhaps understand where the confusion comes from, as the telemetry

locations for those animals kind of overlap both herds and there is -- there’s a bit

of uncertainty there about where exactly they lie.

6713. I’m not sure that it necessarily affects the evidence or the application

of the evidence per se, the recommendations apply to the same area regardless of

whether or not you consider them to be part of Quintette or part of Narraway.

6714. MR. HUDSON: So you’ve mentioned the 4:1 ratio to be

implemented by Northern Gateway for the Narraway local population range and

the -- given the classification of the Bearhole-Redwillow local population as part

of the Narraway herd, does EC now recommend a 4:1 habitat restoration ratio for

each of the Bearhole-Redwillow area of Narraway local population range and the

entire Quintette local population range?





6715. MS. AILISH MURPHY: This is Ailish Murphy here with

Environment Canada.

6716. So in the evidence, the written evidence that you've referred to, the

intent there -- and as it reads if you switch “Quintette” -- the Bearhole-Redwillow

portion of the Quintette herd to Narraway, the advice is intended to apply only to

the Bearhole-Redwillow part.

6717. We are cognizant that there has been additional information that has

been put forward to this Panel as well as to us in the recovery strategy planning

process and we are planning to continue to reflect upon that information and

update our recommendations in the final argument stage based on the information

-- on -- sorry, the best up-to-date currently available information.


6719. Thank you for your answers, those are all of my questions.

6720. THE CHAIRPERSON: Thank you, Mr. Hudson.

---EXAMINATION BY/INTERROGATOIRE PAR MEMBER BATEMAN:

6721. MEMBER BATEMAN: I have a couple of questions to have a better

understanding of some of the evidence that was provided.

6722. What I understand to be on the record is is that DFO often holds

financial security from a proponent, which could be drawn upon to fulfill the

proponent's obligations with respect to habitat compensation.

6723. What form of financial instrument is typical in this scenario?

6724. MR. MICHAEL ENGELSJORD: It's called a “Letter of credit”.

6725. MEMBER BATEMAN: And then, is the letter of credit renewed on

an annual basis?

6726. MR. MICHAEL ENGELSJORD: Yeah, they generally include an

automatic renewal clause.




6727. MEMBER BATEMAN: For a project of this magnitude, what would

be a typical range for the threshold of that letter of credit?

6728. MR. MICHAEL ENGELSJORD: The value of the letter of credit

can really vary but it's based on an estimate of the cost of implementing the fish

habitat compensation plan.

6729. So that starts with an itemized budget prepared by the Proponent

which DFO looks at to -- so we're convinced that it's a reasonable cost and then

there may be a small contingency added to that just to ensure that there -- it's

adequate.

6730. But where you have large areas of habitat affected, it can be quite

considerable, into the millions of dollars and potentially more.

6731. MEMBER BATEMAN: And am I correct then that the letter of

credit is only exercised in a circumstance where the Proponent is unable to fulfill

its obligation through other financial channels?

6732. MR. MICHAEL ENGELSJORD: That's right, that's the Proponents

obligation to implement this so it's really when they're unable to do so.

6733. MEMBER BATEMAN: Good, thank you.

---EXAMINATION BY/INTERROGATOIRE PAR THE CHAIRPERSON:

6734. THE CHAIRPERSON: Thank you, I have one question and it's for

the caribou experts, and it's just to make sure that I am clear in my understanding.

6735. Am I correct in understanding from your written evidence that it's your

collective expert view that mortality risk associated with clearing rather than

habitat loss appears to be the greatest risk factor for caribou populations along

linear disturbances?

6736. DR. BARRY SMITH: I'll defer to Mr. Virc to answer your question.


6738. MR. STEVEN VIRC: Thank you.




6739. Could I ask that you repeat the question, please?

6740. THE CHAIRPERSON: Sure.

6741. I'm just -- I'm seeking to understand if it's your expert view that

mortality risk associated with clearing rather than habitat loss appears to be the

greatest risk factor for caribou populations along linear disturbances?


6742. THE CHAIRPERSON: Do you understand my question, Mr. Virc?

6743. MR. STEVEN VIRC: Yes, I do. Sorry, I'm conferring with the other

caribou experts.

6744. THE CHAIRPERSON: Oh, no, that's fine. I just wondered if I

could clarify for you further.

6745. MR. STEVEN VIRC: Oh, in fact, we are trying to get an

understanding of the greater risk that you're referring to.

6746. So could you maybe just elaborate or provide clarity on that?

6747. THE CHAIRPERSON: Yeah, what I'm wondering about is I've

understood that mortality risk for caribou populations along linear disturbances

can be associated with the clearing itself, or sorry, that the habit -- that the

mortality risk from predators is a greater risk than the risk due to loss of habitat

for the caribou.

6748. And I'm just wanting to understand if I've got that correct or not?

6749. So ---

6750. MR. STEVEN VIRC: I'll allow Cathy Nielsen to respond to that.

6751. MS. CATHERINE NIELSEN: So, yes, you are correct that the

greater risk is from predation -- increased predation from, for instance, wolves

when we have those linear disturbances.




6752. It's not usually the risk associated with the loss of the habitat itself on

those linear disturbances.

6753. THE CHAIRPERSON: And has this been the case for a historic

period, for a number of decades, or is this a change, is this something new?

6754. Has this been a common potential outcome of linear disturbances for

many years in environmental assessment knowledge?


6755. MS. CATHERINE NIELSEN: So it has been known for some time

and, in particular, we've done studies to look at the level of disturbance and how

that relates to the impact on caribou population.

6756. And, unfortunately, it takes some time for the impact to be seen at the

population level, and it's what we call a “lag effect”, but I would say, over the last

five years, we have become very much aware and have been able to document the

effects of total disturbance on population trends.

6757. THE CHAIRPERSON: That's very helpful. Thank you.

6758. It had been my understanding in past periods of time that

environmental assessment had focused on habitat loss, and that's why I was

wanting to understanding if the risk associated with predators is something that

has emerged as new scientific evidence is available.

