JOINT REVIEW PANEL FOR THE ENBRIDGE NORTHERN … · - Examination by Mr. Janes 12389 - Examination...

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 165

Hearing held at

Audience tenue à

Chances Prince Rupert

240 West, 1st Avenue

Prince Rupert, British Columbia

April 10, 2013

Le 10 avril 2013

International Reporting Inc.

Ottawa, Ontario

(613) 748-6043

© Her Majesty the Queen in Right of Canada 2013

as represented by the Minister of the Environment

and the National Energy Board

© Sa Majesté du Chef du Canada 2013

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 Rupert (British Columbia), Wednesday, April 10, 2013

Audience tenue à Prince Rupert (Colombie-Britannique), mercredi, le 10 avril 2013

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 - Ms. Natasha Gooch 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 - Ms. Maria Morellato - Mr. Art Sterritt


APPEARANCES/COMPARUTIONS (Continued/Suite)

(ii) INTERVENORS/INTERVENANTS Council of the Haida Nation - Ms. G.L. Terri-Lynn Williams-Davidson - Guujaaw Daiya-Mattess Keyoh - Mr. Kenny Sam - Mr. Jim Munroe Douglas Channel Watch - Mr. Murray Minchin - Ms. Cheryl Brown - Mr. Kelly Marsh - Mr. Manny Arruda - Mr. Dave Shannon Driftpile Cree Nation - Mr. Amyn F. Lalji Enoch Cree Nation, Ermineskin Cree Nation and Samson Cree Nation - Mr. Allan Stonhouse - Mr. Markel Chernenkoff - Mr. G. Rangi Jeerakathil 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. Kandace Kerr Friends of Morice-Bulkley - Ms. Dawn Remington - Mr. Richard Overstall Gitga’at First Nation - Mr. Michael Ross - Ms. Krystle Tan



(iii) INTERVENORS/INTERVENANTS Gitxaala Nation - Ms. Rosanne M. Kyle - Ms. Virginia Mathers - Ms. Leslie Beckmann Government of Alberta - Mr. Evan W. Dixon - Mr. Ron Kruhlak Government of Canada - Mr. James Shaw - Ms. Dayna Anderson - Mr. Kirk Lambrecht - Mr. Brendan Friesen - Ms. Sarah Bird Haisla Nation - Ms. Jennifer Griffith - Ms. Hana Boye - Mr. Jesse McCormick - Mr. Allan Donovan - Mr. Michael Gordon - Ms. Gillian Bakker Heiltsuk Tribal Council - Ms. Carrie Humchitt - Mr. Benjamin Ralston - Ms. Lisa Fong Kelly Izzard Kitimat Valley Naturalists - Mr. Walter Thorne - Mr. Dennis Horwood - Ms. April MacLeod - Mr. Ken Maitland MEG Energy Corp. - Mr. Loyola Keough - Mr. David A. McGillivray Michel First Nation - Acting Chief Gil Goerz - Ms. Tracy Campbell



(iv) INTERVENORS/INTERVENANTS Northwest Institute of Bioregional Research - Ms. Patricia Moss Office of the Wet'suwet'en - Mr. Mike Ridsdale - Mr. David De Wit - Chief Namoks (John Ridsdale) Swan River First Nation - Mr. Jay Nelson - Ms. Dominique Nouvet United Fishermen and Allied Workers' Union - Ms. Joy Thorkelson - Mr. Hugh Kerr Terry Vulcano Dr. Josette Wier National Energy Board/Office national de l’énergie - Mr. Andrew Hudson - Ms. Carol Hales - Ms. Rebecca Brown - Mr. Asad Chaudhary - Mr. Neil Patterson


ERRATA

(i)

Saturday, April 6, 2013 - Volume 162

Paragraph No.: Should read:

7120:

“There’s obviously regulations…” “Those are obviously regulations…”

7177:

"And so many of these vessels continued to "And so many of these vessels continued to

be built with single-hulled fuel oil tanks be built with single-hulled fuel oil tanks

while they had double-hulled bunker tanks." while they had double-hulled cargo tanks."

7178:

“…and the new QMAX LNG carriers have “…and the new QMAX LNG carriers have

fuel oil tanks of 75,000 tonnes, about the fuel oil tanks of 7,500 tonnes, about the

same size as a VLCC.” same size as a VLCC.”

7256:

“That’s not a concern it’s just a reality “That’s not a concern. It’s just a reality that

that ships have to pay the cost of fuel.” ships have to pay the cost of fuel.”

7278:

“…weather data has certainly been one “…weather data has certainly been one

factor in improving weather forecast.” factor in improving weather forecasts.”

7528:

“In other words, the ship can properly “In other words, the ship can properly sail

sail at the net scantlings use are over and at the net scantlings. These are over and

above, therefore, over the course of the above. Therefore, over the course of the

life, the intent is that…” life, the intent is that…”

7670:

“…to docking manoeuvres, to cargo “…to docking manoeuvres, to cargo

gaging, to transfer loading…” gauging, to transfer loading…”

7823:

“…not apply to oil tankers, which comply “…not apply to oil tankers which comply

with Regulations 19.3.1 and 19.3.2. “ with Regulations 19.3.1 and 19.3.2. “

7895:

“MR. KEITH MICHEL: ...” “MR. McCORMICK: ...”


ERRATA

(ii)



7915:

“…the tanker acceptance criteria that the “…the tanker acceptance criteria, the port

port information have about terminal information handbook, terminal regulations

regulations or Project documents,…” are Project documents,…”

8017:

“… -- from the last scientific papers I’ve “… -- from the last scientific papers I’ve

seen this area would not be one of those seen, this area would not be one of those

places.” places.”

8296:

“…applying the lessons learned, and a “…applying the lessons learned, and a

strong tide of compensation.” strong tie to compensation."

8425:

“…-- car carrier ships which the mass of “…-- car carrier ships in which the mass of

the ship…” the ship…”

8462:

“…back in time, so what it was like in the “…back in time, to what it was like in the

old days first.” old days first.”

8469:

“…I had my own experience as a tanker “…I had my own experience as a tanker

master but also as a free general manager in master but also as an operational manager in

TK Shipping as a fleet manager.” TK Shipping as a fleet manager.”

8511:

“The prudent navigator does rely solely on “The prudent navigator does not rely solely

one system of taking a position…” on one system of taking a position…”

8527:

“…operational manager in the shore of “…operational manager on the shore of a

fleeter tankers…” fleet of tankers…”


ERRATA

(iii)



8546:

“Examples are the recommendation that “Examples are the recommendation for

double-hulled bunker tanks, the double-hulled bunker tanks, the

recommendation for CAP 1 and 2 rating for recommendation for CAP 1 and 2 rating for

ships over 15 years.” ships over 15 years.”

8555:

“…play a role here and in stabilizing the “…play a role here in stabilizing the

vessel…” vessel…”

8577:

“MR. JOHN CARRUTHERS: ...” “MR. CROWTHER: ...”

Tuesday, April 9, 2013 - Volume 164

RULINGS/DÉCISIONS Should read:

Description

136 156


12352, 12354, 12356, 12358,

12360, 12362, 12364 and 12366:

“DR. ROBERT GREGORY: ...” “DR. ROBIN GREGORY: ...”


TABLE OF CONTENTS/TABLE DES MATIÈRES

(i)

Description Paragraph No./No. de paragraphe

Opening remarks by the Chairperson 12379

Gitxaala Nation Panel 1 - Environmental Effects/Socio-Economic

Effects (Risk Assessment Methodology)

Dr. Andrea Bigano

Dr. Graciela Chichilnisky

Mr. Matt Hammond

Dr. Craig Candler

Dr. Ginger Gibson

- Examination by Mr. Janes 12389

- Examination by Mr. Neufeld 12441

- Examination by Member Bateman 13046

Gitga’at First Nation Panel 4 - Economic and Informed Decisions

Dr. Robin Gregory

Dr. Chris Joseph

- Examination by Mr. Roth 13174

Procedural matters brought forward by the Chairperson 13432

- Examination by Mr. Roth (continued) 13440

- Examination by Member Matthews 13884

Gitxaala Nation Panel 2 - Potential Impact on Aboriginal

Rights and Interests/Engagement and Consultation

Chief Elmer Moody

- Examination by Mr. Neufeld 13943


LIST OF EXHIBITS/LISTE DES PIÈCES

(i)

No. Description Paragraph No./No. de paragraphe

AQ83-A Northern Gateway – Article by Dr. Andrea Bigano

entitled “Nota di Lavoro” dated 31 January 2008 12898

AQ83-B Northern Gateway – Article by Dr. Andrea Bigano

entitled “The Role of Risk Aversion and Lay Risk in

the Probabilistic Externality Assessment for Oil

Tanker Routes to Europe” dated 1 January 2010 12898

AQ83-C Northern Gateway – Article by Dr. Graciela

Chichilnisky entitled “Catastrophic Risks” dated

December 2008, revised July 2009 12898

AQ83-D Northern Gateway – Presentation entitled

“Environmental risk assessment in environmental

impact assessment – optional or mandatory?” by

David Hyett at the IAIA10 Conference Proceedings 12898

AQ84-A Northern Gateway – Paper entitled “Valuing

Wildlife Resources in Alaska” section 10 by

Robin Gregory and Robert Mendelsohn 13878

AQ84-B Northern Gateway – Risk Analysis, vol. 13, No. 3,

1993 – “Perceived Risk, Dread, and Benefits” by

Robin Gregory and Robert Mendelsohn 13878

AQ85-A Northern Gateway – Gitxaala Intervention dated

7 March 2011 14198

AQ85-B Northern Gateway – Letter from Janes Freedman

Kyle on behalf of Gitxaala First Nation dated

29 September 2011 – Requesting withdrawal

of intervention 14198


RULINGS/DÉCISIONS

(i)

Description Paragraph No./No. de paragraphe


UNDERTAKINGS/ENGAGEMENTS

No. Description Paragraph No./No. de paragraphe

U-79 By the Gitga’at First Nation to do a recalculation of the

actual value to determine whether or not there was an order

of magnitude error in calculating the traditional harvest

values for the Gitga'at assessment area as they related to

the five species of salmon listed by Dr. Joseph and

Dr. Gregory. 13332

Gitxaala Nation Panel 1

Examination by Mr. Janes


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

12379. THE CHAIRPERSON: Good morning, everyone. Welcome to the

hearing.

12380. I see that we have members of the Gitxaala community here today.

Welcome. Thank you very much for being here to be involved with this hearing

today.

12381. Are there any preliminary matters that parties wish to raise?

--- (No response/Aucune réponse)

12382. THE CHAIRPERSON: Seeing none, good morning, Mr. Janes.

12383. MR. JANES: Good morning.

12384. THE CHAIRPERSON: Shall we begin with having the witnesses

sworn or affirmed?

12385. MR. JANES: Yes.

12386. THE CHAIRPERSON: Ms. Niro?

VIRGINIA (GINGER) GIBSON: Sworn

MATTHEW HAMMOND: Affirmed

CRAIG CANDLER: Sworn

ANDREA BIGANO: Affirmed

GRACIELA CHICHILNISKY: Affirmed

12387. THE CHAIRPERSON: Good morning to all the panel members.

Through the wonders of modern technology, we're able to connect up around the

world. So thank you very much for everybody's participation this morning.

12388. Mr. Janes?

--- EXAMINATION BY/INTERROGATOIRE PAR MR. JANES:

12389. MR. JANES: So I just have a few brief questions to get started.




12390. And I would like to start with you first, Dr. Gibson. And in this

respect, first I'd like to clear up one thing because of the documents. You've

introduced yourself as Virginia Gibson. I take it you're the same person as the

Ginger Gibson listed in the various documents?

12391. DR. GINGER GIBSON: That is correct.

12392. MR. JANES: And as I understand it, you're one of the authors of the

report entitled "Northern Gateway Pipelines Assessment of Effects on Gitxaala

Nation Cultural Rights and Interests, Including Use and Occupancy" dated

December 20th, 2011, which has been filed as D72-28-2, and also a documented

entitled "Environmental Risk from Enbridge Gateway as an Impact to Gitxaala

Nation Use of Lands, Waters and Resources for Traditional Purposes" dated

December 18th, 2011, filed as Exhibit D72-28-3.

12393. Is that correct?

12394. DR. GINGER GIBSON: That is correct.

12395. MR. JANES: And do you adopt these as your evidence?

12396. DR. GINGER GIBSON: I do.

12397. MR. JANES: And there's also a curriculum vitae filed with respect to

you that's filed as Exhibit D72-28-5. And does that curriculum vitae describe

your qualifications as at the time it was filed?

12398. DR. GINGER GIBSON: It does.

12399. MR. JANES: Dr. Candler, I gather you also participated in writing

the two reports that were just referenced with respect to Dr. Gibson?

12400. DR. CRAIG CANDLER: Yes, I did.

12401. MR. JANES: And do you adopt these reports as your evidence?

12402. And the curriculum vitae -- you filed a curriculum vitae which appears

as Exhibit D72-28-4. Was that curriculum vitae accurate when you filed it?

12403. DR. CRAIG CANDLER: It is.




12404. MR. JANES: Mr. Hammond, I gather that you were one of the

authors -- excuse me -- of an expert report, a rather extensive expert report

entitled “Expert Opinion on Petroleum Tanker Traffic and Accidents and

Malfunctions in Browning Entrance and Principe Channel”.

12405. And I particularly draw your attention to Section 7.0, were you the

author of that section?

12406. MR. MATT HAMMOND: Yes, I was.

12407. MR. JANES: And this document is filed as Exhibit D72-32-7. It

appears as PDF pages 19 to 27 in the report.

12408. Do you adopt that as your evidence?

12409. MR. MATT HAMMOND: Yes, I do.

12410. MR. JANES: And, Panel, just to be clear, the remainder of this report

is to be addressed by Mr. Hammond and the rest of our Science Panel at the end

of the month, in the next part, so today’s evidence just focuses on the matters that

are dealt with in Section 7.

12411. So I’m only having the witness speak to Section 7 at this point.

12412. Dr. Bigano?

12413. DR. ANDREA BIGANO: Yes.

12414. MR. JANES: You wrote a report entitled “Risk Aversion and Lay

Risk Assessment in Oil Spill Accidents”, an opinion on the Northern Gateway

Project which has been filed as D72-30-2.


12416. DR. ANDREA BIGANO: Yes, it is correct.

12417. MR. JANES: And do you adopt this report as your evidence?

12418. DR. ANDREA BIGANO: I do.




12419. MR. JANES: And you provided a curriculum vitae which has been

filed as Exhibit D72-30-3 and do you ---

12420. DR. ANDREA BIGANO: Yes, I did.

12421. MR. JANES: And was that curriculum vitae an accurate description

of your qualifications?


12423. MR. JANES: Dr. Chichilnisky, you prepared a report with respect to

this matter that’s been filed as Exhibit D72-27-2.


12425. DR. GRACIELA CHICHILNISKY: Yes.

12426. MR. JANES: And do you adopt the contents of that report as your

evidence?

12427. DR. GRACIELA CHICHILNISKY: I do.

12428. MR. JANES: And you provided a curriculum vitae which has now

been filed as Exhibit D72-27-3.

12429. Was the curriculum vitae you provided an accurate description of your

qualifications?

12430. DR. GRACIELA CHICHILNISKY: Yes, it is.

12431. MR. JANES: Oh sorry, I have to come back to do one other CV in a

moment. Thank you very much.

12432. Just one further question for Mr. Hammond. At pages -- at PDF pages

50 to 52 of Exhibit D72-32-07, there’s a curriculum vitae for you.

12433. Is that your curriculum vitae?


Examination by Mr. Neufeld


12434. MR. MATT HAMMOND: Yes, it is.

12435. MR. JANES: Does it accurately describe your qualifications and

experience?

12436. MR. MATT HAMMOND: Yes, it does.

12437. MR. JANES: So, with that, I will present the witnesses to the Panel

and to Mr. Neufeld for questioning.

12438. THE CHAIRPERSON: Thank you, Mr. Janes.

12439. Mr. Neufeld, please begin with your questions.

12440. MR. NEUFELD: Thank you, Madam Chair. Thank you, Mr. Janes.

--- EXAMINATION BY/INTERROGATOIRE PAR MR. NEUFELD:

12441. MR. NEUFELD: Good morning, Panel, here in Prince Rupert and --

and elsewhere. My name is Neufeld and I have some questions on your filed

evidence on behalf of Northern Gateway.

12442. So I’m going to focus this morning on the issue of -- of risk and how

that’s addressed in the various pieces of evidence that -- that you filed.

12443. It seems to me that each of the -- each of the reports approach the issue

somewhat differently so what I’m going to do is simply go through them in order

and explore some of the concepts that are put forward in them.

12444. Dr. Bigano, we’ll start with -- with you.

12445. DR. ANDREA BIGANO: Okay.

12446. MR. NEUFELD: You authored Exhibit D72-30-2 which is entitled

“Risk Aversion and Lay Risk Assessment in Oil Spill Accidents”.

12447. That’s correct?





12449. MR. NEUFELD: If I could refer you, sir, to Adobe page 14 or

Section 4.21 of your report at Adobe page 14 ---

12450. DR. ANDREA BIGANO: M'hm.

12451. MR. NEUFELD: --- the bottom paragraph, sir.

12452. Do you have that in front of you?

12453. DR. ANDREA BIGANO: Yes, I do.

12454. MR. NEUFELD: Okay.

12455. It indicates that the -- the TERMPOL surveys and studies document

was reviewed by you and underpins the risk assessment studies. You describe

that as being very detailed in terms of expert evaluation of accident occurrence

probabilities and very detailed in terms of the role of mitigation measures.

12456. That’s your evidence?

12457. DR. ANDREA BIGANO: As far as (inaudible), there was indeed

some effort in the (inaudible) in those assumptions.

12458. THE CHAIRPERSON: Dr. Bigano, it’s Sheila Leggett. We’re

having some trouble hearing you.

12459. DR. ANDREA BIGANO: I’m sorry.

12460. THE CHAIRPERSON: I don’t know if maybe it’s a matter of

pulling back a little bit from the speaker.

12461. DR. ANDREA BIGANO: Can I repeat?

12462. THE CHAIRPERSON: Yes, let’s just actually -- let’s just do a

sound check and just make sure that we can hear you so that maybe you could talk

about the weather where you are.

12463. DR. ANDREA BIGANO: The weather is fine finally, yeah.

12464. THE CHAIRPERSON: Finally.




12465. DR. ANDREA BIGANO: We’ve been having Canadian weather for

a while, but it’s fine now.

12466. THE CHAIRPERSON: Are you on a -- are you on a speaker phone,

Dr. Bigano?

12467. DR. ANDREA BIGANO: No, I have a microphone, so -- this was

supposed to be better than this thing, so the two are connected and usually it

works better this way.

12468. I can take it out and speak on the phone directly.

12469. THE CHAIRPERSON: Would you mind trying that, please?

12470. DR. ANDREA BIGANO: Yeah. Hello?

12471. THE CHAIRPERSON: Oh that’s much better, thank you very much.

12472. DR. ANDREA BIGANO: That’s much better, okay.

12473. THE CHAIRPERSON: And ---

12474. DR. ANDREA BIGANO: So may I come back to the answer?

12475. So, yes, I -- I mean, I have no problem recognizing that there’s being

an extensive work in standard analysis of these kind of issues in that evidence

provided and mentioning that paragraph.

12476. MR. NEUFELD: Thank you.

12477. DR. ANDREA BIGANO: But in that part, okay.

12478. May I complete?

12479. That paragraph says that -- that is the scope of -- to which -- I mean, I

grant this high extensive work that the same paragraph says that the expert -- the

expert probabilities were the sole source of probabilities in this record.

12480. So there was no -- no assessment of lay probabilities.




12481. MR. NEUFELD: Fair enough, Dr. Bigano.

12482. And I was going to -- I was going to point that out. You do indicate

that there were alternative sources of information about probabilities you believe

left out and, in particular, the DNV Report did not consider there the perception

by those exposed to risks.

12483. That’s fair?

12484. DR. ANDREA BIGANO: That was my impression, yes.

12485. MR. NEUFELD: All right.

12486. Now, sir, understanding is that you were chosen to provide evidence in

this case because of work that you’ve done in Europe.

12487. Is that -- is that the case?


12489. MR. NEUFELD: And, sir, you refer in particular at page -- or

paragraph 3.4 at Adobe page 8, to the two studies -- the two studies that you have

performed, one of which is a 2009 paper dealing with European crude oil imports

generally.

12490. That’s correct?


12492. MR. NEUFELD: And in that paper ---

12493. DR. ANDREA BIGANO: The main -- the main paper affecting the

things was the -- the one published in the Journal of Transport Economics and

Policy that, the 2010 one, which -- which the methodology is more essentially

explained.

12494. MR. NEUFELD: All right, and we’ll talk about both of those.

12495. Do you have both of those papers with you, sir?




12496. DR. ANDREA BIGANO: Yeah, I have PDFs of them open.


12498. Because those are the two papers that, as I understood your evidence,

you’re suggesting a framework that could have been used to -- to further assess

risk in this case.

12499. Is that right?


12501. MR. NEUFELD: Okay,

12502. Now, I just want to ask you a few questions so that we understand the

methodology that -- that you were discussing and suggesting about these two

papers.

12503. The first I’ll talk about is the 2009 paper dealing with the external cost

of European crude oil imports.

12504. DR. ANDREA BIGANO: M'hm.

12505. MR. NEUFELD: You have that with you?

12506. DR. ANDREA BIGANO: Yeah.


12508. Madam Niro, if you could pull up AQ Number 6, please?

12509. Now, in this -- this paper dealt with the external cost of European

crude oil imports which, as I understand it, involved, in part, estimating the

externalities that were associated with the transportation of crude oil by marine

vessels to Europe but it also dealt with other environmental aspects of crude oil

transportation and use in Europe. Is that fair?

12510. DR. ANDREA BIGANO: Yes. It also dealt with operational

externalities.





12512. DR. ANDREA BIGANO: Not only ---

12513. MR. NEUFELD: And I know that you’re ---

12514. DR. ANDREA BIGANO: --- probabilistic mass.

12515. MR. NEUFELD: I’m sorry. I know that your subsequent paper was

more detailed on your methodology and we’ll get to that soon. I just want to ask

you a couple of questions about this external -- the initial paper. If you could go

to Adobe page 6, which is hardcopy page 4 of that paper, sir.


12517. MR. NEUFELD: Now, this describes the way that you go about

assessing probabilistic externalities, including risk aversion, and it cites your

earlier work in that regard.

12518. What I wanted to -- if you could just scroll down please, Madam Niro.

12519. I guess the bottom line for me is, in this last sentence of the second

paragraph, Dr. Bigano, you indicate that the purpose of the analysis, as I read this,

is to come up with a sum of money estimated as damage that would match the

amount needed to make those potentially whole harm -- or potentially harmed

whole. Is that a fair description of the ultimate result of your methodology?

12520. DR. ANDREA BIGANO: Let me think it through. Well, that’s right,

this is a criteria -- criterion you have to abide to if you want to make sure that you

externality estimates are correct.

12521. The purpose of this exercise was to come up with some figures which

are tentative and preliminary we’ve seen in European project completely and at

improving the current status of externality estimation in Europe, which were

based on a more advanced and more expensive and more refined methodology

that was done before.

12522. So a way to improve on that was to make sure that this concern, so the

possibility of take into full account as much as possible the external damages and




hence the harm made to those potentially affected were taken into account, was

included into the methodology for assessing externality. So the focus was a

general policy base and the European society as a whole, it is quite a different

focus than the one we have in the issues concerned in the panel discussion now.

12523. But one of this criterion is that, as it’s written there, if you fail to

include some consideration into the assessment then you don’t take into account

all the damages that people may have suffered and hence your externality estimate

is flawed.


12525. DR. ANDREA BIGANO: Is that an answer to your question?

12526. MR. NEUFELD: Yes. Thank you, Dr. Bigano. And we’ll go

through that in a little bit further detail.

12527. If you just scroll up the page please, Madam Niro.

12528. I just want to get -- lay the foundation here as to what the approach is

that you’re suggesting. And maybe I’ll just take you through my understanding

so that we can shorten this up and you can tell me if this is incorrect.

12529. Now, my understanding of the four steps you identify is that -- and this

is simple terms -- to introduce risk aversion into the risk assessment you start with

what would be a fairly standard approach of coming to expert expected damage

and -- in the first three bullets there. And then you introduce, in the last bullet,

risk aversion and lay risk assessment into the equation. So you have an expected

damage based on risk neutrality; you introduce risk aversion and the difference

between the expected damage based on risk neutrality and risk aversion is what

you describe as a risk premium. Is that a fair summary, sir?

12530. DR. ANDREA BIGANO: Perhaps this is the kind of question is

generally asked for the rest of the panel to comment on it if they want.

12531. MR. NEUFELD: Well, it’s your report, sir. I’m just trying to

understand the basis ---





12533. MR. NEUFELD: --- of the approach that you’re suggesting.

12534. DR. ANDREA BIGANO: Okay. In my view, yeah, that is, I mean,

an account of the methodology used. And the key point is the change that -- the

qualitative difference that you get when you introduce the last step, and the last

step makes it qualitatively different from the standard approach, as I said, of

expert theory.

12535. MR. NEUFELD: Thank you very much.

12536. Now, in the context of the report on the external cost of European

crude oil imports, you went through that exercise and came up with those values,

and then, as I understand it, you added the risk premium to other externalities and

came up with an overall assessment of the external costs of imports to Europe that

included the cost associated with extraction and transportation, and also both

greenhouse gas costs and non-greenhouse gas costs. Is that a fair summary?


12538. MR. NEUFELD: All right. And if we could go to page -- Adobe

page 35, this is the conclusions that you reached based on that review.

12539. MR. JANES: Just in case Dr. Bigano doesn’t have the same page,

that’s hard copy page 33.

12540. MR. NEUFELD: Thanks.

12541. DR. ANDREA BIGANO: Yes, I can see it in front of me on the

desktop of the Regulatory Officer.

12542. MR. NEUFELD: Thank you, Dr. Bigano.


12544. MR. NEUFELD: And this is just cutting to the chase I suppose. The

conclusions you indicate, that the resulting values -- you see the highlighted

portion -- seem quite low ---

12545. DR. ANDREA BIGANO: M’hm.




12546. MR. NEUFELD: --- ranging from $2.32 Euros per tonne in 2030 in

the low demand scenarios to $2.60 Euros in 2010 in the high demand scenarios.

Do you see that there?


12548. MR. NEUFELD: And I’m sorry, I don’t really operate in Euros and

tonnes very well. That equates to about ---

12549. DR. ANDREA BIGANO: So Euros should be -- I think the current

exchange rate it should add 30 percent or something to get dollars.

12550. MR. NEUFELD: Right. And that’s where I was going next. I

thought that that would equate to about 60 cents per barrel. Would that be fair, of

the total externalities associated with extraction and transportation of oil into

Europe?

12551. DR. ANDREA BIGANO: Sorry, which figure are you transforming

---


12553. DR. ANDREA BIGANO: --- the 2.60?

12554. MR. NEUFELD: I was doing two conversions, sir. I’m sorry. So

it’s about $2.50 -- or sorry, 2.5 Euros per tonne, roughly, and I was doing a

conversion of that to dollars per barrel.


12556. MR. NEUFELD: Which to me equated to roughly 60 cents per

barrel, just in rough terms, sir.

12557. DR. ANDREA BIGANO: Could be.

12558. MR. NEUFELD: Okay. And that would have been the total

externalities associated with the transport -- extraction and transportation and use

of oil in Europe; is that right?

12559. DR. ANDREA BIGANO: That would be according to this




methodology which is anyway simplified because we made a lot of simplification

as possible where doing that in those date of having one tonne of oil reaching

Europe according to the -- the routes that were specified in that report.

12560. MR. NEUFELD: Okay. And only a small fraction of that would

have been associated with the externalities associated with accidental spills of oil

by marine transportation?


12562. MR. NEUFELD: All right. And sir, at page -- sorry, I think I cut you

off there. Did you have something to add?

12563. DR. ANDREA BIGANO: Yeah, no go ahead. I can explain later

about this point.


12565. At page 34 then you conclude that from -- based on your assessment

the main implication for environmental policy to be drawn from the study is that

transportation isn’t really the environmental issue to be dealt with, it’s more on

the extraction and use end; is that fair?

12566. DR. ANDREA BIGANO: In this particular perspective yes, but if

you go -- if some citizen were in the same paper that there are local issues which

are equally important that are captured a different way.

12567. So this is -- I mean the importance of this report is both in what the

methodology can -- can show but also in what it cannot show when its applied to

externality. So the methodology, as far as it deals in the previous stages with the

local impacts, it actually augments the -- the normal – the normal estimation by

factors which are considerable.

12568. I mean up to several times the standard procedure would do. But of

course when you water down these estimates using the probability framework and

the -- the fact that quite a lot of oil, an incredible amount of oil is transport --

transported every day to Europe.

12569. Of course the -- the whole thing is water-downed quite considerably

but this is a --I think, a standard result and basically you are -- there are two things




we are looking at, two different things now.

12570. So the fact -- my point here is that the fact that these particular

estimates are low does not have consequences, doesn’t affect negatively the fact

that these -- these other factors not normally in -- studied or analyzed using

expected damages approach so that the standard risk-neutral approach are not

considered and should be considered.

12571. Because when you do that you see that a risk premium can be of over

three and a half times what the rate you -- you would get using the standard

approach is -- are weak enough and you also will have that depending on the way

you have risk aversion and how close and how important is the impact for the --

for the individual.

12572. For -- in that particular -- for those particular individuals affected you

will have substantial, very substantial losses and this is the methodological point

that I read about not the -- the results of the paper which are related to a

completely different result.

12573. MR. NEUFELD: Thank you -- thank you for that, Dr. Bigano.

12574. Let’s talk about that risk premium then and we can -- I’d like to get a

little bit of information as to how you go about deriving that.

12575. And that, as you mentioned, has been described in further detail in the

other paper that cite in paragraph 3.4 of your evidence. Madam Niro, if you could

pull up please AQ number 5.

12576. Now, as you say, this provides more detail as to how you come up

with the risk premium that you -- that you spoke of. Now, this paper was

published in 2010.

12577. DR. ANDREA BIGANO: Yeah.

12578. MR. NEUFELD: And as I understand it is an example of how

you’ve applied your methodology to -- I think what was referred to by you as --

an environmental hotspot in the Aegean Sea. Is that -- is that fair?

12579. DR. ANDREA BIGANO: Yeah it was -- basically there were three --

three areas in the Aegean Sea. So there were northern, southern and Crete, the




Island of Crete, and the -- in all the three areas there are relevant environmental

values to preserve.

12580. MR. NEUFELD: Okay and if we go to ---

12581. DR. ANDREA BIGANO: --- one or three.

12582. MR. NEUFELD: I’m sorry, I -- I interrupted you. It’s a little bit

difficult sometimes when you’re on the phone and I’m here in person.

12583. DR. ANDREA BIGANO: I’m sorry. I was just saying that there

were three different areas not just one.


12585. Now, if we could to Adobe page 3, which is hard copy page 95. Here

we’ll see the conclusions that you reported in -- in your study. We don’t need to

go through them in detail but we see that you came up with -- in bullet number 2,

an expected value of losses of 22,000 Euros for a typical spill and 1,900

thereabouts, Euros for a worst-case spill.

12586. So the fact that the 1,935 number is so much less reflects the much

lower probabilities of a worst-case spill; that’s fair?

12587. DR. ANDREA BIGANO: Yeah, that’s correct.


12589. Now, I’d like to just focus then on how you came about deriving or

developing the risk premium and your methodology there, sir. So if you could

turn to page -- Adobe page 13, which is hard copy page 105.

12590. Here you discuss the fourth ingredient which is the adjustment that’s

made, as I understand it, for lay risk assessment. And you indicate that:

“As to the fourth ingredient we present a simple example of lay

risk assessment under the somewhat arbitrary assumptions that

Aegean residents hold subjective probabilities of an oil spill

affecting the Aegean Islands either 20 or 100 times higher than

probabilities computed in section 2. In the nuclear field




observed lay risk probabilities were about 20 times higher than

expert ones. However, since the 20 was the factor observed for

a very specific kind of accident we compared the results using

this factor to those derived by prudentially setting lay risk

probabilities to much higher values.” (As read)

12591. So the 20 times higher factor was based on observed lay probabilities

for nuclear accidents in France?

