Northern Gateway Project - Regulatory Document Index

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Northern Gateway Project

Response of the Attorney General of Canada To the Motion of Gitxaala Nation Seeking Additional Responses to

Gitxaala Information Request: I.R. Nos. 1.1.11, 1.1.15, 1.1.16 and 1.12

and Related Procedural Orders

Contents A. Overview ................................................................................................................................ 2

B. Concise Statement of Relevant Facts .................................................................................. 2

The Nature of the Public Hearing Process and of Federal Government Participation in the Process ............................................................................................................................................ 2

The List of Issues in the Panel Process ........................................................................................... 3

Written Evidence Filed by the Government Participants ............................................................... 7

Information Request in the Panel Process ...................................................................................... 7

Information Request of Gitxaala Nation and Response of the Federal Government Participants .. 7

The Present Gitxaala Notice of Motion .......................................................................................... 8

Applies to Information Requests Nos. 1.1.11, 1.1.15, 1.1.16 ................................................. 8

Filed While the Process for Seeking Leave to Question Federal Government Participants is Underway ................................................................................................................................ 8

Relief Requested ..................................................................................................................... 8

C. Submissions ........................................................................................................................... 8

Information Request 1.12 has been Appropriately Answered ........................................................ 9

Information Requests 1.1.11, 1.1.15 and 1.1.16 are Appropriately Answered ............................. 10

Related Procedural Relief in the Notice of Motion ...................................................................... 12

Appendix I: Gitxaala Information Requests 1.12.1 to 1.12.51 Inclusive .................................... 13

Appendix II: Transport Canada Written Evidence and Information Response on Tanker Exclusion Zone ............................................................................................................................. 18

Endnotes ........................................................................................................................................ 23

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A. Overview

1. The Gitxaala Nation [the “Gitxaala”] has filed a Motion seeking different responses to four specific Information Requests. Federal Government Participants have provided a response in writing to each Information Request. The responses provided are adequate and sufficiently address the issues in question having regard to the context of this Panel’s process.

2. Three of the Information Requests in the Gitxaala Motion flow from the Gitxaala perspective, as expressed by its Counsel, on consultation and accommodation by the Crown. The Gitxaala seek:

• Correspondence and records exchanged between the Proponent and Canada

relating to consultation with Gitxaala Nation (1.1.11); • Copies of all strength of claim assessments in the federal government’s possession

in relation to Gitxaala Nation’s Aboriginal title and rights (1.1.15); and • Copies of all potential impact assessments in the federal government’s possession

in relation to potential impacts to Gitxaala from this proposed Project (1.1.16). The fourth Information Request in the Gitxaala Motion (1.12) consists of fifty-one specific questions in some way associated with what is described as the ‘Tanker Exclusion Zone’ or activities said to relate to that.

B. Concise Statement of Relevant Facts

The Nature of the Public Hearing Process and of Federal Government Participation in the Process

3. Regulatory review of the Enbridge Northern Gateway Project [the “Project”] is conducted by the Joint Review Panel [the “Panel”]. The Panel discharges both (i) the statutory functions of the National Energy Board under the National Energy Board Act; and (ii) the statutory functions of a Panel under the Canadian Environmental Assessment Act, 2012. Its specialized mandate is set out in a Joint Review Panel Agreement [the “Agreement”]. Under these statutes, and pursuant to the Agreement, the Panel is the Tribunal upon which Parliament has conferred the responsibility of assessing and recommending to the Governor in Council, whether the Project is in the public interest, and whether the Project is likely to

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cause significant adverse environmental effects having regard to the implementation of mitigation measures.

4. The Panel is specifically mandated to make this assessment and recommendation with particular reference to the impacts that the Project may have on potential or established Aboriginal and Treaty rights. The Panel will consider proposed measures that would avoid or mitigate Project impacts on Aboriginal interests. Aboriginal groups have been asked to communicate their concerns about the impacts of the Project directly to the Panel, in order that the Panel may hear these Aboriginal voices first hand.

5. The Canadian Environmental Assessment Agency provided participant funding to facilitate engagement of Aboriginal groups in the Panel process.1

6. At this stage of the review of the Project, Federal Government organizations participate in the Panel’s process in order to provide to the Panel expert or specialist information or knowledge within their specific organizational mandates as applied to the List of Issues set out in the Hearing Order. The expert or specialist information or knowledge is contained in the written evidence filed by the Federal Government Participants. Further information will come from Government organizations participating by way of Letter of Comment. This specialist or expert information is provided to assist the Panel in discharging its statutory mandate, and the obligations which fall to the Panel under the Agreement. In addition, the Crown has provided the Panel with documents containing information respecting the Crown’s Aboriginal Consultation Framework for the Enbridge Northern Gateway Project [the “Framework”]. These documents define the Crown’s reliance, to the extent possible, on the Panel process for the specialized purpose of assessing impacts that the Project may have on potential or established Aboriginal and Treaty rights having regard to the implementation of mitigation measures.

7. The Gitxaala filed a request for leave of the Panel to question the Federal Government Participants. This refers to “[t]he federal government’s assessment of the proposed project…”2 This statement misapprehends the role of the Federal Government Participants in the public hearing process. It is this Panel which is conducting an assessment of the proposed Project, not the Federal Government Participants.

The List of Issues in the Panel Process

8. The Hearing Order also includes the List of Issues for the Panel’s review of the Project. The List of Issues is Appendix I to the Hearing Order.

9. On August 4, 2010, with respect to whether the matter of ‘Adequacy of Crown Consultation’ would be included in the List of Issues, the Panel Secretary replied to the Gitxaala that “[t]he

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Panel has not been given a mandate to oversee or assess the Crown’s consultation obligations.”3

10. On January 20, 2010, the Panel was established to review the Project. Enbridge filed a formal Application on 27 May 2010.