6759. So what I'm understanding from you is that is indeed the case that this

new evidence has emerged over the last period -- I think you mentioned five years

or something like that -- that leads to this conclusion that you're presenting?

6760. MS. CATHERINE NIELSEN: Yes, that's correct.


6762. Yes, Dr. Smith?

6763. DR. BARRY SMITH: Madam Chair, just for a little bit of

clarification.




6764. So my colleagues in Ottawa are speaking particularly to boreal

caribou. I'm going to invite my colleague, Ms. Reiss, to speak a little more to

those considerations with respect to Southern Mountain caribou because it might

be a bit different.

6765. THE CHAIRPERSON: Thank you, Dr. Smith.

6766. MS. LUCY REISS: Thank you, Madam Chair.

6767. So just to add to that, I think it's a fair statement that -- particularly for

a linear disturbance such as this -- that, indeed, access managements and the

possibility of -- the increased possibility of predation as a result of the linear

disturbance is ultimately what, to put it bluntly, could potentially kill caribou. So

if we see a decline in caribou, it's not because they've lost habitat because they're

starving, for instance.

6768. So habitat loss can certainly be a factor, particularly depending on

where the disturbance is, and the cumulative effects of multiple linear

disturbances, if there's many of them on the landscape, then obviously that can

also result in cumulatively a significant loss of habitat. And this is what we've

seen, for instance, in the Little Smoky herd where we have a total of 95 percent

habitat disturbed, including buffers on that.

6769. The other aspect of disturbance, not just predation, is also the sensory

disturbance, but the fact that caribou will, in some cases, avoid these linear

disturbances, not only when that sensory disturbance is actually happening but

because caribou are basically aware of the fact that linear disturbances may

represent a higher risk to them.

6770. So there is literature out there, which indicates the caribou will avoid

anthropogenic disturbances not only when the sensory disturbance is happening --

not just because people are on it -- but because they’re aware that they may be

more susceptible to high predation risk when they approach those disturbances.

6771. So they’re very complicated.

6772. THE CHAIRPERSON: Thank you very much for the explanation. I

appreciate both.


Examination by Member Matthews


6773. I believe Mr. Matthews now has a question as well.

--- EXAMINATION BY/INTERROGATOIRE PAR MEMBER MATTHEWS:

6774. MEMBER MATTHEWS: Thanks.

6775. I just wanted to ask DFO a question and it’s a follow-up to Mr.

Bateman’s question about the financial security.

6776. So if the Proponent were to have a line of credit or secure a

compensation plan through the regulatory process with DFO, what would happen

if the -- in the event of a spill, would the -- and the Proponent was unable to

complete or satisfy the compensation plan and perhaps unable to pay for their

own actions to remediate or to remedy the situation, would DFO automatically

kick in the security assurance?


6777. MR. MICHAEL ENGELSJORD: Just to clarify, we’re not legal

experts, but the letter of credit, the financial security, is held in relation to a fish

habitat compensation plan that is a condition of an authorization, and so that’s to

authorize an impact on habitat that results from a project.

6778. If the same project, either at the site or at a different site on the same

project, resulted in a spill, I’m not -- off the top of my head, I don’t think DFO

would have the authority to take that money and use it for something else. The

money’s being held to ensure the compensation plan is implemented.

6779. So I might -- you know, just our own guess at that, but I suspect not.

6780. MEMBER MATTHEWS: Okay.

6781. I was just assuming that there was a link between the Proponent

having -- not having the ability to fulfil the requirement under a Section 35

authorization to undertake the compensation and almost loosely call it a “double

whammy”, if you will.

6782. They’re supposed to do a compensation but now they’re impeded by

fulfilling that objective by -- in a potential spill scenario.


Examination by Member Matthews


6783. So I wasn’t sure what the role of the financial security would be.

6784. MR. MICHAEL ENGELSJORD: I’m not sure if it’s helpful, but

the authorization from DFO is not an authorization for the Proponent to conduct

the project, it’s an authorization to cause the harmful effects on habitat that would

be prohibited under a specific section.

6785. So the spill would be -- I mean, if it was into fish bearing waters, or

killed fish, or destroyed habitat that would be potentially a violation of that and

other sections of the Fisheries Act.

6786. THE CHAIRPERSON: Mr. Shaw, did you have any redirect?

6787. MR. SHAW: Thank you, Madam Chair, no redirect.

6788. THE CHAIRPERSON: That means Government of Canada Panel

Number 1, your job is finished.

6789. Thank you very much for being here to provide evidence. Whether

you were a remote participant or physically here in Prince George, the evidence

that your Panel has provided is much appreciated by the Joint Review Panel.

6790. And with that, you’re released from this Panel. Thank you.

--- (Witnesses are excused/Les témoins sont libérés)

6791. THE CHAIRPERSON: So let’s take our afternoon break and we’ll

switch over and bring Panel 2 up.

6792. So we’ll come back at 10 to 3:00, please.



6793. THE CHAIRPERSON: Thank you very much, everyone. We’re

ready to get underway.

6794. Good afternoon and welcome to the new panel.


Examination by Ms. Anderson


6795. Mr. Shaw?

6796. MR. SHAW: Thank you, Madam Chair.

6797. We’re ready to proceed with the second panel, all of whom are now

before you, with the exception of two witnesses who will appear by remote and I

think it would be appropriate to have our witnesses sworn.

6798. Those who have not as yet been sworn, we can have them sworn and

then Ms. Anderson again will introduce each of the witnesses.


6799. THE CHAIRPERSON: So for the witnesses who have been

previous sworn, we can have each of you just confirm that you remain under oath.

6800. So we’ll just -- Mr. Clarke, I’m looking at you and Dr. Blais-Stevens.

6801. DR. ANDRÉE BLAIS-STEVENS: Yes.

6802. THE CHAIRPERSON: And Dr. Vigneault.

6803. MR. JOHN CLARKE: Dr. Vigneault is not here today. Donna

Kirkwood is online.