12592. DR. ANDREA BIGANO: It was one of the two ways and actually

there were other estimated were much higher which were up to 2,500 times. So

we took quite a conservative stance there.

12593. MR NEUFELD: Would you agree with me, Dr. Bigano, that the

consequences of a nuclear accident are much greater than the consequences of an

oil spill generally?

12594. DR. ANDREA BIGANO: Well, it depends on the -- on the accident.

12595. I’m not an expert in the technology of nuclear nor of the technology of

-- I mean environmental and the science of oil spills but you can have moderate

nuclear accident and extremely terrible nuclear accident, you can have very --

very moderate oil spills and very, very disrupting oil spills. The main difference,

I guess, is the impact on the human life for the two.

12596. So as I state somewhere else in this or the other paper, it's quite

different. It's quite rare that you have human life losses, but you can have severe

consequences for human life and morbidity for nuclear plants.

12597. I mean, it depends on the state of the accident, so there -- I guess there

is an area of -- in which the gravity -- I don't know exactly how you measure that

but the two things overlap and the other end -- the upper end of the spectrum is

for the nuclear and the lower end is for oil spills. But -- yeah.

12598. MR. NEUFELD: Sir, ---

12599. DR. ANDREA BIGANO: My point is that that is not clear-cut, but

you can -- to some extent, there is some reasonable to state.





12601. Dr. Bigano, the -- you talk in this paper quite extensively about the

types of consequences that are perceived or that your study perceived, which is

consequences to the tourism industry and the fishing industry. And that's, I take

it, where the lay aversion premium really lies in this particular study?

12602. DR. ANDREA BIGANO: Well, they were -- the methodology was

applied to all the three categories of impacts. The fact that in this particular area

the economic activities are more relevant than the environment is a consequence

of the particular area chosen and the estimate we had for the degree of

environmental damage, which was -- unfortunately, we had to do what was

available in the literature, and it wasn't measured there, at least, for the others

but…

12603. MR. NEUFELD: All right. In deriving a risk premium for economic

losses to the tourism or fishing industry, what consideration would be given to the

question of whether there was a compensation fund in place to fully compensate

for such losses in the event of a spill?

12604. DR. ANDREA BIGANO: Could you repeat the question?

12605. MR. NEUFELD: Well, if there was a compensation program in place

that people were aware of that would fully compensate for the economic losses

associated with a spill, would you agree with me that there would be no reason for

a risk premium?

12606. DR. ANDREA BIGANO: No. No, I won't agree with you because it

is -- it is again in the very nature of a risk aversion.

12607. So if you are risk-neutral, so if you don't care about the fact of being

exposed to a risk at all, what you say would be correct. If you were, as most

people -- individual people are, risk aversion, you are asking for a bit more than

that. And the bit more can be larger and more serious position so that the higher

the stakes. And the more sensitive you are to this issue so the more risk aversion

you are.

12608. So yeah, this is -- this is part of the issue we are discussing here.

12609. It's not enough to offer full compensation of that pure monetary losses.

The fact of being exposed to a risk is an impact. It's a cause of discomfort and it's




something that should be compensated. And this probably, yeah, more people --

other people would have other things to say, I guess, from the point of view is

something that is -- that is actually been measured, included in the analysis since a

long time.

12610. MR. NEUFELD: So the fact that there is a compensation fund in

place has no effect on risk aversion?

12611. DR. ANDREA BIGANO: Not on risk aversion of percent. It might

compensate part of the damage, but the fact that there is the possibility of

compensating the pure monetary losses is not the full compensation of the -- of

the damage, the full damage. It might reduce the problem, but it doesn't cancel it.

12612. MR. NEUFELD: So it would affect the amount of the risk premium,

but not the fact that there was a risk premium at all?

12613. DR. ANDREA BIGANO: Not -- there would be a surviving risk

premium.

12614. MR. NEUFELD: Right. Thank you, Dr. Bigano.

12615. DR. ANDREA BIGANO: Thank you.

12616. DR. CRAIG CANDLER: I wonder if I can offer just a clarifying

comment or add a little bit more context there for the Panel.

12617. And I think that is that Dr. Bigano, unfortunately, because of the

technology, we can't -- we can't confer as panel members. But certainly Dr.

Bigano's example, case study, is based in a particular place, particular

populations, particular studies, particular research that has been done in order to

augment and improve the estimates that are conventionally done.

12618. The case that we are talking about here, the case of Kitkatla and the

community members who are graciously here today is a very different one, a very

different community, a very different set of values, a very different set of

priorities.

12619. The research that would be required in order to understand and, I

think, implement the methodology would be different.




12620. MR. NEUFELD: Thank you, Dr. Candler.

12621. DR. ANDREA BIGANO: Could I ---

12622. MR. NEUFELD: Let's, then -- sorry. I think I cut you off again, Dr.

Bigano. Were you completed with your answer?

12623. DR. ANDREA BIGANO: Yes. I would just say that I completely

subscribe to what has just been said by the other panellist. And this is exactly the

point, that what the point of the two papers here you have asked me to comment

on is to illustrate a methodology but the -- but the situation changes case by case.

And some issues can be more relevant in some contexts than in other, particularly

when it -- when the lay risk and the risk aversion are concerned.

12624. These are highly variable across cultures, kind of interests and

personal situation. It's something that needs a case-by-case assessment. You

cannot take these measures as general. The figures on my papers are for that

study.

12625. MR. NEUFELD: I'm sorry. Are you finished? Okay.

12626. Dr. Candler, let's then move on to you. You seem eager to get

involved in discussion here, so let's go to your report. That's Exhibit D72-28-3.

I'm talking specifically about the risk report.

12627. Now, I take it this was co-authored by you and Dr. Gibson; is that

right?

12628. DR. GINGER GIBSON: That's correct.

12629. MR. NEUFELD: I'm not meaning to leave you out, Dr. Gibson, if

you want to chime in, and feel free to do that.

12630. If we could go to paragraph 8 of your report. This would be Adobe

page 4.

12631. Do you have that?

12632. Now, when I went through this, I was struck by some of the factors

that you identify as affecting perceptions of risk. Those include -- and I’ll list




them and you can tell me if there’s any that I’ve missed: Familiarity with the

activity, acceptability of the activity or technology, trust in regulators and

perceived benefits of a project.

12633. Would that be a fair summary?

12634. DR. GINGER GIBSON: Thank you for the question.

12635. It would be a fair summary of what is said there. I think that those are

not the only factors.

12636. And if I can ask Madam Clerk to bring up testimony from Volume

163, April 8th

-- the testimony from April 8th

here in Prince Rupert, and I’d like to

refer you to 9838 in which Dr. Satterfield referred to other components that affect

perception.

12637. And I think if we -- I’ll wait till the -- there we are. Dr. Satterfield

refers to the perceptions considered in response to externally imposed threats or

technological hazards, and so she says:

“Perceptions tend to be quite enduring when they are imposed

by things like, you know, natural hazards.”

12638. So I think that there are other factors that are contextualized within the

risk perception literature that influence risk perceptions.

12639. We also referred to -- so this is one example that Dr. Satterfield’s

referring to is the voluntariness of a risk being imposed. In this case, the -- in the

case of what’s being discussed today, an oil spill is an externally imposed and not

voluntarily accepted risk that people are being -- that is then thrust upon them in

the context of this decision and in the context of this decision in which an

externally derived and externally driven risk assessment has been performed with

very little, in fact, no participation that we can see in the risk assessment for

people to define their sense of the probabilities, their sense of the consequences

and their sense of the significance of an oil spill on the things that they love and

cherish and care most about.

12640. MR. NEUFELD: Thank you for that.

12641. Are you aware of the QRA Working Group?




12642. DR. GINGER GIBSON: Can you please not use an acronym?

12643. Can you say what it means, “QRA”?

12644. MR. NEUFELD: Quantitative Risk Assessment.

12645. DR. GINGER GIBSON: The quantitative -- can you describe the

Quantitative Risk Assessment, please?

12646. MR. NEUFELD: This was the Quantitative Risk Assessment

Working Group that’s been spoken to in the testimony that was done by DNV.

12647. DR. GINGER GIBSON: I’m aware of a quantitative risk assessment.

I don’t know the components of that.

12648. If you’d like to describe it to me?

12649. MR. NEUFELD: Well, have you read it?

12650. DR. GINGER GIBSON: Yes, I’ve read it.


12652. Are you aware that there was a working group established to which

your clients were invited to participate in the scoping of the study and the

selection of the expert and the review of the report and draft stages as it was

completed?

12653. DR. GINGER GIBSON: Thank you for the question.

12654. Consultation in this kind of element, it’s a complex question. I’m not

privy to all of the efforts that were undertaken in order to engage the people for

whom we are working but I am aware that consultation in risk assessment can be

a complex and a -- and takes time.

12655. And so what -- when people are invited to something, it’s also vital to

understand why they were not there. And so while I don’t have the answer to

why they were not there, it’s not enough to say that they were invited. It’s

important, in this kind of effort, to ensure that they are engaged.




12656. And we -- I’ve myself run risk assessments that are participatory from

the outset in the problem formulation, in the consideration of the effects, in the

consideration of the consequences and seen that they do change the nature of the

exercise.

12657. MR. NEUFELD: Now, Dr. Gibson, you are then aware that Northern

Gateway did endeavour to establish a multi-stakeholder process for the

completion of a quantitative risk assessment that would have included views of

people in the community, as well as technical requirements?

--- (A short pause/Courte pause)

12658. DR. GINGER GIBSON: Thank you for your question.

12659. The point in risk assessment, in risk assessment that is helpful, I think,

for understanding the context is that the process counts and so why people were

not engaged is vital to understand and I cannot provide the answer to that

question.

12660. Often, the framing of risk assessment -- and I’ve been through many

risk assessments where the framing is set long before the people arrive at the

table. And so engaging them in technical exercises that are mathematically driven

or engineer -- and driven by engineers, it functionally excludes people. So it

substantively and, through its process, excludes people because they cannot see

their place in it.

12661. So I’m not -- I’m suggesting that this has been the case in many risk

assessments that I’ve observed where the risk assessment simply by the questions

that are asked, the approach of the company and the approach of the engineering

firm is often -- by itself, excludes people.

12662. And so what we have to be attentive to in our understanding of risk

assessment and how it’s employed as a tool is just how open, how inclusive, and

if people were not engaged, though they were invited, why were they not

engaged.

12663. And I think ultimately the difference in a risk assessment that is

engaged with the populations that are at risk, who care about this environment,

the question has to be asked about why they didn’t attend this exercise, though




they were invited, as Mr. Neufeld indicates.

12664. MR. NEUFELD: You don’t even know if they had a representative

at these meetings.

12665. DR. GINGER GIBSON: I don’t have a comment.

12666. MR. NEUFELD: The Application indicates that they had a

representative at at least one of those meetings.

12667. Did you ask the client whether they had participated?

12668. DR. CRAIG CANDLER: I think we relied, to a great extent, on the

materials in the Application and the materials provided by the Proponent and I

think this is perhaps just one area where detailed information is lacking in this

regard.

12669. MR. NEUFELD: I’ll agree with you there.

12670. Let’s go back then to your report and you segued to a discussion of Dr.

Satterfield’s evidence.

12671. And I’d start it off with a summary of the factors that have been

identified in your evidence as comprised of: familiarity with the activity,

acceptability of the activity, trust in regulators and perceived benefits of the

Project, as some examples of things that affect the perception of risk.

12672. I think that you agreed to that but then segued to a discussion of Dr.

Satterfield’s evidence.

12673. I’d like to just discuss with you, Dr. Candler, -- and Dr. Gibson, if

you’d like to join in -- the issue of dealing with and addressing risk perceptions.

12674. First of all, to the extent that risk is -- or the perception of risk is

identified as an impact in itself, would you agree with me that, for organizations

who oppose a project, it would be in their interest to increase the lay perceptions

of risk so as to increase the level of opposition to a project and to construct

arguments against approval of that project based on that fear?

12675. DR. CRAIG CANDLER: I’ll respond to that first if I may.




Individuals who are trying to understand the risks that are before them in their

everyday life draw on many, many, many sources of information, many sources

of expertise. Trust is fundamental to that.

12676. All of us, every day, are -- we see commercials from government or

from companies when we go into a movie theatre. We see articles in the

newspapers. Some of us in this room -- there may be other forms of expert

knowledge that hold more sway.

12677. The oral histories, the teachings of Elders, the experiences on the land

themselves -- different individuals in different circumstances take very different

things into account when understanding the risks that are before them and the

actions and the uses and the practices that they will therefore go into the world

with. So I guess I would say yes, that’s one of many, many, many sources of

expert or specialist knowledge that’s available to any one of us today.

12678. MR. NEUFELD: So it just seems to me, Dr. Candler, that it’s -- you

know, when we’re dealing with the issue of mitigation of risk and mitigation of

risk perception, if we want to lump them together, that it’s really quite critical for

there to be accurate information presented to communities who are at risk or

perceived to be at risk. Isn’t that right? It’s very important?

12679. DR. CRAIG CANDLER: Sure. I think -- pardon me. There, my

microphone is working. Ginger, you -- I’m sure will have more to add to this as

well but I think it’s tempting to believe that information is the problem and the

solution.

12680. In my experience and certainly in the guidance documents from the

federal government regarding contaminated sites and the involvement of

communities and risk perception, it’s not so much information, it’s capacity

building.

12681. It’s the involvement of communities in understanding the problems,

appropriate engagement, not just in receiving information but in understanding

the issue, understanding what people’s priorities are, understanding what the

worries and fears and concerns are, and understanding what can be done about

them. And it’s a -- the Health Canada guidance regarding this is very clear. It’s

-- capacity building is a critical tool, not just information.

12682. DR. GINGER GIBSON: I’d like to just add to that if I may. It’s also




the sense that -- the idea that accurate information exists is also, I think,

something that we get closer and closer to the accuracy of the predictions that

you’ve made through negotiated dialogues, through discussions in communities.

12683. And what I fail to see here is the possibility of taking good estimates

and good information because the information was externally derived and it did

not have engaged community review or engaged community participation. And

what participation brings is different than an external expert driven process.

Communities bring vital information into a risk assessment that changes the

questions scientists ask. It changes the consequences that scientists will observe

and look at and it changes fundamentally, the outcomes and the probabilities that

are understood.

12684. And so when you’re talking about accurate -- taking accurate

information to communities, part of the issue we’re trying to draw the Panel’s

attention to is that accurate information also exists in communities that is vital to

the developer, to the Proponent to understand, to change the way the risk

assessment is actually constructed and undertaken.

12685. DR. CRAIG CANDLER: Now before we go, I’m just conscious of

our technology challenges and Dr. Bigano or Dr. Chichilnisky, if there’s issues

that you’d like to clarify or bring into this as well, I think it’s -- absolutely bring it

in.

12686. DR. ANDREA BIGANO: Not for me, it’s fine.

12687. MR. NEUFELD: Thank you, Dr. Candler.

12688. Then let’s just carry on with that. You talked about capacity building

in communities and I’m quite interested in your views on this.

12689. Are you familiar, sir, with the types of programs -- excuse me, that --

excuse me -- the types of programs that Northern Gateway has suggested be

undertaken with coastal communities in respect of the emergency response

planning, generally?

12690. DR. CRAIG CANDLER: I’m generally -- pardon me. I’m generally

aware, yes.

12691. Now, I guess I’d be cautious. Capacity building is definitely used in




many different ways. Capacity building can mean basic skills and training and

things like that. It can also involve essentially shifting the locus of control in

terms of decision making and in terms of being able to make responsible --

responsive management decisions.

12692. MR. NEUFELD: Right. So one of the concepts -- and let me just lay

it out there and if you’re not familiar with it or if you don’t want to comment, feel

free to tell me that.

12693. But one of the concepts and programs that’s been suggested, for

example, is the development of community response plans where the

communities would be involved in assessing what their role would be in the

response planning exercise and undertaking programs or measures that might be

specific to that community.

12694. And that’s been discussed in the evidence here as we proceeded. Is

that the sort of capacity building that you would see as being important so that

people can contextualize risk and understand what could or would be done in the

event of an incident?


12696. I think that the -- there’s a different between mitigations that are

generally available and are generally assigned to these sorts of programs and their

creation at a final stage of a risk management program or risk assessment

program.

12697. The difference, I think, that we can illuminate is that the -- Mr.

Neufeld has illustrated that there’s a capacity building component that will be

worked on and that communities will have the opportunity to be engaged in

response. The vital difference is if they’re engaged in the risk assessment, they

design very different looking kinds of mitigation measures.

12698. And so while the communities here have not been engaged in depth on

the design and the creation of risk mitigation measures from their community

perspectives, which would look like intensive -- how would you get there? It

would look like intensive interviews, focus groups and engaged work through the

risk assessment process in problem formulation, in the identification of

consequences, in the use of -- and the kind of information that’s generated to

understand the risk.




12699. And let me just give you an example. I worked for a nation; I’ve been

working for the last year on a risk assessment where we’ve been looking at the

risk of a polymetallic mine. They’ve drilled into -- done risk assessment, looking

at the closure, economic, water quality and socio-economic risks.

12700. When they drilled into the water quality -- the risks that the mine

posed to water quality, the nation in the risk assessment -- in the context of the

risk assessment, produced a study showing their use patterns and that changed the

nature of the proposed -- the way the proposed mitigations were being designed.

12701. So the federal government backed up their water quality values quite

significantly based on the information brought forward in the traditional use

study. So the federal government changed what they were protecting. They

changed it to the standard of protecting it to the level of drinking water and they

chose more conservative values and a more conservative closer to the mine place.

12702. So they also designed mitigation measures that the community had

drafted and brought forward through the process of the risk assessment and they

don’t look like the kinds of risk assessment measures that a western scientist or an

engineer might bring forward.

12703. The example that they brought forward and championed through the

process was a culture camp at the site to ensure that people never stopped losing

-- using that area, that they never stop speaking in that area, teaching their

children in that area and being engaged around that area. And it was built to deal

with fear.

12704. So people were fearful about the risk they were -- that they were being

exposed to in -- because it was involuntary and they designed their own

mitigation measure that they took all the -- championed all the way through the

risk assessment and brought out in the end. The regulator agreed with that

mitigation measure and assigned it to the project as a measure.

12705. So I agree capacity -- the good question that Mr. Neufeld asked,

capacity building is vital, but it is from the first moment it is vital because it

frames everything.

12706. DR. CRAIG CANDLER: And I guess I would just add that one of

the significant differences in that case study and here is this idea of locus of




control, having the capacity to understand things, having the -- you know, the

ability to monitor and understand the environment. The people in the room here

who are familiar with the marine environment, they do that every day.

12707. There's risk assessments that go on all the time in communities.

Where's the wind coming from; where is it safe for me to get clams for my

family; where is it -- you know, all of these different factors that may come in to

the assessment of risk by an individual person or family going out onto the land.

12708. And the -- one of the critical components of that is the ability to do

something about the risk if it is noted and perceived and considered not

acceptable.

12709. MR. NEUFELD: Right. Thank you, Dr. Candler.

12710. So we've also heard discussions about the preparation of, for example,

geographic response plans that would be specific to an area, that would include

protection of areas of high priority and cultural sensitivity and so forth. And

again, you're aware that there is certainly an intention and a desire to involve

coastal nations in the preparation of those geographic response plans and

environmental sensitivity atlases.

12711. That would be a measure along the lines that you're suggesting; right?

12712. DR. CRAIG CANDLER: I guess. One of the challenges is that you

speak of good intention and good -- based on what I've been able to review, the

commitments are very vague.

12713. I certainly, as an external person, got no strong confidence that they

would actually make a difference or that they would actually be implemented or

be implemented on timelines and such that would actually result in a mitigation of

the impact that's relevant.

12714. MR. NEUFELD: So you're not persuaded that there would be a

reciprocal relationship of a nature that would allow that work to be undertaken, or

you just don't know what the work would involve.

12715. DR. GINGER GIBSON: Can I just add to this?

12716. I think the metaphor that was provided by the individual yesterday




who was discussing the response plans in the afternoon was really interesting in

that she said if -- you've got to practice these things. They've got to be drilled into

people so that when they go out on the site, you've got to show that the response

-- that -- you've got to get out there with the people in the context so that you can

realize if this screw is missing, if the nut is missing, the vital piece that pulls all of

the pieces together.

12717. To me, the people are the vital piece that bring this all together. And

it's the trust in the process that has been -- everything that's happened to date, the

trust in the process and the information that's been gathered, those are the nuts and

bolts that will drive the process forward, that will drive a community response

plan and an engaged population forward is the people that are going to be

responding.

12718. And they must trust that the developer -- they need to trust that the

developer can do it with them in an engaged way. And so the question we have to

ask ourselves has -- is, has the right information been gathered. Are the right nuts

and bolts there so that the information that flows into that process is good

information?

12719. And as an expert reviewing this, we don't see in -- we don't see the

right information being built so that that capacity is there to respond.

12720. DR. CRAIG CANDLER: I would just add, or the right process in

order to achieve that information.

12721. MR. NEUFELD: Now, Dr. Candler, can you answer my question,

please?

12722. DR. CRAIG CANDLER: There's an issue with the microphone here.

If you can restate, please.

12723. MR. NEUFELD: My question was -- you had indicated that you

thought that the information was vague. And my question was, is it vague in the

sense of the programs that have been described or is it vague in the sense of

whether there is a reciprocal relationship that would be there that would be

needed to undertake these programs?

12724. Feel free to give an answer to that, Dr. Gibson, or another question.




12725. DR. CRAIG CANDLER: I'll let Dr. Gibson clarify that.

12726. DR. GINGER GIBSON: Thank you.

12727. I think that it's simply it is vague, and we understand that to be the

point at this process. We've seen lots of these processes play out.

12728. The critical thing that we're pointing out is that the information going

in and the trust and the reciprocal relationship going in to a response plan has to

be strong in order for it to be effective. And we would leave it to the good people

of the nation to comment on that kind of factor on whether that relationship is

there.

12729. But it has to be -- there has to be the capacity and the ability to respond

on these things. And given the status of the information that has been collected,

we do not believe the right valued components have been identified. We do not

believe the accurate consequences have been depicted. And therefore, yesterday,

that same expert said that only 20 -- you have to choose what you can protect

when there's a spill.

12730. We need that information now because people in this community, if

this project goes ahead, they have to choose what they can protect. And that's an

incredibly difficult choice for people that love this land. Thank you.

12731. DR. CRAIG CANDLER: If I can add one more thing to that.

12732. I think it's important to remember that there is not only the information

from community members, from consultation that is available and should have

been engaged and outlined in the work, including throughout the EA. Certainly

the terms of reference, the -- I'm using the incorrect term, but between the NEB

filing manual and the scope of factors for the Panel, the Proponent was, in

essence, required to bring forward available information if information from the

community was not available.

12733. This is one area that I was quite surprised. The ethnographic record of

the northwest coast is probably one of the richest in the world. There are

exceptional scholars who work directly with Kitkatla, Charles Menzies being one

of them, Dr. Charles Menzies from UBC, who's published extensively, especially

on marine issues and traditional knowledge. I did not see any of those references.




12734. The human health risk assessment took -- rather than actually doing

work with the community or relying on reliable alternate sources, the human

health risk assessment seems to have relied upon a study that was done in the late

1980s in Northern Alberta by someone by the name of Wein with the community

of Fort Chipewyan up near the oil sands.

12735. They took the estimate of medicinal plants from a Dene speaking

group in Northern Alberta as a proxy for the consumption of seaweed, which is a

fundamental staple of the Kitkatla diet, as if it was a reasonable crossover.

12736. So -- and that could be reasonable in the absence of other information,

but in this case, there is a wealth of additional information.

12737. Dr. Turner, who was on the panel yesterday or two days ago, Nancy

Turner, has written extensive papers on the use of that particular seaweed and

consumption of it by Coast Tsimshian people. Again, it did not seem to be used.

12738. So I think putting the onus on the community and the community's

involvement is part of the question, but there are alternate sources that can be

drawn on. And in this case, I did not see them.

12739. MR. NEUFELD: What question was that in response to?

12740. DR. CRAIG CANDLER: I believe that was in -- in response to the

question of how Gitxaala people were -- were involved and whether or not I felt

that there was vagueness in the -- the plans that were put out or vagueness in the

ability of Gitxaala to participate.

12741. And I guess my point is that the vagueness can be resolved not only by

direct participation but also by reliance on appropriate information.

12742. MR. NEUFELD: Let’s go back then to the discussion of -- of risk

unless there’s anything else you had to add, Dr. Candler?

12743. Let’s go back then to the -- to the discussion of risks and I’d started off

with the proposition to you that, in properly managing or -- that’s the wrong word

-- in addressing and mitigating risk perception as an impact in itself, that accurate

information is something that’s quite important to bring to communities and I

think that’s where we got into a discussion coming back from your table as to

how that’s a two-way flow of information as -- as I can sum it up.




12744. And we also talked about capacity building. We also talked about

measures that could be taken during the emergency response planning phase to

build capacity to, over time, perhaps mitigate those perceptions of risk by

providing people with involvement in those programs.

12745. I asked you whether you were aware of the geographic response plan

process and the opportunity for Coastal Nations to be involved in that and I got a -

- quite a lengthy series of answers.

12746. Can you tell me whether you’re aware of the geographic response plan

program that has been suggested?

12747. Can we keep it as a fairly simple answer?

12748. DR. CRAIG CANDLER: Simple -- simple answer?

12749. I think I started by saying I’m generally aware that there is a

geographic response plan intended.


12751. And you’re also aware that the offer has been made and if people --

people can take it up or not -- but the offer has been made to undertake and

participate in harvest studies that would provide additional information on -- on

the harvesting activities in the area and records of harvest; again, something that

could be used in the event of an incident, but also would have value outside of

that.

12752. Are you aware of that program or that offer, put it that way?

12753. DR. CRAIG CANDLER: I wasn’t aware of -- of particular offers

and …

12754. No, that’s …

12755. MR. NEUFELD: And also, I think it’s been indicated quite clearly

that Northern Gateway would look to have actual response staging areas in

different areas of the Confined Channel Assessment Area or -- and the Open

Water Area, including response capability at Lach Klan itself if the community




was accepting of that.

12756. Are you aware of that?

12757. DR. GINGER GIBSON: Yes.


12759. And you’re also aware that the -- the Project is prepared to involve

nations and programs such as the Fisheries Liaison Committee and in the

development and training on marine oil spill response plans?

12760. DR. CRAIG CANDLER: I think we’re aware of this, but I think our

earlier comments regarding the -- the process by which these are undertaken and

how they are externally controlled is very relevant to that.

12761. MR. NEUFELD: Okay, thank you.

12762. Let’s talk -- I’m going to turn then to you, Dr. Chichilnisky. You’re

being taken care of in our New York office there?

12763. DR. GRACIELA CHICHILNISKY: Thank you very much, yes.

12764. MR. NEUFELD: Just give me a moment.

12765. DR. GRACIELA CHICHILNISKY: Sure.

12766. MR. NEUFELD: Let me say first of all, Dr. Chichilnisky, that you’re

academic credentials are very impressive.

12767. I don’t have a lot of questions for you. I just want to get some clarity

on the approach that you have, as you suggested, pioneered in -- in risk

assessment.

12768. And am I correct that that involves balancing out two different

approaches, one being avoidance of catastrophes at all costs on the one hand and

the other involving averaging expected values?

12769. Is that a fair bottom line summary of your approach?




12770. DR. GRACIELA CHICHILNISKY: Approaching it, but not

exactly.

12771. MR. NEUFELD: Well, I read some of your papers and I have to

admit that I -- I had difficulty getting through the mathematics. So if I got it

approximately right, I’m happy.

12772. Your approach also involves choosing a course of action that

maximizes expected value while limiting losses in the cases -- in the case of

catastrophe.


12774. DR. GRACIELA CHICHILNISKY: I think you are getting closer

now.


12776. Now, Dr. Chichilnisky, is it your understanding that the primary

purpose of this Project is to provide access for Canadian crude oil to markets in

Asia?

12777. DR. GRACIELA CHICHILNISKY: My limited understanding is

that that’s one of the purposes and there may be others.


12779. And can we agree that the Gitxaala Nation is not the only First Nation

with traditional territory and interests on the West Coast of Canada?

12780. DR. GRACIELA CHICHILNISKY: I am not able to comment on

that.


12782. You’ve indicated that -- well, let me back up. If that was the case,

while there may be, theoretically, an opportunity to avoid a catastrophe for the

Gitxaala by exporting out of somewhere else on the West Coast, doing so would

just move that same risk somewhere else on the West Coast of Canada.




12783. Would that -- would that be fair?

12784. DR. GRACIELA CHICHILNISKY: No.

12785. MR. NEUFELD: No?

12786. DR. GRACIELA CHICHILNISKY: I don’t know where that would

follow ---

12787. MR. NEUFELD: Okay, thank you ---

12788. DR. GRACIELA CHICHILNISKY: I -- I simply don’t know.

12789. I’m not saying ‘yes’ or ‘no’. I simply don’t know. I can think of

many situations where you can avoid the risk for other Aboriginals as well, but I

wouldn’t ---

12790. MR. NEUFELD: Okay ---

12791. DR. GRACIELA CHICHILNISKY: I wouldn’t have any details.


12793. Now, if you could go to your report at paragraph 20? It’s actually

section Roman numeral 2 (II) that starts at page 6 and goes through to page 8.

12794. Can I confirm with you then, based on the answers you’ve just given

me that all of this information was provided to you? It’s not yours?

12795. You didn’t -- you didn’t research any of these points on your own?

12796. DR. GRACIELA CHICHILNISKY: I was not asked to research

those points nor to assess the catastrophe risk to the Gitxaala or any other group.

12797. That would involve assessing whether or not there was a risk of an oil

spill that had a low probability and it had consequence catastrophic at the

schedule of the project which is essentially what everybody in the room was

getting at.

12798. When you take a normal person and then you ask them: “What would




you be afraid of if there was shipment of oil across the territory?”, the first thing

they will say is oil spills and the Exxon Valdez type of catastrophe. And nobody

was mentioning it. I was a bit surprised.

12799. But, in any case, I was asked to discuss the problem with using the

expected utility approach as a basis of risk assessment when catastrophic risks or

black swans are at stake.

12800. That was what my report was about.

12801. MR. NEUFELD: Thank you, Dr. Chichilnisky.

12802. I just noticed, for example, that in paragraph 20, you indicated that:

“In some cases, it has been reported that effects have lasted up

to 17 years.”

12803. And I’m just getting you to confirm that that’s information that was

provided to you by someone one else; it’s not your own evidence?

12804. DR. GRACIELA CHICHILNISKY: This is true for just about

everything that has been said in the room until now.

12805. Everybody in either business, academia or government is basing their

information they have -- typically -- on the reports of others.


12807. And you didn’t do an analysis, an independent analysis of your own to

assess whether that report of effects having lasted up to 17 years has validity or

not?

12808. DR. GRACIELA CHICHILNISKY: You referred to the Exxon

Valdez oil spill which could have irreparable, irreversible impacts -- catastrophic

impacts on the livelihood and the well-being and the social cultural continuation

of the Gitxaala First Nation.

12809. I would think that you don’t need to do a lot of research to know that,

if it is not the number 17, you are getting very close to it. That was a catastrophic

event; it lasted a very long time. I don’t think we should argue whether it was 17,




18, or 15 but it is catastrophic and it involved irreversible, irreparable effects on

the livelihood of a group of people.

12810. MR. NEUFELD: Fair enough, Dr. Chichilnisky.

12811. I just noticed that the 17-year number also appears in the Firelight

Report that I had been talking about earlier and I was wondering whether that’s

where you got it from, that’s all.

12812. DR. GRACIELA CHICHILNISKY: I have indeed read some of the

information in this case. I don’t think I have read it all, possibly not.