11. On 5 July 2010, the Panel issued a Procedural Direction requesting comments on, inter alia, the draft List of Issues within the Hearing Order. After receipt of comments, the Panel issued its Panel Session Results and Decision on January 19, 2011. 4

12. In section 2.1.5 of the Panel Session Results and Decision, this Panel noted that it had been asked to add "Adequacy of Crown Consultation" to the List of Issues in the Hearing Order. This Panel did not take the requested action, but instead clarified its general process in terms of consultation with Aboriginal groups:

“Several participants in the Panel sessions recommended the addition of "Adequacy of Crown Consultation" to the List of Issues. We are of the view that it would be beneficial to clarify our general process in terms of our assessment of consultation with Aboriginal groups. The evidence of potential impacts of the Project on Aboriginal interests, including asserted and proven Aboriginal rights, will be fully considered and taken into account before we make any recommendations or decisions. Therefore, in assessing the potential impacts of the Project and determining whether it is in the public convenience and necessity, we will consider the nature and extent of the Aboriginal interests in the context of how the Project may affect such interests. We will also take into consideration proposed measures that would avoid or mitigate Project impacts on Aboriginal interests. It is only after carrying out this analysis that we will submit our report under the CEA Act to the Minister of the Environment or make a decision under section 52 of the NEB Act. In order to obtain as much relevant evidence as possible on Aboriginal concerns about the Project, potential Project impacts and possible mitigation measures, we have established the following approach. The applicant is required to make all reasonable efforts to consult with potentially affected Aboriginal groups and to provide information about those consultations to us. This includes evidence on the nature of the interests potentially affected, the concerns that were raised and the manner and degree to which those concerns have been addressed. We will assess the sufficiency of the applicant’s consultation process, evaluate the adequacy of its evidence on the potential impact of the Project on Aboriginal interests, and consider potential Project impacts along with mitigation measures to address possible impacts.

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Further, those Aboriginal groups who choose to participate in the Joint Review Panel process may submit evidence or comments and question the applicant’s or other parties’ evidence. Parties other than the applicant and Aboriginal groups, including government authorities, may also submit evidence that would inform our understanding of the Project impacts on Aboriginal interests and potential mitigation measures. Once we have received all the evidence and before making any recommendations or decisions, we will consider all of the relevant information we have before us, including information regarding the consultation undertaken with Aboriginal groups, the views of Aboriginal groups, Project impacts on Aboriginal interests, and proposed mitigation measures. Given the comprehensiveness of our process and our broad (but not unlimited) remedial powers, concerns related to the Project should be brought to our attention either through consultation with the applicant or through participation in the review process. Recognizing the concerns raised and the importance of this consultation and assessment process, we are of the view that this process should be highlighted on the revised List of Issues. In addition to Issue 5, we have clarified the types of interests included within “Aboriginal Interests” in Issue 2.1. Although we have indicated that Aboriginal interests are in part aligned with socio-economic matters, we recognize that Aboriginal groups may have concerns in relation to other issues identified on the revised List of Issues.”5

13. After the Panel Session Results and Decision, Counsel for the Gitxaala engaged in correspondence with the Panel dated February 22, 2011.6 On March 30, 2012, the Panel again responded by identifying what it will assess and describing the assessment process:7

“Although the Panel has stated how it will assess evidence on the impacts of the Project on Aboriginal groups, the Gitxaala Nation has again asked whether the Panel will be “assessing Crown consultation”. The Panel is of the view that the Gitxaala Nation’s question cannot be answered in a simple “yes” or “no” fashion and that parties may have differing interpretations of what constitutes an “assessment” of Crown consultation. Consequently, the Panel continues to be of the view that it is more helpful to identify specifically what it will assess and to describe this assessment process. As stated in the Panel Session Results and Decision, the Panel will consider the nature and extent of the Aboriginal interests in the context of how the Project may affect such interests. The Panel will hear evidence on asserted and proven Aboriginal rights and consider proposed measures that would avoid or mitigate Project impacts on Aboriginal interests. The Panel will

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consider Aboriginal groups’ concerns with the Project, concerns that might be brought to the Panel’s attention either by the applicant or through evidence Aboriginal groups submit directly to the Panel. The Panel will also consider any other evidence, including information submitted by other government authorities, which would inform the Panel’s understanding of the Project impacts on Aboriginal interests and potential mitigation measures. Before rendering its decision, the Panel will assess the completeness of the joint review process to ensure all potentially affected Aboriginal groups had full and fair opportunity to make their concerns known to the Panel. In respect of the substantive issues, the Panel will assess the potential impacts of the Project on Aboriginal rights and interests by examining the nature of the rights and interests and how the Project may affect them. The Gitxaala Nation and others may submit any information they believe is relevant to the Panel’s procedural and substantive determinations. Through the Panel process, the Gitxaala Nation will have opportunity to make its views on the Project known, including what effect it may have on its section 35 rights. If at the end of the process, the Gitxaala Nation does not feel its views have been heard or that the unmitigated impacts of the Project are too great, it may argue that the Project should not proceed. In terms of the Gitxaala Nation’s question with respect to whether the Crown has delegated elements of consultation to the proponent and, if so, how that delegation took place and the scope and degree of delegation, the Panel would again point the Gitxaala Nation to the Aboriginal Consultation Framework for the Northern Gateway Pipeline where it states at page 2:

The federal government will rely on the JRP process, to the extent possible, to fulfill its duty to consult with Aboriginal groups. In the event that project-related issues requiring consultation fall outside the mandate of the JRP, the federal government will consult directly with the potentially affected Aboriginal groups on these matters at any time.

While it is clear from the Framework statement that the Crown is of the view that it holds the duty to consult, the joint review process, as relied upon by the Crown, includes a requirement for the proponent to carry out consultation with Aboriginal groups. The joint review process also provides opportunities for any interested party to make submissions with respect to the Project directly to the Panel. Any issues, including Aboriginal groups’ concerns, which are within the mandate of the Panel will be dealt with through the joint review process.”

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Written Evidence Filed by the Government Participants

14. Section 7.3.2 of the Hearing Order provides that Government Participants may submit evidence in written format. As will be seen, the Hearing Order reflects the Panel’s intent that Information Requests, and then requests to Question Government Participants, relate to the written evidence.

Information Request in the Panel Process

15. The Agreement8 provides that the National Energy Board Rules of Practice and Procedure9 will apply to the Panel’s process for review of the Project.

16. Information Requests are discussed in section 32, 33 and 34 of the National Energy Board Rules of Practice and Procedure, 1995 (SOR/95-208)10 [the “Rules”].

17. Section 23 of the Rules allows for the issuance of a Hearing Order “containing the procedural details applicable to the hearing.” In this instance the Panel has issued Hearing Order OH-4-2011, and Amending Hearing Order AO-001-OH-4-2011.11

18. Hearing Order OH-4-2011 and Amending Hearing Order AO-001-OH-4-2011 defined the process for Information Requests for this Panel. Section 8.7 of the Hearing Order provides:

“Northern Gateway, Intervenors and the Panel may ask information requests on the evidence submitted by other Intervenors and Government Participants. Information requests must be sent to the Intervenor or Government Participant who is being asked for the information, and a copy submitted to the Panel.”