6804. THE CHAIRPERSON: I’m sorry? Oh, Dr. Kirkwood. Is that

correct?

6805. And, Dr. Kirkwood, you confirm that you remain under oath?


6806. THE CHAIRPERSON: So maybe we need to do a bit of a roll call

and find out who’s on the line.

6807. Could we do that please? Who are we expecting to join remotely?

6808. MR. SHAW: The two witnesses who expect to be with us remotely

are Dr. Donna Kirkwood and Dr. Bill Santos who is in Calgary.




6809. Dr. Santos, are you on the line?

6810. DR. BILL SANTOS: I am on the line.

6811. MR. SHAW: Thank you.

6812. And, Dr. Kirkwood, are you on the line?

6813. DR. DONNA KIRKWOOD: Yes, I am.

6814. MR. SHAW: All right.

6815. THE CHAIRPERSON: So, Dr. Kirkwood, you confirm that you

remain under oath?

6816. DR. DONNA KIRKWOOD: Yes, I confirm.


6818. And Mr. Cassidy as well?

6819. MR. JOHN CASSIDY: Yes, I do.






ERIC MAGNUSON: Affirmed

BOB GOWE: Sworn

BILL SANTOS: Affirmed

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

6821. MS. ANDERSON: Good afternoon, Madam Chair and Members of

the Panel.

6822. Perhaps I’ll start introductions down to my very far left. We have Ms.

Donna Maher there. Ms. Maher is an environmental specialist with Aboriginal




Affairs and Northern Development Canada, B.C. Region, and she’s here in a

supporting role only. Next to her we have Mr. Eric Magnuson.

6823. So perhaps I will start with you, Mr. Magnuson, just a few

introductory questions for you. You are the Regional Director General of the

British Columbia region with Aboriginal Affairs and Northern Development

Canada?

6824. MR. ERIC MAGNUSON: That’s correct.

6825. MS. ANDERSON: And have you been authorized by Aboriginal

Affairs and Northern Development Canada or AANDC to act as the lead for

AANDC’s witnesses on this panel?

6826. MR. ERIC MAGNUSON: Yes, I have.

6827. MS. ANDERSON: And you will be speaking today generally to the

written evidence of AANDC specifically as it relates to the issues of emergency

management in British Columbia?

6828. MR. ERIC MAGNUSON: That’s correct.

6829. MS. ANDERSON: Do you have before you a copy of the federal

government participants witness panel responsibilities chart, which is Exhibit E9-

54-4?

6830. MR. ERIC MAGNUSON: Yes, I have it here.

6831. MS. ANDERSON: Okay. Can you confirm that you have reviewed

the evidence therein that is attributed to AANDC?

6832. MR. ERIC MAGNUSON: I can confirm that I have reviewed that

evidence, yes.

6833. MS. ANDERSON: And was that evidence accurate to the best of

your knowledge and belief?

6834. MR. ERIC MAGNUSON: Yes, it was.

6835. MS. ANDERSON: Have you been authorized by AANDC to adopt




that evidence within these proceedings?

6836. MR. ERIC MAGNUSON: Yes, I have.

6837. MS. ANDERSON: And do you now adopt that evidence?

6838. MR. ERIC MAGNUSON: I do adopt that evidence, yes.

6839. MS. ANDERSON: Your curriculum vitae was filed as part of Exhibit

E9-53-2 in this proceeding. Can you confirm that that was prepared by you and is

accurate?

6840. MR. ERIC MAGNUSON: I can confirm it was prepared by me and

is accurate, yes.

6841. MS. ANDERSON: Thank you.

6842. Next to Mr. Magnuson we have Mr. Bob Gowe. Mr. Gowe, you are

the Manager of the Navigable Waters Protection Program in the Pacific Region of

Transport Canada?

6843. MR. BOB GOWE: Yes, that’s correct.

6844. MS. ANDERSON: And you will be speaking generally today to the

written evidence of Transport Canada as it relates to navigable waters issues?

6845. MR. BOB GOWE: Yes.

6846. MS. ANDERSON: And so specifically that would be Exhibit E9-6-

15, section 3.11, and Exhibit E9-21-09, section 1.13, both with respect to

navigable waters?

6847. MR. BOB GOWE: That’s correct.

6848. MS. ANDERSON: And can you confirm that you have reviewed that

evidence?

6849. MR. BOB GOWE: Yes, I have.

6850. MS. ANDERSON: Can you confirm that it is accurate to the best of




your knowledge and belief?

6851. MR. BOB GOWE: Yes, I do.

6852. MS. ANDERSON: And have you been authorized by Transport

Canada to adopt that evidence within these proceedings?

6853. MR. BOB GOWE: Yes, I have.

6854. MS. ANDERSON: Do you now adopt that evidence?

6855. MR. BOB GOWE: I do.


E9-53-2. Can you confirm that that was prepared by you and that it is accurate?

6857. MR. BOB GOWE: Yes, it was prepared by me, it is accurate.

6858. MS. ANDERSON: Next to Mr. Gowe, we have Mr. Clarke who was

previously sworn.

6859. For the purposes of this panel, Mr. Clarke will be speaking to -- just

generally to the evidence of Natural Resources Canada.

6860. Dr. Andrée Blais-Stevens is next to Mr. Clarke, and Madam Chair, she

was previously qualified as an expert in the area of landslides. And then we have

Dr. John Cassidy, also from NRCan who was also previously qualified as an

expert within the area of earthquake seismology.

6861. On the line we have Dr. Donna Kirkwood, and we also -- who was

previously sworn in, and we also have Dr. Bill Santos.

6862. Mr. Santos, can you hear me?

6863. DR. BILL SANTOS: Yes, I can.

6864. MS. ANDERSON: This is Dana Anderson with Department of

Justice. I just have a few introductory questions for you.