12814. DR. GRACIELA CHICHILNISKY: But the oil spill -- the Exxon

Valdez incident is just universally known so this is not something I need to read

in the material from this case.


12816. Now, in section Roman numeral 3 (III) of your report, Dr.

Chichilnisky, you talk about catastrophic risks generally and you distinguish

between a catastrophe and a disaster.

12817. Do I take it that a catastrophe is worse than a disaster?

12818. DR. GRACIELA CHICHILNISKY: Excuse me, sir, I’m looking --

are you looking at page 2 or where?

12819. MR. NEUFELD: I’m looking at section III, which would be at page

8, paragraph 23.1,

12820. DR. GRACIELA CHICHILNISKY: Oh, 23.1. Sorry, I was looking

at the wrong paragraph. Sorry.

12821. MR. NEUFELD: No, that’s my fault. I apologize. I should have

taken it -- taken you there to begin with.

12822. DR. GRACIELA CHICHILNISKY: Yeah, I don’t think we should

get hung up on words. I think the concepts are clear.




12823. Number 6, if you wanted to use words, I would say that catastrophe is

-- has elements which are different from a disaster; but both of them are

something that you really want to avoid.

12824. MR. NEUFELD: I was quite interested in this.

12825. Madam Niro, could you bring up AQ Number 7, please?

12826. DR. GRACIELA CHICHILNISKY: I’m sorry, say that again?

12827. MR. NEUFELD: Your paper called “Catastrophic Risks”.

12828. DR. GRACIELA CHICHILNISKY: Yes.

12829. MR. NEUFELD: This is aid to questioning number 7, Dr.

Chichilnisky, and I’ve just got a couple of questions for you on this.

12830. DR. GRACIELA CHICHILNISKY: Sure.

12831. MR. NEUFELD: If you could pull it up, please?

12832. DR. GRACIELA CHICHILNISKY: Just one second. Yes.

12833. MR. NEUFELD: Here, you say -- and I’m going to take you to --

well, I guess the abstract. We can start with the beginning:

“Catastrophic risks are rare events with major consequences,

e.g. catastrophic climate change or extinction of a species.

12834. And then you go on the next page to give another couple of examples,

I just want to refer you to -- excuse me -- on page 2. This article -- I won’t read it:

“Catastrophic risks are rare events with major consequences.

They include the 2008-9 global financial crisis that is a one-in-

a-hundred-years event with momentuous consequences for

global markets, and more generally any rare event that

threatens human survival - such as a large asteroid impact.”

12835. I take it that what distinguishes a catastrophe from a disaster is that




one is expected and one is not?


12837. DR. GRACIELA CHICHILNISKY: Partly. Partly.

12838. Essentially, the catastrophe is distinguished by three elements that I

explained in my report: low probability, high consequence -- catastrophic -- and

the third is an unexpected element. If you have a recurring event then you know

it’s going to come -- like a flood of the Nile -- then, typically, it will be a well-

known disaster as opposed to a catastrophe.

12839. And the point is that the expected utility approach that is used in just

about all -- in fact, all the ones I have seen on the risk assessment reports,

including Veritas, et cetera, is simply not adequate for this type of phenomena and

it underestimates the impact and needs to, in appropriate ways, of evaluating and

managing and avoiding such risks.

12840. So just to go to the bottom of this, I sympathize with your desire to get

the terminology totally straight but the key issue here is that there are catastrophic

events at stake and the methodology that I have seen in all the risk assessment

reports that you have provided or the Proponent has provided, excuse me, are

simply not adequate for those types of risks. And I’m simply talking about the

Exxon Valdez type of incidents and oil spills that everybody know is a possibility

-- knows is a possibility.

12841. MR. NEUFELD: Excuse me, but your approach, Dr. Chichilnisky,

involves choosing a course of action that maximizes expected value while

limiting losses in the case of a catastrophe; is that right?

12842. DR. GRACIELA CHICHILNISKY: Well, that’s another way of

describing it.

12843. If you want to be totally precise and mathematical about it, you have to

go back to the actions. And the actions -- the number one action is you should not

disregard or be insensitive to catastrophic events and from that action, you enlarge

the standard expected to deal with the theory to include sensitivity to catastrophic

risks.

12844. And one way of thinking about this is what you -- the words that you




used about trying to minimize what’s happened in case of a catastrophe. That’s

one way, they tell us.


12846. Can you agree that catastrophic events come in forms other than

accidents such as an oil spill?

12847. DR. GRACIELA CHICHILNISKY: Catastrophic -- I’m sorry,

could you repeat the question?

MR. NEUFELD: Catastrophic events can come in forms other than accidents?

12848. You gave the example of the 2000, 2009 -- 2008/2009 financial market

collapse as being a catastrophe. That’s what I’m getting to.

12849. DR. GRACIELA CHICHILNISKY: Well, if you ask whether the

events must exclude human action, the answer is no.

12850. There isn’t accidental nature of catastrophic risk because it is a random

event. It’s a low probability random event with high consequences but humans

could be involved.

12851. In the financial crisis, I am sure that many humans helped precipitate

the event and, in the case of the Exxon Valdez, some human decisions, maybe not

immediately, as all experience being created, but some -- many decisions which

have led to it.

12852. In our case here, the decisions that we make in this room could lead to

catastrophic risk even though you say it’s a random event.

12853. MR. NEUFELD: I follow your reasoning.

12854. You have indicated that catastrophic events can involve both financial

and economic issues as well as accidents such as oil spills though; right?

12855. DR. GRACIELA CHICHILNISKY: Yes, any high-consequence

event -- and it could be a financial catastrophe like the global financial crisis -- is

potentially a catastrophe.




12856. But I think the issues that we’re talking about here we don’t need to go

to financial catastrophe because I think we’re talking about the livelihood and the

potential extinction of an entire culture and social group in the West Coast of

Canada and an origin group that is original to the area.

12857. So I think it would not perhaps be totally appropriate to draw a

similarity with just economic losses. It’s not that you’re wrong, it’s that it doesn’t

seem totally appropriate.


12859. And I’m not going to debate with you your descriptor of potential

extinction of cultures and so forth. Clearly, you’re not in a position to talk about

that and nor am I.

12860. DR. GRACIELA CHICHILNISKY: That’s correct.

12861. MR. NEUFELD: Are you aware, though, that natural resource

exports are extremely important to the Canadian economy?

12862. DR. GRACIELA CHICHILNISKY: The Canadian economy, and

Canada as a whole, is a very impressive nation with extraordinary human

resources.

12863. And I would say to my opinion, just as an expert, the human resources

in Canada are the best, the most important and the critical wealth of the nation far

ahead from the natural resources.


12865. Are you aware of the importance of natural resource exports to the

Canadian economy?

12866. DR. GRACIELA CHICHILNISKY: This one too is very important.

12867. If you mean that currently there is a lot of emphasis on natural

resource exports, you would be right. But if you were asking me, as you perhaps

should, as an economist, should natural resources be an important component of

the Canadian economy to the extent that they are now, I may have a different

answer.





12869. And are you aware that, for practical purposes, Canada’s only crude

oil export market is the United States of America?

12870. DR. GRACIELA CHICHILNISKY: I do understand that the United

States of America in this case is a very important partner.

12871. And, in fact, if I understood it correctly, one potential use of the

Proponent’s Project could be -- I’m not sure it is, but could be transport of the

material to the United States.


12873. I simply want to bring this back to your evidence, Dr. Chichilnisky.

12874. Would you agree with me that an example of a catastrophic risk that’s

faced by the Canadian economy would be the loss of the U.S. as a market for our

crude oil?

12875. DR. GRACIELA CHICHILNISKY: Absolutely not.

12876. MR. NEUFELD: That wouldn’t be a catastrophic risk for the

Canadian economy?

12877. DR. GRACIELA CHICHILNISKY: No.

12878. In fact, it could be beneficial for the Canadian economy under certain

circumstances.


12880. DR. GRACIELA CHICHILNISKY: In fact, there is a whole body

of work that has developed and is now increasingly agreed to about the dangers of

specializing in resource exports.

12881. In fact, I have been working on that for many years, you probably

don’t know, but this is quite well known and is usually called the “natural

resource curves”. And the reason the word “curves” is used is because it has very




serious consequences on the exporting nation, consequences that I wouldn’t want

for Canada.

12882. MR. NEUFELD: Thank you very much.

12883. So the loss of our only export market for Canadian crude oil would not

be a catastrophe for Canada. That’s your evidence?

12884. DR. GRACIELA CHICHILNISKY: I repeat that, in my view -- and

this is the view of one expert -- the most important asset of the Canadian economy

are its people, human resources, and this includes the people who are concerned

about the Proponent’s Project right now.

12885. But, generally speaking, I would say that avoiding natural resource

exports on the part of Canada or using natural resources incredibly judiciously as

a source of economic growth is necessary right now, and providing natural

resources to China at the risk of the livelihood and catastrophic events to our own

-- or your own people seems a little bit strange.

12886. MR. NEUFELD: So you wouldn’t see the diversification of markets

for Canadian energy as being a means of limiting the economic -- catastrophic

economic risk faced by Canada as a result of having only one market?

12887. You think that would be a good thing?

12888. DR. GRACIELA CHICHILNISKY: That was a -- what you asked

is what’s called “a composite question”.

12889. You are making many assumptions and I am not in a position to

answer the question in a way that would be clear to people listening to a response.

So you may want to cut the question down in several pieces and I can answer

them.

12890. MR. NEUFELD: No, that ---

12891. DR. GRACIELA CHICHILNISKY: But you’re making

assumptions in the middle.

12892. Like, for example, that what I am proposing is to stop the

diversification of the exports of Canada, which is the last thing I was thinking of.




12893. MR. NEUFELD: Very well.

12894. Madam Chair, I’m not sure when you want to take the break. I have

probably a half hour or so of questions for Mr. Hammond before we’re done this

morning -- before I’m done.

12895. THE CHAIRPERSON: Thank you, Mr. Neufeld.

12896. Let’s take our morning break at this point.

12897. Before we do that, Ms. Niro, could we have an AQ number, please?

12898. THE REGULATORY OFFICER: That will be AQ83.

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

INTERROGATOIRE No. AQ83:

Northern Gateway - Aids to cross-examination of the Gitxaala Nation witness

panel 1

12899. THE CHAIRPERSON: Thank you, Ms. Niro.

12900. Let’s be back for 10:30, please. Thank you.

--- Upon recessing at 10:12 a.m./L’audience est suspendue à 10h12

--- Upon resuming at 10:33 a.m./L'audience est reprise à 10h33

12901. THE CHAIRPERSON: If I could ask everyone to take their seats, I

believe we'll be ready to get under way very shortly. Thank you.

12902. Thank you very much. It's great to see so many people involved in

listening to the hearing process in the room today. I know that we have many

followers on the webcast on a fairly regular basis, but it's also thank you very

much to the residents of Kitkatla for -- and members of the Gitxaala Nation for

being here today again.

12903. Mr. Neufeld, are you ready to continue with your questions?

12904. MR. NEUFELD: I am. Thank you, Madam Chair.




VIRGINIA (GINGER) GIBSON: Resumed

MATTHEW HAMMOND: Resumed

CRAIG CANDLER: Resumed

ANDREA BIGANO: Resumed

GRACIELA CHICHILNISKY: Resumed


(Continued/Suite)

12905. MR. NEUFELD: Mr. Hammond, it's your turn. I have a few

questions on Exhibit D72-32-7.

12906. So this starts at Adobe page 19, I believe. Perhaps I could have

Madam Niro pull that up.

12907. There; thank you.

12908. MR. JANES: Just so -- because I don't think Mr. Hammond's

working the same -- I think he's working with paper documents. So that's

basically where your risk assessment -- the risk assessment discussion begins?

12909. MR. NEUFELD: Yes. And I'm happy to use hard copy pages for

you as well, Mr. Hammond. That's what I usually go by, so they're in my

materials, so I'll use both.

12910. If you could refer to paragraph 7.1.2, you indicate that the information

provided by the Proponent has been evaluated in the course of this expert review.

I take it that you are the expert that was responsible for this section?

12911. MR. MATT HAMMOND: Yes, that's correct.

12912. MR. NEUFELD: And you are then suggesting expertise in the area

of impact assessment for accidental effects?

12913. MR. MATT HAMMOND: My expertise is in impact assessment in

general, and my review entailed a professional opinion on the reliability of the

methodology used in this case to assess accidental effects.

12914. MR. NEUFELD: All right. And specifically, the way that the




assessment of effects of accidents and malfunction is conducted or to be

conducted under the Canadian Environmental Assessment Act, that's what you

claim to have expertise in?

12915. MR. MATT HAMMOND: Yes.

12916. MR. NEUFELD: Is that for all projects to which that Act might

apply, or just pipeline projects or marine shipping?

12917. MR. MATT HAMMOND: I've dealt with that in all sorts of different

projects.

12918. MR. NEUFELD: We reviewed your CV, sir, and I see a reference to

two or three CEAA assessments. Is this a complete list of project experience?

12919. For the record, that's Exhibit D72-32-7, Adobe page 51. You don't

need to turn it up. Thank you. You're already ahead of me.

12920. MR. MATT HAMMOND: As far as your question of it being

complete, it certainly doesn't include all of the projects I've worked on. But there

are numerous projects in there where CEAA did apply. They may not all be

indicated as such within the CV.

12921. MR. NEUFELD: Very well.

12922. At Section 7.1.2 of the evidence, you refer to standard methods in

bullet number 1.

12923. Do I take it that that's the standard method under the CEAA Act for

the effects of accidents and malfunctions?

12924. MR. MATT HAMMOND: My frame of reference for that particular

statement was more a generic risk assessment process where the likelihood and

consequence of an effect is assessed together in a systematic and logical fashion.


12926. So we can agree that the CEAA is not prescriptive on how effects of

accidents and malfunctions are to be assessed.




12927. MR. MATT HAMMOND: I would agree it isn't prescriptive for

every project.

12928. MR. NEUFELD: And we can agree that the guidance that's offered

by the agency is also quite general in nature?

12929. MR. MATT HAMMOND: Yes, it is meant to apply to all sorts of

different projects.

12930. MR. NEUFELD: All right. So there are, in fact, no standard

methods under the CEAA, are there?

12931. MR. MATT HAMMOND: Could you repeat the question?

12932. MR. NEUFELD: There are, in fact, no standard methods for the

assessment of accidents and malfunctions under the Canadian Environmental

Assessment Act.

12933. MR. MATT HAMMOND: Yeah, I would agree that there is --

there's no standard that has been written into policy.

12934. MR. NEUFELD: All right. And if we go to paragraph 7.1.5, you

pose a question:

"Is the proposed shipping of hydrocarbons along the north

coast of B.C. an acceptable risk to the environment and all

interested parties?"

12935. That, to your way of thinking, is the outcome of the assessment

process, is to answer that question?

12936. MR. MATT HAMMOND: I would say it is a big picture question

that I think the JRP is being challenged with, but there are certainly subsets of that

question that are needed to be answered.

12937. MR. NEUFELD: Sure. So let's talk about some of those subsets.

12938. So we can agree that the project completed a quantitative assessment

of the probability of marine incidents, including the type of incident that could

occur and the volume of hydrocarbons that could be spilled as a result of each of




these types of incidents?

12939. MR. MATT HAMMOND: The QRA -- sorry.

12940. MR. NEUFELD: Sorry. We can agree on that?

12941. MR. MATT HAMMOND: I would agree that the QRA, while it

focused on the probability of spills, has been done. I think the fact that, as you

indicated earlier, there is a QRA workshop under way would signify that there is

still work ongoing.

12942. MR. NEUFELD: Okay. Well, let's be clear. I'm not suggesting that

that workshop is under way now. I suggested that there was a QRA working

group established that directed the work of DNV, just so that we're clear for the

record. I don't want there to be any misconceptions.

12943. But the product of the DNV report was used and included in the

environmental assessment materials; right?

12944. MR. MATT HAMMOND: Yes.

12945. MR. NEUFELD: And the environmental assessment also assessed

the general effects of exposure of oil to a range of marine biota and human values

in Volume 8C. We can agree on that?

12946. MR. MATT HAMMOND: Would you be referring to the ecological

risk assessment?

12947. MR. NEUFELD: I'd be referring to Volume 8C in Section 8. If

you'd like a reference, Exhibit B3-39, Adobe page 1.

12948. It's a fairly general question, Mr. Hammond, but take your time.

Actually, it's a fairly specific question on a general subject.

12949. MR. MATT HAMMOND: Yes. My understanding of that section is

that the effects of a spill in the marine environment looked at certain ecological

factors. I think, as our team has indicated, there are still some gaps in the

understanding of the full extent of the effects.

12950. MR. NEUFELD: Very well. And I noted what your team had said.




12951. But the assessment of that was conducted. There was -- in Section 10

of the same volume, there was an assessment of potential effects of five different

spill scenarios on marine biota and human values.

12952. And in Section 11, there was an assessment of ecological and human

health risks of a large spill. You can agree with that?

12953. MR. MATT HAMMOND: Yes. My understanding of the scope of

those sections is as you indicated.


12955. Now, if we go to Section 7.27 of your evidence, you indicate that there

is no single model for risk evaluation, but in each case a decision is required to

identify an appropriate methodology. And I'd just like to talk about that with you,

if I can, for a bit.

12956. Section 7.3 of your report is entitled "Using Risk Assessment in

Environmental Impact Assessment".

12957. You start off in Section 7.3.3 with a reference to pragmatic

suggestions for incorporating risk assessment principles in EIA studies, and you

say that among the benefits to EIA, Canter proposes that risk assessment

principles can focus on efforts -- focus efforts on risk reduction measures and

emergency response planning in the case of accidents.

12958. Would you agree with me that some people would suggest that DNV

work does exactly that?

12959. MR. MATT HAMMOND: I would disagree. The DNV work

looked at the probability of the risk. It did not, as I recall in my review, fully

consider the consequences, which is -- I think is the fundamental flaw in the

overarching methodology that this risk assessment took, is that there is, as you

pointed out, the QRA, which has looked at, as you said, earlier the probability of

the spill and certain types of effects have been evaluated.

12960. There is no cohesive framework within which both of these elements

have been integrated so that there is a fulsome understanding of what the risks

are.




12961. MR. NEUFELD: When I look at, Mr. Hammond, your evidence in

Section 7.3.2 -- and we'll get to the consequences, and I think we've already

covered them, actually. But what you say there is that:

"Canter proposes that risk assessment principles can focus

efforts on risk reduction measures and emergency response

planning in the case of accidents." (As read)

12962. And I'm going to suggest to you that the DNV report did exactly that.

They looked at a variety of risk reduction measures that could be taken to prevent

an incident from happening, not -- so that you don't have to respond to one.

12963. And that's a fair summary, is it not?

12964. MR. MATT HAMMOND: The risk reduction measures that were

applied in this case were done based on the risk assessment that did not include all

of the consequences that needed to be assessed. So when you're applying risk

treatment to develop your contingency measures and so on, they need to be

focused on a complete risk assessment. Otherwise, you're developing something

that's focused on just the likelihood scenario and without the full understanding of

what all the sensitivities are in this particular area.

12965. MR. NEUFELD: If you go to Exhibit B3-37 at page 5, please,

Madam Niro.

12966. Sorry. I'm throwing a new one at you here. B3-37 at Adobe page 5.

12967. This is just the Table of Contents for the risk assessment that was

done. And that shows us all of the different steps that were taken, including

looking at consequences in some detail. Is that right?

12968. DR. GINGER GIBSON: This is -- I just want to comment on this

because it -- we've reviewed the same material. And I just want to mention that

the scope of -- while the scope may, at a table of contents level, look

comprehensive, we've judged it to be insufficient in the presentation of evidence.

And we've judged it in the social end to have two classes of information gaps.

12969. The first class of information gaps is the question of fear, people

experiencing real fear of the -- of an accident. Not -- you know, even if an




accident doesn't happen, even if a catastrophic risk is not experienced, people

having a fear that it will happen will change their perception of their -- their lived

experience in their environment. It may change their practices. It may change

where they harvest, and it may change their family and their governance

structures.

12970. So that class of information is a gap upon which we cannot, therefore,

predict -- make predictions nor assign mitigation measures.

12971. MR. NEUFELD: So I guess that people being frightened by their

experts might fall in that category as well.

12972. DR. GINGER GIBSON: I think that's an argumentative question. I

think that the -- people need to be given the full information and a range of

information in order that they can make an informed decision. And I think that's

the basis of the United Nations Declaration on Indigenous People, is that people

can be presented with a variety and a range of perspectives on things.

12973. MR. NEUFELD: Thank you, Dr. Gibson.

12974. Dr. -- or Mr. Hammond ---

12975. MR. JANES: Excuse me. Dr. Gibson actually wasn’t finished her

answer. She said she had two issues to address.

12976. She'd finished addressing one. Mr. Neufeld interrupted with a

question. I think Dr. Gibson should be given a chance to finish her answer.

12977. MR. NEUFELD: I think that Mr. Hammond should be given an

opportunity to finish his answer.

12978. THE CHAIRPERSON: Let’s hear the end of Dr. Gibson’s answer

first and then go back to Mr. Hammond, please.

12979. DR. GINGER GIBSON: Thank you Madam Chair.

12980. This second class of information that we consider to be missing in the

prediction of effects is a range of issues that we brought to your attention in our

intervention on both health, on culture, on effects on traditional livelihood and

culture, on effects on social structure, fear, anxiety, trust and suffering and worry




as well as the -- the effect on governance of people having choices imposed on

them in a context of -- in Canada where they do not have the ability to influence

outcomes or act as their -- in -- in the best interests of their -- of their Nation to act

as stewards of the land.

12981. MR. NEUFELD: Now, if I could return to Mr. Hammond, would you

provide your answer?

12982. MR. MATT HAMMOND: Could you repeat the question?

12983. MR. NEUFELD: My question for you was to confirm that the -- just

based on the information that’s presented on the screen that the -- this assessment

that was provided in Volume 8C covered a wide range of consequences to the

environment.

12984. And I take Dr. Gibson’s speech on -- on human impacts.

12985. MR. MATT HAMMOND: It -- it did include consideration of

consequences.


12987. MR. MATT HAMMOND: But it did not integrate the understanding

of those consequences with the understanding of the likelihood or probability of

those effects to occur.

12988. And what I would like to point out is the difference between the

methodology that is incorporated into this particular piece and the quantitative --

or, sorry, semi-quantitative risk assessment that was done for the pipeline and that

is Exhibit B69-6.

12989. If I could have that document pulled up? Thank you. Down to page

31.

12990. Now, this is -- it’s a similar sort of process where you’re trying to

assess the risk -- sorry, that’s the PDF. If you could go to page number 31?

There.

12991. So this -- this is the context where the -- the risk assessment for the

pipeline -- the spills from the pipeline used -- what I have tried to point out in -- in




my piece, where there is an actual integration of an understanding of the

consequences of the spill versus the likelihood or frequency as they -- they’ve put

it in this -- in this document, where there is -- there is some transparency as to

what is identified as an acceptable risk or a higher or moderate or lower risk, and

that there are treatments that are -- that are targeted on trying to address that level

of risk.

12992. The -- the document that you have put up previously, from what I have

seen, has not attempted to integrate those things. So it -- it does seem like -- like

some of the information is there but it -- it’s not complete and it’s challenging to

draw conclusions as to what the risks are for certain effects on the environment.

12993. MR. NEUFELD: And -- sorry -- I’m sorry, I didn’t mean to interrupt

you; are you finished?

12994. MR. MATT HAMMOND: Actually I would like to make one more

point and would like to say that -- and you don’t need to bring this up but the --

the -- in Exhibit B46-2, page 180, Environment Canada had same concerns where

they requested that spill trajectory and consequence data in -- in an integrated

fashion that -- that ecological consequences be part of the overall risk assessment.

12995. And -- and I do appreciate that Northern Gateway provided a response

to that but I’m -- I’m unsure as to whether that was satisfactory for Environment

Canada.


12997. So that’s the context of -- context of your -- your comments there.

12998. So go back to, let’s go back to the issue of -- identified earlier which is

that output is to assess the acceptability of risk, the output of the environmental

assessment, risk assessment.

12999. Let’s look at section 7.34 of your evidence there. Now, here we have

a reference to the Environmental Protection Authority of Western Australia in

2009 and, as I read that material, it does have a matrix with high consequence,

high frequency at one -- one corner; low consequence, low frequency at another

corner.

13000. You indicate that -- you go on to -- you go onto indicate in Hyett, that




Hyett 2010 explains the environmental risk methods used in EIA processes in

Australia.

13001. Can we just look at AQ number 10, Madam Niro?

13002. This is the Hyett paper that you referred to, Mr. Hammond?

13003. MR. MATT HAMMOND: Yes, that’s the one.


13005. And this paper discusses the use or proposed use of an environmental

risk assessment as a tool in Australia. I just have a couple of questions about that

for you.

13006. If we go to page 7.3. -- or paragraph 7.3.5 of your -- of your evidence,

we have seven bullets there.

13007. Do you see that, citing Hyett?

13008. MR. MATT HAMMOND: Yeah, I count seven.

13009. MR. NEUFELD: Yes.

13010. Now, if we go back to the Hyett AQ, please, Madam Niro, at page 4?

Okay.

13011. The -- there’s six bullets there at the top that you’ve replicated in your

first six in 7.3.5.

13012. Do you see that?

13013. So it appears that you’ve added one statement to your description of

what Hyett describes. Would you agree with that?

13014. Specifically, you say in your evidence that:

“… according to Hyett, finally a decision is taken on whether

the risk is acceptable or not.”




13015. And when I look at the actual Hyett paper, there’s no reference to that.

That’s not on the list of -- of methods that you -- that are used in -- within the IA

processes in Australia; right?


13016. MR. NEUFELD: I’m not trying to embarrass you, Mr. Hammond,

it’s -- it is an important -- it’s an important point so I needed to -- to draw your

attention to that.


13017. MR. MATT HAMMOND: I do agree that that -- that final bullet

point was likely -- likely a result of a word processing error.

13018. So that did not come directly from the -- that document. It was likely

not meant to be an indented bullet.


13020. And if we -- if we scroll down on the page to the last paragraph Hyett,

in fact, specifically states that ERA cannot objectively determine whether a risk is

acceptable and that’s one of its limitations; correct?


13021. DR. CRAIG CANDLER: I’m just going to offer this as a bit of a

clarification here because I think while it’s very relevant to look at the -- the

scholarly literature ---

13022. MR. NEUFELD: Madam Chair, I’d like to have Mr. Hammond’s

answer first to this and then if Mr. Candler wants to add something, I’m open for

that, but I’d like to have his answer first if I can.

13023. MR. MATT HAMMOND: Sure. My -- my answer would be that

the interpretation of -- of that section of that particular paper is that the methods

themselves cannot make those decisions. It needs to be an inclusive process,

right?

13024. And I think that’s the challenge for incorporating these types of risk




assessment methodologies into a process like this with all the complicated issues

we have at hand and involving the people that these effects are -- are going to

effect is -- is essential to understanding what level of risk is acceptable or not.

13025. MR. NEUFELD: And I don’t think that you’ll get a lot of

disagreement from -- from this side on that, Mr. Hammond.

13026. Dr. Candler, did you want to comment on Mr. Hammond’s evidence?

13027. DR. CRAIG CANDLER: No, I’m actually just, I guess, drawing

another thread to I think other relevant material which is the -- the NEB filing

guides and the scope of factors for the project. NEB filing guide makes it very

clear that the Applicant’s ESA must identify and assess effect on biophysical and

socio-economic elements of -- pardon me -- accidents and malfunctions.

13028. The scope of factors clearly states that the Proponent will identify any

effects on Aboriginal rights and interests, including Treaty rights and current --

used -- current land uses for traditional purposes and outline the proposed

methods to manage and mitigate any such effects to an acceptable level.

13029. So it seems to me that while the academic literature of this particular

article may not say it, the scope of factors seems to.

13030. MR. NEUFELD: Thanks -- thank you for pointing -- pointing out

what’s on the record there, Mr. -- Dr. Candler.

13031. Seven point three (7.3) -- in section 7.3, you talk quite a bit about this

Australian process, Mr. Hammond, and you have a Figure 40 that sets it out in

some detail. This is apropos to the discussion that we just had. What sort of

regulatory process, to your knowledge, as opposed to an EIA process applies to

energy projects in Western Australia?

13032. MR. MATT HAMMOND: I’d -- I’m not actually in a position to

comment on -- on what’s going on in Western Australia. I used this as a good

model to consider in this particular case.

13033. MR. NEUFELD: Okay. So you’re unaware as to whether in Western

Australia the environmental impact assessment process is -- or the environmental

impact assessment is the only document informing risk and risk acceptability as

opposed to one of many documents?




13034. DR. CRAIG CANDLER: Could you repeat that question?

13035. MR. NEUFELD: Well, in this case, let me -- let me try to be more

descriptive.

13036. In this case, we have an environmental assessment that’s being

undertaken under the Canadian Environmental Assessment Act, you’re aware of

that. And we have an application that’s being made under the National Energy

Board Act, and we have a voluntary process that was undertaken under the

TERMPOL process. So there are several bodies of information that are

converging in -- and before this Joint Review Panel.

13037. And my question was whether you’re familiar with whether in the

Australian context, the environmental assessment that you’ve talked about, the

environmental impact assessment is the only document that informs risk

acceptability and the public interest or is it one of many documents?

13038. DR. CRAIG CANDLER: I don’t know the answer to that.


13040. Madam Chair, that completes our questioning for this panel.

13041. Thank you very much, Dr. Gibson.

13042. Dr. Chichilnisky, I hope they gave you some treats in our New York

office, welcome, and Dr. Bigano, it’s nice to speak with you as well, and

panellists. Thank you.

13043. DR. GRACIELA CHICHILNISKY: Thank you.

13044. THE CHAIRPERSON: Please stay on the line because the Panel

has some questions, so you’re not finished at this point.

13045. Mr. Bateman?


Examination by Member Bateman


--- EXAMINATION BY/INTERROGATOIRE PAR MEMBER BATEMAN:

13046. MEMBER BATEMAN: I have two questions that I’m interested in

hearing from the witnesses. The first is; you have outlined a model, I will

characterize it, that you believe is appropriate and effective where communities

who might be impacted by a project are involved.

13047. Based on your experience and knowledge, what do you do when a

particular community is not prepared to be engaged?


13048. DR. GINGER GIBSON: Thanks for your question.

13049. First of all, the question of why they can’t be engaged or when they’re

not prepared to be engaged is -- is vital. If it’s the process, if it’s because the

process has been framed in a way that is technical and that is exclusive because of

the language that is used or the people that are -- are stick-handling the process,

then that has to be -- that has to be identified.

13050. If it’s because people don’t trust the process because of a legacy of

exclusion or a legacy of environmental assessment processes that have functioned

to exclude them until the very end, then that has to be identified.

13051. If it’s a question of capacity and -- and financing or funding or -- or

issues that are more pressing within the community, that require urgent attention

of the community, then that needs to be identified.

13052. I think the vital thing is identifying the reason why, and then

attempting to -- to manage that issue. If it’s a question of -- of -- I mean I think

there’s solutions to each one of those issues that can be worked out in the -- in the

fullness of time.

13053. MEMBER BATEMAN: Have you or any of the witnesses who are

being questioned today had experience that has been real-time, so to speak, with

what you are sharing, where there were efforts and there was difficulty and then

there was an effective application of the steps that you have identified?

13054. DR. CRAIG CANDLER: I’ll -- if I may, I’d like to respond to that

in part. To a great degree, whenever a Proponent, the Crown and community




interests are seeking to find solutions to challenging problems, we never -- we

always sit down with history, and there is only certain portions of that history that

a Proponent can deal with. The Crown has all the responsibilities in order to

make sure that the process is appropriate for the inclusion, the meaningful

consideration of Aboriginal considerations, Aboriginal knowledge.

13055. Now, in my own experience, there are things that Proponents can do.

Time -- the ticking of a clock is tremendously damaging to reconciliation. So I

think the provision of adequate time in a process, making sure that the actual

process itself is established in a manner that is cognizant and respectful of the

cultural structures and leadership principles of the communities, and these are

things that a Proponent cannot necessarily do on their own.

