February 14, 2013

Appearing before the Northern Gateway Pipeline Joint Review Panel (JRP) for the third time in four months, ELC Executive Director Chris Tollefson received some interesting answers during his cross-examination of Northern Gateway expert witnesses on February 4 and 5, 2013 in Prince Rupert. His six-hour cross-examination of the company’s Marine Emergency Preparedness & Response Panel considered, among other things, the adequacy of Northern Gateway’s assessment of risks and consequences associated with its tanker plans, and the likelihood of species recovery following an oil spill.

Northern Gateway claimed that there would be no permanent damage following an oil spill. When asked what it considered to be "permanent damage," one expert testified that this "…would essentially be an extinction, if you are talking about a fish or a bird…[or]...in the case of a physical part of the environment, like a beach, you’d have to change it physically in some way in which case it wasn’t a beach – an uplift during an earthquake or something like that." The company’s witnesses also denied the suggestion that there was some "absolute level of risk" that would require the JRP legally to recommend against the project.

As with previous panels, much of Tollefson’s cross-examination involved scrutiny of Northern Gateway’s scientific studies. He challenged a claim made in one report authored for the company that "the scientific literature is clear, ecosystems and their components recover" following an oil spill. Statistics in the report were developed by analyzing 87 studies drawn from the scientific literature on recovery following marine spills. Based on these studies, the report claimed that the average time for species in the marine environment to recover after an oil spill was 5.1 years.

Despite having earlier characterized his numbers as "robust," under cross-examination, the author of the report agreed it was "problematic" that this 5.1 year average did not include any marine mammals, reptiles and only one study involving birds. He also conceded that birds and marine mammals were long-lived species that would typically have relatively longer recovery times than other species in his study. Ultimately, these questions led to Northern Gateway filing an amendment to the report that confirmed the numbers Tollefson had put to the witness the day before.

The ELC has now conducted almost 20 hours of hours of cross-examination, over five days, at three stages of the hearings. In November, Tollefson cross-examined Northern Gateway in Prince George on pipelines impacts on endangered caribou; in December, he questioned the company in Prince Rupert on their analysis of impacts on birds and marine mammals associated with routine project effects. The next steps will be to prepare a written argument for submission in May and an appearance in June before the Joint Review Panel in Terrace, BC for an oral reply argument. The JRP’s decision is expected by the end of 2013.

The ELC hearing team on the Northern Gateway file includes articling student Naomi Kovak, intensive clinic student Anthony Ho, and ELC Litigation Director Mark Haddock. Collaborations with a variety of scientists and scholars have also greatly benefited the ELC’s work on this file.

Hakai-Raincoast Scholar and UVic Professor Chris Darimont commented this week, "As a conservation scientist motivated by preserving the ecological and social systems we are blessed with in BC, I can think of nothing more strategic than to work with world-class legal scholars and practitioners from the ELC. Their model is acutely applied, real-world, and making a difference at the JRP and beyond."

Transcript for Feb 4, 2013
Transcript for Feb 5, 2013
Nature Canada blog "Gateway Oil Spills: Hoping for Best, Not Preparing for Worst?

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