The timelines for the making of, and response to, Information Requests was revised in the Amended Hearing Order AO-001-OH-4-2011

Information Request of Gitxaala Nation and Response of the Federal Government Participants

19. The Federal Government Participants subsequently responded to Information Requests from many Parties. The Gitxaala sent Information Request No. 1 to Government Participants.12 The Federal Government Participants responded.13

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The Present Gitxaala Notice of Motion

Applies to Information Requests Nos. 1.1.11, 1.1.15, 1.1.16

20. The Gitxaala Motion is specifically limited to Information Requests Nos. 1.1.11, 1.1.15, 1.1.16 and 1.12 in the Gitxaala Information Request No. 1.

Filed While the Process for Seeking Leave to Question Federal Government Participants is Underway

21. The Gitxaala Motion is filed at a time when the process for seeking leave to question the Federal Government Participants is not yet concluded.

Relief Requested

22. The Gitxaala Motion seeks related procedural relief which would delay the Panel process, as follows:

a. the Federal Government Participants provide full and adequate responses to those

portions of Gitxaala Information Request No. 1 to the Government of Canada identified herein (the "Information Requests") by a fixed date, prior to the commencement of the final hearings in September 2012;

b. the commencement of the oral questioning phase of final hearings for Northern

Gateway Pipelines Limited Partnership's ("NGP") application be adjourned until the Federal Government Participants have provided full and adequate responses to the Information Requests;

c. Hearing Order OH-4-2011 and Amending Hearing Order OH-4-2011 be amended

to provide for new timelines in accordance with any order that is granted; and d. such further and other order as the Joint Review Panel deems appropriate in the

circumstances.

C. Submissions

23. The Panel will exercise its judgment in determining whether the information sought in these fifty-one questions is sufficiently relevant to the Panel. The appreciation of whether or not it is necessary to obtain this information is a factual determination made in the course of this

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particular review process. It is ultimately a discretionary judgment informed by (but not predetermined by) the statutory mandate which underlies and defines the boundaries of the Panel process.14

Information Request 1.12 has been Appropriately Answered

24. The Gitxaala Information Request 1.12 asks fifty-one questions. The questions are quite sweeping in nature.

25. For example, the Gitxaala ask this Panel to Order the Government Participants to search for and provide “all documents” relied upon for Terms of Reference from 2003 (1.12.1 and 1.12.2), “enquiries and research” relating to a briefing note of 2005 (1.12.3 and 1.12. 9) and 2006 (1.12.7), “all documentation used or referenced” in relation to statements or conclusions from briefing notes of 2005 (1.12.4 and 1.12.10) and 2006 (1.12.8), “enquiries and research” undertaken for and “all documentation used or referenced” in statements from media lines of 2005 (1.12.5 and 1.12.6 respectively), and notes of all meetings where restrictions on tanker movements off the west coast of BC were “referenced or discussed” (1.12.11). This is followed by a series of questions asking whether documents were prepared in the usual and ordinary course of business, including “excerpts contained in the 1970-72 Hansard (House of Commons)” (1.12.30 et seq.). Similar questions are asked in respect of the 2010 Hansard (1.12.33 et seq.), and Orders in Council from 1981 (1.12.36 et seq.). This is followed by a series of questions asking whether documents found via hypertext links in Government websites are “authentic”, “made in the usual and ordinary course of business” and “by a public servant or official in the usual and ordinary course of his/her business” (1.12.39 et seq.). Identical questions are then asked in respect of various individual documents (1.12.42 et seq.). The list of fifty-one questions is concluded with a general request for “any additional policy documents” (1.12.51).

26. Information on the Tanker Exclusion Zone is included in the written evidence of the Federal Government Participants,15 and also in information request responses provided by Transport Canada.16 This evidence is excerpted in Appendix II.

27. Additional responses to the fifty-one questions in Information Request 1.12 are not required in order for this Panel to conduct a fair hearing, or to discharge its mandate. As indicated in the Federal Government Participants’ Response to the Information Request: “…the Tanker Exclusion Zone and associated issues do not apply to the Enbridge Northern Gateway Project. Therefore, these information requests do not materially assist the Joint Review Panel.”17

28. This Panel is charged with the responsibility to examine the proposed Project. The information sought by the Gitxaala is directed to government activities, over several

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decades, relating to a policy which the Federal Government Participants have placed before the Panel and which does not, in any event, apply to tanker shipping serving ports in Canada. The information sought is not sufficiently related to the mandate of the Panel to warrant the relief requested.

Information Requests 1.1.11, 1.1.15 and 1.1.16 are Appropriately Answered

29. The Gitxaala Information Requests 1.1.11, 1.1.15 and 1.1.16 relate to Aboriginal consultation. In summary, the Gitxaala seek:

• Correspondence and records exchanged between the Proponent and Canada relating to consultation with Gitxaala Nation (1.1.11);

• Copies of all strength of claim assessments in the federal government’s possession

in relation to Gitxaala Nation’s Aboriginal title and rights (1.1.15); and • Copies of all potential impact assessments in the federal government’s possession

in relation to potential impacts to Gitxaala from this proposed Project (1.1.16).

30. The List of Issues in the Hearing Order does not include ‘Adequacy of Crown Consultation’. The Gitxaala do, however, assert in paragraph 11 of the present Motion that:

“the information requested in the Information Requests is needed in order to ensure the JRP has the necessary information before it to fully consider the issues it is mandated to take into account pursuant to the Hearing Order”.

31. The Panel Secretary has advised the Gitxaala that it will not assess the adequacy of Canada’s Aboriginal consultation at this point the in the Panel process. The Panel has twice declined requests to include “Adequacy of Crown Consultation” in the List of Issues in the Hearing Order.

32. In its responses to these requests by the Gitxaala, the Panel has explained that its process requires consultation by the Proponent, that this requires the Proponent to address Aboriginal issues so far as possible, and that the Panel will assess the adequacy of this consultation. The Panel has also explained that the Panel process itself is inherently consultative, and provides the Gitxaala the opportunity of leading its own evidence respecting the impacts of the Project on asserted Gitxaala rights and titles, and also of testing the Proponent’s evidence in this respect. Further, the Panel has explained that it may exercise remedial powers which, themselves, may well be capable of addressing some aspects of Aboriginal concerns respecting the Project. If the Gitxaala are not satisfied with the result, they may argue that

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the Project should not be recommended for approval by the Governor in Council. The Panel will issue reasons for the appreciations which its mandate obligates it to perform.

33. Notwithstanding these past and future events, the Gitxaala assert in the present Notice of Motion that “the only information relevant to the consultation issue before the JRP is information about the federal Crown's consultation” (paragraph 23).