13056. In order to sit down at the table with a hard decision and sit down with

history, you have to have mechanisms to resolve that history and come to a new

place. That’s what reconciliation is all about. It’s challenging, it involves

Proponents absolutely, but it definitely requires very active participation of the

Crown, as well as the community.


13058. The only thing I’d add to that is in addition to time is listening and

people being in communities listening rather than arriving with a frame and a set

methodology.

13059. So beginning at the outset to go into communities with an open mind

to listen and not to think that when they’re hearing an Elder speak or that when

they’re hearing women speak that they’re just hearing stories; that knowing that

every element of when a person is speaking in a community they’re speaking and

telling you something for a reason and that respectful and ongoing listening to

those narratives is vital to the project being completed and in a way that is

congruent with peoples’ visions of their future.

13060. MEMBER BATEMAN: Just a follow-up to that. In the regulatory

process typically, an Applicant has obligations that a regulator can outline and

require. And I believe that the model that you’re laying out would capture some

of those elements, and there are others that a regulator would also impose or

expect.

13061. Can I have you talk a little bit about the community that an Applicant




is reaching out to? What is their responsibility and how have you -- how do you

measure whether or not their responsibility has been adequately discharged as

well?


13063. In terms of the responsibilities of a community, I think that you can

assess them in a variety of ways. There’s lots of ways to look at it. One is in the

regulatory setting the interventions that are brought forth, the amount of effort

that’s put forward from the community perspective on the process itself,

understanding the process and then bringing forward their own interventions in

their own ways, whether they be through expert panels, such as what’s been

brought to light to you today, or through their own testimony -- oral testimony.

13064. I think the visual presence, the people that are here in the room today

is a very strong signal to the regulatory panel -- to the Panel that there’s a high

level of engagement; people have left their homes and come, they’re here, they’re

listening, and I’m certain they have lots to say.

13065. In terms of my experience, I’ve also seen -- in the last year I’ve been

involved in a community-based risk assessment that was done independently of

the Proponent. And so I think when you see exercises, community undertaking to

inform themselves in ways that are separate and apart from the Proponent; so

reviewing the materials and making their own judgments of risk acceptability and

offering those visions forward to the Proponent I think that’s -- or to the

regulatory body, I think that’s another way to judge engagement.

13066. The presence of many of the different folks that are in a community in

a regulatory setting is another signal. Not something that would be visible to me

but I don’t know whose here in the room today, but I could venture that there’s

many different heads of families, I could venture to guess that there’s many

different Elders and that they represent a broad cross-section of the variety of

people that are here.

13067. But I think that when Chief Moody is in front of you later today his

understanding of just who’s represented here through this one moment in slice

and time will give you a good sense of the engagement of the community.

13068. MEMBER BATEMAN: Building on that, based on your knowledge

and experience, have you been in a situation where the parties have been in the




same room, they’re on the same page, and they’re working to speak the same

language, everybody’s doing their part, but ultimately there are gaps and the

parties simply cannot bridge those, then what?

13069. DR. CRAIG CANDLER: I think one of the things that’s required is

to really look at the record and see if the parties really are listening to each other

and really are -- for example, if studies are done and information is put forward,

as Gitxaala has done, was that information actually meaningfully taken on, in

terms of what it means for the process, for the application, for the risks to be

assessed, and was anything done about it.

13070. Certainly one of the great challenges is establishing a process where

people can speak and feel that their speaking has a point; that it’s actually going

to be meaningfully considered and results in an improved project or a better future

for their children.

13071. In cases where the feeling is that we can speak but it’s not going to be

taken account of, I think that’s tremendously damaging to -- it’s yet another knock

on history for the future of the relationship.

13072. So I think that’s one of the things that has to be done, is that if

everybody really is there at the table and really is providing full information and

full consideration of what’s being put forward -- I’ll let Dr. Gibson pass on or put

anything on that. But I think the first step is to really look at the record and see if

all parties are actually listening.

13073. DR. GINGER GIBSON: I think -- to add to that, I spend a lot of

time in the north, and so -- in the north in regulatory sessions under the McKenzie

Valley Resource Management Act we hold technical sessions in which it’s not so

much of a kind of controversial or argumentative approach to the science, it’s

instead a collaborative approach to understanding the problem.

13074. And so those -- we run technical sessions there where we -- everybody

-- it’s not on the record and everybody just throws their hat into the ring and

spends two days crushing a problem until there’s nothing left, and if there is

something left we assign undertakings to it. The undertakings are often assigned

to the scientists on whatever side to say there’s a fundamental information gap on

closure risks, or on water quality estimates and we need another piece of

information to address it in the context of the regulatory hearing. So it’s

homework.




13075. I think that’s that vital, understanding the information gaps, because

they do -- it does come down to information gaps and acceptability of that

information gap. So where there’s a significant information gap that will change

-- possibly change the course of your decision, I think that that has to -- you

know, it has -- the community or all of the parties need to put their finger on that,

and I guess it’s your job ultimately to identify the significance of that gap and

understand where that gap takes you.

13076. I’ve seen communities become incredibly literate about the issues in a

participatory risk assessment process where they become incredibly engaged and

are indeed sitting up with the experts asking the pointed questions to the

developer about their closure plans or about their Water quality estimates.

13077. I’ve seen communities -- one of the communities I work closely with,

we even -- we’re so concerned about what water treatment would look like

forever that we took 10 Elders to the Britannia Mine in Vancouver to show them

what water treatment looks like forever.

13078. So an engaged process, I think, finds lots of different ways to provide

strong information to communities so that they can judge the acceptability and

engage in that process. So ultimately if the decision is made, that when it is an

externally imposed risk like this, that people understand; a vital component of risk

is understanding and accepting it is understanding it.

13079. DR. CRAIG CANDLER: And I’m going to add just one small point

to this as well. The flow of information isn’t necessarily one way. I think

particularly in a territory such as this where we are -- there are particular histories

here, particular cultures, particular political structures that are very powerful. I

have not seen them recognized in the application materials.

13080. Absolutely, the Proponent had a tremendous challenge in terms of

working with very diverse cultures across a large pipeline but when it comes

home here to Gitxaala, I think Chief Moody, this afternoon, can probably speak

very well to what kinds of systems, what kinds of governance, what kinds of

processes are used in the community. And I suppose it’s a question whether or

not those were engaged in this.

13081. MEMBER BATEMAN: I’d like to explore just a little bit about

cultural fluency. I think from what I have heard and certainly from what is on the




record and has been provided in testimony, cultural fluency by an Applicant with

respect to a great variety of groups which would be -- a significant component

would be Aboriginal people but there are other groups who have a cultural

environment.

13082. And the familiarity with that and then the fluency with that becomes

very important in creating the dialogue and the trust between parties. In your

experience, have you seen it in reverse?

13083. And that is, is where the communities and the cultural groups where

there is an outreach, moving from their perspective toward the Applicant and the

cultural environment which is partly -- corporate is partly western regulatory

environment where the lack of fluency there has become an obstacle?

13084. DR. CRAIG CANDLER: If I understand the question, you’re

comparing the cultural fluency of a Proponent -- of an Applicant to be able to

work effectively with the diverse communities that they need to and essentially

the reverse, which is the cultural fluency of communities to be able to work

within a setting such as this?

13085. MEMBER BATEMAN: That’s right.

13086. DR. CRAIG CANDLER: Absolutely. It’s a massive barrier. I think

the -- you’re asking if there are examples of that.

13087. MEMBER BATEMAN: Well, I would like to be -- like you would

talk about your personal experience ---

13088. DR. CRAIG CANDLER: Right.

13089. MEMBER BATEMAN: --- and then the bridging and the resolution

of that.

13090. DR. GINGER GIBSON: In the context of regulatory hearings, I’ve

seen regulatory bodies hold community hearings where there’s no cross-

examination and I understand that you did not use cross-examination in the

context of the community hearings where the community hearings are held in

places where cultural practices are also brought into bear.

13091. So in the north, we always open with opening prayer. We always




acknowledge the people on whose land we stand and then we always close every

day, again, with that cultural practice. And that -- I think so the setting and the

frame and the practices and the ceremonial practices that you can embrace within

the context of a regulatory setting do change things and they change -- the

offering of protocol and the recognition of protocol changes the outcomes. It

changes the way that things occur, what is said and how people are recognized.

13092. In regulatory settings, also the context of time, when hearings are held

is vital. So having them in the daytime when people are often working but

allowing them to be at night in contexts where single moms can make it out.

13093. Providing and making sure that all of the different varieties of people

that are working within a community can have their voices heard and brought

forward in these contexts are vital. I think there’s so many different people within

a community so there -- I mean obviously there’s going to be business groups

within an Aboriginal community that bring forward and collaborate and work

very closely with a corporation such as Enbridge.

13094. And so part of the challenge, I think, for a company, part of the

challenge for the regulatory body is understanding the complexity of a

community, how it’s structured, it’s social structures and then designing process

and ceremony and ritual which -- this is -- you know, in this forum it is highly

ritualistic. What we’re doing here is highly ritualistic, defined by one society’s

set of rules and values. The cross-examination is the practice that’s brought

forward by one’s society and is the right process that’s brought forward by one’s

society.

13095. So it’s examination of all of those pieces, I think, and then embracing

the elements and the rights and practices of other communities that allow, and I

think bridge, the groups so that people can listen and hear each other.

13096. DR. CRAIG CANDLER: I’d just add to that that there is the forum

and the spirit of the interactions in terms of cultural fluency.

13097. You’re asking about resolution. That forum and its spirit is important

but I think equally as important is the substance of the decision making. There

are certainly numerous examples now of processes where the political authority of

the hereditary leaders has been recognized as decision makers.

13098. The Northwest Transmission Line is an example in this part of the




province where the Tahltan -- and Ginger, I think you worked with them in some

ways certainly differently than I did. But their authority to be part of the decision

making, not just as in effect an intervenor but actually have a meaningful say in

what happens on their lands, was recognized very early in the process and carried

through.

13099. And there was, I think, some very innovating approaches that that

nation, with funding from the Proponents and a meaningful dialogue at the table

that -- where my understanding is they felt respected, were able to reach out to

their entire membership, have a referendum and proceed on a governance basis

with a strong decision that all parties could have confidence in.

13100. I think there’s actually a number of examples where with innovation

and flexibility, the Crown, First Nation and Proponent have been able to work

together in order to find solutions that work.

13101. MEMBER BATEMAN: Thank you for those answers.

13102. My last question is a scenario I’d like to present. I’d like to take it

outside of this particular proceeding, and preferably based on your own

experience and if you don’t have direct experience, then a theoretical response

will do.

13103. And that is what do you do where a party has not participated or

perhaps has withdrawn from a process? The process has moved on according to

regulatory requirement and then that party has a disposition or maybe for the first

time, is prepared to participate to engage.

13104. So you don’t have the benefit of the front end work, which you have

described as being vital to success. What is the approach? What steps need to be

taken to either reintegrate or to introduce to the first time, a party, midway in a

process?

13105. DR. CRAIG CANDLER: I think it’s an excellent question and it’s a

great challenge and I’ll step back from this -- these particular proceedings but I

think they’re very relevant.

13106. As you mentioned, the Crown delegates procedural responsibilities to

a Proponent and expects them to be carried out well, and with cultural fluency and

with all of the -- we can have great hopes for that relationship between a First




Nation and a Proponent.

13107. Those hopes are not always realized. That delegated procedural

responsibility, the consultation that takes place is not always up to what it could

be or should be. I absolutely -- the Proponent in this case -- the monumental

challenges of trying to move forward a project like this at this period of time on

timelines and all of that kind of thing, faced -- faces an enormous challenge in

terms of, at the front end, getting those relationships right so that when the

regulatory proceedings come along there is -- we’re sitting at the table and

history’s been taken care of a little bit. We’re all able to talk.

13108. In cases where that doesn’t happen, I -- I know of very few -- I don’t

think I know of any examples from my own work where a community has not --

has really cared about a project and not engaged for some spurious reason.

13109. If a community really cares about a project -- and, certainly,

attendance at hearings is an indication of that -- there’s probably very good

reasons why we are mid-way through a process and we have gaps.

13110. If the Proponent has not brought us to the place, if -- if the relation -- if

the delegated relationship has not brought us to the place where -- where there’s

full engagement, I -- my understanding is that, whether it’s this panel or other

Crown players, should probably be really thinking about where we are in this

process and how we got here and what perhaps went wrong earlier on and how we

can fix it.

13111. But that is not something that an expert panel could tell you.

13112. MEMBER BATEMAN: Ms. Gibson, just before you begin your

response, I just want to reposition the question.

13113. My preference is to take it outside of this particular process because I

think that this is a scenario that can arise in a variety of contexts and so we have

the benefit of the expertise that is here.

13114. And so if you speak in terms of either personal experience where there

has been a mid-way entry or your experience and knowledge of how it is that you

believe that that would need to occur?





13116. It’s a fortunate question because it happened to me last week. So I’m

-- I’m able to answer that from a very fresh experience where a Nation that I work

probably 90 percent of my time with had been involved all the way through the

process but was bringing a new concern that we hadn’t weighed in on heavily

through the process of the -- the -- the environmental assessment to the -- the

closing -- past closing, actually, at the end of the -- the public record was closed

and we were bringing a new concern forward.

13117. It’s a legitimate concern and it shouldn’t be -- it shouldn’t be -- I felt

very strongly that it shouldn’t be chucked out because of a procedural problem

which was that we hadn’t had the capacity to bring it forward because we were

really focussed on engineering and on water quality and on closure issues.

13118. But when I sat and listened to a very respectful group of people

describe the reasons that it wasn’t a procedural issue, that is was also a

substantive issue of fairness, I understood their reluctance.

13119. So part of me says that it must be very -- it is really hard to engage in

these processes and I have been schooled in them over the years about how they

work. It is opaque at best to the public to understand the vital points that they

need to put their now 10-page intervention in on -- on some of these things.

13120. So describing the process in as many venues as possible is -- is vital

for communities to understand where you’re at so if they’re coming in late

helping them very respectfully to understand what has passed. And -- and that’s

vital because, by understanding that and having them very respectfully sit and

listen to our concerns, they then said -- they passed it to us and said: Describe

your concerns. Just read -- take a -- and they gave us -- they didn’t give us

millions of things to read. They gave us very discrete things to read and said:

Look at these two documents and tell us whether they fulfill your concerns,

whether your -- you have outstanding gaps.

13121. And we looked at them, very carefully, and found different -- they

asked us to try to find different forms to resolve our concerns in and that is not --

I’m -- we will be doing that. That is not to suggest that that is the ideal option.

That is just one solution that was found.

13122. I think the vital thing that I learned from this is that I’m constantly

getting educated about what these processes, how they are structured, how




fairness is -- is judged of process and -- and that, even if you come late to the

party that if people sit and listen respectfully to understand if you have procedural

and substantive concerns to address that -- that they -- they -- that it is -- it feels

very bad indeed if they say that you can’t be -- you can’t join the process simply

because you came late.

13123. And so understanding and listening so carefully which is what this

party did for us and then tried to help us collaboratively find a way -- they

assigned people to us, they brought people, they made sure that -- that there was

really good engagement, timely engagement on the issues. And -- and then asked

us very clearly to describe our concerns.

13124. When our concerns were identified it’s then I think that you can -- you

can decide if the process can envelope those or whether there needs to be

something new. And I can’t bear -- I can’t, you know, I can’t say anything about

that. I think that’s for you to consider and legal to consider but, certainly, the

respectful engagement of the -- to find out what the concerns are and why they

weren’t there, really digging into that was so vital for us.

13125. Thank you.

13126. MEMBER BATEMAN: Thank you to the witnesses who are here.

13127. My thanks as well to the witnesses who have participated remotely.

The answers have all been helpful.

13128. THE CHAIRPERSON: Thank you, Mr. Bateman.

13129. I have no further questions of this Panel.

13130. Mr. Janes, do you have any redirect?

13131. MR. JANES: I have no redirect.

13132. THE CHAIRPERSON: Thank you very much to all the Panel

members who have participated.

13133. I hope that the participation remotely has -- has worked well for you.

It’s worked well for us. We had the opportunity to benefit from the evidence that

you provided and also from the evidence provided by the panellists who were in




the room.

13134. So thank you very much to all five of you. And the words that every

witness panel seems to love to hear is: You’re dismissed or released from this

Panel.

13135. Thank you very much.

--- (Witnesses are excused/Les témoins sont libérés)

13136. THE CHAIRPERSON: Now, Mr. Janes and Mr. Ross, are you in the

room?

13137. We -- we need to figure out timing perspectives here and -- and what’s

going on moving forward.

13138. Mr. Ross, could you come forward so that we could understand what --

have you -- have the two of you talked? Do you have an order?

13139. MR. JANES: Well, actually, I think I’ve spoken -- we’ve indirectly

spoken through various agencies and I think where we are -- Mr. Ross may

correct me -- but the Gitga’at witness will go next.

13140. THE CHAIRPERSON: Okay.

13141. MR. JANES: I think Mr. Neufeld expects to be able to finish him this

morning.

13142. And then Chief Moody will commence at -- at one o’clock when we

come back from lunch. And with any luck -- with any luck, we’ll be finished him

today?

13143. MR. NEUFELD: I think you may be in a different time zone there,

Mr. Janes.

13144. We only have 20 minutes left this morning. So I don’t think that -- I

think Mr. Roth has got about an hour for the next witness. So after lunch -- yeah.

13145. MR. JANES: I guess we -- sorry to have to do this in front of you but

I guess then the question really is, is then: Should we be making travel




arrangements so that if Chief Moody has to stay over till -- if Chief Moody and us

have to stay over till tomorrow, given your estimates?

13146. MR. NEUFELD: I don’t have probably more than, I’m going to

guess, 40 minutes for Chief Moody.

13147. So I think that we’re fine for this afternoon.

13148. THE CHAIRPERSON: Is Chief Moody here? I haven’t seen him

but there’s enough of a crowd that I might have missed him.

13149. MR. JANES: No -- Chief -- Chief Moody is gathering his thoughts

and -- and he’s -- plans to be here when he’s ready to testify.


13150. THE CHAIRPERSON: And so I’m -- it’s -- it’s different to be doing

this from -- from this area as far as trying to manage traffic of the Panel -- seating

of the panels.

13151. It’s the Panel’s preference that we then switch and put the Gitga’at

witnesses up to have that questioning occur now.

13152. And -- but I want to confirm with you, Mr. Janes, that Chief Moody is

available at any time this afternoon?

13153. Is that correct as well?

13154. MR. JANES: Chief Moody is here and at your disposal.


13156. MR. JANES: We’ll have him here -- we will make sure that he is

here at 1:00 o’clock so that whenever the Gitga’at witnesses finish that he’ll be

ready to go.

13157. THE CHAIRPERSON: Okay. Thank you very much.

13158. So then, let’s recall the two Gitga’at witnesses please, Mr. Ross, and

we’ll proceed on that basis.

Gitga’at First Nation Panel 4

Examination by Mr. Roth


13159. MR. ROSS: Thank you.


ROBIN GREGORY: Resumed

CHRIS JOSEPH: Resumed

13160. THE CHAIRPERSON: Good morning, gentlemen, and it is still

morning.

13161. I know that, Dr. Gregory, I think, it’s you’re under travel constraints.

The Panel is prepared to sit through to the end of Mr. Roth’s questioning before

we take lunch and then we can move forward on that basis if that works for

everyone. I don’t know if it will or not, so I just ---

13162. DR. ROBIN GREGORY: I have until 6:00 o’clock tonight. So I’m

here all afternoon.


13164. DR. ROBIN GREGORY: I changed ---

13165. THE CHAIRPERSON: But that would be our preference, Mr. Roth,

if that worked for everybody and there was no low blood sugar issues that came to

play that affected the quality of the evidence that we are being provided.

13166. Just before we get underway, Mr. Ross, it’s been brought to my

attention that, in the transcript yesterday, you did indicate that you’d like to offer

both of these experts as experts in the areas identified in their CVs and then you

went on to raise other issues and I didn’t come back to that piece.

13167. So I just wanted to come back to that piece.

13168. I can confirm to you that no objections have been raised to date. And,

Mr. Roth, do you have any comments?

13169. MR. ROTH: No concerns.

13170. THE CHAIRPERSON: Okay. Thank you.




13171. So the Panel accepts Dr. Joseph and Dr. Gregory as experts to give

opinion evidence in the areas that have been identified in their CVs.

13172. So with that piece taken care of for the record, Mr. Roth, please begin

with your questions.

13173. MR. ROTH: Thank you, Madam Chair.

--- EXAMINATION BY/INTERROGATOIRE PAR MR. ROTH:

13174. MR. ROTH: And, Panel, I think we were introduced when we were

talking about travel arrangements and schedules, so I don’t have to introduce

myself on the record, you know who I am.

13175. I was wondering -- I know you weren’t here for the first day of the

cross-examination of the Gitga’at witnesses, but I assume you had a chance to

read the transcript?

13176. DR. ROBIN GREGORY: I have not read the transcript but I had a

brief conversation with a couple of the people.

13177. MR. ROTH: Okay.

13178. THE CHAIRPERSON: Just one sec, just so that we get the

microphone usage, because otherwise everybody jumps up, because it’s important

that everything be on the record.

13179. So you need to press the white button and, then, the microphone comes

on and, when you’re finished, you press the white button again and the

microphone goes off. You may find that sometimes it goes off and on without

your control and that’s because we have a marvelous sound technician whose

pretty fast on it as well.

13180. So just so you know that’s how the microphones work.

13181. DR. ROBIN GREGORY: Thank you.

13182. THE CHAIRPERSON: Thank you.




13183. MR. ROTH: So Dr. Satterfield had indicated that she had been

contacted and brought into this Project through you and she suggested in the

transcript that you were the lead consultant for all of the teams.

13184. And I was wondering were you also the consultant that would have

gotten Dr. Gill and Dr. Ritchie involved?

13185. DR. ROBIN GREGORY: My job as lead consultant was I was in

conversation with people working with the Gitga’at community -- in particular,

Chris Picard, Dan Cardinal, Ellen Torren -- and providing advice as to who would

be good people to cover the various areas that they thought should be covered.

13186. But all decisions as to who actually was hired were theirs.


13188. And you’d recommended Dr. Satterfield and her group as far as

cultural effects were concerned?

13189. DR. ROBIN GREGORY: That’s correct.

13190. MR. ROTH: And had you also recommended Drs. Gill and Ritchie

as far as social effects were concerned?

13191. DR. ROBIN GREGORY: I was only familiar with Drs. Gill and

Ritchie through a couple of their papers that I had read, whereas with Dr.

Satterfield we’d worked closely for years.

13192. MR. ROTH: Indeed.

13193. But what I was wondering, did you recommend to the Gitga’at, as lead

consultant, the retention of Drs. Gill and Ritchie to assess social effects regarding

this Project?

13194. DR. ROBIN GREGORY: Those names were -- came from others

besides myself.

13195. So it was not -- among the names that I put forth, it did not include

their names, no.





13197. Have you read the report done by Drs. Gill and Ritchie ---

13198. DR. ROBIN GREGORY: Yes.

13199. MR. ROTH: --- for this proceeding?

13200. DR. ROBIN GREGORY: Yes, I have.

13201. MR. ROTH: And you said you also had read their previous work; so

you were previously familiar with them?

13202. DR. ROBIN GREGORY: I’ve read several of their papers.

13203. I’m sure they’ve written many other papers that I have not read.


13205. But it wasn’t your recommendation that the Gitga’at retain them for

the assessment of social effects?

13206. DR. ROBIN GREGORY: Well, again, all hiring decisions were

made -- were made by the Gitga’at, because I had not worked closely with them

before.

13207. They were not people that I recommended but only because I had not

worked closely with them before. I can’t recommend people who -- that I don’t

know and haven’t worked with. Since I hadn’t worked with them, they couldn’t

be people I recommended.


13209. DR. ROBIN GREGORY: It means nothing more than that.

13210. MR. ROTH: Well, sometimes, I’m the lead consultant and I have to

make recommendations based on papers that I’ve read and do whatnot.

13211. DR. ROBIN GREGORY: M'hm.




13212. MR. ROTH: But I take it, on the basis of the two papers that you had

read from them, you weren’t prepared to recommend that the Gitga’at use them

for social effects assessment?

13213. DR. ROBIN GREGORY: That’s actually not correct.

13214. In terms of recommending people for a team, I tend to recommend

people that I’ve worked with extensively. I have not worked with them

extensively. Therefore, they were not people that I recommended.

13215. MR. ROTH: Dr. Gregory -- and maybe it’s you Dr. Joseph.

13216. I’d always assumed when I prepped you up you always were Dr.

Joseph as far as I was concerned so I didn’t have to change my cross notes.

13217. If you’re really familiar with your report, and I won’t mislead you

anywhere, we won’t have to go in sections, but by any means, if you want to go to

a section -- I take it you were primarily responsible for the socioeconomic side of

the report, Dr. Joseph?

13218. DR. CHRIS JOSEPH: I did a lot of the research and writing for that.


13220. DR. CHRIS JOSEPH: As well as with Dr. Gregory and Lee Failing.

13221. MR. ROTH: So in the report you say that, as far as the value of the

commercial fishery is concerned, that 13 percent of the value of the B.C. coastal

fishery falls within the Gitga’at assessment area.

13222. Do you recall that evidence?

13223. DR. CHRIS JOSEPH: Give me a moment to have a look.

13224. MR. ROTH: Can you -- sorry, I can give you pages.

13225. DR. CHRIS JOSEPH: Sure.

13226. MR. ROTH: If you knew everything off the top of your head, it

would have really went quick but ---




13227. DR. CHRIS JOSEPH: It sounds familiar but I’d like to check it.


13229. So that would be Exhibit B71-7-3 at Adobe 20, hard page 19.


13230. DR. ROBIN GREGORY: Okay, I see that.

13231. In 2007, 13 percent of the total value -- this is the sentence you’re

referring to.

13232. MR. ROTH: Correct.

13233. DR. ROBIN GREGORY: And we cite a report for the Gitga’at

Nation.

13234. DR. CHRIS JOSEPH: Can you just -- I’m missing the sentence.

Down there.

13235. Yup.

13236. MR. ROTH: Now, you indicate -- when you give that 13 percent,

you say that less than 1 percent of those commercial fishermen associated with

that revenue are Gitga’at.

13237. Do you see that?

13238. DR. ROBIN GREGORY: I see that.

13239. DR. CHRIS JOSEPH: I’m not sure why I keep missing the

sentences that you’re looking at.

13240. DR. ROBIN GREGORY: Right here.

13241. DR. CHRIS JOSEPH: Oh, that’s because I’ve scribbled all over my

copy. I apologize.




13242. Yup.


13244. So then, in your report earlier, you have done a calculation of the

number of Gitga’at people that would be involved in the commercial fishery and

came up with 76 people that would be commercial fishermen.

13245. DR. ROBIN GREGORY: Okay.

13246. MR. ROTH: Just mathematically, there would have be 7,600

commercial fishermen, and the number didn't seem to make any sense at all how

you could have derived -- if only 1 percent of the revenue associated with the

commercial fishery in the Gitga'at assessment area were associated with Gitga'at

commercial fishermen, 76 seemed like a wholly unrealistic number to come up

with by way of employment.

13247. DR. ROBIN GREGORY: I think part of it is that -- part of it is that

this includes people who were full-time and part-time. And 76 people from the

community who engaged in commercial fisheries either full-time or part-time

doesn’t seem unreasonable to me. It's about one -- roughly one-tenth of the

community.

13248. MR. ROTH: Right. As far as the community itself, however, the

evidence of the Gitga'at was less than 10 people were employed as commercial

fishermen from the community.

13249. DR. CHRIS JOSEPH: Can --

13250. MR. ROTH: That that ---

13251. DR. CHRIS JOSEPH: Can you please point out exactly where we

have the 76 just so I can check what we've got there?

13252. MR. ROTH: The 76 is at Adobe 17 of your report, hard copy 16.

And you do a derivation number there. It's in the last full paragraph ---

13253. DR. CHRIS JOSEPH: Right.

13254. MR. ROTH: --- second-last paragraph.




13255. DR. ROBIN GREGORY: So this states 76 people work in

commercial fishing; 36 work in tourism. The previous sentence that you noted

said people registered as commercial fishermen. So I assume there's some people

who, as we say, are working in commercial fishing who are not registered as

commercial fishermen. I assume that's the difference.

13256. We can check into this if you want and get back to you, but the

sentences are clear saying who is registered as a commercial fisherman. And I

would anticipate that might be a different number from the number of people who

work as commercial fishermen.

13257. MR. ROTH: And we'll get into that a little bit later. But you break

out separately people working in the commercial fishing industry that are part of

the fish processing side of it and you get a different number for that.


13259. MR. ROTH: So your 76 were commercial fishermen. And the other

point it didn't seem to really be consistent with was the evidence of Drs. Gill and

Ritchie on a survey they did for the United Fishermen that indicated there were

only 400 commercial fishermen that were part of the union on the entire North

Coast.

13260. DR. CHRIS JOSEPH: Perhaps there's a distinction again between

full-time labour union members versus people that participate part-time.

13261. MR. ROTH: Okay. As far as your value number is concerned, when

you come up with $7 million annually associated with commercial fishing in the

Gitga'at assessment area, I take it you're saying that the Gitga'at get approximately

1 percent of that revenue given their participation in the industry?

13262. DR. CHRIS JOSEPH: Can you please, again, point out where that 7

million is?

13263. MR. ROTH: The 7 million is going to be in your Table 4 of Exhibit

71-73, at Adobe 19, page 18.

13264. DR. ROBIN GREGORY: Total landed value in 2010, ---





13266. DR. ROBIN GREGORY: --- that's the number you're referring to.

13267. MR. ROTH: Yes.

13268. So you've indicated that's the total landed value of the commercial fish

in the Gitga'at assessment area, and then you've indicated that less than 1 percent

of the Gitga’at are involved in that. And nowhere did you seem to do a derivation

of that total value of 7 million, how much of that would be applicable to the

Gitga'at.

13269. Can we use the 1 percent to derive that?

13270. DR. ROBIN GREGORY: Again, the 1 percent is the people

registered as commercial fishermen in this region, so I'm -- I don't -- I'd need to

look at this more carefully since this was done a year and a half ago to see what

percentage of that landed value was realized by the Gitga’at.

13271. MR. ROTH: Right. But presumably, if they're such a small

percentage of the registered commercial fishermen, the revenue that the Gitga'at

will experience will also be relatively low. That would be -- make sense?

13272. DR. ROBIN GREGORY: I would need to actually, you know, look

and get that information to make that calculation, otherwise, I can't comment on

that.

13273. MR. ROTH: Okay. Well, you certainly -- I guess you didn't do it for

the purposes of your report, so we don't know, based on your report, what it

would be other than making that inference; correct?

13274. DR. ROBIN GREGORY: I would rather make no inference if there's

not a grounds for making the inference. So I would rather wait until we had the

information and not make inferences that may or may not be correct.

13275. MR. ROTH: Okay. But we don't have the answer in your report, I

guess is the point?

13276. DR. ROBIN GREGORY: I -- no, I think not.




13277. MR. ROTH: Okay. Now, the other place that I had problems with

your annual value is that you came up with an annual value of the Gitga'at

traditional harvest of $2 million. Do you recall that?

13278. DR. ROBIN GREGORY: Which table is that?

13279. MR. ROTH: So that's Table 10, Exhibit D71-7-3, Adobe 29, hard 28,

going on to Adobe 30, hard 29.


13281. DR. CHRIS JOSEPH: Did you say 2 million, or what was the

number?

13282. MR. ROTH: It's less. It's one point ---

13283. DR. CHRIS JOSEPH: I just want to confirm.

13284. MR. ROTH: Yes, just slightly under. It's $1,896,578.

13285. DR. CHRIS JOSEPH: Okay.

13286. MR. ROTH: Correct?


13288. DR. CHRIS JOSEPH: Yes.

13289. MR. ROTH: Did it seem a little bit odd to you that the value of the

traditional harvest for the Gitga'at that you were ascribing was a little less than a

third of the entire value of the commercial fishery in the Gitga'at assessment area?