6865. DR. BILL SANTOS: Okay.




6866. MS. ANDERSON: You’re here to speak to issues related to pipeline

integrity with a focus on corrosion mechanisms on behalf of Natural Resources

Canada?

6867. DR. BILL SANTOS: That’s correct.

6868. MS. ANDERSON: And you are the Program Manager of Pipeline

Integrity with the Minerals and Metals Sector of Natural Resources Canada?

6869. DR. BILL SANTOS: Yes.


E9-53-2 in this proceeding. Can you confirm that it was prepared by you and that

it is accurate?

6871. DR. BILL SANTOS: Yes, it was prepared by me and it is accurate.

6872. MS. ANDERSON: Madam Chair, Dr. Santos is being tendered as an

expert today in the area of pipeline integrity.

6873. THE CHAIRPERSON: Thank you, Ms. Anderson. Dr. Santos, have

you ever given expert testimony before a regulatory tribunal before?

6874. DR. BILL SANTOS: No, I have not.

6875. THE CHAIRPERSON: I can confirm that we’ve not received any

objections to having Dr. Santos qualified as an expert witness for the purpose of

this proceeding.

6876. Are there any objections or comments on the qualifications of Dr.

Santos in the room?



6878. Ms. Anderson, the Panel accepts Dr. Santos as an expert to give

opinion evidence in the area you’ve identified.


Examination by Mr. Peter


6879. MS. ANDERSON: Thank you, Madam Chair.

6880. And that concludes introductions and we turn the witness panel over to

you.

6881. THE CHAIRPERSON: Thank you, Ms. Anderson.

6882. You went just a little too quickly for me to catch everything and I

missed the -- I’m afraid I don’t know the last name of the woman who is assisting

the panel and I just want to make sure that we’ve got that.

6883. MS. ANDERSON: It’s Maher, M-A-H-E-R.


6885. Good afternoon, Mr. Peter.

6886. MR. PETER: Good afternoon, Madam Chair. Nice to see you again.

6887. THE CHAIRPERSON: You as well.

6888. Please proceed with your questions of this witness panel.

--- EXAMINATION BY/INTERROGATOIRE PAR MR. PETER:

6889. MR. PETER: Madam Chair, Members of the Joint Review Panel,

members of the federal government, witness panel, thank you very much for the

opportunity of questioning the Government of Canada witness panel number 2,

and to you, Dr. Santos.

6890. In Exhibit E9-6-30, page 6, if we could have that please, Madame

Niro.

6891. This is Natural Resources Canada’s written evidence, paragraph 15

states:

“In its first round of Information Requests, [Mines and Metals

Sector] […] MTL experts requested further information […] to

the approach for determining the corrosivity of crude oils




which can influence the required mitigation steps needed to

control internal corrosion.”

6892. And paragraph 18, at the bottom of the page, quotes Enbridge’s

response to NRCan:

“…the hydrocarbons transported in the Northern Gateway

pipelines will not contain significant corrosive substances

through the setting of tariff limits on potential corrodents

(water, sediment, etc.) and by comprehensively monitoring

every batch of product entering the system. Enbridge also

continues to explore relevant corrosivity test methods for use in

tariff quality crude systems, and is the first Canadian pipeline

company to undertake the new ASTM G205 crude corrosivity

testing protocol. Enbridge will apply these learnings as

knowledge and experience in using and interpreting different

test methodologies increases.”

6893. Now, this was written in, I believe, December of 2011, and since then

there has been a lot of research on this issue which Dr. Santos is one of the lead

researchers on. So we would like to question him on this particular standard if

that’s okay, Madam Chair.

6894. THE CHAIRPERSON: Mr. Peter, I would just say that you don’t

have to read into the record evidence that’s already there. So you can just direct

the witness to look at the paragraph and then proceed with your questions.

6895. So let’s have you ask your question and we’ll go from there.

6896. MR. PETER: Thank you, Madam Chair.

6897. NRCan says below, regarding paragraph 19, Dr. Santos, he refers --

they refer again to the ASTM standard.

6898. So Madame Niro, if we could please look at the aid to cross ASTM

C205-10 excerpts, Adobe page 2 and here where the ASTM standard says, the

highlighted area:

“In the absence of water the crude oil is non-corrosive. The

presence of sediment and water makes crude oil corrosive.”




(As read)

6899. Would you agree with this statement, Dr. Santos?

6900. DR. BILL SANTOS: Yeah.

6901. MR. PETER: And then on Adobe page 4 of the AQ, there is Table 1,

showing electrical conductivities of selected hydrocarbons in aqueous phases.

6902. Could we please zoom in on that table, Madame Niro? Thank you

very much.

6903. So for the hydrocarbons listed at the top of Table 1, would you agree,

Dr. Santos, that the electrical conductivities are in the orders of magnitude of 10

to the minus 7 to 10 to the minus 13 siemens per centimetre?

6904. DR. BILL SANTOS: Yes, they would be, yes.

6905. MR. PETER: And would you also agree that these appear very small

in comparison with the electrical conductivities in the order of 94 to 234 siemens

per centimetre for the salt and base solutions given at the bottom of the table?

6906. DR. BILL SANTOS: Yes, they are smaller than the numbers at the

bottom of the page.

6907. MR. PETER: Thank you.

6908. And in fact, this percentage of water at which the water in oil emulsion

converts to an oil in water emulsion and the electrical conductivity changes from

small to large, actually define a point known as the emulsion inversion point.

And is this point actually determined experimentally by measuring the

conductivity of the emulsion in this standard?

6909. DR. BILL SANTOS: There are two ways in which to measure the

emulsion inversion point as outlined in the ASTM standard. One is conductivity,

yes.

6910. MR. PETER: Thank --

6911. THE CHAIRPERSON: Mr. Peter, I’m -- you are here to question on




the evidence that’s been filed by the government. And so I’m wondering if you

can take us back to where you’re finding that information in the evidence so that

we can follow with you.