34. The Federal Government Participants respect the ability of the Gitxaala to advance their own views of how Aboriginal consultation should be conducted and assessed. The Gitxaala Notice of Motion cites a number of propositions of law from British Columbia Courts in cases such as Halalt (at paragraph 36 of the Notice of Motion), Gitanyow (paragraph 37) and Hu-Ay-Aht (paragraph 38). In the fullness of time, the Notice of Constitutional Question filed by the Gitxaala will be argued before this Panel.

35. However, the Federal Government Participants respectfully disagree with the statements in paragraphs 11 and 23 of the Gitxaala Motion, and with rigid application of the propositions of law cited in paragraphs 36, 37 and 38 of the Gitxaala Motion to the context of this Panel’s consideration of the Project. The Supreme Court of Canada makes it clear that every case of Aboriginal consultation is specific to its context.18 The Gitxaala references to Halalt, Gitanyow and Hu-Ay-Aht contain no analysis comparing the context of those cases to the context before the Panel.

36. Supreme Court of Canada jurisprudence requires contextual analysis, not application of selected propositions from individual cases such as Halalt, Gitanyow and Hu-Ay-Aht, in a manner which is so automatic as to lack appreciation of contextual differences between these cases inter se, and between each of them and the unique context of this Panel.

37. In the context of this Panel, the Panel is responsible for assessing whether the Project is likely to cause significant adverse environmental effects, and is in the public interest, with particular reference to potential adverse impacts that the project may have on potential or established Aboriginal and Treaty rights. The Panel will take into consideration proposed measures that would avoid or mitigate Project impacts on Aboriginal interests. As the Supreme Court itself notes in Haida: “It is open to governments to set up regulatory schemes to address the procedural requirements appropriate to different problems at different stages”19 and “[t]he Government may wish to adopt … administrative regimes with impartial decision-makers in complex or difficult cases.” This is the unique context of this Panel.

38. The List of Issues in Appendix I to the Hearing Order includes: “Consultation with the public and Aboriginal groups on the Project”. This relates to the Panel’s consideration of the Proponent’s Aboriginal and public consultation programmes, both of which are required in the National Energy Board Filing Manual.20 It may well relate to the Panel’s appreciation of the sufficiency of its own consultative process, on which Canada is relying at this time.

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39. However, this does not apply to the assessment of the adequacy of Canada’s approach to Aboriginal consultation pursuant to the Framework.21 The Panel process will yield a detailed record of Aboriginal groups’ concerns about potential adverse impacts and the scope of established or potential Aboriginal and Treaty rights. That record is still being developed, through questioning at the Final Hearings and through additional oral evidence which the Panel will receive in 2013. All of this will be informed by submissions at Final Argument scheduled for April 2013. The Panel will take this into consideration when preparing its Final Report later in 2013.

40. The Crown’s consultation and accommodation in this context is integrated with the Panel process; neither process is complete at this time. The Crown is monitoring the Panel process as part of its consultation Framework, and is tracking the information provided to the Panel. Following completion of the Panel process and report, the Crown will assess whether further consultation and accommodation measures are necessary. That assessment will be informed by the content of the Panel Report.

41. In the context of this Panel proceeding at this time, the further information and records sought by the Gitxaala will not be of assistance to the Panel in fulfilling its mandate.

Related Procedural Relief in the Notice of Motion

42. This Panel declined an earlier request by the Gitxaala, and other Parties, 22 to delay the proceedings pending additional information. 23 The same result should apply to the present Motion.

43. Adjourning the Questioning Phase of the Final Hearings would inconvenience all parties. The threshold for granting such a request has not been met. The Gitxaala have not demonstrated a sufficiently material connection between the information sought, the inadequacy of the information provided, and relevance to the statutory mandate of the Panel of the difference between what was sought and what was provided.

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Appendix I: Gitxaala Information Requests 1.12.1 to 1.12.51 Inclusive

Information Request No. 1 from the Gitxaala Nation, Questions 1.12.1 to 51 at: https://www.neb-one.gc.ca/ll-eng/livelink.exe/fetch/2000/90464/90552/384192/620327/624910/701018/815382/Gitxaala_Nation_-_Information_-_Request_1_A2T0Z5.pdf?nodeid=815383&vernum=0&redirect=3 Requests 1.12.1 What documents and information were relied upon in preparing the Terms of

Reference and Statement of Work for the Public Review Panel? Please provide all documentation on this issue.

1.12.2 What documents and information were relied upon in preparing the Terms of

Reference for the Royal Society of Canada's science report? Please provide all documentation on this issue.

1.12.3 What enquiries and research were undertaken by federal government representatives in

preparing the August 2005 briefing note on the tanker restriction issue to the Minister of Natural Resources Canada?

1.12.4 What documents were relied upon by federal government representatives in making all

of the statements and reaching all of the conclusions set out in the August 2005 briefing note to the Minister of Natural Resources Canada, and the August 2005 letter of the Minister of Natural Resources to Mr. Anderson, about restrictions on the movement of tanker traffic off the coast of BC and their application to tanker traffic originating from a port in BC? Please provide all documentation used or referenced in relation to those statements and conclusions.

1.12.5 What enquiries and research were undertaken by federal government representatives in

preparing the November 2005 media lines on the tanker restriction issue? 1.12.6 What documents were relied upon by federal government representatives in making all

of the statements and reaching all of the conclusions set out in the November 2005 media lines about restrictions on the movement of tanker traffic off the coast of BC and their application to tanker traffic originating from a port in BC? Please provide all documentation used or referenced in relation to those statements and conclusions.

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1.12.7 What enquiries and research were undertaken by federal government representatives in

preparing the March 2006 briefing note on tanker traffic restrictions? 1.12.8 What documents were relied upon by federal government representatives in making all

of the statements and reaching all of the conclusions set out in the March 2006 briefing note about restrictions on the movement of tanker traffic off the coast of BC and their application to tanker traffic originating from a port in BC? Please provide all documentation used or referenced in relation to those statements and conclusions.

1.12.9 What enquiries and research were undertaken by federal government representatives in

preparing the April 2006 briefing note to the Minister of Indian Affairs and Northern Development on the meeting with Enbridge and the tanker restriction issue?

1.12.10 What documents were relied upon by federal government representatives in making all

of the statements and reaching all of the conclusions set out in the April 2006 briefing note to the Minister of Indian Affairs and Northern Development and the April 2006 briefing note to the Minister of Natural Resources Canada about restrictions on the movement of tanker traffic off the coast of BC and their application to tanker traffic originating from a port in BC? Please provide all documentation used or referenced in relation to those statements and conclusions.