13290. DR. ROBIN GREGORY: Well, you'll notice that there are a number

-- that the commercial harvest does not include everything that's included in this

table here. In other words, there's some value of non-commercial fisheries as

well.

13291. And then Table 10 calculates the replacement value as well, so ---

13292. MR. ROTH: You reviewed Dr. Gunton's report as well; correct?




13293. DR. ROBIN GREGORY: Which report are you referring to?

13294. MR. ROTH: His economic impacts report. And he also did a public

interest report for Coastal First Nations. But you used certain of his values for the

purposes of your own report, so you must have read some of ---

13295. DR. ROBIN GREGORY: We did read that report, yes.

13296. MR. ROTH: Did you read it in its entirety or were you selective in

your reading of it?

13297. DR. ROBIN GREGORY: No, read it in its entirety.

13298. MR. ROTH: Okay. So you're aware that he came up with an annual

value of the traditional salmon harvest of $700,000 a year for the entire north and

central coast?

13299. DR. ROBIN GREGORY: For salmon alone. I'll take -- I don't know

that number off the top of my head, but I will take your word for it.

13300. MR. ROTH: Did you compare your salmon values to his salmon

values?

13301. I'll cut to the chase. It appears you're out by an order of magnitude on

your salmon values. Like I shop at the grocery store all the time, and it looked

like salmon was going for between 40 and $50 a kilogram under your -- under

your numbers there. So it looks like you just made an order of magnitude mistake

on your salmon values.

13302. If you can check that; you can go back to the table and just confirm

that.

13303. DR. ROBIN GREGORY: We can certainly -- it's called an

undertaking. We can certainly get back to you on that.

13304. MR. ROTH: It probably takes -- all you have to do is go back to that

table and compare the price of crab a kilogram to the price of salmon. It will be

pretty apparent there's an order of magnitude mistake there.




13305. Can you do it, please, right now? And that -- because we weren't

going to break for lunch here, so it would be helpful. It doesn't take very long to

do the division of the kilograms by ---

13306. DR. ROBIN GREGORY: Give us just a minute here.

13307. MR. ROTH: Well, the easy way to do it is look at the crab values.

You've got -- in the left column you've got 15,450 kilograms of crab you're

valuing at $190,653 and then you got a chinook -- or chinook salmon, same

kilograms, for $515,604.

13308. You're also indicating you roughly used a value of $3 a kilogram for

things you couldn't have -- $3.24 a kilogram for things you didn't have an exact

commercial value for.

13309. So it looks on the salmon values you just were out by an order of

magnitude. And if you do the math, you roughly reduce your value of your

traditional harvest by $1.1 million.

13310. THE CHAIRPERSON: Ms. Tan, did you have a comment that you

wished to make? Okay.

13311. DR. ROBIN GREGORY: So if I just -- if I just look at this, if I just

take the 515 divided by -- the 515,000 replacement value divided by 15, it comes

up with a value of about $30 per kilogram replacement cost.

13312. MR. ROTH: For salmon?

13313. DR. ROBIN GREGORY: For salmon, which would be

approximately $12 per pound. That doesn't sound off to me. I don't know where

you buy your salmon, but I can't buy salmon for much different than $12 per

pound.

13314. MR. ROTH: Well, but it's certainly -- your crab prices is not going

through there. You're also talking about a gross landed value and then you give a

dollar per kilogram of 3.24 or sorry, 3.43. If you flip back, you give a 2010

Canadian value of $3.43.

13315. DR. ROBIN GREGORY: So I'd be happy to go to a fish store with

you here in town and see whether -- what the salmon price is, and I'd be happy to




do the same with crab and others.


13317. DR. ROBIN GREGORY: But certainly for salmon, which is where

you started this conversation, that doesn't seem to me like it's off by much,

particularly for chinook salmon. But I would -- I'm happy to check the figures

and I'm happy to go back to the sources from which we derive this information.

Again, this was not -- this is information that we gathered from other reports, but

---

13318. MR. ROTH: Right.

13319. DR. ROBIN GREGORY: --- it sounds like you were particularly

being critical of the chinook salmon calculation, and yet when I said that's

roughly $12 a pound, you haven't said that you can get salmon for much different.

13320. MR. ROTH: Well, you're coming up with a whole -- there's whole

fish values and then these aren't process values or anything like that?

13321. DR. ROBIN GREGORY: Exactly. It's a more complicated question,

which is why I don't want to sit here right now and try to recalculate these. But if

you can rephrase your question we're happy to look at the original sources, look at

these calculations again, and we're very happy to get back to you. If there is an

error in the table, we'll certainly try to catch it, but nothing's obvious to me right

now.

13322. MR. ROTH: Okay, so you can go -- and if we want to compare the

values we can go to Dr. Gunton's report at Exhibit D35-14-4, at Adobe page 48,

hard copy 34, and we can look at his salmon values and it'll show you your -- an

order of magnitude higher than his salmon values?

13323. DR. ROBIN GREGORY: I’d need to again look at our sources, look

at his sources. I know that the Gitga'at MUA is one of the most valuable in the

province, so we need to factor that in. So again, as I said before, I'm happy to

undertake this comparison across the two reports, but I'm ---


13325. DR. ROBIN GREGORY: --- not agreeing to do it right now in the




next few minutes. It's ---

13326. MR. ROTH: Okay. If you -- I would be happy to take an

undertaking for him to compare the salmon values, and it's pretty obvious, but ---

13327. DR. ROBIN GREGORY: Well, I haven't heard anything obvious

yet.

13328. MR. ROTH: And for Dr. Gunton, it's Adobe page 51, hard copy

page 34, Table 19, where he gives all of the salmon values and where he derives

his average of $700,000 a year for those species for the entire north coast and

central coast.

13329. THE CHAIRPERSON: Mr. Roth, just for the record, would you

please summarize your undertaking request?

13330. MR. ROTH: So the undertaking is to confirm whether or not there

was an order of magnitude error in calculating the traditional harvest values for

the Gitga'at assessment area as they related to the five species of salmon listed by

Dr. Joseph and Dr. Gregory.

13331. THE CHAIRPERSON: Ms. Niro, could we get an undertaking

number for that please?

13332. THE REGULATORY OFFICER: That will be U-79.

--- UNDERTAKING NO./ENGAGEMENT No. U-79:

By the Gitga’at First Nation to do a recalculation of the actual value to

determine whether or not there was an order of magnitude error in

calculating the traditional harvest values for the Gitga'at assessment area as

they related to the five species of salmon listed by Dr. Joseph and

Dr. Gregory.

13333. MR. ROTH: Okay. I guess we can add that you can do a

recalculation of what the actual value was. I did it; it would be around 8 or

$900,000 if you made the adjustment, but if you could confirm that.

13334. DR. ROBIN GREGORY: We may or may not confirm it, we'll

certainly do the undertaking and we will get back to you with the correct




response.

13335. MR. ROTH: Thank you very much.

13336. DR. ROBIN GREGORY: But I would like to wait until we do the

undertaking to -- before we hint at what that response might hold.

13337. MR. ROTH: Yeah.

13338. Now, as far as seafood processing is concerned, you ascribe a value of

$86 million to the seafood processing industry. That would be your

Exhibit D71-7-3, Table 5, Adobe 20, hard copy 19.

13339. You see that?

13340. DR. ROBIN GREGORY: M'hm, yes.

13341. MR. ROTH: Okay. Then you ascribe 23 Gitga'at jobs to processing

plants.

13342. DR. ROBIN GREGORY: Okay, I see that.

13343. MR. ROTH: Now, what processing -- fish processing plants are

located in the Gitga'at assessment area, to your knowledge?

13344. DR. CHRIS JOSEPH: From what I recall, none are located right in

the Gitga'at area, they're all outside of the Gitga'at marine use area. If I recall the

marine use area boundaries correctly, I think they may be in Prince Rupert or

elsewhere.

13345. MR. ROTH: Prince Rupert and Bella Bella?

13346. DR. CHRIS JOSEPH: Could be.

13347. MR. ROTH: Okay. So those jobs are not in the assessment area?

13348. DR. CHRIS JOSEPH: That's correct. My understanding is that the

-- many of these seafood processing jobs rely upon fish caught within the Gitga'at

marine use area.




13349. MR. ROTH: Right. And 13 percent or 13 percent of the fishermen

associated with the north and central coasts that would feed those plants are

located in that assessment area?

13350. DR. CHRIS JOSEPH: That may be the case. I'd have to look back

where ---

13351. MR. ROTH: Yeah, I'll ---

13352. DR. CHRIS JOSEPH: --- the 13 percent came from. Is that what --

that was the first number you came up with ---


13354. DR. CHRIS JOSEPH: --- is that right?

13355. DR. ROBIN GREGORY: Yeah, all we say here in the report is that

none of the plants are in Hartley Bay. So we ---


13357. DR. ROBIN GREGORY: --- need to double-check in terms of the

MUA.

13358. MR. ROTH: Yeah, I think Dr. Joseph just said they're not in the

Gitga'at assessment area, but if you want to undertake to do -- or there's another

way we can do this, Dr. Gregory, you can do subject to check. So you can take

things subject to check and then the onus is on you or your counsel to get back if

that was an error. Okay?

13359. Now, in your report you've described tourism as the cornerstone of the

Gitga'at economy, which creates seasonal employment for the Gitga'at and brings

annual revenues of 3.7 to $6 million into the Gitga'at or to the Gitga'at and their

private partners. Do you recall that evidence?

13360. DR. ROBIN GREGORY: Yes, and that's per Table 7, I believe,

you're looking at.

13361. MR. ROTH: Okay. And Table 7 would be at Adobe page 24, hard

23.




13362. But the description, I guess I gave you would have been from Adobe

page 5 where you describe this revenue as being the “cornerstone of the Gitga'at

economy”?

13363. DR. ROBIN GREGORY: M'hm, that's from the summary. I see it.

Yes.

13364. MR. ROTH: So if we go to the table. Now, of that entire value of

3.7 to $6 million we have between 2.7 and 5 million of it being attributable to the

King Pacific Lodge; correct?

13365. DR. CHRIS JOSEPH: That is what it says. M'hm.

13366. MR. ROTH: Okay. And how much work did you do in researching

that revenue from the King Pacific Lodge? For example, when does the King

Pacific Lodge actually operate and when does it seasonally employ people? Are

you aware of that?

13367. DR. CHRIS JOSEPH: My recollection is it's mostly summer

activity.

13368. MR. ROTH: Okay, so it's three to four months?

13369. DR. CHRIS JOSEPH: It might be, yeah.

13370. MR. ROTH: Okay. And the total employment at the King Pacific

Lodge, all-inclusive, is approximately 30 employees?

13371. DR. CHRIS JOSEPH: It may be. Is this something we've -- that

we've got?

13372. MR. ROTH: What did you do for your research? Did you go to the

King Pacific Lodge's website and look at what was there?

13373. DR. CHRIS JOSEPH: With King Pacific Lodge, I spoke to the

owner. At one point, I also gathered information from Gitga'at.

13374. MR. ROTH: Okay. Did you speak to the owner or did you speak to

the lodge manager?




13375. DR. CHRIS JOSEPH: Michael Uehara. I believe he's the owner.

13376. MR. ROTH: Okay. And then the lodge manager is actually in your

footnote for personal communication; correct?

13377. DR. CHRIS JOSEPH: Where are you ---

13378. MR. ROTH: Oh, sorry. It may be -- if your -- can you spell the name

of the -- in your footnote 1 to your Table 7, is that the individual you thought was

the owner of the King Pacific Lodge?

13379. DR. CHRIS JOSEPH: Again, I said I was -- my recollection is he

might be the owner, he might be the manager, but it was Michael Uehara, so U-E-

H-A-R-A is who I spoke to.

13380. MR. ROTH: So you weren't aware that the lodge is actually owned

by a family of investors from Japan and that he is just the manager of the lodge?

13381. DR. CHRIS JOSEPH: No, but as I tried to communicate a moment

ago, I’m not sure if I knew he was the owner or manager. I was directed towards

speaking with him as the person to gather information from on the lodge.


13383. DR. CHRIS JOSEPH: So I may have miss -- just now mis-

communicated as the owner. I’m ---

13384. MR. ROTH: There’s just a fact sheet on the lodge’s website that says

that the owners are actually ---


13386. MR. ROTH: --- a family of Japanese investors. You weren’t aware

of that?

13387. DR. CHRIS JOSEPH: No.

13388. MR. ROTH: And did you follow these proceedings to determine

whether any of these groups have intervened in this proceeding, made an oral




statement to the panel or filed a letter of comment?


13390. DR. ROBIN GREGORY: I have not either.

13391. MR. ROTH: Okay. So as far as the operations you had and you

don’t indicate in your note who was associated with whom but for say of example

you list somebody there by the name of Mr. Burke, personal communications, do

you recall the operation that he was associated with?

13392. DR. CHRIS JOSEPH: No. It would have been one of the other

operations in that list. But off the top of my head I don’t recall which.

13393. MR. ROTH: Okay. Were you aware that Bluewater Adventures and

Maple Leaf Adventures are based out of Vancouver and are just running cruise

ships into this territory, they’re not actually having any physical facilities like the

King Pacific Lodge?

13394. DR. ROBIN GREGORY: It fits with my recollection.

13395. DR. CHRIS JOSEPH: The -- the note here says, sailing charters

operating partially in Gitga’at territory.

13396. MR ROTH: Correct.

13397. DR. ROBIN GREGORY: It’s the note in the table.

13398. MR. ROTH: And I take it that you would’ve known that the other

location is Haida Gwaanis for those -- for that -- for Bluewater Adventures and

Maple Leaf Adventures. That’s what your research would have disclosed.

13399. DR. CHRIS JOSEPH: I remember when I was doing this part of the

research that there are various sailing charter operations and some of them operate

exclusively in Gitga’at Territory and some operate partially.

13400. MR. ROTH: Okay. Now as far as -- the reason I’m asking you these

questions is that you assert in your opinion that the -- this project could have a

significant impact on this cornerstone of the Gitga’at economy. And I was

wondering what kind of research did you do on the demographic of the type of




customers or clients of these services?

13401. Now, obviously we have the valued per day there of what it costs to go

to take one of these cruises or to go to the King Pacific Lodge. So it tells me that

you have to be very wealthy to go to the King Pacific Lodge at $3,750 per day

per person, but did you do any other work on the demographic of the type of

people that actually use those facilities?

13402. DR. ROBIN GREGORY: I -- no. I don’t -- I don’t think we did but

we do say that they’re -- we do note other the fishing lodges and wilderness

resort, sailing and cruising operations, bear-viewing operations.

13403. So there are -- there are other kinds of things. They may have the

same demographics, they may have different demographics. So…

13404. MR. ROTH: But you didn’t look at by far the -- by way of value that

you assessed, King Pacific Lodge is generating the vast majority of the value of

tourism in the Gitga’at assessment area; correct, as far as the value you identified

or quantified?

13405. DR. ROBIN GREGORY: In -- in Table 7 as per the sources that we

-- where we gather this information, yes.

13406. MR. ROTH: Okay. Dr. Joseph, did you go to the website and look at

the demographic and look who the King Pacific Lodge markets to?


13408. MR. ROTH: Okay. Would it surprise you if its marketing is directed

at corporations and corporation executive retreats due -- given the -- I guess the

daily -- daily value of the cost of the trip, that would make sense, would it not?

13409. DR. ROBIN GREGORY: I’ve -- is there a question or ---

13410. MR. ROTH: I’m just wondering because the suggestion is that these

revenues could be significantly impacted. And it would seem to me before you

could ever make that inference or suggestion that you would have to know the

demographic of the users of those facilities before you could make that suggestion

or claim.




13411. DR. ROBIN GREGORY: If you look back at the statement you said

earlier you say, nature-based tourism is a cornerstone -- a cornerstone of the

Gitga’at economy. We then say a primary factor influencing demand is the area’s

reputation as pristine wilderness, rare wildlife, quality and accessibility of a wide

range of wilderness recreation activities.

13412. So if while in your argument if corporate executives feel differently

about accessibility of pristine wilderness or access to rare wildlife viewing

experiences, if they feel differently than other parts of the population, it’s -- that

seems to be the argument you’re making, I -- I don’t know any evidence backing

that up and I’m not quite sure what you’re -- what argument you’re -- you’re

following here.

13413. MR. ROTH: I’m just testing your suggestion that if this project

proceeds that the cornerstone of the Gitga’at economy as a tourist economy is at

risk.

13414. And I’m specifically looking at the King Pacific Lodge, and I’m

positing to you that you didn’t do any research on the demographics and you have

no basis to conclude that the revenues, at least for the King Pacific Lodge, are at

risk as a result of this project proceeding.

13415. DR. CHRIS JOSEPH: Evidence that we did get beyond -- I guess I

want to reiterate what Dr. Gregory said is that there’s a presumption that people

are going there for a reason, they’re going there to this area because they’re

attracted to Great Bear Rainforest, spirit bear, fishing opportunities and whatnot.

So we can infer what the demographic is interested in.

13416. Beyond that my interviews with the various operators listed in this

table, these people and their communications to me over the telephone indicated

the types of people, the things that they were interested in certainly, I can’t recall

if they described this person is from Japan or this person’s from England but they

certainly discussed what those cliental were looking for.


13418. THE CHAIRPERSON: Mr. Roth, we’re always told that we’re the

master of own procedure, and I might make a change to the -- what I outlined in

light of the fact that many people have travelled distances to be here.




13419. The fact that the panel’s got the stamina to keep running through lunch

is maybe an un -- not a necessary assumption for everybody in the room and so

I’m going to suggest to you that we do break now for lunch actually.

13420. Is that going to be conducive with your questioning? Can you pick up

---

13421. MR. ROTH: No, indeed, Madam Chair, and I -- I won’t have too

much longer after lunch.

13422. I’ve got mathematical corrections to the evidence, that was one part of

it, and then I have some questions on -- on methodology and approaches. So that

would be -- yeah, fine.

13423. THE CHAIRPERSON: And we’re not trying to rush you, Mr. Roth,

in your questioning, I just thought that maybe we -- instead of trying to sort of

push through lunch we should just take a break and let everybody get some lunch

and then come back.

13424. MR. ROTH: And it -- probably the undertaking might be available

for us after lunch as well. That would be great.

13425. THE CHAIRPERSON: Okay, terrific.

13426. MR. ROTH: Thanks.


13428. So let’s take a break now. And in light of how many people again

have joined us in the hearing room, we’ll take a little bit longer lunch break just to

make sure everybody can get lunch, and so we’ll be back for 1:30 please.

13429. Thank you, everyone.

--- Upon recessing at 12:18 p.m./L’audience est suspendue à 12h18

--- Upon resuming at 1:29 p.m./L’audience est reprise à 13h29

13430. THE CHAIRPERSON: I believe that we’re ready to get underway

again this afternoon.




13431. I’d like to acknowledge that Chief Moody is in the -- in the room at

this point. And welcome, Chief Moody, to the hearing process. I know we’ll

have a chance to hear from you later and we look forward to that.

13432. I have one announcement I’d like to make. As everyone is aware,

there are a number of steps in the joint review process. Today we are announcing

that the Panel will be releasing potential conditions for comment this week.

13433. Releasing potential conditions prior to the close of the hearing is a

standard step in the hearing process and is mandated by the courts. It does not

mean -- and I want to emphasize this for everyone -- it does not mean that the

Panel has made any decisions on whether or not to recommend approval of the

Proposed Project.

13434. The potential conditions will be available to all parties -- that’s

intervenors, government participants and the Applicant -- for comment during the

final written argument phase. Further details on the potential conditions and the

process for commenting will be posted on the Panel’s website.

13435. And as always, our process advisors and other staff members continue

to be available to answer any process questions. So if anybody has any questions

about this, I would encourage you to approach one of our staff and ask any

process-related questions that you have on this.

13436. So these potential conditions will be posted for comment later this

week.

13437. With that, are there any preliminary matters that parties wish to raise?

I don’t see any.

13438. Mr. Roth, please continue with your questions of this Panel.

13439. MR. ROTH: Thank you very much, Madam Chair.






--- EXAMINATION BY/INTERROGATOIRE PAR MR. ROTH:

(Continued/Suite)

13440. MR. ROTH: So when we left off, I think we were talking about your

Table 7 and the tourism organizations that you had listed revenues for and, maybe

just to recap, you had confirmed that you hadn’t checked the record to see if any

of these parties that intervened made oral statements or filed letters of comment.

13441. And I guess I have reviewed the record and it indicates that, as far as a

couple of the operators are concerned -- Bluewater Adventures and Maple Leaf

Adventures -- one made an oral -- oral statement and one made a letter of

comment.

13442. But what I found of interest in them is that they’re basically transient

operations, cruise ships that either go to Haida Gwaii Haanas or come into the

Gitga’at assessment area. There are no physical facilities associated with those

operations.

13443. If you go through the list, could you tell me your understanding of the

facilities you listed there in Table 7 that actually have a physical presence within

the Gitga’at assessment area rather than just transient vessel traffic through it?

13444. DR. CHRIS JOSEPH: It’s not something I specifically looked at.

I’m aware that King Pacific Lodge has facilities. I’m not sure if any of the other

ones do.

13445. We do have a map in our report that identifies various tourism

facilities. It’s on the previous page, Figure 3, hard copy page 22, and that --

although it’s not terribly easy to see in the printed copy or on the screen --

identifies some facilities.


13447. But as far as the facilities you have in Table 7 that you have revenues

for, the only one you’re aware of that has a physical presence within the Gitga’at

assessment area would be the King Pacific Lodge; correct?

13448. DR. CHRIS JOSEPH: That’s correct.





13450. And the physical presence of that lodge within the Gitga’at assessment

area is just during the summer period, otherwise, the lodge is anchored in Prince

Rupert?

13451. DR. CHRIS JOSEPH: I do not know.


13453. But we did confirm, to your knowledge, it’s a summer operation;

correct?

13454. DR. CHRIS JOSEPH: I believe what I intended to state -- stating

now is that I’m vaguely aware that all of these tourism operations primarily

operate in the summer.


13456. So when you provided employment figures for these lodges, of a total

of 20 to 30 and then 10 to 12 at the King Pacific Lodge alone, those would be

essentially summer employment jobs?

13457. DR. CHRIS JOSEPH: They may be.

13458. I can’t confirm or deny that.


13460. And then as far as -- of the revenues you attribute, you say these are

revenues that are going to Gitga’at and their private partners, the only thing that

you’ve indicated directly is $50,000 a year is received by the Gitga’at under a

protocol agreement.

13461. That would be the protocol agreement with King Pacific Lodge;

correct?

13462. DR. CHRIS JOSEPH: I cannot recall ---





13464. DR. CHRIS JOSEPH: --- if that specifically comes from just from

King Pacific Lodge or not.


13466. DR. CHRIS JOSEPH: I would have to ---

13467. MR. ROTH: Were you aware that there was a protocol agreement

with King Pacific Lodge?


13469. I believe there were -- there and may still be tourism protocols with

more than just that lodge. There might be several.


13471. Now, as far as the tourism operators that you mentioned that do not

have physical facilities located but just rely on the Gitga’at assessment area to

transit vessels through, are you aware if there is any fees paid by those operators?

13472. Vessel transit fees or anything like that, is that included within any of

the figures you provided?

13473. DR. CHRIS JOSEPH: If I recall correctly, they are.


13475. Can you quantify those and tell us which operators pay and how

much?

13476. DR. CHRIS JOSEPH: Off the top of my head, no. I would have to

look through here.


13478. So that would all be part of the $50,000 figure?

13479. DR. CHRIS JOSEPH: It may be.





13481. Now, we talked about your understanding was mainly gained through

personal communication.

13482. Have you ever been to Hartley Bay?

13483. DR. CHRIS JOSEPH: No, I have not.

13484. MR. ROTH: Have you ever been to the King Pacific Lodge?

13485. DR. CHRIS JOSEPH: No, I have not.


13487. DR. ROBIN GREGORY: I have been to Hartley Bay.


13489. Have you been to the King Pacific Lodge?

13490. DR. ROBIN GREGORY: I have not but I’ve been to Hartley Bay on

two occasions.

13491. MR. ROTH: I wanted to find out what you wealth demographic was.

13492. DR. ROBIN GREGORY: You share yours first and then I’ll share

mine.

--- (Laughter/Rires)


13494. I haven’t been there either. I’ve been to Hartley Bay.

13495. So, sir, you mentioned these were personal communications that you

had with these individuals that you list in Note 1 to Table 7.

13496. I take it those personal communications were over the telephone?




13497. DR. CHRIS JOSEPH: Correct.


13499. And as far as the personal communications you had with the individual

and the only -- how do you pronounce his name? I’m sorry. I hate pronouncing

people’s names wrong.

13500. DR. CHRIS JOSEPH: Which one?

13501. MR. ROTH: The ---

13502. DR. CHRIS JOSEPH: Starting with u?

13503. MR. ROTH: Roth is easy but I often get it confused with Ross so

we’ll just go with the manager of the King Pacific Lodge that you had personal

communications with.

13504. DR. CHRIS JOSEPH: I believe it’s pronounced Uehara.


13506. And were you aware that -- do you know who Forest Ethics is?

13507. DR. CHRIS JOSEPH: I believe that’s an environmental, non-

governmental organization.


13509. Were you aware whether they had any position or whether they had

intervened in this proceeding?


13511. MR. ROTH: Were you aware that Mr. Uehara is on the Board of

Directors of Forest Ethics?






13514. And I take it you weren’t aware of whether or not King Pacific Lodge

or the owners of King Pacific Lodge intervened?

13515. I just couldn’t find any record whatsoever of them having made an oral

statement or having filed a letter of comment or having intervened in this

proceeding.

13516. And I take you don’t have any information to the contrary.

13517. DR. CHRIS JOSEPH: No. I’ve already answered that.


13519. Now, there’s another figure on your Table 9 for ecosystem services of

$1.4 million. It’s at Adobe page 27, hard page 26.

13520. Now, this table summarizes it but -- and I tried to get a better handle

on it through an Information Request but it wasn’t really provided.

13521. To the best of my ability, it looks like approximately $1 million of

what you have for 1.4 million comes from programs that are in whole or in part

funded by the Province of British Columbia and the federal government.

13522. So it roughly looked like $400,000 was for carbon credit or some kind

of carbon credit sales or forestation programs but a value of 850,000 and 150,000

seemed to be funded through the provincial and federal governments.

13523. Is that your understanding?


13524. DR. CHRIS JOSEPH: I’d need a moment to read the whole section

to look at where the government section -- government funding comes from.

13525. Would you like me to do that?

13526. MR. ROTH: We can make it subject to check.

13527. There was a figure of -- through the government funding of 850 and




150 that I added up for a million. So if I was incorrect in that, we can make it

subject to check and you can come back.

13528. So my question would be: On what basis would that funding be

affected if this Project were approved?

13529. Like why would the provincial or federal government -- to facilitate

the Project through approvals, why would they ever affect that funding received

by the Gitga’at through those programs?


13530. DR. ROBIN GREGORY: So as we say elsewhere in the report, both

the carbon offset marketing and sales agreement and also the land and marine

resource planning which comes partly from B.C. and the federal government and

partly from NGOs, that funding is related to the perception -- a portion of it, and I

don’t know what portion is related to the perception of the Gitga’at territories

being a pristine -- quite a pristine marine environment.

13531. So I -- I think it would be fair to say that particularly from the NGO

side, some of this funding perhaps could go down were -- were there damages to

the environment, but it’s very hard to say what proportion. We certainly -- we did

not conduct any interviews with NGOs, for example, to determine what

proportion might go down.

13532. MR. ROTH: And did you ask anybody from the provincial or federal

governments what their position on something like that would be?


13534. MR. ROTH: Okay. There’s another $150,000 that looks like it’s

coming from the Coast Opportunities Fund for the Guardian Watchmen Program.

Are you aware what the Guardian Watchmen Program is?


13536. MR. ROTH: And that employs four people full-time at Hartley Bay?

13537. DR. CHRIS JOSEPH: My understanding is it’s something like that,

yeah.




13538. MR. ROTH: Okay. On what basis would this project proceeding ever

affect the funding for the Guardian Watchmen Program?

13539. DR. ROBIN GREGORY: That’s something I think we need to check

with them or someone would need to check with the Guardian Watchmen

Program and -- and ask them that question. I can’t speak on behalf of the

Guardian Watchmen Program.

13540. MR. ROTH: And you didn’t have that conversation before you

prepared your report?

13541. DR. ROBIN GREGORY: Again, we can’t speak to percentage

terms, but I think all of this funding is related to the -- the current situation where

the Gitga’at territory is providing a flow of ecosystem services that these different

organizations, NGOs, Guardian Watchmen Program et cetera consider to be

important.

13542. Were there damages to the biophysical environment, I would not be

surprised were those -- the flow of ecosystem services to decline. That could

affect funding, but again, I -- I don’t know. There’s no -- we did not ask that

question of particular NGOs nor did we ask that of the Guardian Watchmen

Program.

13543. MR. ROTH: Okay, so ---

13544. DR. CHRIS JOSEPH: I’d like to add to that if possible. So the

nature of selling things like carbon offsets, there’s an element of risk there. And

so, when someone goes to sell carbon offsets they have to put aside what’s called

a risk buffer pool. So if you’re selling 100 units, you might have to set aside 140,

that 40 being there in case something happens.

13545. And so, it’s not just if a spill were to occur, but just if this project was

approved, the notion is that that then creates the skepticism, if you will, on behalf

of these investors. They’re concerned about accidents, damage, and so that then

would lead to effects on future investments.

13546. DR. ROBIN GREGORY: I -- I think a consistent thread throughout

our report -- actually, both reports -- it figures into the public interest report as

well, is that public perceptions of risk and talking about NGOs, Guardian




Watchmen Program, one could say expert perceptions of risk associated with the

area, to the extent that not only were there a spill, so that there was -- there were

damages, but were there -- were the project to be approved so that there were then

an increase in tanker traffic through the area and one could say a fear or worry or

anxiety about the -- about a potential spill, a probabilistic spill, I think we do

make a consistent case throughout the report that that could affect perceptions of

the area.

13547. Simply the routine operation of a project such as that proposed could

affect perceptions of the area and I think it’s -- it’s not a heroic leap to then say

those -- a change in perceptions of the nature of the area could then affect things

such as the funding that we’re talking about right now.

13548. MR. ROTH: Okay. Do either of you have any expertise in the

carbon market, the negotiation of carbon offset agreements? Have you ever been

involved in carbon sales, involved in the negotiation of them? Have you ever

seen a carbon offset agreement?

13549. DR. ROBIN GREGORY: I -- I have seen carbon offset agreements.

This -- there is a source of information here, someone who works with the

Gitga’at who’s been quite involved in that and that we note his name here, his

personal communication. I have done a lot of studies on risk perception. I can

speak to that side.

13550. MR. ROTH: Okay. But as far as the value of the carbon market in

Canada and who would be the purchasers of those carbon credits or carbon

offsets, and whether they would be lay people or sophisticated parties that were

able to assess the risk posed by this project to those credits, who do you think

those types of purchasers of those credits would be?

13551. DR. ROBIN GREGORY: Well, you just introduced a new idea. We

aren’t talking -- you said, those who could -- I believe you said estimate the risks

of the project. We’re talking about perhaps two different things. We’re talking

about the risks of the project. We’re talking about the perceptions of the risks of

the project and -- and some of the issues we’re talking about here, not the carbon

offset perhaps, but the -- some of the other -- other funding could perhaps be

affected by perceptions as well as by -- as by the probabilistic risks.

13552. MR. ROTH: Right. And we moved on to carbon offsets and I can

tell you I do negotiate those types of agreements and the buyers are generally




extremely sophisticated parties able to assess risk.

13553. So how would that affect the sale of those credits? If the carbon

market is transacted by sophisticated parties, and the oil and gas industry being a

relatively large player in the carbon market, why would lay perceptions of risk

affect the value of those carbon offsets?