6912. MR. PETER: The evidence that we are testing is the evidence where

the federal Government of Canada, Natural Resources Canada, repeats Enbridge’s

statement about how they will apply these learnings as knowledge and experience

in using and interpreting different test methodologies increases.

6913. That statement was written a year ago. And this is a moving target

which Dr. Santos is very well aware of, being one of lead researchers in the

country, and indeed, in the continent on this very topic.

6914. So we’re questioning him on -- we’re questioning him on what has

occurred as a result of this -- as a result of this undertaking by Enbridge to pursue

these research -- this research.

6915. THE CHAIRPERSON: And so I wonder if you could just directly

ask your question and we could get to the answer based on that.

6916. MR. PETER: Certainly, Madame Chair.

6917. Madame Niro, if we could please go back to Exhibit E9-6-30, Adobe

page 6, the evidence of Natural Resources Canada, paragraph 17.

6918. If you could just direct your attention, Dr. Santos, to the second

sentence there:

“In order to meet NEB requirements, all of the crude [oil] will

need to be tested on a receipt basis for adherence to the density

and sediment and water (“S&W”) tariff,...”


6920. MR. PETER: Now, from your understanding, what is the bottom

sediment and water content contained in the -- in the tariff, particularly Enbridge

Tariff 282 that would govern the Northern Gateway oil pipeline?

6921. DR. BILL SANTOS: I’m sorry; could you repeat or rephrase your

question? I’m not sure of what you’re asking?




6922. MR. PETER: Would the Enbridge Tariff 282 require that the bottom

sediment and water be less than 0.5 percent?

6923. DR. BILL SANTOS: The tariff, as outlined by Enbridge, would

require that -- and I believe it’s called basic sediment and water -- BS&W, would

be below .5 percent by volume -- 0.5 percent by volume.

6924. MR. PETER: Right. Thank you, Dr. Santos.

6925. And would you agree that .5 basic sediment and water percent of an

83,500 cubic metre per day oil pipeline amounts to 417.5 cubic metres per day of

sediment in water flowing through that pipeline?

6926. DR. BILL SANTOS: I haven’t done the calculation ---

6927. MR. PETER: It’s just half of a hundred; it’s not hard.

6928. DR. BILL SANTOS: Right. Okay. But that’s, I guess, assuming if

you had 0.5 percent.

6929. MR. PETER: Correct. That would be the maximum amount of basic

sediment and water that would occur in this line under the tariff; is that correct?

6930. DR. BILL SANTOS: That would be my understanding.

6931. MR. PETER: And would you agree that spread evenly throughout a

stagnant pipeline, it would tend to settle out of the emulsion to the bottom. And it

would represent actually 50 square centimetres or 7 ¾ square inches in a one

metre cross-section, 915-millimetre or 36-inch OD pipe?

6932. DR. BILL SANTOS: I don’t believe that scenario would occur

because some of the sediment would actually stay in the mixture itself.

6933. It wouldn’t necessarily fully deposit or release out of the solution. So I

think some -- I imagine your calculation is correct if that were to happen, if all

sediment, suspended and non-suspended, were to fall out of the solution. But I

don’t believe that would be the case.

6934. MR. PETER: Right. This is just a hypothetical situation; if it were




all gathered together in one portion of the pipeline.

6935. DR. BILL SANTOS: Is there a question?

6936. MR. PETER: We’re just searching for some agreement that that is

approximately the area that it would occupy.

6937. DR. BILL SANTOS: Well, like I said, I haven’t done the calculation.

But I also don’t believe that that would actually happen.

6938. MR. PETER: All right. Thank you, Dr. Santos.

6939. Now, Natural Resources Canada’s written evidence, Exhibit E9-6-30,

Adobe page 30, lists the -- all of the documents that were examined by Natural

Resources Canada in preparation of their written evidence and it lists Northern

Gateway’s attachment to Haisla Nation Information Request 2.11(a) as one of the

documents reviewed by NRCan’s minerals and metals sector in preparing their

written evidence.

6940. So Madam Niro, if we could please go to Exhibit B50-2, Adobe page

21, section 7.5, under “Deposit Corrosion”. Thank you very much.

6941. This section is self-explanatory. It refers to how the water layer on

deposited sand particles in the pipeline sludge can subsequently join to form a

water layer on the pipeline steel. And then it quotes a -- it references a 2008

paper by Enbridge’s Trevor Place and others which is referenced as Reference 47.

6942. Would you agree, Dr. Santos, that Trevor Place of Enbridge, as well as

Dr. Papavinasam, your colleague at CanmetENERGY, are leading researchers in

the field of pipeline corrosion?


6944. MR. PETER: And both of them, along with yourself, Dr. Santos,

were authors and presenters at the NACE (Northern Region East Conference) in

Toronto, October 29th

to 31st?

6945. DR. BILL SANTOS: That is correct.

6946. MR. PETER: And Trevor Place was a keynote speaker who gave a




presentation discussing, most interestingly, among other things, discriminating

between readily available data, i.e. internet search engine hits and useful

knowledge borne of experience; is that true?

6947. THE CHAIRPERSON: Mr. ---

6948. DR. BILL SANTOS: Could you rephrase that question again?

6949. THE CHAIRPERSON: Sorry, Mr. -- Dr. Santos, before Mr. Peter

goes on, it’s Sheila Leggett here.

6950. Mr. Peter, the Panel is having trouble following where you are with

respect to questioning on the evidence that’s been filed.

6951. As you and I have discussed before, your role as a questioner is to ask

the question not to introduce evidence onto the record. And if fact, it isn’t --

when you’re making your statements it’s not being considered as evidence on the

record.

6952. And so if you could -- if you could go back to asking the questions on

the evidence that has been filed, it would be very helpful for all of us.