1.12.11 Please provide notes of all meetings between federal government representatives and

representatives of Enbridge or related companies where the issue of restrictions on the movement of tanker traffic off the coast of BC was referenced or discussed.

1.12.12 Please provide the documentation establishing the TEZ. 1.12.13 Please confirm that the TEZ did not come into effect until 1988. If it came into effect

in some other year, please advise and provide documentation that establishes the implementation date.

1.12.14 What is the geographical area of the TEZ? 1.12.15 How many kilometres is the TEZ from the proposed tanker routes for the Project?

Please provide the ranges of distances between the TEZ and the entire proposed tanker routes.

1.12.16 Please explain the reasons for, and concerns leading to, the establishment of the TEZ. 1.12.17 What environmental or other concerns led to the establishment of the TEZ? 1.12.18 What is the basis for Transport Canada's position that the TEZ does not apply to oil

tanker traffic associated with the Project? Please provide all documents supporting that position.

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1.12.19 What is the basis for Transport Canada's statement in its evidence that the TEZ was

"never meant or designed to prohibit all tanker traffic or tankers calling on Canadian ports"? Please provide all documents supporting that statement.

1.12.20 Why did the federal government issue the Errata to the Terms of Reference for the

Public Review Panel? 1.12.21 What information did the federal government have in its possession to suggest that the

original Terms of Reference for the Public Review Panel were incorrect or inaccurate? Please provide all documentation on this issue.

1.12.22 What enquiries and research were undertaken by federal government representatives to

support the issuance of the Errata to the Terms of Reference for the Public Review Panel?

1.12.23 What documents were relied upon by federal government representatives in issuing the

Errata to the Terms of Reference for the Public Review Panel? Please provide all documentation used or referenced in relation to preparation and issuance of the Errata.

1.12.24 Were the documents contained in the Freedom of Information Requests attached to the

Affidavit of Eva Roberts sworn Dec. 14, 2011, made in the usual and ordinary course of business for the federal government?

1.12.25 Were the documents contained in the Freedom of Information Requests attached to the

Affidavit of Eva Roberts sworn Dec. 14, 2011, prepared by a federal government public servant or official in the course of his/her duties?

1.12.26 Are the documents contained in the Freedom of Information Requests attached to the

Affidavit of Eva Roberts sworn Dec. 14, 2011, true and authentic copies of the original documents in the custody of the federal government?

1.12.27 Was the "West Coast Oil Ports Inquiry Statement of Proceedings" commissioned by

the federal government and completed by a federal government public servant or official in the course of his/her duties?

1.12.28 Was the "West Coast Oil Ports Inquiry Statement of Proceedings" made in the usual

and ordinary course of business for the federal government? 1.12.29 Is the "West Coast Oil Ports Inquiry Statement of Proceedings" a true and authentic

copy of the original document in the custody of the federal government? 1.12.30 Were the excerpts contained in the 1970-1972 Hansard (House of Commons) made in

the usual and ordinary course of business for the federal government?

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1.12.31 Were the excerpts contained in the 1970-1972 Hansard (House of Commons) prepared

by a federal government public servant or official in the course of his/her duties? 1.12.32 Are the excerpts contained in the 1970-1972 Hansard (House of Commons) true and

authentic copies of the original documents in the custody of the federal government? 1.12.33 Were the excerpts contained in the 2010 Hansard (House of Commons) made in the

usual and ordinary course of business for the federal government? 1.12.34 Were the excerpts contained in the 2010 Hansard (House of Commons) prepared by a

federal government public servant or official in the course of his/her duties? 1.12.35 Are the excerpts contained in the 2010 Hansard (House of Commons) true and

authentic copies of the original documents in the custody of the federal government? 1.12.36 Were the Orders in Council from 1981 regarding suspending oil and gas development

on BC's offshore made in the usual and ordinary course of business for the federal government?

1.12.37 Were the Orders in Council from 1981 regarding suspending oil and gas development

on BC's offshore prepared by a federal government public servant or official in the course of his/her duties?

1.12.38 Are the Orders in Council from 1981 regarding suspending oil and gas development

on BC's offshore true and authentic copies of the original documents in the custody of the federal government?

1.12.39 Were the reports on oil and gas activities in the Queen Charlotte Basin, which are

linked to the Natural Resources Canada website, made in the usual and ordinary course of business for the federal government?

1.12.40 Were the reports on oil and gas activities in the Queen Charlotte Basin, which are

linked to the Natural Resources Canada website, prepared by a federal government public servant or official in the course of his/her duties?

1.12.41 Are the reports on oil and gas activities in the Queen Charlotte Basin, which are linked

to the Natural Resources Canada website, true and authentic copies of the original documents in the custody of the federal government?

1.12.42 Was the "Public Review on Tanker Safety and Marine Oil Spills Response Capability:

Protecting our Waters" report commissioned by the federal government and completed by a federal government public servant or official in the course of his/her duties?

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1.12.43 Was the "Public Review on Tanker Safety and Marine Oil Spills Response Capability:

Protecting our Waters'' report made in the usual and ordinary course of business for the federal government?

1.12.44 Is the "Public Review on Tanker Safety and Marine Oil Spills Response Capability:

Protecting our Waters" report a true and authentic copy of the original document in the custody of the federal government?

1.12.45 Was "The West Coast Oil Threat in Perspective, Volume I" commissioned by the

federal government and made in the usual and ordinary course of business for the federal government?

1.12.46 Was "The West Coast Oil Threat in Perspective, Volume 1" report prepared by a

federal government public servant or official in the course of his/her duties? 1.12.47 Is "The West Coast Oil Threat in Perspective, Volume 1" report a true and authentic

copy of the original document in the custody of the federal government? 1.12.48 Was the document entitled "Tanker Exclusion Zone" and retrieved from DFO's

website and filed by Gitxaala made in the usual and ordinary course of business for the federal government?

1.12.49 Was the document entitled "Tanker Exclusion Zone" and retrieved from DFO's

website and filed by Gitxaala prepared by a federal government public servant or official in the course of his/her duties?

1.12.50 Is the document entitled "Tanker Exclusion Zone" and retrieved from DFO's website

and filed by Gitxaala a true and authentic copy of the original documents in the custody of the federal government?

1.12.51 Are there any additional policy documents relating to the Tanker Exclusion Zone that

the federal government has in its possession? If so please provide copies of these documents.