13554. DR. ROBIN GREGORY: I didn’t use the word “lay”. I think that

experts and technically trained people also have perceptions of risk as many,

many studies have shown, studies that have compared lay perceptions of risk and

expert perceptions of risk pretty much -- you know, very strongly confirm and I

can give you citations if you want, that -- that technically trained people also are

affected by many of the same considerations that affect lay perceptions of risk.

So it’s -- it’s incorrect to say it’s -- it’s only a lay -- a lay perception phenomenon.

13555. MR. ROTH: Okay. But you haven’t studied the carbon market, the

sophistication of carbon purchasers, and you’re not able to give us any idea of the

potential impact of this project proceeding on the carbon market in the north and

central coast off of British Columbia, are you?

13556. DR. ROBIN GREGORY: So we’re -- we’re basing what we say

here on information obtained for the report. So -- so we -- just as in other cases

we have used other sources where our own expertise didn’t speak directly to the

question. So here we -- we did work with somebody who is knowledgeable about

carbon offset markets and that individual did express to us some concern that

those markets could be affected. That’s as far as I can take this.

13557. MR. ROTH: Okay, that’s fair enough.

13558. So if we could shift gears to non-use values for a moment. And by all

means we can go to the report, and I could give you references, but essentially,

you come up with the value of $300 million for other ecosystem services

applicable to the Gitga’at assessment area; correct?

13559. DR. CHRIS JOSEPH: Can you please point us to the page?

13560. MR. ROTH: Indeed, I’m just seeing if we can speed it up. It’ll be

Table 11 that is in your report, and it’ll be Adobe page 30, hard copy page 29 and

that again would be Exhibit D71-7-3.




13561. DR. CHRIS JOSEPH: Yes, so we’ve got 300 million there, yeah.

13562. MR. ROTH: So we actually have 302 million total; the 1.9 million is

still subject to your undertaking on -- on the value of the traditional use harvest,

but I wanted to talk about the 300 million now and how you derived that number.


13564. DR. ROBIN GREGORY: Sure.

13565. MR. ROTH: My understanding is how you derived that is you used

the work of Dr. Gunton that was filed in this proceeding; correct?

13566. DR. CHRIS JOSEPH: Gunton and myself.

13567. MR. ROTH: Okay. And so Dr. Gunton had come up with a total

figure of approximately $30 billion associated with ecosystem goods and services

for the entire North and Central Coast; correct?

13568. DR. CHRIS JOSEPH: That was an estimate that Dr. Gunton and I

came up with in a prior report, prior to this Enbridge proceeding.

13569. MR. ROTH: But it’s been filed as -- you weren’t aware that that was

filed as evidence in this proceeding by Dr. Gunton?

13570. DR. CHRIS JOSEPH: I believe he did similar work.


13572. DR. CHRIS JOSEPH: But if you look in that paragraph, it says

Gunton & Joseph 2010.


13574. So if we could go to Dr. Gunton’s report, and I think he essentially

used -- I don’t know if he provided prior attribution.

13575. If we could go to Exhibit D35-14-4, Table 20, at Adobe 50, hard 36.

13576. Adobe 53. Oh, no, there’s two different -- no, I think Ms. Estep might




be in the wrong exhibit. Dr. Gunton updated his report and you might have the

updated report.


13577. MR. ROTH: Okay, or I could have made a mistake writing down the

page number. So we’ll go with Ms. Estep. She had -- and the Regulatory Officer

has the correct table up there.

13578. So the source for Dr. Gunton I guess, at the bottom, also gives

attribution to you. So this is the same table you were relying on; correct, Dr.

Joseph?

13579. DR. CHRIS JOSEPH: No, I -- in the course of this work that we’re

discussing, the Economic Impacts Report, I did not rely at all on work that

Gunton and Broadbent did for ---

13580. MR. ROTH: If you look at the source at the bottom of their table ---


13582. MR. ROTH: --- it’s attribution to you.



13585. So it’s the same source of work?

13586. DR. CHRIS JOSEPH: It would appear -- yeah -- that he is going

back to the same references that we used, yes.


13588. And then, when I just went through those values, by far the largest

value is nutrient cycling associated with nutrient storage -- and an example is

given of nitrogen fixation -- and it’s approximately between the offshore area and

the coastal area $27 million -- or $27 billion of that $30 billion; correct?

13589. DR. ROBIN GREGORY: That’s what the table says, yes.





13591. Can you just tell us what is “nitrogen fixation” and “nitrogen cycling”

and what’s the biological process for it?

13592. And also elaborate for us how that is affected by the operation of this

Project?

13593. DR. ROBIN GREGORY: That we’d need to defer to someone who

knows the biophysical side, an ecological services person. It’s not within our area

of expertise.

13594. MR. ROTH: So I take it if I went through the rest of the categories,

your questions -- except for certain things like recreation -- but are you able to

give me any help with how this Project would affect any of the values on that

table?


13595. DR. ROBIN GREGORY: Could you please go up to the title of this

table again?


13596. DR. ROBIN GREGORY: I think that the best answer to that is that,

for each of these categories -- so, for example, the one you were talking about,

nutrient storage, cycling processing and acquisition, nitrogen fixation -- I think it

would be best to ask those questions of people who are experts in those areas and

they would be able to provide better answers.


13598. So if Northern Gateway, for example, did have experts in those areas

that did file a social cost benefit analysis, it did provide values as to how -- look at

these values and how they would be affected by a spill -- that’s the evidence that

we have on the record now -- I take it those were the best people to give those --

that type of information to this Panel?





13599. DR. CHRIS JOSEPH: Well, like, what we can comment on -- what I

can comment on is you raised the topic of Enbridge’s social cost benefit analysis.

I presume you’re talking about Wright Mansell’s 2012 CBA, or cost benefit

analysis. I’ve looked at that, not in extreme detail, but I’ve skimmed it and it does

put a price tag on the potential effects of the Project on the environment.

13600. And it is limited. It covers greenhouse gases but uses a low damage

cost. I think it might actually only cover greenhouse gases and the expected value

of an oil spill. It doesn’t cover the full range of environmental impacts that the

Project may cause.


13602. But you haven’t done anything. You’ve just given us the full value.

There’s nothing in your report that will tell me how anything on that table is

affected by this Project proceeding.


13603. DR. CHRIS JOSEPH: So I’m just basically repeating what I said

earlier.

13604. If I wanted to know how nitrogen fixation in the Gitga’at traditional

territories would be affected by either routine operations or by spills, I would go

to experts in those areas and ask them those questions.

13605. MR. ROTH: You didn’t ask LGL or the environmental consultants

for the Gitga’at that question when you were preparing the report?

13606. DR. ROBIN GREGORY: We did not, no.

13607. MR. ROTH: Okay. Thank you.

13608. So if we move now to passive use values -- and you do suggest in your

report there could be some overlap between ecosystem services and passive use

values -- but you say that there are potential passive use values of between $10

million and $168 million a year associated with the Gitga’at territory.

13609. Do you recall that?




13610. DR. CHRIS JOSEPH: Please, whenever there’s ---

13611. MR. ROTH: Sorry.

13612. DR. CHRIS JOSEPH: --- plenty of numbers of this document ---


13614. DR. CHRIS JOSEPH: --- and we need a table reference.

13615. MR. ROTH: So again, it’s Adobe 65, hard 64 of your report, D71-7-

3.

13616. DR. CHRIS JOSEPH: And, sorry, the question was?

13617. MR. ROTH: Just that as far as -- so non-use values in Table 23 have

a range associated with them, that is, let’s say, between $10 million and $168

million a year?



13620. DR. ROBIN GREGORY: I’d like to just introduce that, because not

everybody will be familiar with that term, a “non-use value” -- and we explained

this earlier in the report ---

13621. MR. ROTH: We spent days on this in Edmonton so I don’t think you

have to explain it to the Panel.

13622. DR. ROBIN GREGORY: Okay.

13623. MR. ROTH: This was a subject of a cross-examination by counsel of

the Gitxaala and I believe counsel for First Nations also crosses, gentlemen, Dr.

Ruitenbeek and Mr. Anielski on this for quite some period of time. So you don’t

have to do that for the benefit of the Panel.

13624. But -- I shouldn’t say this -- I will have a question on one of your

papers and you may very well have further explanation there, the paper in the




Alaska book. I provided that by way of an aid to cross-examination. I think that

you’ve reviewed it; correct?

13625. DR. ROBIN GREGORY: I’m not sure what the question is here.


13627. So did your -- I provided to your counsel a paper that you wrote in a

book called “Valuing Wildlife Resources in Alaska” and you and Mr.

Mendelsohn wrote a paper called “Managing Environmental Accidents” in this

chapter of the book.

13628. DR. ROBIN GREGORY: Yes, I do have that in front of me.


13630. So I went to that -- sorry, I should complement you. We’re adverse in

interest but I truly enjoy reading your -- you write very well and your research is

fascinating and extremely scientific and it’s an absolute pleasure to read. So ---

13631. DR. ROBIN GREGORY: Thank you.

13632. MR. ROTH: It was -- I actually enjoyed coming into the office. It

was one of the most enjoyable things of putting together this cross was reading

your stuff, and you’ve got a new -- there was something on your résumé; there’s a

new book coming out by the Oxford University Press that you have something in

and I tried to get an advance copy and I couldn’t, but I think after the proceeding I

may very well read it, but ---

13633. DR. ROBIN GREGORY: If you wish, I can continue to send you

things as I -- as I continue to write them.


13634. MR. ROTH: Well, a little peer review wouldn’t hurt.

13635. THE CHAIRPERSON: Mr. Roth, could I just ask you to slow down

a little bit when you’re speaking just to make sure that the court reporter can keep

up with you?




13636. MR. ROTH: Sorry.

13637. So in this -- and rather than reading the whole thing, if we go to Adobe

page -- Adobe page 8, it’ll be hard copy page 302, you speak about these non-use

values. And I guess we could go through them all, but you raise certain

qualifications to them and one of the statements that you make regarding these is

you -- it starts at the bottom of that page 302, and again, this isn’t the only

problem you raise with respect to these passive or non-use values, but you say:

“Of course not everyone shares the belief that nature alone is

good. Many might find that good is only found in civilization.

This would argue for counterbalancing existence values in

development. If existence values are measured for the

environment, they must also be measured for civilization,

development. It is not known whether existent values for

development are smaller or larger than existent values for

preservation. Thus, the omission of existence values from the

social calculus does not necessarily cause a bias in trade-offs

between the environment and all other goods.” (As read)

13638. That’s your observation as far as the qualification we should keep in

mind when we’re looking at this $300 million figure?

13639. DR. ROBIN GREGORY: So the -- the paper that you’re talking

about was written in 1990, published in 1992. So it’s -- it’s well before any of the

current proceedings began, by about 20 years.

13640. This paper was written at a time when there was a lot of talk about

non-use values and the methods to begin to actually calculate quantitative

measures of non-use values were just in their infancy. It was before much work

had been done, for example, on the Exxon Valdez spill.

13641. And my job is -- and my profession is as an academic researcher, and

to the extent that people were kicking around the idea of non-use values and

saying that non-use values might be very large because so many people care about

the protection of nature, I think logically what we say here, what Mendelsohn,

who is an economist, and I say here follows that one -- one should not necessarily

assume that everyone will have -- will have non-use values for -- associated with

the protection of nature, and perhaps some people have those values for the

protection of development, heritage, antiquities, et cetera.




13642. So I think as a -- as a logical argument, it makes sense and we put it in

-- in this paper as a cautionary argument saying one should not assume that

everyone necessarily will -- will hold these values.

13643. MR. ROTH: Okay, fair enough.

13644. So then if we could go to Figure 2 of your report, at Adobe page 10,

hard copy 9, again of Exhibit D71-7-3.

13645. DR. ROBIN GREGORY: You said Figure 2?

13646. MR. ROTH: It’s right there on the screen.

13647. DR. ROBIN GREGORY: Yeah, okay. Yeah.

13648. MR. ROTH: So you have option value right in the middle between

non-use and use value.


13650. MR. ROTH: So I take it from your earlier paper on valuing wildlife

in the State of Alaska, there can be option value associated with development as

well that’s potentially offset. Did you look at the potential option value of the

development proposed in this case, the Northern Gateway Pipeline Project?

13651. DR. ROBIN GREGORY: No.

13652. MR. ROTH: Okay. So theoretically though, there would be option

value associated with it; correct?

13653. DR. ROBIN GREGORY: The argument that we raised in the paper

20 years ago as a -- as a sort of logical warning, I think is reflected here in that if

there were values associated with development, that would be reflected -- should

be reflected in the market price for oil or petroleum products which would be

shown on the far left side -- the market use value.

13654. And the way that the term non-use values has developed over the last

20 years, really since work that was done on the Exxon Valdez spill by two

economists, Carson and Mitchell, or an economist and a sociologist, the term non-




use values now is used pretty much exclusively in connection with the protection

of a pristine environment.

13655. MR. ROTH: But I’m just talking about the concept of option value

now, and I’m suggesting to you -- and I believe you were here this morning for

the cross-examination of Dr. Bigano from Milan, Italy?

13656. DR. ROBIN GREGORY: Parts of it, yes.

13657. MR. ROTH: Were you aware of his work?

13658. DR. ROBIN GREGORY: I was not actually. I was not.

13659. MR. ROTH: Okay. It’s very related to what you do, is it not?

13660. DR. ROBIN GREGORY: Certainly some of the terms that -- that he

used sounded very -- sounded familiar, but having not read his papers, I probably

shouldn’t comment on that.

13661. MR. ROTH: Okay, yeah, I didn’t see any of his papers referenced in

your work. So ---

13662. DR. ROBIN GREGORY: So as you can see here, the dotted lines

from option value go both to non-use value and use value and then follow through

to the three values on the right-hand side which now are -- are associated

generally with preservation of the environment, and then from the use value, the

line does go to market use values.

13663. MR. ROTH: Okay. So as option value, as far as the project

proceeding, and the evidence of Northern Gateway and Dr. Mansell, was that

there is significant unquantified option value and he gives his examples, a market

diversification and addressing the risk that the U.S. market becomes inaccessible

for Canadian oil.

13664. Would that be an example of option value associated with the

Northern Gateway Pipeline Project?

13665. DR. ROBIN GREGORY: I’m not aware of -- I’d have to go back

and review the Mansell discussion of option value to comment, but I’m not aware

of anything mentioned in the Mansell report that would not already be included in




the market use value such as the price of oil and -- in terms of the -- if there are

expectations of -- of accessibility to markets, I expect that would already be

included in the market use value, so I would need to go back and review how he

used the term option value and whether it was in -- in the common way that that

term is now used.

13666. MR. ROTH: Do you know very much about the current state of the

Canadian crude oil market?

13667. DR. ROBIN GREGORY: Well, very much is a relative term. I

probably know more than some people and I probably know quite a bit less than

other people.

13668. MR. ROTH: Have you ever heard of the Keystone XL pipeline

proposal?

13669. DR. ROBIN GREGORY: I know enough to have heard of Keystone,

yes.

13670. MR. ROTH: Do you know that that pipeline has been delayed now

for quite some period of time because of decision-making processes that are

occurring in the United States?

13671. DR. ROBIN GREGORY: I know that it was delayed several months

ago pending further review by the U.S. government. I don’t know about for quite

some time, so I don’t know what that means. I don’t know whether decisions are

pending or not.

13672. MR. ROTH: Okay. Do you know what crude oil differentials are

and ---

13673. DR. ROBIN GREGORY: I do.

13674. MR. ROTH: Have you heard of the fact that there is lack of

transportation capacity to U.S. and other markets right now and that is seriously

impacting the value that Canadian governments and Canadian oil and gas

producers get for their oil and gas?

13675. DR. ROBIN GREGORY: So two comments here, and I actually

appreciate you bringing this up. I expect what you’re getting at somewhere along




the way is the estimated benefits for the proposed project. And I think it’s very

important, since you mentioned Keystone, to recognize -- and this is, I think, a

fairly serious omission in the work that’s been prepared by the Proponent, that it’s

a very strong body of work coming from the judgment and decision making side

-- part of my background is in psychology as well as economics -- saying that it’s

nearly impossible, at least extremely difficult, for humans to evaluate a proposal

without having something to refer that to, without being able to put that into a

context.

13676. So that if someone says to me, for example, would you like to go to a

restaurant and have chicken, I don’t know whether I would like to go to a

restaurant and have chicken until I know are there other restaurants that might

have things that I like more or less than chicken and then I can begin to evaluate

that proposal.

13677. In this case -- and I realize that the Panel is circumscribed in what

they’re able to do -- the fact that there is a proposal pending on the table from

Northern Gateway and Enbridge, and the fact that there are other options being

discussed for transportation and sale of oil from the oil sands, including Keystone,

I think that there are important questions raised by that saying if this Panel, and if

people like myself who’ve been asked to comment on the viability of the project,

if the Panel is charged with saying does this project look like a good thing to do or

not a good thing to do, I think it’s extremely relevant to look not only at Keystone

but to look at a variety of other ways in which the proposed project might be

modified, basically alternatives to the proposed project, that might not only better

reflect some of the concerns that have been raised by citizens of British Columbia

and citizens of Canada, but also ways in which the project might be modified to

increase the benefits to the people of Canada.

13678. So by bringing in the Keystone project and beginning to say well what

about these price differentials, I think that is one of many considerations that

should be raised, discussed, to help both Proponents and opponents be able to do a

better job of reviewing this project.

13679. MR. ROTH: Have you read the section of the application that deals

with alternatives to this project, Dr. Gregory?

13680. DR. ROBIN GREGORY: I have, and I find it very partial, extremely

partial.




13681. MR. ROTH: So what ports -- what were the ports that were included

in the alternatives assessment?

13682. DR. ROBIN GREGORY: I know that there was the -- what I

remember now, having read it some time ago, was that there was some discussion

of Prince Rupert, and I know there was some discussion of Vancouver.

13683. I don’t know whether it was in this report or whether it was in

newspaper reports or something. I don’t remember what was in the reports of the

alternatives versus other sources of information that I have seen, Vancouver Sun

and CBC and other sources.

13684. MR. ROTH: I’m talking about in the record of this proceeding; was

there another half dozen or dozen?

13685. DR. ROBIN GREGORY: This I don’t know.


13687. DR. ROBIN GREGORY: But again, whether there are alternative

ports would be one thing that’s worth looking at, and there are quite a number of

other things that should be looked at, and I’m not sure the extent to which that

information has been made easily available, either to myself or to other people

who’ve been asked to review the project.

13688. MR. ROTH: Okay. Now, if we go to your report, Exhibit D71-7-3,

at Adobe 61, page 60.

13689. At the end of the first full paragraph you’re essentially saying there

may be some offsetting gains such as increased environmental monitoring funding

or economic development to help the Gitga’at but these offsetting financial flows

are likely to be much smaller than the current flows tied to a healthy environment.

13690. Now, I take -- you said you didn’t read the transcript from the first day

when the Gitga’at were testifying; correct?

13691. DR. ROBIN GREGORY: Could you repeat that; I’m sorry?

13692. MR. ROTH: You said you did not read the transcript from Monday?




13693. DR. ROBIN GREGORY: No, I did not.

13694. MR. ROTH: Okay. So the evidence -- and if you trust me to -- do

you trust me?

13695. To fairly characterize it, is that Mr. Cam Hill, who spoke on behalf of

the Gitga’at said he did not recall having shared with you a preliminary list of the

economic benefits that might be negotiated pursuant to an opportunity and

benefits agreement. I take it that no one else shared that with you?

13696. DR. ROBIN GREGORY: You’re asking whether any individuals

have shared elements of a potential benefits agreement with either myself or Dr.

Joseph; is that what you’re asking?

13697. MR. ROTH: Well, correct, because in here you’re saying that they

would likely not match what you’re talking about by way of the financial benefits

that flow right now based on the marine use economy. And I’m just wondering

what your basis for that information was and whether or not you actually asked

the Gitga’at what was potentially available, what had already been discussed?

13698. DR. ROBIN GREGORY: So we did not -- we were not part of those

discussions and we did not ask for that information in terms of offsetting benefits

agreements with any of the Gitga’at.

13699. Our statement here, this final sentence in the paragraph, was simply

reflecting the fact that were there increased monetary -- monitoring funding or

economic development funding to help the Gitga’at cope with an oil spill that that

would be short term funding, whereas offsetting financial flows related to a

healthy marine environment that’s -- those flows are currently underway and

presumably they would continue for a long time.

13700. So this sentence and that relative balancing was based on a short term

gain potential -- possible short term gain that may or may not happen versus a

current in the hand long-term gain year by year by year by year, and so it seemed

obvious to us that a long-term bird in the hand was worth a possible short term

bird in the bush.

13701. MR. ROTH: So you weren’t aware that a very long-term bird in the

hand was being proposed by Northern Gateway to the Gitga’at I take it?




13702. DR. ROBIN GREGORY: We have not been part of those

discussions whatsoever.

13703. MR. ROTH: Okay. In order -- maybe you could give me what you

would understand to be much smaller, you said much smaller. In order to be

equal or close to what you have identified in your report to be economic benefits,

what annual value would you see having to be offered by way of a benefits

agreement to offset what you see as the current marine use value in that available,

let’s say, for the next 30 years?

13704. DR. ROBIN GREGORY: That any figure or any estimate of that

would need to come from someone besides myself or Dr. Joseph. I would suggest

you talk to someone within the Gitga’at. You mentioned Cam but I have no

comment on that whatsoever.

13705. MR. ROTH: Well, but you did quantify what the current value is and

you put it in this report for the Panel to rely on and then you said it was likely that

what the project would offer would be much smaller. And I’m just asking you

what it would take before it wouldn’t be much smaller?

13706. DR. CHRIS JOSEPH: So we’re able to put a figure on costs, but to

talk about compensation is a much broader issue and brings in a whole bunch of

other complexities.

13707. One of those, for example, which we’ve documented in, I think both

reports, is that if someone -- there’s a difference between what someone loses and

what someone would require to get back to that place. And this is this idea of if

there was 100 million loss, there’s plenty of research out there talking about how

people would require much more than that to get back to their same psychological

state.

13708. Many of the things that could be impacted may not be compensable

monetarily.

13709. This is a problem that we’ve seen throughout the Application from

Enbridge is that compensation is often brought up as a mitigation measure and

compensation is really at the bottom of a hierarchy of how things should be

addressed. If you want to address a harm, you want to address it to the fullest

extent possible and compensation -- if you look at environmental assessment -- if

you are schooled in environmental assessment practices, you would see




compensation is at the bottom.

13710. You’d first want to avoid, you know, prevent an accident or a routine

effect in the first place. If not, if you can’t do that, you maybe mitigate at the

receptor, at the person. You know, compensation is at the bottom and an analogy

is, you know, if you were sick, if you had a bad cold and you lived with -- perhaps

you have a family that you live with, you know, you have a few options there.

You could -- let me pull out my notes here. One second.


13711. DR. CHRIS JOSEPH: So you could prevent disease by washing

your hands and staying in bed and avoiding contact or you could say, you know,

go buy some really good cold medication and try and deal with it there or you

could just say: Don’t worry, family, I’m going to take care of whatever chores --

you know, if you get sick, I’ll take care of the chores next week or whatever when

I’m better.

13712. So what I’m getting at is that compensation is at the bottom of that

hierarchy and this is something we see throughout the application and is weak.

13713. And I don’t know if, Robin, you want to add to various other

arguments that we raised in the Application of why compensation is very limited.

13714. DR. ROBIN GREGORY: The reason why ones of the reasons -- one

of several reasons why I said that it was not a question I could answer is -- and

Chris is -- you know, Dr. Joseph has already referred to this is that compensation

typically comes after development of a mitigation plan and neither compensation

nor mitigation makes sense without reference to the damages in the words of the

affected parties.

13715. So I would need to hear from the Gitga’at -- and I’m not aware of

these conversations having taken place between the Proponent and members of

the Gitga’at Nation. And I would need to hear from the Gitga’at what types of

mitigation options mattered most to them and, should those mitigation options not

fully remedy the damages, then I would need to hear from the Gitga’at what types

of compensation they might consider to be fair.

13716. And again, as I am -- as far as I am aware, those conversations have

not yet taken place. So unless one -- I would call it “value focus thinking” --




unless one really dealt with the values of the concerned parties and developed

mitigation plans in concert with the potentially affected parties and then

discussed, well: “To what extent could mitigation prevent damages?” and “If

those damages still took place, to what extent could compensation remedy

those?”, those are conversations that need to take place with the potentially

affected people, which is the Gitga’at and not me and not Dr. Joseph.


13718. And so it’s highly unfortunate that you weren’t here for Monday’s

testimony and highly unfortunate you didn’t read the transcript.

13719. I take it you were unaware of the agreement that Northern Gateway

had with the Gitga’at and the fact that compensation was on the bottom of the list.

13720. Social, cultural, environmental factors were all in the top of the list and

the half a million dollars in funding offered to resolve and talk about mitigation

list had compensation at the very bottom.

13721. I take it you were unaware of that agreement?

13722. DR. ROBIN GREGORY: You said this -- you put this in the past

tense. You said, “Was”.

13723. MR. ROTH: Well, because the Gitga’at rescinded the agreement

following the receipt of your report and Dr. Gill and Ritchie’s report.

13724. MS. TAN: I’m sorry, I don’t think that was on the record that they

rescinded after receiving, specifically, Dr. -- anyone’s report. They just said it

was after expert reports.

13725. MR. ROTH: After draft experts’ reports.

13726. You were unaware of that?

13727. DR. ROBIN GREGORY: I am -- I was sent that letter as part -- at

the same time that I was sent the -- several articles including the one that we

talked about just a few minutes ago on non-use values.

13728. That’s the first time that I had seen that letter.





13730. So it surprises you that Northern Gateway was trying to do exactly

what you’re talking about, Dr. Joseph?

13731. It was trying to put those measures that you’re talking about on social,

cultural and environmental effects at the very top of the list and having those

discussions before even talking about compensation.

13732. You were unaware of that?

13733. DR. ROBIN GREGORY: However, both Dr. Joseph and I are

talking about conversations that would be guided by the concerns of the Gitga’at

and that would take place in an environment of mutual trust, mutual respect.

13734. Whether or not that took place, I don’t know and whether the extent to

which other considerations contributed to the Gitga’at not desiring to go further

with those conversations, I don’t know.

13735. So you said that this was exactly Enbridge suggested. I have no way

of knowing the extent to which the conversations with Enbridge were a little bit

alike, not at all alike the kinds of things that Dr. Joseph and I are talking about.

13736. And I think some of this was discussed to some in extent in the

previous pane as well: issues of engagement, meaningful engagement, issues of

trust.

13737. I think those are all essential to conversations around mitigation and

compensation so I think there’s -- this is a very big area. I think there is a lot of

conversation from the previous panel. I know from other work I’ve done with

First Nations, for example, on behalf of B.C Hydro that things can be said by one

party and heard by another party in a very different way.


13739. Maybe this is an opportune time to go to another aid to cross-

examination. AQ9, Ms. Niro, at Adobe page 5, page 263.

13740. This is another one of your papers authored with Dr. Mendelsohn. So




I’ve highlighted the paragraph there on page 263.

13741. And as I understand, and when I read that, what you’re suggesting

there is sometimes it’s just very difficult to sort through all of the issues that

we’ve been calling “the mitigation issues” and the problems with perception and

what you’re offering to Proponents is sometimes you just have to get to the

benefits and put those on the table and make those a priority.

13742. Am I reading that correctly?

13743. DR. ROBIN GREGORY: The word that’s used in the third line says:

“… might attempt to increase …”

13744. So the implications here for risk communication is an area that I don’t

think has been -- certainly not been talked about much today or yesterday.

13745. The typical logic is that if one is dealing with benefits and risks that, in

order to make a project more acceptable, one would try to decrease the risks; for

example, through mitigation or perhaps through compensation. What these

results show -- these were regression analyses, statistical analyses of fairly classic

results obtained in the 1970s by other researchers and Robert Mendelsohn and I

went back and looked at them again.

13746. And it’s saying that increasing the salience of the benefits might have

more effect, in some cases, than attempts to convince stakeholders that risks are

small. And this result actually also, in part, relies on and has led to other work in

risk communication, showing a very strong inverse relationship between benefits

and risk that I think is quite relevant here that, as people perceive the benefits of

an activity to increase, they typically perceive -- or on average -- perceive the

risks of that same activity or endeavour or project to go down.

13747. Even though nothing is done, nothing in suggested to change the risks,

a heightened salience of benefits -- just because of the way the human brain works

-- suggests that the risks become smaller. And inversely, a heightened perception

of risk tends to suggest that benefits go down.

13748. This has been shown in quite a number of surveys. A very famous

1994 paper, Paul Slovic being the first author in risk analysis demonstrated this.

And this has been taken up by quite a few other technologies who have said:




Well, maybe we want to focus on the salience of the benefits.

13749. The nuclear industry, for example, looked at these results and started

putting out ads saying: “Hey, if you want to reduce climate change, go nuclear.”

and didn’t talk much more about waste storage and other issues in the nuclear.

13750. So that’s the interpretation of this paragraph and we are among the

first researchers to show the statistical results supporting this.

13751. MR. ROTH: So as far as a project like Northern Gateway’s is

concerned, an important element is not only to address the mitigation side which

we talked about but also to emphasize the potential benefits as well; correct?

13752. DR. ROBIN GREGORY: The implication of this which is in

contrast to what you’re saying is that, to the extent that -- that because of perhaps

Keystone, because of uncertainties in the price of oil products, because of

concerns that potential markets for oil from the oil sands might end up saying:

“We don’t want that oil from the oil sands because of greenhouse gas emission

considerations.”, so for a variety of reasons, to the extent that the perceived

benefits of this Enbridge Project or any other project begin to go down, it’s likely

that there will be an opening where -- just, again, the way the human judgement

works -- that the perception of risks of those projects may well go up.

13753. MR. ROTH: And the converse would be true.

13754. It is ---

13755. MR. ROBIN GREGORY: And -- and -- and the converse could also

be true that if --that if the message is about benefits, benefits, benefits, then

perceptions of risks may go down.

13756. If the -- if the conversation is about risk, risk, risks, then perceptions of

benefits may go down which is exactly why, I think, it’s very important that

decision processes be able to engage in conversations about risks and benefits and

try to make sense of both of those because the -- the judgemental issues around

trade-offs are pretty complicated.

13757. They’re quite complicated.

13758. MR. ROTH: Now, as far as risk probability is concerned, your report




D71-7-3, Adobe 69, hard 68, you state there that -- lower down on the -- lower

down, it’s the second last paragraph on the page.

13759. It’s on Adobe -- next page, it’s on hard copy 68, Adobe 60 -- and it’s

the second last paragraph.

13760. So you’re suggesting that the assessor:

“...must weigh the probability of occurrence data including

formal quantitative information as well as [all] [...] relevant

information from which probability can be inferred.”

13761. Now, is the assessor that you’re talking about in your evidence, would

that be the -- the Joint Review Panel in this case?

13762. DR. ROBIN GREGORY: I would look at that more -- more broadly.

13763. Certainly, I would include the -- the three members of the Joint

Review Panel here -- who are here before us.

13764. I would also hope that consultants and researchers such as myself or

Dr. Joseph would do this. I would also hope that anyone working with Enbridge

Northern Gateway, Environment Canada -- I would hope that -- that anyone

would do this.

13765. I don’t -- I don’t see any reason why everyone involved in the process

-- as they’re -- as they are attempting to -- to create an -- construct an informed

opinion, I would think everyone would want to weigh the probability of

occurrence data including both formal quantitative information and any other

relevant information.

13766. I would suggest that everyone do this.


13768. And you, in fact, did it in your report, your Economics Impact Report,

you state the probability of an occurrence that you relied on was recorded in the

Health Impacts Report of L. Chan and in the Informed Decision Report that you

authored as well; correct?




13769. DR. ROBIN GREGORY: I have to add a caveat to that which is that

the -- the work that you’re talking about -- both the work that Dr. Joseph, myself

and Lee Failing did and the work that Dr. Chan did -- was based on -- it was -- it

was better than a back of the envelope calculation but it was nowhere near the

kind of work that should be done for -- for questions far less significant than this.