6953. MR. PETER: I fully understand, Madam Chair. But the evidence

that was actually filed by Natural Resources Canada, MMS, MTL sector, is two

and a half pages of which two-thirds is repeating back what Enbridge answered in

their Information Request Number 2 -- Number 1.

6954. Consequently, the evidence that they have actually presented is -- is

sort of like the tip of a tip of an iceberg. And what we are doing is we are testing

the evidence to find out what the rest of the iceberg may consist of.

6955. And I assure you I am going to some useful information that will be of

benefit to the Panel in assessing this issue.

6956. THE CHAIRPERSON: And Mr. Peter, I would just ask you to test

the evidence that’s on the record and you’ll have your opportunity at argument to

bring up any other factors that you want the Panel to take into consideration.

6957. MR. PETER: That’s understood, Madam Chair. But we have on the

line a recognized international expert on this very topic who presumably was




involved in the preparation of this evidence.

6958. THE CHAIRPERSON: And, Mr. Peter, it’s absolutely appropriate if

you ask Dr. Santos questions based on the written evidence that’s been filed by

the government.

6959. MR. PETER: Dr. Santos, could you address the reason why the

written evidence filed by the government is only two-and-a-half pages in length

on their review of this issue?

6960. MR. SHAW: With respect, Madam Chair, before the witness answers

the question, the reasons why a report is of a certain length is not material. It's the

facts that are in the evidence that are to be cross-examined upon.

6961. And reasons of deficiency of length or greatness of length can't assist

the process.

6962. THE CHAIRPERSON: Mr. Peter, any comments?

6963. MR. PETER: Merely to say that we are endeavouring to test the

evidence and testing the evidence also consists of finding out why the evidence

does not address many of the issues that it ought to have touched upon.

6964. This is -- if you review the evidence of Natural Resources Canada, it is

-- it could be construed as sweetheart cross-examination of Enbridge, where they

parrot back what Enbridge has told them.

6965. And under these circumstances, we feel that the public -- the Canadian

public, of whom I am a member, and the people who pay taxes in this country

should be respected to the point of allowing them to find out what the people

whose salaries they pay are actually doing with their tax money.

6966. And I am merely -- I merely wish to post some questions to someone

who I know is an extremely knowledgeable academic and researcher and who can

-- is capable of answering these questions.

6967. And if he chooses not to answer them, then that's his prerogative.

6968. THE CHAIRPERSON: And Mr. Peter, again, we come back to the

fact that your role in -- as an intervenor asking questions, which you've been




granted that right of, is to ask the questions on the evidence that's been filed.

6969. Again, you'll have your opportunity during argument if you want to

bring forward anything that you believe might have been missing from the record

that the Panel is considering.

6970. So it's -- I think that what you're endeavouring to do goes far beyond

what we're here to do today for the review and I'm sure that you and Dr. Santos

could have very interesting conversations about a wide breadth of subjects, what

we're here today to hear is your questions that test the evidence that has been put

on file.

6971. MR. PETER: Madam Chair, I'm at page 4 of 7 and I have only half

an hour.

6972. And I would like to ask Dr. Santos whether he wishes to proceed with

this line of questioning. Is that permissible?

6973. THE CHAIRPERSON: Why don't you ask your next question and

we'll go from there.


6975. Madam Niro, could we please go to aid to cross “CFD Study of Solids

Deposition in Heavy Oil Pipelines”, Adobe page 1?

6976. Here is a 2012 peer-reviewed corrosion article co-authored by Place

and Papavinasam, which undertook research into the deposition of water-wetted

solid particles.

6977. Dr. Santos, are you familiar with the research that resulted in this

journal article, among others?

6978. DR. BILL SANTOS: I am.

6979. MR. PETER: Could we please zoom into the highlighted area at the

bottom of the page?

6980. And with -- I crave the indulgence of the Panel to read this paragraph

into the record:




"For heavy oil, it has been found that corrosion also occurs on

the pipe floor downstream of over-bends, under deposits of

water-wetted solid particles. Place, et al., attributed this

deposition to inertial forces that increase the thickness of the

boundary layer at the pipe floor, thereby reducing the flow

forces responsible for mobilizing solids;

Similar behavior has been reported by others. It was reported

that a crude oil pipeline that had low corrosion rates by

conventional corrosion monitoring was found to have locally

severe under-deposit pitting ..."

6981. What would you consider is the cause of solids deposition being

observed downstream of over-bends, Dr. Santos?

6982. DR. BILL SANTOS: You're asking my position or the ---

6983. MR. PETER: The opinion ---

6984. DR. BILL SANTOS: --- results from this article -- from this

research?

6985. MR. PETER: I am asking your opinion as an academic and a

researcher into this field.

6986. THE CHAIRPERSON: And ---

6987. DR. BILL SANTOS: Well, information, I actually support the

information written by the authors here, where it would be attributed to the fact

that you have slowing velocities over an over-bend that would allow for

deposition to occur, if turbulence is not high enough, or flow, within the pipeline.

6988. MR. PETER: Thank you, Dr. Santos, that leads directly to Adobe

page 11 of the aid to cross.

6989. Could you zoom in to that Figure 3 at the top of the page, please,

Madam Niro?

6990. And could we just have the explanation below there as well? Thank




you very much.

6991. The figures on the left show the results of the computational fluid

dynamic study and are the velocity distributions modeled across the cross-section

of an actual operating pipeline downstream of an over-bend. The top shows light

oil in turbulent flow, the middle shows heavy oil in turbulent flow, the bottom

shows heavy oil with laminar flow.

6992. Now the figures in the centre are close up of the velocity distributions

at the bottom pipe wall. And note that the paper says that the horizontal velocity

vectors are spaced larger than the expected particle sizes.

6993. Dr. Santos, are you familiar with this figure?


6995. MR. PETER: Would you say that this research paper, although a

computational fluid dynamic study, is representative of actual operational

experience?

6996. DR. BILL SANTOS: It is a -- it is the first step, really, in

understanding what potentially could happen over an over bend in a pipeline.