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Appendix II: Transport Canada Written Evidence and Information Response on Tanker Exclusion Zone

Written Evidence of Transport Canada: https://www.neb-one.gc.ca/ll-eng/livelink.exe/fetch/2000/90464/90552/384192/620327/624911/718030/777411/Government_of_Canada_-_Volume_3_Part_2_Transport_Canada_Written_Evidence_-_A2K4S4.pdf?nodeid=777575&vernum=0&redirect=3&redirect=4

3.4.2.1 Tanker Exclusion Zone 63 A voluntary tanker exclusion zone applies to loaded oil tankers servicing the Trans-Alaska Pipeline System between Valdez, Alaska, and Puget Sound, Washington. The zone was determined by calculating the drift rate of a disabled laden tanker and the time required for a suitable assist tug to arrive on scene. 64 More than 300 tankers transit annually along the BC coast while respecting the Tanker Exclusion Zone. Only laden tankers must stay west of the zone; tankers carrying no cargo (“in ballast”) may transit within the zone. It is important to note that the Tanker Exclusion Zone was never meant or designed to prohibit all tanker traffic or tankers calling on Canadian ports. 65 While there is a federal moratorium in place that applies strictly to oil and natural gas exploration and development activities, there is no moratorium on tanker operation in Canada’s western waters. Oil tankers have been trading safely and regularly along Canada’s west coast for many years.

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Response of Transport Canada to Information Request No. 1 from Gitxaala Nation https://www.neb-one.gc.ca/ll-eng/livelink.exe/fetch/2000/90464/90552/384192/620327/624911/718030/829379/Government_of_Canada_-_Response_to_IR_No_1_from_Gitxaala_Nation_-_A2U6I5.pdf?nodeid=829404&vernum=0

Response: 1.12.1 to 1.12.51

As set out in section 3.4.2.1 of Transport Canada’s Written Evidence, Volume 3 Part 2 [A2K4S4], the Tanker Exclusion Zone and associated issues do not apply to the Enbridge Northern Gateway Project. Therefore, these information requests do not relate to, or are otherwise beyond the scope of, the Joint Review Panel. [TC, NRCan, CCG, EC, AANDC]

However, Natural Resources Canada provides the following clarification: In February 2009, Natural Resources Canada republished the Report of the Public Review Panel on the Government of Canada Moratorium on Offshore Oil and Gas Activities in the Queen Charlotte Region, British Columbia on the department’s public website, along with an errata. The errata was issued to correct an error in the terms of reference that were originally provided to the Panel, and which the Panel reprinted in appendix A1 of its report.

The terms of reference for the Panel contained the following statement: “In 1972, the Government of Canada imposed a moratorium on crude oil tanker traffic through the Dixon Entrance, Hecate Strait, and Queen Charlotte Sound due to concerns over the potential environmental impacts.” However, this statement was not correct. In 1972, the Government of Canada imposed a moratorium on oil and gas exploration and development activities offshore British Columbia, not a moratorium on crude oil tanker traffic.

The full text of the errata can be viewed on Natural Resources Canada website at http://www.nrcan.gc.ca/energy/sources/offshore-oilgas/1265 and is reprinted below:

The Terms of Reference for the “Report of the Public Review on the Government of Canada Moratorium on Oil and Gas Activities in the Queen Charlotte Region of British Columbia” state that “in 1972, the Government of Canada imposed a moratorium on crude oil tanker traffic through the Dixon Entrance, Hecate Strait, and Queen Charlotte Sound due to concerns over the potential environmental impacts.” However; the moratorium on oil and gas activities offshore British Columbia does not apply to tanker traffic.

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Prior to 1972, a number of permits for oil and gas exploration were issued for offshore British Columbia. Due to environmental concerns, rights under those permits were suspended as of 1972 by way of Orders in Council, thus forming a de facto moratorium. The Orders in Council expired on March 5, 1982, and the Government of Canada enacted the Canada Oil and Gas Act (COGA), which provided that the permits be renegotiated into exploration agreements and a time limit was imposed for renegotiation. Additionally, if renegotiation was not possible for reasons outside the control of the permit holders, the time frame for negotiation was to be extended and the rights continued to be valid. At that time, the Government chose not to renegotiate the permits in the area under moratorium offshore British Columbia, whereby maintaining the moratorium on offshore oil and gas activity by way of policy decision. The COGA was replaced on February 15, 1987, by the Canada Petroleum Resources Act (CPRA). Upon proclamation of the CPRA, exploration agreements previously issued under COGA became exploration licences subject to the terms of the new legislation. The renegotiation scheme was grandfathered and the Crown has maintained its policy decision not to renegotiate the former permits. Thus, the moratorium continues to be maintained through government policy. No activity can occur until the former permits are converted to exploration licenses. The decision not to negotiate with industry to convert those permits is a pure policy decision. There is no statutory impediment to carrying out those negotiations. A voluntary tanker routing measure, the Tanker Exclusion Zone (TEZ), is in place off the west coast of B.C. It applies to loaded crude oil tankers transiting from Alaska to Ports along the U.S. west coast. For further information regarding the TEZ, please visit the Canadian Coast Guard online at: http://www.pacific.ccggcc.gc.ca/mcts-sctm/tez_e.htm

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Information from the Canadian Coast Guard online at the link http://www.ccg-gcc.gc.ca/e0003909 accessible via the link in the Response to Information Request No. 1 from the Gitxaala Nation

TANKER EXCLUSION ZONE

A tanker exclusion zone (TEZ) has been established off the Pacific coast of Canada as a result of the discontinuance of the Trans Alaska Pipeline Tanker Routes.

The purpose of the TEZ is to keep laden tankers west of the zone boundary in an effort to protect the shoreline and coastal waters from a potential risk of pollution.

The zone boundary follows the Canada/Alaska border to a point approximately 115 miles west of Langara Island, thence southward to approximately 73 miles southwest of Cape St. James, thence to 40 miles southwest of Amphitrite Point and thence due east to just off Cape Flattery.

The TEZ is defined as follows:

a line from 54°00'00"N 136°17'00"W thence to 51°05'00"N 132°30'00"W thence to 48°32'00"N 126°30'00"W thence to 48°32'00"N 125°09'00"W

Loaded TAPS crude oil tankers transiting along the Pacific coast are requested to remain seaward of this zone boundary.