13770. The extent of probabilistic analysis that has been done far exceeds

what has been done here, certainly far exceeds what either I did or Dr. Chan did.

13771. We simply lack the information and it’s not available in the reports

from the Proponent.


13773. DR. ROBIN GREGORY: So -- so there’s no, you know, has -- has a

full probabilistic analysis been done, we would need a lot more information about

the Project, spill areas, cumulative effects, some of which we asked for and -- and

in the responses, Northern Gateway said it wasn’t -- to some of these questions, is

was not possible to provide estimates of this information at this time.

13774. We also, in our Public Interest Report, suggest quite a different

process to begin to get at this information. I think the -- the lack of good

information about uncertainty is -- is an extremely important element suggesting

that there are -- there remain important data gaps here.

13775. Simply because the -- the high quality probabilistic information is not

available from anything I have seen so I would -- I would assume that that

information required to make a judgement, given all the multiple sources of

uncertainty, is not available to members of the Joint Review Panel either at this

time.

13776. I find -- I find that a very serious information gap.


13778. But you -- you haven’t reviewed the record in this proceeding. You

haven’t gone through the weeks of testimony on shipping and navigation risk and

probability of occurrence.

13779. You haven’t reviewed any of that material; have you?




13780. DR. ROBIN GREGORY: I just cite the date of this report that you

have in front of you which was, I believe, December of 2011.

13781. So if -- if work has been done since then that’s great. I have not

closely followed that work.


13783. And then, as far as the conclusions in your report and the conclusions

in Dr. Satterfield’s report and the conclusions in Dr. Gill and Ritchie’s report, are

all based on a major oil spill being likely or inevitable; correct?

13784. DR. ROBIN GREGORY: Let me find something here just to help in

this discussion.


13785. DR. ROBIN GREGORY: So let me give a two-part answer to that

question.

13786. The first was that, based on work that I did with Dr. Failing and Dr.

Joseph which in turn was based on work that Dr. Chan did, we looked at the

methodologies that had been used in reports by the Proponent to calculate oil

spills.

13787. We then also looked at what had been going on in the North Coast of

Alaska and we looked at occurrences of spills during -- that had occurred over the

period 1985 to 1999. And we -- 1985-19 -- yeah, the 14-year period -- and we

estimated, based on the volume of oil -- volume of bitumen that would be

transported under the proposals from Enbridge, compared that to the amount of

oil that had been transported over that same period of time in the North Slope of

Alaska and estimated 0.46 spills per billion barrels handled.

13788. So simply based on what’s going on in Alaska and we thought: Well,

we did not conduct a thorough study to say what extent is Alaska exactly like at

this area but they’re both on the Pacific coast, both are relatively similar -- sort of

speaking as a non-ecologist -- relatively similar in many ways from a biophysical

standpoint.




13789. And, if anything, there may be some AS-elements or aspects of this

area, the Douglas Channel, the weather, climate change perhaps contributing

making things more problematic from a shipping standpoint looking ahead 20 or

30 years as compared to the 1989-1999 period -- 1985 to 1999 period.

13790. So we said let’s just take this as a very rough -- very rough estimate,

.46 spills per billion barrels handled and, using that figure, estimated a return

period for an average spill size of about 68,000 barrels for a return period of about

11.3 years.

13791. So that figure is dramatically different from the one contained in the

reports by the Proponent.

13792. So that’s one part of the answer. Part two of the answer is in the

response by Enbridge -- or by Northern Gateway to questions that we posed. And

I’m looking now at -- and, unfortunately, I don’t have the number for this. This is

the Northern Gateway response to Gitga’at First Nation IR Number 1.

13793. The information we were given here, which was for spills of any size:

“…somewhere in the area…”

13794. It’s a little unclear given the response but:

“…somewhere in the area spills of any size could be a return

period of between 200 and 250 years with incident

frequency…”

13795. And I’m quoting:

“…would increase. A return period would decrease were there

increased densities of shipping.”

13796. In other words, where more bitumen ended up being shipped through

the pipeline than in the initial proposals from Enbridge.

13797. So if we look at that, just that figure for oil spills, which is not our

calculation but comes from the Proponent, that’s basically one spill every 200

years, roughly, over a 30-year life of the Project. That is not saying a spill is

likely if you take “likely” to be more than a 50 percent probability but it’s




basically a probability of about .15, .16.

13798. It’s about a one in six chance if a spill would occur. If the return

period is 200 years then, over 30 years, it’s about a one in six chance.

13799. So I think there’s two questions here. One is: What is the return

period for a major spill? But then the second is: What’s the return period for a

spill of any size and is that return period large enough that it should be something

that leads to an active discussion regarding whether the risks of the Project are or

are not acceptable?

13800. And I would say in the minds of many people a probability of a spill of

something like 1 in 6 is certainly in the neighbourhood where many people would

begin to say: I wonder whether it’s worth it? We should have a pretty serious

discussion of comparing benefits to cost or let’s look at the trade-offs or however

one would want to say that.

13801. MR. ROTH: But, Dr. Gregory, your report and your conclusions,

based on your back of the envelope calculation, has a major oil spill of, on

average, 16,000 barrels or more occurring every 11 years or so and you make

significance conclusions based on that.

13802. Dr. Satterfield made significance conclusions ---


13804. MR. ROTH: --- based on that.

13805. DR. ROBIN GREGORY: Yeah.

13806. MR. ROTH: And Dr. Gill and Ritchie made conclusions based on

that.

13807. DR. ROBIN GREGORY: That is correct.

13808. MR. ROTH: And their conclusions were that, with a return period of

11 years, you’ll have a major spill and you’ll have devastating cultural economic

and social effects.

13809. Did you understand that?




13810. That’s how your back of the envelope was used.

13811. DR. ROBIN GREGORY: Do I understand what you just said?

13812. MR. ROTH: Yes?

13813. DR. ROBIN GREGORY: I certainly heard your words, yes.

13814. MR. ROTH: Yeah.

13815. DR. ROBIN GREGORY: So the point I would like to -- two points

there. One is that we didn’t know what number we would reach. We didn’t work

backwards from an 11.3 years return period number, we simply worked from the

North Slope of Alaska number, compared the amount of oil handled in Alaska

over that period on an average basis to the amount of bitumen that’s been talked

about being handled here and just did the calculations. It was a straight run

through the numbers.

13816. And the source of that information was two researchers in the U.S.,

Anderson and Labelle, and the Anderson and Labelle work, which -- the newest

work that we could -- that we had available is from 2000, that is the standard in

the industry.

13817. So what we thought was it’s great that Northern Gateway and

Enbridge have done the reports that they’ve done but we thought, rather than

looking forward and trying to make predictions let’s base this in reality, let’s see

what’s been happening in the North Slope, and let’s see what the standard

reference which is used by Department of Interior in the U.S. and used

worldwide, which is Anderson and Labelle, let’s get our information from them

and turn to the actual experience of the North Slope.

13818. And I think this point came up earlier today as well in the earlier

panel: Let’s look at what actually is happening, look at what’s going on on the

ground.

13819. So if others who know more than I do about oil spill transportation

wanted to look at that number, I would definitely invite it. As I say, it was a hasty

calculation but it was partly hasty because there’s not -- it’s a very simple

calculation to make. You just take the amount of oil that’s been transported in




Alaska, compare it to what’s being talked about here, do the division, you come

out with .46 spills per billion barrels handled, and then multiply it by the amount

of oil.

13820. So if there’s a case to be made that what’s being done -- what’s being

proposed for here will be significantly safer, then that number will go down. If

there’s a case to be made that what’s being done here, because of whatever,

geographic configurations, other concerns, that it will be less safe than that

number would go up.


13822. DR. ROBIN GREGORY: And I’m not a good one to comment on

the intended direction there.

13823. MR. ROTH: Indeed.

13824. And in your informed decision report, I think you admit this. You

indicate that the lead authors that did that back of the envelope calculations had

no expertise in the area of marine oil spills, marine transportation, marine safety?

13825. Correct?

13826. DR. ROBIN GREGORY: One doesn’t need that.

13827. All one needs to be able to do is to multiply and divide and I’m quite

good at those.

13828. MR. ROTH: But why did you feel it was necessary to point out in

your paper that the lead authors in these reports had no expertise in those areas?

13829. DR. ROBIN GREGORY: Because I’m an academic researcher and I

think it’s important to state things conservatively and its caveats.

13830. And the second part of that is, in the same public interest report, we

suggest -- Dr. Joseph, Lee Failing and I suggest that for an issue of this

importance -- I mean, I think one would -- nearly everyone would agree that the

issue of potential oil spills is one of the key considerations that will lead to

acceptance or rejection of this Project or some version of this Project on down the

line.




13831. And I think we discuss an expert judgment elicitation process that

would involve getting world recognized experts in the room being asked a series

of formal transparent clear questions and I think that process, which has been used

in many, many other cases of this magnitude, is what’s needed to begin to provide

the information so that people, such as the Joint Review Panel, can begin to make

this decision.

13832. Again, I’ll repeat what I said earlier. I think at this point, given

estimates from one party that say one thing, given estimates or calculations like

we have made here from another party that say something quite different, I think

the jury is out: Where does the truth lie?

13833. And so my caveat is saying: I don’t know where the truth lies but I

would very, very much like -- for an analysis of this importance, I would very

very much like for the Joint Review Panel to feel like they have sat down with the

world class experts, reviewed this, and that those experts have come to some

consensus.

13834. So whoever says it’s a return period of ‘x’ years and someone else

saying it’s a return period of ‘y’ years, I would love it if the Joint Review Panel

had an option of saying to those people: Why did you say this? Why did you say

that?

13835. That’s what an expert judgment elicitation process is all about. And to

my mind that has -- to my knowledge that has not yet happened.


13837. Again, you were here -- I did look at the back of the room when this

question was going on when my colleague, Mr. Neufeld ,was cross-examining the

Gitxaala panel -- you were here for that; correct?

13838. I looked to the back of the room to make sure you were here.

13839. DR. ROBIN GREGORY: I was here at least for portions of that, yes.


13841. Were you here for his discussion of the Semi-Quantitative Risk




Assessment Working Group and how that was orchestrated?

13842. Were you here for that?

13843. DR. ROBIN GREGORY: I was certainly here for some discussion

of that, yes. I’m not sure where you’re going with this.

13844. MR. ROTH: Were you aware there was a workshop -- were you

aware, essentially, that the process that you had recommended, or something very

similar to it, was set up to generate that DNV report?

13845. Were you aware of that?

13846. DR. ROBIN GREGORY: Having a workshop is not the same as

having a workshop where -- that has the right set of participants following the

right kind of procedure.

13847. So I can say nothing about the workshop unless I know who was

leading it, who was invited, what questions were they posed.

13848. Simply having a workshop means nothing to me.

13849. MR. ROTH: It wasn’t just a workshop. It was the invitation of the

stakeholders to design the process to assess the risk.

13850. You weren’t aware that Northern Gateway did not dictate that process

at all, that it was a multi-stakeholder process that led to that. You weren’t aware

of that?

13851. DR. ROBIN GREGORY: I would need to see -- I would need to

review that, which I have not done, to see whether I think -- to help gauge the

credibility or veracity of that.

13852. As far as I know, those results have not been published, nor have they

been peer reviewed and there’s a very good reason why we have a peer review

process for this kind of work.


13854. Do you know anything about DNV?




13855. Do you know what country they’re from?

13856. DR. ROBIN GREGORY: Let me -- I -- let me -- I should say ‘no’.


13858. Then you weren’t aware that, for the Shipping and Navigation Panel,

the foremost experts in the world on shipping and navigation, risk assessment,

were here, provided evidence and were questioned by all parties for quite some

period of time.

13859. You weren’t aware of that? You didn’t read those transcripts?

13860. DR. ROBIN GREGORY: I can think immediately offhand of one

individual who commonly is considered the top risk assessment person in the

world and I know he was not invited.

13861. So there are some people who were missing and I would -- I repeat my

skepticism not knowing anything more than I do, which is I don’t know who was

invited, I don’t know what process was followed.

13862. I do know, in my career, many, many, many times, I have been told

that something has taken place and then, as I have reviewed it, you know, as an

academic researcher, I have found that what was done was not sufficient.

13863. So I would -- I should -- and I don’t know in this case. I should simply

withhold comment until I know more about it because I have not reviewed those

results.


13865. But the record was available to you and you could have researched that

and you could have provided informed opinion to this Panel but you did not do

so; correct?

13866. DR. ROBIN GREGORY: I cannot provide an informed opinion of

something I haven’t read.





13868. But the record was available to you.


13869. MR. ROTH: Sorry, you don’t have to -- my partner just said I

shouldn’t have asked that question. I’ll withdraw it and conclude my cross-

examination.

13870. Madam Chair knows when I get to the very end I always want to get in

an argument and we’re not supposed to do that.

13871. So thank you very much and I sincerely -- I really like your work Dr.

Gregory. I listened to you in the interview on the CBC on risk and risk perception

and I know your published literature is just of the highest calibre.

13872. DR. ROBIN GREGORY: Thank you very much. I appreciate that.

13873. THE CHAIRPERSON: Mr. Roth, was there a question associated

with that?


13874. MR. ROTH: Okay, would you agree?

13875. DR. ROBIN GREGORY: I would like to do better than I have, in

the future.

13876. How’s that?

13877. THE CHAIRPERSON: Ms. Niro, could we get an AQ number,

please?

13878. THE REGULATORY OFFICER: That will be AQ-84.


INTERROGATOIRE No. AQ84:

Northern Gateway - Aids to cross-examination of the Gitga’at First Nation

witness panel 4


Examination by Member Matthews


13879. THE CHAIRPERSON: And what I’m going to suggest is we’ve all

been sitting for a while now. Let’s take our afternoon break and come back at 10

after 3, please.

13880. Thank you.

--- Upon recessing at 2:54 p.m./L’audience est suspendue à 14h54

--- Upon resuming at 3:07 p.m./L’audience est reprise à 15h07

13881. THE CHAIRPERSON: If we could get ready to get underway

again? Thank you.

13882. Obviously, there’s some great discussions going on in the room. I hate

to interrupt them but we need to continue on.

13883. Mr. Matthews?



--- EXAMINATION BY/INTERROGATOIRE PAR MEMBER MATTHEWS:

13884. MEMBER MATTHEWS: Good afternoon. I enjoyed your

testimony and questioning of Gateway.

13885. I just have a -- one basic question and it came up with the previous

witnesses as well but I would like to ask you guys. Specifically, from what I

understand, a lot of your work was done in 2011 or more than a year ago,

anyways.

13886. And I was just wondering, you know, with the amount of information

that’s on the record and the continual filing of new information, were you aware

of the updates on information that could maybe enhance some of your findings or

compliment some of your work?


13887. DR. ROBIN GREGORY: So I probably haven’t been following this

as closely as -- right at this point -- I wish I had because of having other jobs and




other things in my life.

13888. I am aware of the 2012 Cost Benefit Analysis that I believe was done

by Wright Mansell and I think that was done, in part, to address some of the

concerns that had been raised and I think it makes -- it goes partway towards

meeting them, I think, because the earlier economic analysis that had been done

was more of what I would call an “economic impact analysis” and, to my

perception, focused more on the benefit side than the cost side.

13889. So I think the 2012 Cost Benefit Analysis went partway towards

addressing some of the concerns that Dr. Joseph and I and others had raised in our

reports.

13890. So I’m aware of that. I’m not aware of some of the other work that

has been done, perhaps with reference to marine oil spills or other concerns.

13891. So there -- you know, undoubtedly there are some things that have

been done since submission of our report -- which is about a year and a half ago --

that, sitting here now, I really wish I had read and followed more closely.

13892. So that’s perhaps a bit of an apology to the Panel but if there is

anything in particular that you would like me to read or like Dr. Joseph to read,

and feel that perhaps that would contribute to the knowledge base of the Joint

Review Panel -- I can’t speak for Chris but I would certainly be happy to read and

comment on anything that you feel would be of value to you because I’d like to

help out in any way I can.

13893. DR. CHRIS JOSEPH: Likewise, I haven’t been following in detail

all materials that have come out since the original Application was filed but I do

keep abreast to some of the topics.

13894. As Dr. Gregory spoke of, the Wright Mansell 2012 Cost Benefit

Analysis filled a big gap and so I think that’s an important contribution. I’m

aware of Gunton & Broadbent did a second Cost Benefit Analysis.

13895. I believe they even did a third but it never made it into official record

here and reviewing that -- both the Wright Mansell and the Gunton & Broadbent

report -- it can see that while there’s a vast improvement on the economic impact

information coming from Enbridge, there’s still gaps.




13896. And so, you know, for example, with greenhouse gas damage costing,

Wright Mansell used $20 per ton, for example, and that doesn’t -- that’s a poor --

their source of their value is a poor estimate of the damages of greenhouse gasses,

for example.

13897. And there’s some other gaps there where there’s some work done --

recovery of oil spills -- and that’s important. That was a literature review that was

done.

13898. Overall, it doesn’t seem that anything that’s come out from what I’ve

seen -- I don’t think anything affects the substance of our conclusions. It still

seems like there’s a big gap in terms of understanding the non-use values. The

work that we’ve done and others have done I think help fill that gap. Wright

Mansell recognizes the importance of non-use, also called “passive values” but

doesn’t attempt to estimate those values.

13899. I’m not aware of anything that’s addressed to tourism, looking at how

tourism in this area might be affected.

13900. So to reiterate or to sum up, I think there’s been some important steps

made but it seems like there’s some really big gaps.

13901. DR. ROBIN GREGORY: One other area that, again, I’m not aware

of working having been done is the issue of cumulative impacts.

13902. I know that there’s been quite a bit of news recently about

developments in the Prince Rupert area in terms of Newport development, et

cetera, and I would guess that leads to increased shipping and I don’t -- I don’t

know how that -- how that -- whether there’ve been any analyses to show how

increases in shipping might affect probabilities of accidents and so on, but just to

list.

13903. There’s a lot that’s going on. Keystone was mentioned as well, that

figures in somewhere, so I know over the last year and a half, there have been a

lot of developments, both internal to the project and external, that would

definitely figure into a weighing of costs, risk benefits, cumulative effects et

cetera.

13904. MEMBER MATTHEWS: Okay. I guess what I’m getting at, not

necessarily the gaps in what the Proponent or what -- what your client may be




perceiving as lacking in this project or that needs to be analyzed, but with the

information that’s on the record, like we have -- I don’t know 160 something

sessions of panel meetings ---


13906. MEMBER MATTHEWS: --- and 70,000 pages of documents and so

on and so on, but there’s been a lot of stuff and material filed since your report.


13908. MEMBER MATTHEWS: Was there any barrier in -- in, either

yourself, Dr. Gregory or Dr. Joseph, in actually just picking up that material, re-

reading it or reading the new documents and -- and getting perhaps maybe back to

your client and saying, guess what, either have an aha moment or -- or we’re right

on or is there -- was there a reason why?

13909. DR. ROBIN GREGORY: Let -- let me, yeah -- let me address that

because I think it’s a really interesting point or I’ll try to address it because I think

-- I think it’s a very important question.

13910. Having to do with the aspect of making informed decisions, if I can --

if I can put it in that way, some of the other processes that I’ve been involved in

or led for either government clients, EPA in the U.S. or government clients in

Canada or groups like British Columbia Hydro that I’ve done an amount of work

for, where again you have typically provincial participation, federal participation,

residents, a Proponent and often First Nations.

13911. So in many of those cases, the whole issue of scheduling of meetings,

timing, resource constraints in terms of the amount of time that people can

commit to a process have come up and I think some of these issues are -- are

maybe particularly difficult for First Nations where the communities number in

several hundreds of people and where only a -- only a percentage of those people

really feel comfortable participating in -- in processes such as this and really --

and really following it, having access to the -- you know, really wanting --

wanting to spend a chunk of their life following this kind of dialogue.

13912. So I know in some of the processes, for example, that I’ve done on

behalf of B.C. Hydro, we’ve had to limit our meetings to, say, one day a month

and to try to provide guidance to decision makers after, say, a one-year period.




Just because that is all the time that the -- the people who needed to be part of that

process, who needed to be around that table, that’s all the time they could give.

13913. They could give a day a month and they would dutifully read anything

we gave them, you know, over say, a three-hour period, but that was it, and so it

was a real -- a real trade-off. It’s not like we covered all the issues that needed to

be covered. It’s not like we could go into all the discussion, but we did what we

could within that period of time and at the end a recommendation came to the

decision makers from a group of, say, 20 people.

13914. This process is very different and I -- I really admire the fact that the

three of you plus staff are giving -- giving it the kind of time that you -- that you

are. For someone like myself, I have several other clients, several other big

projects I’m working on, several other environmental management choices I’m

helping to -- to move along.

13915. I also do teaching. I have graduate students. I have a variety of other

things. So although there’s -- there’s nothing else I’m working on that I feel is

more important or more interesting than this, I have those same constraints in

terms of my time and I know the people who -- who’ve hired me for this have

pretty severe constraints in terms of financial resources, so it’s not like they can

say, you know, Dr. Gregory, take two days a month for the next six months and,

you know, plough through information.

13916. So it’s -- it’s a real problem. So I appear before you, apologizing for

not having kept myself more up to date, but I know that today at 4 o’clock in

Vancouver is a meeting that’s taking place on another project, and tomorrow, I’m

in an all-day workshop on another project, and -- and they will expect me to be

prepared for that, and I just think it’s -- it’s a real question of how -- how one

allocates, you know, the time.

13917. I -- my testimony, if that’s the right word today, I think would have

been more valuable if I’d read those 70,000 pages of transcripts, but I haven’t and

I know I’m not going to go home and -- and start doing that.

13918. So -- you know, all I can say is if there’s something specific that you

feel that my testimony or Dr. Joseph’s or Lee Failing’s would be more valuable if

we were to read a particular document. You know, I can certainly volunteer half

a day or a day to do that, but beyond that, it’s -- it’s -- so I think it’s a real -- it’s a

real issue, it’s a real problem. How does one plough through all that information?




13919. I don’t know if that helps, but it’s a bit of an apology there.

13920. MEMBER MATTHEWS: No, that’s great, thanks.

13921. Did you want to add anything, Dr. Joseph?

13922. DR. CHRIS JOSEPH: I’m trying to recall exactly what you asked to

make sure that I --

13923. MEMBER MATTHEWS: Although just basically, what were some

of the barriers to keeping up to date on all this paper that has been floating around

on updates and transcripts of hearings and all the other stuff since your 2011

period of writing reports.

13924. DR. CHRIS JOSEPH: Well, personal barriers just like Dr. Gregory

was talking, other work commitments and completing my PhD and making sure

that gets completed. That takes up some time and mental energy.

13925. But yeah, I know -- I think this is -- this is a problem with the EA

process but I don’t know if there’s any way to get around it, especially on -- you

know, this has got to be one of the most important EA environmental assessment

topics in the country, and so it’s going to be big. So I think it’s inevitable there’s

going to be a lot of paper.

13926. But I think -- you know, I think the process has been successful at

pushing the Proponent to improve some of their analyses in doing things like the

cost benefit analysis. I think that -- that helps propel the conversation just as

intervenors going and revising theirs, such as Gunton and Broadbent.

13927. And so I think as -- as Dr. Gregory was talking earlier, a better process

would negotiate knowledge as opposed to pit experts against one another, but I’ll

leave it at that.

13928. MEMBER MATTHEWS: Okay, I think that’s great. Thanks a lot

for helping the Panel appreciate the amount of work that you guys put into

reviewing this project. So thanks again for your help.

13929. THE CHAIRPERSON: Thank you very much. Those are all the

Panel’s questions.




13930. Mr. Ross, did you have any re-direct?

13931. MR. MICHAEL ROSS: Madam Chair, we have none.

13932. Thank you.


13934. Then Dr. Joseph, Dr. Gregory, thank you very much for your

participation and for the evidence that you provided to us today. It’s been very

helpful, thank you. So you are officially excused.

13935. DR. ROBIN GREGORY: Thank you for those sweet words.

--- (Witnesses are excused/Les témoins sont libérés)


13936. THE CHAIRPERSON: Good afternoon, Chief Moody. Welcome to

the hearing and thank you very much for taking the time to be here.

13937. At the same time, I’d also like to again acknowledge that we know that

there are many Hereditary Chiefs and Matriarchs in the room from Gitxaala

Nation and we also appreciate very much your presence here today, so thank you.

13938. Ms. Niro, could we have the witness sworn or affirmed please?

ELMER MOODY: Sworn

13939. MR. JANES: Obviously there's no expert report for Chief Moody to

adopt; he gave his testimony at Lach Klan. The only thing that I would remind

the Panel, and I don't believe it requires adoption, is that Chief Moody did file an

affidavit which appears as Exhibit D72-22-02 to D72-23-1, which is primarily just

an identification of some correspondence.

13940. Since it's an affidavit, I don't propose to have him re-adopt evidence

he's sworn to and so other than that, it's over to my friend for his questions.




13941. THE CHAIRPERSON: Thank you, Mr. Janes.

13942. Mr. Neufeld?



13944. Good afternoon, Chief Councillor Moody.

13945. Let me begin, sir, by saying that I didn't have the opportunity to

publicly acknowledge the hospitality that you and the Gitxaala community

provided to Mr. MacDonald and I about a year ago now when they had the oral

hearings at Kitkatla. And it was very much appreciated, we enjoyed our time

there, and we enjoyed the hospitality, sir.

13946. So let's begin, if we might, with a follow-up on some of your evidence

there.

13947. I listened carefully to the evidence that you provided, and others, in

Lach Klan. And if we could turn up, Madam Niro, Transcript Volume 28, I want

to follow-up on an exchange that began with a question that Mr. Janes asked you

and carried on to some questioning by Panel Member Bateman.

13948. And I'm looking in particular at paragraph 17630. I'll just give you a

chance to read it, the question and the answer, sir.

13949. All right, Mr. Janes had asked the question:

"If we look at the tanker route up Principe Channel, is there

anywhere that is not part of the house territory of one Chief or

another?"

13950. And then you gave the responses at paragraphs 17631 and 17632,

concluding with the statement that:

"...is Gitxaala authority and jurisdiction."

13951. You recall that?




13952. CHIEF ELMER MOODY: I do, yes.

13953. MR. NEUFELD: All right. And Panel Member Bateman followed

up on that at paragraph 17725. Okay.

13954. And he was asking you, sir, about overlap between the various bodies

and their use of the territory, both as amongst yourself -- yourselves and what had

been referred to as white commercial endeavours. And your answer to that was

no, and you referred back to the map itself.

13955. If you can just scroll down, please, Madam Niro. Right.

13956. So the question -- he put the question to you:

"I guess two questions; one is between yourselves, but the

question -- perspective I have is with other bodies, other than

what you refer to as white probably commercial endeavours."

13957. And your answer was:

"No. The simple answer is, really, in reference back to the map

itself. Basically, the tanker traffic and the route that it seeks to

take, either on the inside or the outside is core Gitxaala

territory."

13958. So what I'd like to do is just cover with you, sir, where -- what that

territory extends to, just for the purpose of the record here. I've looked in the

record and I don't see a map of the traditional territory of the Gitxaala. The

closest that I was able to come, and I may have just missed it, is Figure 1 of expert

opinion report, Exhibit D72-32-3, Adobe page 1.

13959. If Madam Niro might put that up. And can you reduce that so that we

can see the full figure, please? Any more? Thank you.

13960. Now, this map appears as Figure 1 to the expert opinion evidence.

And the line in green, as I interpret it, is intended to mark the edge of Gitxaala

territory; is that right?

13961. MR. JANES: Sorry; I'm just going to interrupt. Before the witness is

asked to answer that, I suggest there should be at least two things done.




13962. One is, I'm not sure it's been made small enough to completely see all

of the green lines, although maybe it has. And secondly, he should be referred to

-- because I also don't know -- which expert this is referring to.

13963. MR. NEUFELD: Okay. This is the expert opinion evidence, the

group of six experts, and it's Figure 1 from that report.

13964. MR. JANES: So just to be clear for the witness, so this is the science

report that was filed?


13966. MR. JANES: Yes.

13967. MR. NEUFELD: Yeah. And I -- as I say, I looked for a more

complete map in the Gitxaala materials, and this is as a complete a map as I could

find.

13968. Does this, from what -- although it's cut off on the south and the north,

does this encompass what you consider to be Gitxaala traditional territory, sir?

13969. CHIEF ELMER MOODY: It has, and it also includes what we --

what we would consider the term core Gitxaala territory, so it encompasses all of

Gitxaala territory, including what we would refer to as core Gitxaala territory.

13970. MR. NEUFELD: Okay. And I notice that it includes, for example,

the community of Hartley Bay. And that's -- this is where I get confused. And

I'm just looking to you for some assistance in understanding the relationship

between Gitxaala traditional territory and the traditional territory of others such as

the Gitga'at and others in that area.

13971. Can you help me out?

13972. CHIEF ELMER MOODY: I would hope to, yes.


13974. CHIEF ELMER MOODY: You had referred to, in your line of

questioning, Hartley Bay first and foremost. Throughout Gitxaala testimony in




the community of Lach Klan, we provided overview in relation to the concepts of

culture, of law, of inheritance.

13975. The words that were used, ayaawx, adawx, gugwilx’ya’ansk, all

encapsulate the concepts of culture, the concept of authority and jurisdiction

based on traditional law.

13976. When you asked the question about overlap, when the question was

asked for clarification on overlap, I gave indication that from Gitxaala's

perspective there is no overlap. And the reason that I answered as such is

Gitxaala still lives by ayaawx, traditional law.

13977. When you take a look at the maps and give consideration or thought to

as to whether overlaps exist, ultimately, the question must be, who do these

overlaps exist with. And you had referenced Hartley Bay at the outset.

13978. Hartley Bay is a modern-day Indian Band, and then you moved on to

reference Gitga'ata. Gitga'ata would have the same laws that we have, and the

principle of those laws would be gugwilx'ya'asnk, the ability to inherit.

13979. That ability to inherit provides that concept of authority and

jurisdiction in relation to traditional territories.

13980. The reason that I emphasize the difference between Hartley Bay and

Gitga'ata, Hartley Bay is a modern-day Indian Band, Gitga'ata is a society very

similar to ours that have the same laws that we have. And if Gitxaala, along with

Gitga'ata, were to discuss the perception of overlap, it would be very easy to see

that the perception in relation to ayaawx -- traditional law -- does not exist.

13981. But when we take a look at the labels that are provided to us or upon

us by Canada, by Proponents, the differentiation really being modern day Indian

band, a political entity, and that political entity itself may incorporate some

cultural identity.

13982. That cultural identity for the majority of Gitga’at is actually Gitxaala.

So when we talk about ayaawx, adawx, gugwilx’ya’ansk, it includes membership

that would identify themselves as Gitga’at.

13983. So from our perspective, overlap does not exist. When we talk about

the authority and jurisdiction in relation to ayaawx, we’re actually talking about




Gitxaala.


13985. And I really am just looking for clarification here, Chief Moody.

13986. So in terms of the use and occupation of these territories then and

these waters, that would be shared with the Gitga’at or some of them?

13987. CHIEF ELMER MOODY: Now, if you just paid attention to what it

was that I had said, you’d have an understanding in relation to the concept of

authority and jurisdiction as it pertains to traditional law.

13988. There’s a difference in relation to what you would classify as

traditional use versus what we would classify as Aboriginal title and right which

has its basis in our traditional law and, therefore, dictates authority and

jurisdiction in relation to those territorial pieces.


13990. Well, perhaps we can just bring it to a level that I can understand a

little bit better then.

13991. Would -- and again, I’m not trying to create any divisions or anything

like that I’m just trying to understand.

13992. Would the Gitxaala claim Aboriginal rights and title to the community

of Hartley Bay, for example?


13993. CHIEF ELMER MOODY: The answer would be ‘no’.


13995. And I’m simply trying to understand what the relationships are. There

are some different perceptions out there as to who has Aboriginal rights and title

to which areas.