6997. It -- to my knowledge, I am not fully aware of how it actually

corroborated an operating pipeline but that would be the next phase of research

going forward, is to validate this research.

6998. MR. PETER: In corroboration of this from actual operating

experience, could we please move to Ashok Anand presentation, Adobe page 7,

Madam Niro?

6999. A presentation given October 9th

by the Director of Petroleum Quality

for Enbridge at the National Academy of Science Committee for the study of

pipeline transportation of diluted bitumens, October 9th

site visit in Edmonton.

Thank you.

7000. MR. SHAW: Before Dr. Santos attempts to answer the question, I

wonder if the questioner could tell us where that arises from the evidence filed by

the Government of Canada on this Panel.




7001. Quite frankly, I can't find -- not to say that it isn't there, I simply can't

see it. So it would be of some assistance to know that we're on the evidence filed.

7002. MR. PETER: Mr. Shaw, my learned friend, it goes directly back to

Exhibit E9-6-30, Adobe page 6, at paragraph 18, at the bottom of the page, which

says that Enbridge will apply these learnings as knowledge and experience in

using and interpreting different test methodologies increases.

7003. This is precisely what Enbridge has done since December of 2011,

they have applied these learnings and knowledge and experience. And this is

tangible proof of what they have been doing.

7004. MR. SHAW: Madam Chair, that's the evidence of Enbridge, not the

evidence of Canada.

7005. Canada has, to my reading, simply incorporated those statements in its

paragraph 18 indicating a response by Enbridge to IR number 1. And if you go

back to IR number 1, it's simply that reporting.

7006. So there's no evidence filed -- with respect, filed by Canada that

supports this range of cross-examination.

7007. MR. PETER: Is not the evidence that is repeated in Natural

Resources Canada written evidence?

7008. Enbridge's response to the IR, since NRCan has chosen to include it as

their evidence, does it not become their evidence?

7009. Could we please return, Madam Niro, to Ashok Anand presentation,

Adobe page 7, the IR?

7010. THE CHAIRPERSON: Mr. Peter, give us a minute, please.



7012. THE CHAIRPERSON: Mr. Peter, can you help the Panel

understand where your line of questioning is going?




7013. MR. PETER: What we wish to do is there has been -- there has been

a great deal of discussion on the corrosivity or non-corrosivity of diluted bitumen

and other crude oils.

7014. Where we are going with this is to show that this is not the relevant

issue. The relevant issue is something entirely different and Enbridge has been

conducting independent research on this in accordance with their undertaking in

the evidence presented by Natural Resources Canada and that this is relevant to

this Panel and to any decisions that they might -- any information that they might

seek on the subject of corrosivity.

7015. I have essentially only one question left.

7016. THE CHAIRPERSON: Why don’t you ask that question and we’ll

go from there.


7018. Could we please, Madam Clerk, return to Ashok Anand presentation,

Adobe page 7, where Enbridge say that from actual experience they have been

discovering -- could we just shrink it a little bit -- sediment disposition in

unexpected locations at over bends?

7019. And on the next page, page 8, he says that virtually all crudes are

inhibitory and that comparing total acid number sediment and salt to West Texas

intermediate is arbitrary and could potentially misdirect effort from more

important factors, i.e. this is not the correct issue to be dealing with.

7020. So, Dr. Santos, in light of the above, would you say that the recently

published study, “Comparison of Corrosivity of Crude Oils” presented by Jennifer

Collier at the Toronto conference and co-authored by Dr. Papavinasam, despite

building on a decade of research into this topic, in that the study of general

corrosivity ignores under-deposit corrosion is actually barking up the wrong tree?

7021. DR. BILL SANTOS: The report you are referring to specifically uses

ASTMG205, which you alluded to earlier, in order to compare the corrosivity of

crude oil.

7022. It does not look at under-deposit corrosion.




7023. MR. PETER: It looks at coupons immersed in a rotating cage and

looks at the different effects on the coupons.


7025. DR. BILL SANTOS: It’s a weight loss measurement, yes.

7026. MR. PETER: Right. Okay.

7027. This is something that is independent of the issue that we are trying to

put on the record. And could we just look at the Aid to Cross “NACE Conference

Paper 2012”, which is an abstract?

7028. THE CHAIRPERSON: So, Mr. Peter, let’s be clear, this isn’t your

opportunity to put evidence on the record, this is your opportunity to question this

Panel on the evidence that they have provided.

7029. MR. PETER: We are questioning this Panel on the fact that the

evidence of Natural Resources Canada has alluded to ongoing research by

Enbridge into this issue, and the issue that is being researched in the paper that we

just discussed with Dr. Santos is not the relevant issue.

7030. This Aid to Cross shows the actual relevant issue, which is that

electrochemical tests were performed to ---

7031. THE CHAIRPERSON: Mr. Peter, please don’t go any further at this

point.

7032. It’s unclear to me how you’re testing the evidence that’s been filed.

You did say that you were attempting to bring evidence onto the record and that’s

what I’m hearing you try to do.

7033. Do you have a question of Dr. Santos based on the evidence that’s

been filed?

7034. MR. PETER: Well, if Dr. Santos would read the highlighted portion

of the AQ?

7035. I don’t know if you can see it, Dr. Santos, where you are in Calgary

right now.




7036. DR. BILL SANTOS: Oh, I can see it.

7037. MR. PETER: Okay.

7038. Have you read the highlighted portion of the AQ?

7039. MR. BILL SANTOS: I have.


7041. My question to you, sir, is: Given the real nature of observed

corrosion in heavy oil pipelines, would it not have been more appropriate for

CanmetENERGY to release a paper on this topic rather than a paper on the

corrosivity of crude oils discussed by Nathan Vanderklippe in the Globe and Mail

last Friday?

7042. MR. SHAW: With respect, Madam Chair, that’s an irrelevant

question.