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Endnotes 1 Participant Funding under the Aboriginal Envelope is described at:

• Allocation of Phase I Funds for Participation in the Review Panel for the Northern Gateway Pipeline Project http://www.ceaa.gc.ca/050/document-eng.cfm?document=35047

• Addendum Participant Funding Review Committee's Report Allocation of Federal Funds for the Northern Gateway Pipeline Project Aboriginal Funding Envelope at http://www.ceaa.gc.ca/050/document-eng.cfm?document=34369

• Addendum 2 Funding Review Committee Report Allocation of Federal Funds for Phase I of the Northern Gateway Pipeline Project - Aboriginal Funding Envelope at http://www.ceaa.gc.ca/050/document-eng.cfm?document=35785

• Addendum 3 Funding Review Committee Report Allocation of Federal Funds for Phase I of the Northern Gateway Pipeline Project - Aboriginal Funding Envelope at http://www.ceaa.gc.ca/050/document-eng.cfm?document=37361

• Allocation of Phase II Funding for Participation in the Environmental Assessment Process at http://www.ceaa.gc.ca/050/document-eng.cfm?document=41644

• Funding Review Committee’s Report Allocation of Federal Funds for Phase I of the Northern Gateway Pipeline Project – Aboriginal Funding Envelope at http://www.ceaa.gc.ca/050/document-eng.cfm?document=50627

• Participant Funding Program – Aboriginal Funding Envelope Funding Review Committee’s Report Allocation of Additional Federal Funds for the Environmental Assessment of the Northern Gateway Pipeline Project at http://www.ceaa.gc.ca/050/documents-eng.cfm?ti=Funding&no=&cat=&date1=&date2=&explore=1&evaluation=21799&go=Search.

2 Letter of July 5, 2012, from Counsel for the Gitxaala to the Panel https://www.neb-one.gc.ca/ll-eng/livelink.exe?func=ll&objId=829370&objAction=browse

3 Panel letter to the Gitxaala Nation re Panel jurisdiction and role in respect of Crown consultation A005 - Panel Letter to the Gitxaala Nation - Panel's jurisdiction and its role in respect of Crown consultation (A25830) at https://www.neb-one.gc.ca/ll-eng/livelink.exe/fetch/2000/90464/90552/384192/620327/624909/628612/A5-1_-_Panel_Letter_to_the_Gitxaala_Nation_-

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_Panel's_jurisdiction_and_its_role_in_respect_of_Crown_consultation__A1T9E4.pdf?nodeid=628496&vernum=0:

“In respect of the Gitxaala’s question on Crown consultation, the Panel understands that the federal government has set up a process with five distinct phases, to allow for consultation between the Crown and Aboriginal groups throughout the Panel process. That process is set out in the Panel Agreement and, more specifically, the Aboriginal Consultation Framework for the Enbridge Northern Gateway Project (Framework). The Panel has not been given a mandate to oversee or assess the Crown’s consultation obligations. Rather, the federal government has confirmed that it is responsible for ensuring that it meets its legal duty to consult. As specified in the Framework:

The Panel will not be mandated, however, to make final determinations about the strength of an Aboriginal group’s claim respecting Aboriginal rights. The federal government will make this final determination, and will ensure that it meets its legal duty to consult and, where appropriate, accommodate (emphasis added).

We understand from your letter that the Gitxaala will be filing evidence with the Panel throughout the regulatory process, in regards to impacts of the proposed Project. The Panel encourages your client’s participation as it is important that the Gitxaala and other Aboriginal groups participate in the joint review hearing process and make their concerns and recommendations surrounding the Project known to the Panel. This will assist the Panel in making its recommendations and determinations on the Project, on as complete of a record as possible. As well, the federal government has stated that the Panel’s process will be its primary source of information to support the Crown’s assessment of the potential impacts of the Project on asserted or established Aboriginal rights; the Crown has also stated that it will, more generally, be relying on the Panel process to assist the Crown in fulfilling its duty to consult.”

4 Panel Session Results and Decision 19 January 2011 https://www.neb-one.gc.ca/ll-eng/livelink.exe/fetch/2000/90464/90552/384192/620327/624909/662325/A22-3_-_Panel_Session_Results_and_Decision_A1X2L8.pdf?nodeid=662117&vernum=0

5 Since this letter was written, Parliament has amended the National Energy Board Act and replaced the Canadian Environmental Assessment Act with the Canadian Environmental Assessment Act, 2012. These amendments do not affect the material sequence discussed in the Panel’s letter i.e. the Panel will consider proposed measures that would avoid or mitigate Project

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impacts on Aboriginal interests, and this analysis will be completed before the Panel’s Report is submitted in accordance with the legislative provisions as they now exist.

6 Letter of February 22, 2011, from Gitxaala Counsel to the Panel: https://www.neb-one.gc.ca/ll-eng/livelink.exe/fetch/2000/90464/90552/384192/620327/625023/672710/Gitxaala_Nation_-_Letter_of_Comment_(A1X8F1).pdf?nodeid=672554&vernum=0.

7 Letter of March 30, 2012, from the Panel to Counsel for the Gitxaala https://www.neb-one.gc.ca/ll-eng/livelink.exe/fetch/2000/90464/90552/384192/620327/624909/678909/A28-1_-_Letter_to_Counsel_for_Gitxaala_Nation_A1Y3J3.pdf?nodeid=678910&vernum=0.

8 Agreement Between the National Energy Board and the Minister of the Environment Concerning The Joint Review of the Northern Gateway Pipeline Project http://www.ceaa.gc.ca/050/documents/40851/40851E.pdf

6.1 The Panel will meet the requirements of the Act and the NEB Act in the joint review of the project. 6.2 The Panel will conduct its review in accordance with the Board Rules and in accordance with Part IV of the Terms of Reference attached as an appendix to this Agreement. The Panel will have the powers set out in the NEB Act and section 35 of the Act.

9 National Energy Board Rules of Practice and Procedure, 1995, SOR/95-208, at http://laws-lois.justice.gc.ca/eng/regulations/SOR-95-208/FullText.html:

23. (1) The Board

(a) shall issue a hearing order, containing the procedural details applicable to the hearing, accompanied by a notice of public hearing, where an application is to be disposed of by means of an oral public hearing … .

10 Section 32, 33 and 34 of the National Energy Board Rules of Practice and Procedure provides:

INFORMATION REQUESTS

32. (1) A party may direct an information request, within such time limit as the Board may fix,

(a) to any other party who has filed written evidence, in relation to any matter that is raised in that other party’s written evidence; and

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(b) with leave of the Board or consent of the party to whom the information request is directed,

(i) to any other party who has filed written evidence, in relation to any matter that is in issue in the proceeding but that is not raised in that other party’s written evidence, and

(ii) to any other party who has not filed written evidence.

(2) A party seeking leave under paragraph (1)(b) shall, within any time limit fixed by the Board pursuant to subsection (1), file with the Board and serve on the party to whom the information request is directed, the proposed information request and the justification therefor.

(3) The Board shall not grant leave pursuant to paragraph (1)(b) unless the party to whom the information request is directed has been given an opportunity to comment on the proposed information request.