13996. Is that fair?




13997. CHIEF ELMER MOODY: It’s fair from the perspective that the

majority of people that seek to broach the concept of that is Aboriginal title and

right don’t necessarily give the appropriate considerations to the definition

provided by the groups providing that definition.

13998. So, ultimately, when you take a look at it -- and again I’m going to go

back to the question that you had asked -- the question that you had asked was

whether Gitxaala would claim Hartley Bay, and my answer was ‘no’.

13999. You’re confusing two concepts in relation to a collective around

Aboriginal title and right; the first being a political entity which may be defined as

the modern day Indian Band of Hartley Bay; the second would be an identity as

Gitxaala which would be a cultural grouping or a cultural identity. That cultural

identity ties right back to Gitxaala.

14000. So when you talk about the confusion in relation to who actually holds

title and right, you have to be able to discern the information being provided to

you either is from a cultural perspective or a political perspective, and all the

representations within the community of Lach Klan were cultural representations

of the authority and jurisdiction in relation to our ayaawx.

14001. MR. NEUFELD: I think you’re getting me there.

14002. Getting me a little bit more educated on that and you’ll understand

why we haven’t, as a Project, attempted to characterize these rights as between

different groups.

14003. I would like to ask you some -- just general questions about activity

within your traditional territory and for want of a better map, this is the one I’ll

use and what we see there right now.

14004. First of all, I think we can agree that there is a fair amount of

commercial traffic that goes into the port of Prince Rupert and also into Kitimat.

14005. So we see commercial vessels in the area of your traditional territory

on a day-to-day basis: right?

14006. CHIEF ELMER MOODY: Based on the representation of the map,

I would say that’s correct, yes.





14008. Again following up on your discussion with -- I’d like to follow-up on

your discussion with Panel Member Bateman and your counsel in Lach Klan.

14009. Mr. James had asked you a question, sir, at transcript paragraph 17739

-- if we can go to that. That may be the answer. We may have to back up. Could

you scroll up please? Thanks. There.

14010. Now, here’s a question -- he puts the question to you:

“As I understand it …”

14011. This is 17734:

“As I understand it, Gitxaala is not actively pursuing

negotiations in the British Columbia treaty process or the

process supervised by the British Columbia Treaty

Commission. Would you care to comment on that?” (As read)

14012. And Clifford White answered by saying that your Nation prefers to

pursue other alternatives to the treaty process such as co-management. And then

you added that you were seeking other avenues and as a process of redress in

relation to title and right.

14013. The process around consultation -- this is in paragraph 17739 -- I’ll

just let you read that paragraph.


14014. MR. NEUFELD: Can you ---

14015. MR. JANES: I’m sorry. Could he be permitted to read his whole

answer?

14016. MR. NEUFELD: Oh, absolutely, sure.

14017. MR. JANES: Sorry, it’s just -- it just goes on below the bottom of the

page, that’s all.





14018. MR. NEUFELD: All right, are you ready for the question then, Chief

Moody?

14019. CHIEF ELMER MOODY: I am.


14021. It’s a fairly straightforward one. My understanding, to summarize, I

suppose, from other materials on this hearing record is that there is an approach

there that involves using the consultation process on a project-by-project basis to

secure benefits for a Nation and entitlements while not having to seed lands in

order to make a treaty such as the Nisga’a did.

14022. Is that what you were getting at in this answer?

14023. CHIEF ELMER MOODY: It is, and primarily based on the notion

that as we seek to engage in discussions with the province or the feds, the first

step primarily taken by any one of those levels of government is to deny the

existence of Aboriginal title and right.

14024. Our ability to engage in discussion with proponents around the issue of

Aboriginal title and right is courts that have established a precedent in relation to

consultation. So our process of consultation focuses on that understanding of the

collective body of Aboriginal title and right held by Gitxaala.

14025. MR. NEUFELD: Thank you, sir. That’s very helpful.

14026. Let’s move on. I want to talk a little bit about, I guess, the subject of

the day, Chief Moody, and talk a little bit about the subject of risk and let’s talk,

first of all, about oil spill risk.

14027. Sir, one of the case studies, included as an appendix to your expert

evidence, involved a spill of bunker fuel oil on the west coast of the United States.

And I don’t think it’s necessary to bring it up. It was a ship that was -- a

commercial ship that was carrying 11,000 barrels of bunker oil.

14028. Now, we can agree, I think, that there are currently commercial vessels




carrying bunker oil that transit traditional territory of the Gitxaala on a daily basis.

Can we agree with that?

14029. CHIEF ELMER MOODY: I think we did in relation to the map that

you had presented earlier and I had asked the question around commercial traffic

through the territory.

14030. MR. NEUFELD: Okay. Now, sir, in listening very carefully to the

oral testimony in Lach Klan and later in Prince Rupert, I heard a fair amount of

discussion about certainly Northern Gateway. I heard some discussion about the

Queen of the North and even the Zalinski but I didn’t hear a lot of discussion that

would -- or any that would lead me to believe that people in your community have

fears or apprehensions about commercial vessels and spills from commercial

vessels.

14031. Is that a fair description? Is that a fair statement that people in your

community don’t have a lot of fear or apprehension about spills from the vessels

that we’re looking out out the window here, the container vessels?

14032. CHIEF ELMER MOODY: I would suggest to you that it’s not a fair

assessment. The fact that they didn’t elaborate on those fears in relation to

commercial traffic that exist within the territory is by no means indication that

fear does not exist.

14033. MR. NEUFELD: And is it your perception that fear does exist in the

community regarding these vessels that are out here?

14034. CHIEF ELMER MOODY: I would have to speak from my own

experience without trying to make a presumption as to what others are feeling in

relation commercial traffic through the territory. From my perspective, fear exists

in relation to any accident that may happen within the territory that would be

damaging, yes.

14035. MR. NEUFELD: All right. And similarly, we didn’t hear any

discussion or I didn’t hear any discussion about fears regarding cruise ships that

go through the territory.

14036. MR. JANES: Actually, I think my friend should be careful about

restating the evidence because there was actually evidence about complaints about

cruise ships. Specifically not around oil spills but around noise, disruption, about




them entering the area and I know that that evidence came -- at least one witness

was Chief Moody’s mother testified about that. I mean ---

14037. MR. NEUFELD: Sorry. I’ll rephrase the question and I did read the

information and reread the transcript. I didn’t see any discussion about fears of

spills of bunker oil from cruise ships that transit the territory. Do you recall that?

And it doesn’t really matter if it’s in the transcripts. You’re in your community

all the time; is that a common concern or a fear?

14038. CHIEF ELMER MOODY: And again, I’d have to make a

presumption as to what somebody’s actually feeling.

14039. But at the crux of it, there is no project or proposed traffic that at the

time of testimony, that was to the extent of the Enbridge project. I have -- I

would suggest that there are a number of community members that have a fear in

relation to traffic throughout the territory and accidents that may occur.

14040. And again, I’ll reiterate that the fact that they hadn’t elaborated on that

fear during their testimony does not give indication -- is not indication that fear

does not exist, that for the majority of the people providing testimony, it was

testimony specifically in relation to your project.

14041. MR. NEUFELD: All right. And I’m just trying to get an

understanding, sir, about what risks are currently faced by the community and

what the perceptions are.

14042. You’re familiar with the Kitimat LNG project?

14043. CHIEF ELMER MOODY: Yes I am.

14044. MR. NEUFELD: Madam Niro, if you could pull up aid to

questioning number 3, please, and the second page of this please.

14045. So this is an application for intervenor status by the Gitxaala Nation in

respect of the KLNG export licence application.

14046. And we see there in paragraph number 6, the concerns expressed

regarding the risk of gas or fuel spills from -- in the marine environment from

LNG tankers if the export license is granted to the opponent.




14047. Do you recall authorizing that intervention, Chief Councillor Moody?

14048. CHIEF ELMER MOODY: I do, yes.

14049. MR. NEUFELD: The intervention also argued that there had been

inadequate consultation with the Gitxaala, correct? That’s paragraph 9, if you’d

like to have a look at it.

14050. CHIEF ELMER MOODY: Well, I wouldn’t have to look at

paragraph 9. The consultation with Gitxaala was inadequate. Ultimately what

had happened and the reason that we had an application to intervene -- the process

that was undertaken was that the scope in relation to the environmental

assessment itself was limited; it didn’t include tanker traffic through Gitxaala

territory.

14051. And as much as we rose it in this issue, in this application, that tanker

traffic through our territory needs to be given consideration. We intervened in the

application with the Kitimat LNG to raise the issue that consultation did not occur

with Gitxaala. So the fact of the matter is, we raised the issue that consultation

did not occur.

14052. MR. NEUFELD: Sure. And then if you can pull up aid to cross -- aid

to questioning number 4, Madame Niro, please? This is a letter from Mr. Janes to

the National Energy Board, writing to advise that you were withdrawing your

intervention. So this matter was settled as between the Gitxaala and someone

else?

14053. CHIEF ELMER MOODY: The context of the settlement and

agreement in relation to our willingness to withdraw the application was the

protocol agreement in relation to defining what our process of consultation would

look like, what would full participation by Gitxaala look like through the process,

the process in relation to environmental assessment as well as TERMPOL.

14054. So when we had asked -- when we put our application to intervene

through this process, we did engage in discussion about what would be required to

ensure that we felt that we were meaningfully consulted, that we weren’t

necessarily being informed by a process that was undertaken by a Proponent, that

we had ample opportunity to participate in designing a process by which we

would be involved and consulted.




14055. MR. NEUFELD: And, sir, I don’t want to get any -- get into

anything of a confidential nature, but was there also monetary consideration paid

to you for that withdrawal of your intervention?

14056. CHIEF ELMER MOODY: As indicated, the primary consideration

in relation to the withdrawal of that application was the respect that was provided

by the Proponent in relation to saying we recognize there is an issue that hasn’t

been addressed in our application.

14057. And the very fact that we intervened in their process around an export

licence and raised the issue of marine traffic through our territory, and the same

process that we’ve outlined for the Panel in respect of ayaawx, adawx,

gugwilx’ya’ansk as it’s tied to Gitxaala Aboriginal title and right and our

authority and jurisdiction, were the same issues that were raised with that specific

Proponent.

14058. So rather than that Proponent say to representative of Gitxaala that

we’re just abiding by our regulatory process, that this is what’s provided to us

through legislation, they actually took the time to say: Let us try to develop a

further understanding of how we can incorporate those concepts of ayaawx,

adawx, gugwilx’ya’ansk within our TERMPOL study in our environmental

assessment.

14059. So from our perspective, it became more comprehensive than what we

would consider our participation to be in an environmental assessment where

we’re restricted to traditional use studies.

14060. We actually had a proponent that looked at us and said: We’ll afford

you the opportunity to have a meaningful discussion, participation in designing

this process.

14061. MR. NEUFELD: And, Chief Councillor Moody, I -- I’m not

disagreeing with you about what they provided and what they said, I’m just

asking the question: Did it also include monetary consideration?

14062. CHIEF ELMER MOODY: Sir, what I wanted you to understand as

well as the Panel, monetary compensation wasn’t the primary concern.

14063. As we’ve raised the issues throughout this proceeding -- and I want the

Panel to be aware as well -- that we’ve raised it in other proceedings.




14064. The difference being: How it is that proponents have approached

Gitxaala.

14065. The simple answer in relation to monetary compensation, it is included

as part of the package. But, first and foremost, what needs to be understood is

monetary compensation is by no means a substitute for the respect that should be

afforded in relation to discussion of authority and jurisdiction around title and

right.

14066. MR. NEUFELD: Sure.

14067. And I -- you’re not going to get an argument from me on that, Chief

Councillor Moody.

14068. I would, however, like to ask you just one other question in relation to

that and it relates to some of the evidence that we heard earlier today on

perception of risk, on managing or mitigating the perception of risk as an impact.

14069. And -- and even later today, as I understood as evidence, Dr. Gregory

was talking about how the perception of risk can be affected or influenced quite a

bit by the perception of benefits.

14070. And I think you would probably add to that as well, perception of

respect. The perception of risk can be influenced by that.

14071. In that case, was the fact that a -- an agreement was reached between

KLNG and -- and your Nation, did that affect how the community members

perceived the risks associated with that particular project?

14072. CHIEF ELMER MOODY: The discussion with community

members was more around the participation in relation to TERMPOL,

environmental assessment.

14073. And again what you need to understand and as much as you think

you’re understanding by your line of questioning, I don’t think you fully grasp

what it is that I’m saying.

14074. Ultimately, the first question any sm’ooygit smgigyet Gitxaala would

ask of me would not be: How much money did you get? The question would be:




What did you do to ensure the protection of my Aboriginal title and right?

14075. And that’s why I continue to emphasize for you that financial

compensation wasn’t the prime concern. The prime concern -- and I would

suggest from our end as well as the Proponent and I would hope at that stage the

National Energy Board -- that we came to an agreement that fully defined our

participation in relation to establishing a process of meaningful consultation and

through that process we were able to say to Gitxaala: We have withdrawn our

application to intervene.

14076. We haven’t said to Gitxaala and if you were to question any Gitxaala

member today, they would say to you: We don’t know what the monetary

compensation was or is or what it could be. Because it’s not disclosed to them.

14077. And the reason that it’s not disclosed, any Gitxaala member would be

saying to and would say to myself, primary concern is to protection of our

gugwilx’ya’ansk, which is our inheritance to the territory.

14078. MR. NEUFELD: And -- and I’m not taking issue with that Chief --

Chief Councillor Moody and I do understand what you’re saying.

14079. What I’m trying to explore with you is just take it the next step in

terms of how the conclusion of an arrangement that included many factors other

than compensation, how the -- how the conclusion of an arrangement affected the

perception of risk of that Project within the community.

14080. Did it reduce the perception of risk of that project with the

community?

14081. Leave aside the issue of compensation, the fact that there was an

agreement reached on these other matters.

14082. CHIEF ELMER MOODY: The fact that we reached agreement on

the other matters, it -- it -- a very good demonstration in relation to identifying

what our participation looks like.

14083. So I can’t say that it reduced the risk or the perception of risk by

Gitxaala but what we understood was that, because we engaged and we had

agreed to engage in a meaningful process of consultation that included the

concepts of ayaawx, adawx, gugwilx’ya’ansk resources within the territory, that it




became a much more structured process than the process that you’re currently

engaged in.

14084. So the very fact that we feel that we’re participating in a meaningful

way to the design of the project and potential mitigations that are required give us

a sense of calmness in that what we expect that would occur is that information

that we provide would be utilized to the extent that, when it’s integrated into the

TERMPOL process, that our voice was actually heard.

14085. So to a degree, we’re not talking to a wall. And from that sense, I

don’t risk talking to myself and neither does any Gitxaala member feel that

they’re talking to themselves.

14086. So there’s a sense of comfort. I don’t know that you can associate it in

the manner that you do that it’s actually an association of reduced risk, what we

have an understanding of is our participation and that we’re able to say to our

proponent and through the TERMPOL process : These are the risks that we

associate with the project.


14088. And, sir, the process then that you’re undertaking is one that is being

undertaken after the KLNG environmental assessment and project permits were

all obtained and -- and going into the operational phase; is that right?

14089. Not the operational phase but the construction phase of project, the

approvals are -- are ones that were issued a long time ago as I -- as I understand it

to build the project.

14090. CHIEF ELMER MOODY: And throughout the process since our

intervention, we participated in -- in the process.


14092. Now, my understanding ---

14093. MR. JANES: I’m sorry -- I think -- I think my friend, you know, he’s

made a statement about the process, I think it’s important to be clear about the

fact that TERMPOL was not completed before this.




14094. It’s not -- it’s not the situation that TERMPOL had been completed.

So it’s not accurate to say that all the processes were complete.

14095. MR. NEUFELD: And I think I referred to approvals had been

obtained. And -- and they had been obtained and the TERMPOL process isn’t an

approval process.

14096. Chief Moody, if we can move on then to a -- a different -- a different

project and that is the Shell LNG Project.

14097. Now, an export licence has also been granted for that and it’s my

understanding that the Gitxaala opposed that export licence and has, in the last

week, sought judicial review of that export licence.

14098. Is that -- is that true?

14099. MR. JANES: Actually, let -- let me answer that so it’s technically

correct.

14100. We’ve actually appealed the decision to approve -- or sought leave to

appeal the decision to approve the export licence and that was sought early in

March.

14101. And we have applied for judicial review of the Governor-in-Council

Decision to authorize the permit.

14102. MR. NEUFELD: Can you confirm your counsel’s evidence there,

Mr. -- Chief Moody?

14103. CHIEF ELMER MOODY: If it makes him feel better, yes, I

confirm it.


14104. MR. NEUFELD: After what you made him eat in Kitkatla, you owe

him something.

14105. MR. JANES: I enjoyed every bite of it.





14107. Yeah, I watched you.

14108. So the current state of things is that, to make it simple, you're in

litigation in respect of the Shell LNG project, and is that also a way to assert your

Aboriginal rights and title over the area?

14109. CHIEF ELMER MOODY: We are engaged in a process of

litigation, and the litigation itself is reflective of asserting Aboriginal title and

rights throughout the territory. Yes, it is.


14111. All right, let's -- I'd like to switch tacks, if I may. I'm about -- I'm over

halfway through my questions, so for those of you who need to catch a plane,

you're safe.

14112. Chief Councillor Moody, I just want to talk about conditions.

14113. If we could turn up Gitxaala response to JRP IR -- I'm not quite sure, I

think it's IR 1. It's Exhibit D72-47-2, at Adobe page 21. And I'm looking for

paragraph 18.

14114. Now, in this IR response, the Gitxaala provided a number of

suggestions as to conditions that might be imposed on the project if it was

approved. And this was one that I found quite interesting, if you could just read

condition -- or item number 18, sir.

14115. So in this suggested condition Gitxaala is proposing that Northern

Gateway should be obligated to offer every First Nation potentially affected by

the project a right to participate on the same terms and conditions as other First

Nations who have not been allowed to participate without a requirement to

consent to or not oppose the project.

14116. And sir, that's in the context of the equity participation offer that's been

discussed in this proceeding; is that your understanding?

14117. That's how I read this particular suggestion.

14118. CHIEF ELMER MOODY: I would agree with that. Yes, I would.




14119. MR. NEUFELD: Can you tell me why Gitxaala would want such a

condition imposed on the project?

14120. CHIEF ELMER MOODY: Maybe if you could elaborate as to why

you think it shouldn't be.

14121. MR. NEUFELD: Well, it's your suggestion, sir, so I'm just going to

ask you the question.

14122. CHIEF ELMER MOODY: In the context of Aboriginal title and

right, your project is, I would suggest, the most contentious project, not just in

B.C., but in Canada.

14123. Gitxaala has raised a number of issues in relation to your project, more

specifically, the Constitutional right of Aboriginal people throughout B.C., more

specifically Gitxaala.

14124. The issue that we raise is that what we have is unceded title and right

to our territories. And because of the fact that we have unceded title and right to

our territories and have not engaged in a process of consultation, and I would

suggest that without looking to disrespect the process, the process itself, from our

perspective, isn't a process of consultation.

14125. We've provided an overview in relation to what would be required for

a deep duty of consultation to Gitxaala.

14126. So ultimately, if the JRP or the Governor-in-Council ultimately

decided that, from their perspective, that it's in the national interest of Canada to

push aside Aboriginal title and right that's protected under the Constitution, there

needs to be an ability for those that chose not to participate to have opportunity.

14127. But the question it then raises is that opportunity becomes imposed in

relation to a decision that would be rendered without giving full consideration to

the concept of Aboriginal right as guaranteed under the Constitution.

14128. MR. NEUFELD: Okay. I think that ---

14129. CHIEF ELMER MOODY: So ---




14130. MR. NEUFELD: Sorry; go ahead, please.

14131. CHIEF ELMER MOODY: More so to ensure that, as we look at our

processes more specifically in relation to the LNG project out at Kitimat, at the

time that project was moving forward, there was no consideration for Gitxaala

participation. And our participation wasn't defined in relation to environmental

assessments or TERMPOL.

14132. So for whatever reason, a variety of First Nations chose not to

participate in this process. But ultimately, if this process is approved by the JRP

doesn't mean that those people should not be afforded voice.

14133. So it's not necessarily compensation, but the ability to talk about

mitigating factors as well.

14134. So the issue, as I read it, isn't necessarily compensation to the degree

that you represent your equity packets. If we were to focus on your equity

packets, it's a prime demonstration that you, as a corporation, have given no

regard to the concept of Aboriginal title and right because there are many court

cases that establish the precedent that Aboriginal title and right needs to be

considered in the unique circumstances of communities.

14135. But by your representation, by your corporation's representation that

you offer a 10 percent equity stake, it becomes a blanket representation. So it

calls into question your integrity as a corporate citizen.

14136. It calls into the integrity you have as a corporate citizen because you

consider there is no differentiation between Aboriginal title and right of the

various First Nations that exist, not just within Canada, but B.C. as well as the

north coast.

14137. MR. NEUFELD: I see. So the package should be tailored to match

up with the rights that are held by the different groups along the way?

14138. CHIEF ELMER MOODY: That is precedent that is established in

the courts, that ultimately the requirement through any process is to consider the

uniqueness of each First Nations community. But your representation in relation

to a 10 percent equity stake in relation to your project gives no consideration, no

consideration to the uniqueness of a culture.




14139. And because you give no consideration to the uniqueness of a culture,

you take the perspective that government regulation process and legislation allows

you the ability to move forward without giving any regard to Aboriginal people

and their constitutionally protected rights.

14140. MR. NEUFELD: All right. Well, I think we could disagree with

that, but that's fine.

14141. What I really was interested in getting your views on with this

particular clause was, you know, more in the nature of if the project was approved

and if the Gitxaala were to be offered equity participation in the project on a fully

financed basis, would your community seriously consider that offer? I mean, why

suggest this as a condition if that's not on the table?

14142. CHIEF ELMER MOODY: Various representations through media

give the indication -- when we took Northern Gateway Enbridge to Court over the

TERMPOL -- TERMPOL process, the representation by your legal at that stage

was indication that even if the courts were to find in favour of Gitxaala in relation

to the requirement that Gitxaala participate in your TERMPOL process, your

lawyers made the representation that, in all likelihood, that TERMPOL report

would not be redone in light of the finding of the court, that the expectation is that

this process, to a degree, is a consultative process or becomes a part of that

consultative process.

14143. Included in a part of that consultative process is the notion that once

the JRP renders a decision, and if that decision happens to be in favour of your

project moving forward, the obligation to consult rests with the Crown, federal

jurisdiction. My understanding is that the Feds have a time line in relation to their

process of consultation.

14144. So ultimately, what it boils down to is a presupposition that if the JRP

were to approve the process, what kind of a -- what track do we need to be on to

define what consultation existed or exists.

14145. And as indicated through media, there are a number of First Nations

that have taken the position that this process itself is not a consultative process,

that the process needs to be engaged on a government-to-government relationship

which would be the basis of an understanding of Aboriginal rights as it exists

within the Constitution.




14146. So by choice, a variety of First Nations that would be impacted by

your Project have chosen not to participate.

14147. So ultimately, it boils down to a question as to: If the JRP were to

approve your project or, in this case, with a change to legislation, if the

Conservatives all of a sudden decide it doesn't matter what the JRP decided, we're

going to move ahead with this project, it just speaks volumes to the process that

was initiated; that from the very outset a number of First Nations have classified

and categorized it as a non-consultative approach to an understanding of

Aboriginal title and right.

14148. So is it fair to suggest that what should happen is a share in 10 percent

equity that your corporation offers? It would be fair to say that those

communities that chose not to participate because they don't classify it as a

process of consultation be given that opportunity at expressing what it is that they

see their participation as. And if their participation -- if they deem that

participation to include an equity share, that's their choice to make.

14149. But all we're saying is that you have a responsibility to give full

consideration to Aboriginal title and right. Furthermore, you have a deeper

obligation to understand why it is that there are First Nations who choose not to

participate in this process because they deem it as a process that is not about

consultation.

14150. MR. NEUFELD: Fair enough. Fair enough, Chief Moody.

14151. I'm simply looking at this condition and the question -- I think I heard

the answer that, if the project was approved, Gitxaala would consider an offer of

equity participation and you would want to be offered that opportunity if the

Project was considered -- or approved, notwithstanding that you had opposed it at

this hearing.


14152. MR. NEUFELD: I thought that's what the purpose of this proposed

condition was?

14153. CHIEF ELMER MOODY: So in terms of the opportunity to

participate, you automatically equate it to an equity stake in relation to your

pipeline.




14154. But as I explained, from my perspective, it may include that equity

stake. It would be the determination of those First Nations to make that

determination.

14155. But ultimately, in terms of the participation, if the JRP were to take the

unfortunate position that your Project would be approved, I reiterate again there

are a number of First Nations who have not provided voice to this process and in

the circumstance that's designed as the Aboriginal consultative framework

imposed upon us, those First Nations who have chosen not to provide voice at this

forum should be provided the opportunity to provide voice at a later stage wherein

the requirement would be for the Government of Canada to consult.

14156. And when the Government of Canada consults, the expectation would

be that, whether a group chose to participate in this forum or not, that they would

be given equal consideration into the issues brought forward in relation to risks

associated with your project and the peril by which your Project puts Aboriginal

title and right.

14157. MR. NEUFELD: Okay, let's talk about some of those -- some of

those participatory processes.

14158. What about participation in emergency response or preparedness and

response planning processes going forward, Chief Moody?

14159. As I understand your IR response, if the project was approved over --

over your objection and after consultation, the Gitxaala would be prepared to

engage in discussions around participating in those sorts of programs. Is that fair?

14160. CHIEF ELMER MOODY: It is fair but I'm going to suggest to you

-- and I'm hoping the JRP doesn't miss this context -- it's placed in the context that

we've always represented. It's placed in the context of protecting the territory.

14161. So if the JRP makes a ruling in your favour and says your project is

allowed to proceed without giving full consideration to the concepts of Aboriginal

title and right expressed by Gitxaala, there is still that obligation by Gitxaala to

ensure the protection of territories they have authority and jurisdiction over.

14162. MR. NEUFELD: Right.




14163. CHIEF ELMER MOODY: So the expectation would be that we

would be meaningfully participant and that may be a process that would require

we participate in design of response.

14164. But, ultimately, this is all on the presumption that the JRP is going to

make a ruling in favour of a corporation over issues that are expressed by Gitxaala

more specifically around the issue of consultation, the duty of consultation owed

to Gitxaala by the Canadian government.

14165. And in that regard, if that consultation occurred at the front end of this

process, there'd be a better understanding of how it is that community sees risk in

relation to your project.

14166. MR. NEUFELD: Sure.

14167. And I'm looking at -- excuse me, I'm just trying to get your views, sir,

on some of these programs and -- that have been suggested as mechanisms for

addressing concerns and risks.

14168. Your counsel had asked a series of questions of Northern Gateway

regarding the establishment of a Fisheries Liaison Committee.

14169. Has the Gitxaala had discussions with other projects involving tanker

traffic regarding establishing a Fisheries Liaison Committee or something similar

to it?

14170. I think we can agree that we don't need to be having multiple

committees and multiple programs out there. And so that's the context that I ask

the question.

14171. CHIEF ELMER MOODY: So what you're actually asking is

whether you have an opportunity to cut your processes short?


14172. MR. NEUFELD: Well, to have one instead of four. How about that?

14173. CHIEF ELMER MOODY: Well, the circumstances may be

different.




14174. So in the context that you may be looking or somebody may be

suggesting a Fisheries Liaison Committee, I'm not familiar with the concepts

myself in relation to the Fisheries Liaison Committee.

14175. But ultimately, if Gitxaala were to seek to participate in such a

committee structure, the foundation of that participation, again, would be around

our authority and jurisdiction in relation to the waterways, the resources within

those waterways. So it's not just a reflection of commercial activity but,

ultimately, an understanding of how it is that Gitxaala continue to use the

waterways today.

14176. So I would suggest to you that perhaps some of those concepts that

may be floating around very much like processes that we're engaged in today that

focus on legislation, regulation, often have an ability to sidestep the issue of

Aboriginal title and right, more specifically, resource harvesting within our own

territories.

14177. So would I be confident that a fisheries committee would take into

consideration Gitxaala's Aboriginal right at harvest?

14178. I don't know because, as far as I know, I haven't seen terms of

reference in relation to a proposed fisheries committee, nor have I seen anything

that would allow me to believe that that proposed fisheries committee would have

any real authority in relation to decision-making around access to those resources,

in relation to tanker traffic that would be coming through our territories.

14179. MR. NEUFELD: And I'm not trying to cut costs here. They're not --

it’s not my money anyway. What I -- what I’m trying to do -- what I’m trying to

find out from you is if any of the other Proponents with whom you’ve had these

discussions have suggested that a Fisheries Liaison Committee be used to reduce

conflicts between vessel or tanker movements and -- and Aboriginal or other

fishing. And if the answer is no, then that’s fine by me.

14180. CHIEF ELMER MOODY: Personal experience; I haven’t engaged

in any discussion with any other Proponent around the establishment of a

Fisheries Liaison Committee.


14182. And just following up on the question of emergency preparedness and




response, generally, and I heard your -- your answer which was I thought very

eloquent on that.

14183. There has also been the suggestion and the proposal that there be

community response plans developed, focusing on the nations in the confined

channel assessment area, yourselves, the Gitga’at, the Haisla, which would

provide communities direct input into the preparation and development of those

plans and, from your answer, I take it that that’s something you would support?

14184. CHIEF ELMER MOODY: Support is a bit of a loaded word at this

stage.

14185. MR. NEUFELD: No, that’s fine.

14186. CHIEF ELMER MOODY: If the project is approved and because

these plans are being proposed, and again, if the JRP doesn’t give full

consideration to the concepts that are being represented in relation to the

infringement of our constitutionally protected right or if the Governor-in-Council

makes a decision, that doesn’t give full weight and consideration to what it is that

we consider our constitutionally protected right and approve your project, the

expectation is because the project was approved against our will, our expectation

is that we still take the responsibility to protect the resources that we have

authority and jurisdiction over.

14187. So ultimately our participation wouldn’t be one that would be

necessarily supportive of, but it would be a requirement on our end to ensure that

we’re actually protecting those resources that we hold as the authority and

jurisdiction that are the basis by which Gitxaala identify themselves as an inherent

government.

14188. MR. NEUFELD: I understand that. Those sorts of plans would be a

mechanism whereby you would be able to do that and the project is suggesting

that those sorts of plans ought to be part of the detailed response planning.

14189. CHIEF ELMER MOODY: But when you asked the question, you

asked if I would be supportive. It would be something that we would be required,

and there’s a differentiation between required to protect our territory or whether

we’d be supportive of a plan that would be put forward based on the assumption

you would get approval for your project.




14190. MR. NEUFELD: I -- I understand the distinction and I understand

your answer.

14191. Thank you, Chief Councillor Moody for your -- for your answers and

once again, thanks for the hospitality you showed us last -- last March.

14192. THE CHAIRPERSON: Thank you very much, Chief Councillor

Moody. The Panel has no questions.

14193. Mr. Janes, do you have any re-direct?

14194. MR. JANES: I do not.

14195. THE CHAIRPERSON: Chief Councillor Moody, thank you again

for your presence here today, the presence of the community also here and you --

and the evidence that you provided.

14196. You’re excused from this Panel.

--- (Witness is excused/Le témoin est libéré)

14197. THE CHAIRPERSON: Ms. Niro, could we have an AQ number

please?

14198. THE REGULATORY OFFICER: That will be AQ85.


INTERROGATOIRE No. AQ-85:

Northern Gateway - Aids to cross-examination of Gitxaala Nation witness

panel 2

14199. THE CHAIRPERSON: And again, thank you to everybody in the

room.

--- (Applause/Applaudissements)

14200. THE CHAIRPERSON: That concludes this afternoon’s session.

14201. We will sit again tomorrow morning at 8:30. Thank you, everyone.




14202. Good evening and safe travels.

--- Upon adjourning at 4:28 p.m./L’audience est ajournée à 16h28

JOINT REVIEW PANEL FOR THE ENBRIDGE NORTHERN … · - Examination by Mr. Janes 12389 - Examination...

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