7043. That does not deal with the evidence filed whatsoever. I’m having a

hard time fathoming what it means but it certainly doesn’t go to cross-

examination on the evidence.

7044. Unless I’m missing it, I see nothing relevant here.

7045. MR. PETER: With respect, Mr. Shaw, the -- doing ASTMG205

testing on the corrosivity of crude oil does not address the issue which industry

itself has observed and has filed academic research on.

7046. Dr. Santos, thank you very much for bearing with me for this

questioning, but would you agree that there is a larger area here that ought to be

addressed in research and discussed, not just the corrosivity -- relative corrosivity

of substances that have no electrolytic -- no ability to act as electrolytes?

7047. THE CHAIRPERSON: I’m going to interrupt because I understand

that we’ve lost our webcast. And so I want to just take a break while we get that

webcast back up and running.

7048. While we’re doing that, Mr. Peter, I would encourage you to look at




your questions and see if you have any remaining questions of Dr. Santos that ask

questions on the evidence that this Panel has filed, and we’ll come back and here

those questions when we return.

7049. So we’ll just take a break until we get word that we’re back up on the

webcast.

7050. MR. PETER: Thank you, Madam Chair.



7051. THE CHAIRPERSON: Thank you very much, everybody.


BOB GOWE: Resumed


BILL SANTOS: Resumed

ERIC MAGNUSON: Resumed


7052. THE CHAIRPERSON: We’ve been pretty lucky not to have too

many -- we’ve been pretty lucky not to have too many technology gremlins in our

system, and so thank you for your patience and perseverance.

7053. So can -- can we just confirm that we still have Dr. Kirkwood and Dr.

Santos on the -- on the line?

7054. MR. CLARKE: I’m sorry; we won’t have Dr. Kirkwood on the

phone anymore. Dr. Kirkwood had to leave at 3:30, but I don’t think we’ll need

her for this final question.

7055. THE CHAIRPERSON: Okay.

7056. Dr. Santos, are you on the line?

7057. DR. BILL SANTOS: I am on the line.

7058. THE CHAIRPERSON: Mr. Peter, thank you for your patience.

Please go ahead with your question.




--- EXAMINATION BY/INTERROGATOIRE PAR MR. PETER:

(Continued/Suite)

7059. MR. PETER: Thank you, Dr. Santos, for your patience.

7060. Could we please return to -- could we please have the aid to cross,

Velocity Profiles, Madame Clerk?

7061. Dr. Santos this is a close-up of what appears to have been the results of

the -- what is the result of the computational fluid dynamics analysis that we were

discussing earlier. The size of the boundary layer in both laminar and turbulent

flow for heavy oil appears to be much larger than that for light oil.

7062. Is this a situation which could lead to the deposition of solids at the

pipe wall given a bottom -- a base sediments and water content of 0.5 percent?

7063. DR. BILL SANTOS: The results shown here, yes.

7064. MR. PETER: Okay. Thank you.

7065. Could we return please to the last aid to cross which was NACE

conference paper 2012?

7066. Dr. Santos, this aid to cross shows the mechanism of a differential

concentration cell that is known to all corrosion engineers; I’m sure that you’re

very familiar with this concept.


7068. MR. PETER: Would you agree that this, in conjunction with

research into deposition of solids at over-bends, is an area of future research for

CanmetENERGY as it appears that Enbridge and other pipeline companies are

doing this at the moment?

7069. Would you say this is a fertile ground for future research?

7070. THE CHAIRPERSON: Mr. Peter, let’s let the witness answer the

question.




7071. DR. BILL SANTOS: Well, I’ll say that there is current research

being done in this area at Alberta Innovates. They have led a lot of the research

for underdeposit corrosion. Now, for me to say that we would be doing the same

research at this point, I can’t comment at this point.

7072. MR. PETER: But you agree that this would be an area of -- which

may yield important results?

7073. THE CHAIRPERSON: Mr. Peter, again, can you point us to the

evidence that you’re questioning on on this topic?

7074. MR. PETER: Going right back to NRCan’s evidence applying these

learnings as knowledge and experience in using and interpreting different test

methodologies increases. A direct quote ---

7075. DR. BILL SANTOS: Well, just to ---

7076. MR. PETER: --- from NRCan’s evidence.

7077. DR. BILL SANTOS: --- answer your question, if the question is is it

important to know and understand all mechanisms that could lead to internal

corrosion regardless of the mechanism, the answer is yes.

7078. MR. PETER: Thank you very much, Dr. Santos. I have been -- it’s

been a privilege to question you.

7079. I have no further questions, Madame Chair.

7080. THE CHAIRPERSON: Thank you, Mr. Peter.

7081. So we’ll finish for today. I understand we did lose the webcast one

more time here as we were just doing this last little piece. We’ll ---

7082. DR. BILL SANTOS: Oh, I see you again.

7083. THE CHAIRPERSON: We’ll get everybody -- hopefully all the

gremlins will be worked out of the technology by tomorrow morning.

7084. We’ll sit again at 8:30 and we’ll begin with questions of this panel by

The Coalition followed by the Haisla Nation.




7085. Thank you very much, everyone. Good evening.

7086. Oh, I just need to -- sorry -- almost -- I had you out of your chair, Mr.

Peter, but -- we just -- I was remiss in not getting an AQ number for your AQs.

7087. THE REGULATORY OFFICER: That will be AQ51.



C.J. Peter Associations Engineering - Aids to cross-examination

7088. THE CHAIRPERSON: And that does complete our hearing for

today.

7089. Thank you, everyone.

7090. MR. PETER: Thank you, Madam Niro.

--- Upon adjourning at 3:47 p.m./L’audience est ajournée à 15h47

JOINT REVIEW PANEL FOR THE ENBRIDGE NORTHERN … · Examination by Ms. Griffith Transcript Hearing Order OH-4-2011 --- (A short pause/Courte pause) 5381. THE CHAIRPERSON: I can confirm

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