(4) Where the Board has fixed a time limit pursuant to subsection (1), a party shall not, after the time limit expires, direct an information request to another party unless the Board grants leave to direct the request or the other party consents thereto.

33. (1) An information request shall be in writing, addressed to the applicable party and numbered consecutively in respect of each information request, including prior information requests.

(2) Within any time limit fixed by the Board pursuant to section 32, every information request made pursuant to that section shall be served on the party to whom it is directed and a copy of the request shall be filed with the Board and served on all other parties.

34. (1) Subject to subsection (2), a party served with an information request pursuant to subsection 33(2) shall, within any time limit fixed by the Board,

(a) provide a full and adequate response in writing to each information request, on separate pages for each question where practicable; and

(b) file with the Board and serve on all other parties a copy of the response provided.

(2) A party who does not provide a response as required by paragraph (1)(a) shall, within any time limit fixed by the Board pursuant to subsection (1), file with the Board and serve on all other parties a statement

(a) where the party objects to the filing of the information requested, setting out the objection and the grounds therefor; or

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(b) where the party contends that the information necessary to provide a response is not available, setting out the reasons for the unavailability of the information, accompanied by any alternative available information that the party considers would be of assistance to the party directing the information request.

(3) Where the Board determines that the grounds for the objection referred to in paragraph (2)(a) are not sufficient, the Board shall so inform the party and the party shall comply with subsection (1).

11 Hearing Orders issued by the Panel http://gatewaypanel.review-examen.gc.ca/clf-nsi/dcmnt/hrngrdr-eng.html

12 Gitxaala Nation Information Request No 1 to Government https://www.neb-one.gc.ca/ll-eng/livelink.exe/fetch/2000/90464/90552/384192/620327/624910/701018/815382/Gitxaala_Nation_-_Information_-_Request_1_A2T0Z5.pdf?nodeid=815383&vernum=0

13 Response to IR No 1 from Gitxaala Nation - A2U6I5 at https://www.neb-one.gc.ca/ll-eng/livelink.exe/fetch/2000/90464/90552/384192/620327/624911/718030/829379/Government_of_Canada_-_Response_to_IR_No_1_from_Gitxaala_Nation_-_A2U6I5.pdf?nodeid=829404&vernum=0

14 Joint Review Panel established to review the Jackpine Mine Expansion, Letter of July 31, 2012, to Oil Sands Environmental Coalition, Shell Canada Energy, and Other Parties Participating in the Proceeding, Response to Motion from Oil Sands Environmental Coalition for Orders directing federal and provincial government departments to gather information, Decision of the Joint Review Panel on the Motion of the Oil Sands Environmental Coalition, at http://www.ceaa.gc.ca/050/documents/p59540/80767E.pdf

15 Section 3.4.2.1 of Transport Canada’s Written Evidence,Volume 3 Part 2 https://www.neb-one.gc.ca/ll-eng/livelink.exe/fetch/2000/90464/90552/384192/620327/624911/718030/777411/Government_of_Canada_-_Volume_3_Part_2_Transport_Canada_Written_Evidence_-_A2K4S4.pdf?nodeid=777575&vernum=0&redirect=3.

16 Government of Canada – response to IR No. 1 from Gitxaala Nation A2U6I5 at https://www.neb-one.gc.ca/ll-eng/livelink.exe/fetch/2000/90464/90552/384192/620327/624911/718030/829379/Government_of_Canada_-_Response_to_IR_No_1_from_Gitxaala_Nation_-_A2U6I5.pdf?nodeid=829404&vernum=0.

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17 Page 98 of Response to IR No 1 from Gitxaala Nation - A2U6I5 at https://www.neb-one.gc.ca/ll-eng/livelink.exe/fetch/2000/90464/90552/384192/620327/624911/718030/829379/Government_of_Canada_-_Response_to_IR_No_1_from_Gitxaala_Nation_-_A2U6I5.pdf?nodeid=829404&vernum=0.

18 Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73 at paragraph 45 http://scc.lexum.org/en/2004/2004scc73/2004scc73.html: “Every case must be approached individually.”

19 Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511 at paragraphs 51 and 54 respectively, http://scc.lexum.org/en/2004/2004scc73/2004scc73.html

20 The NEB Filing Manual is at http://www.neb-one.gc.ca/clf-nsi/rpblctn/ctsndrgltn/flngmnl/flngmnl-eng.pdf

21 Canada’s Aboriginal Consultation Framework for the Enbridge Northern Gateway Project https://www.neb-one.gc.ca/ll-eng/livelink.exe/fetch/2000/90464/90552/384192/620327/624911/718030/777411/Government_of_Canada_-_Volume_1_Part_9_Annex_7_Aboriginal_Consultation_Framework_-_A2K4R9.pdf?nodeid=777427&vernum=0

22 Gitxaala Nation - Notice of Motion d. Nov. 8, 2011 - A2H6Y6 at https://www.neb-one.gc.ca/ll-eng/livelink.exe/fetch/2000/90464/90552/384192/620327/624910/701018/752982/Gitxaala_Nation_-_Notice_of_Motion_d._Nov._8,_2011_-_A2H6Y6?nodeid=752983&vernum=0:

• Paragraph 1c: “NGP’s Application be stayed until NGP provides full and adequate responses to the Information Requests and copies of the Pending Studies;

• Paragraph 1e: “the commencement of hearings for NGP’s application be adjourned

from January 2012 to provide sufficient time for NGP to provide full and adequate responses to the Information Requests and copies of the Pending Studies, and for Gitxaala and other parties to make additional information requests after receiving those responses and the Pending Studies;

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• Para 28: “For that reason, Gitxaala seeks orders staying the JRP proceedings until the

outstanding Information Requests are answered, and an amendment to the timelines in the Hearing Order.

23 Northern Gateway Pipelines Inc. (Northern Gateway), Application for the Enbridge Northern Gateway Project, Notices of Motions from the Haisla Nation, Coastal First Nations, Gitxaala Nation, Sustainability Coalition, and BC Nature and Nature Canada – Requests for Full and Adequate IR Responses from Northern Gateway – Ruling No. 16, at https://www.neb-one.gc.ca/ll-eng/livelink.exe/fetch/2000/90464/90552/384192/620327/624909/785686/A101-1_-_Ruling_no._16_-_Motions_Haisla_Nation,_Coastal_First_Natikons,_Gitxaala_Nation,_Sustainability_Coalition_and_BC_Nature_and_Nature_Canada_-_A2L5S7?nodeid=785687&vernum=0.