Richard A. Neufeld, Q.C. richard.neufeld@dentons.com

D +1 403 268 7023

Dentons Canada LLP

15th Floor, Bankers Court

850-2nd Street SW

Calgary, AB, Canada T2P 0R8

T +1 403 268 7000

F +1 403 268 3100

Salans FMC SNR Denton

dentons.com

2347082_1|NATDOCS

May 1, 2013 File No.: 158084-281

National Energy Board

444 - 7th Avenue SW

Calgary AB T2P 0X8

Attention: Attention: Ms. Sheri Young, Secretary to the Joint Review

Panel Enbridge Northern Gateway Project

Re: Northern Gateway Pipelines Inc.

Enbridge Northern Gateway Project Application of 27 May 2010

Hearing Order OH-4-2011

Notice of Motion

Please find enclosed for filing a Notice of Motion on behalf of Northern Gateway Pipelines Inc.

Yours truly,

Dentons Canada LLP

Richard A. Neufeld, Q.C.

RAN/sd

Encls.

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Northern Gateway Pipelines Inc.

Enbridge Northern Gateway Project

NEB File OF-Fac-Oil-N304-2010-01 01

Hearing Order OH-4-2011

NOTICE OF MOTION

1. Northern Gateway Pipelines Inc. ("Northern Gateway") applies pursuant to section 35 of the

National Energy Board Rules of Practice and Procedure, 19951 and section 10 of National Energy

Board ("NEB") Hearing Order OH-4-2011,2 for direction from the Joint Review Panel ("JRP")

regarding the definition of the term "Construction" used in the potential conditions issued by

the JRP on 12 April 2013 ("Potential Conditions").3

Statement of Facts

2. The Potential Conditions define "Construction" as follows:

Any in-field activity that may have an impact on the environment and which is

necessary for installing, or preparing to install, the required infrastructure, the

oil pipeline, the condensate pipeline, or Kitimat Terminal. Construction activities

include, but are not limited to, clearing, mowing, grading, trenching, drilling,

boring, blasting, dredging, and conducting geotechnical investigations.

Construction activities do not include activities associated with normal

surveying operations or data collection activities.4

3. Some of the Potential Conditions require Northern Gateway to meet a number of specific

requirements prior to "commencing construction." Investigative activities, including

geotechnical investigation, will be required to meet those requirements. The Potential

Conditions at issue are reproduced in Schedule A attached to this Notice of Motion.

1 SOR/95-208.2 Exhibit A31-1.3 Exhibit A356-5.4 Ibid at adobe 1. Emphasis in original.

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4. Following the issuance of the Potential Conditions, one intervenor has taken the position that

Northern Gateway can no longer undertake activities such as geotechnical investigations,

boring, drilling and clearing because these activities constitute "construction."

5. Northern Gateway needs to continue to undertake these activities in order to comply with pre-

construction conditions.

Grounds for the Request

6. Section 31 of the National Energy Board Act ("NEB Act")5 prohibits a company from commencing

construction of a section or part of a pipeline unless:

(a) a certificate has granted the company leave to construct;

(b) the company has complied with all applicable terms and conditions of the certificate;

(c) the plan, profile and book of reference ("PPBOR") has been approved by the NEB for the

section or part of the pipeline; and

(d) the PPBOR has been registered.

7. Numerous investigations involving geotechnical work, associated cutting, digging, drilling and

boring must be undertaken in order to obtain a certificate; meet pre-construction certificate

conditions; and file a PPBOR for approval of the NEB. These activities do not constitute

"construction" within the meaning of section 31. If that was the case, it would be impossible for

a company to file a completed application for a certificate because the NEB's Filing Manual

requires that such work be undertaken to obtain information necessary to complete such an

application.6

8. Subsection 73(a) of the NEB Act is designed to fill the gap between authorization to construct a

pipeline, and preceding investigation activities that are required in order to prepare an

application, and to thereafter fulfill pre-construction conditions necessary to (among other

things) determine the center line of the pipeline. It provides as follows:

73. A company may, for the purposes of its undertaking, subject to this Act and

to any Special Act applicable to it,

5 RSC 1985, c N-7.6 See, for example, NEB Filing Manual Table A-2 at page 4A-50.

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(a) enter into and on any Crown land without previous licence therefor, or

into or on the land of any person, lying in the intended route of its

pipeline, and make surveys, examinations or other necessary

arrangements on the land for fixing the site of the pipeline, and set out

and ascertain such parts of the land as are necessary and proper for the

pipeline;

9. The definition of "Construction" in the Potential Conditions has what Northern Gateway

considers to be the unintended and untenable consequence of requiring certificate approval for

activities that are non-intrusive and required in order to fulfill conditions precedent to

construction. One intervenor is taking the position that this definition restricts Northern

Gateway's right to engage in pre-construction investigation activities. Northern Gateway

requests immediate clarification so that it may continue with pre-construction investigation

activities required prior to construction. Not only has Northern Gateway already engaged in this

type of preliminary work to date, a number of intervenors have taken the position that Northern

Gateway should have done more of this work.7

10. As set out above, there are numerous conditions that require further investigative information

to be obtained prior to construction. The most immediate is the filing of transportation service

agreements ("TSAs"). A Class III Capital Cost Estimate facilitates shippers executing TSAs. This is

a long lead time item that takes detailed investigation, including geotechnical investigation, in

order to confidently forecast project cost. Throughout the hearing process it was clear that such

work would have to be undertaken prior to commencing construction.8

11. To interpret the definition of "Construction" to prohibit pre-construction investigation, such as

geotechnical investigations, associated cutting, drilling and boring would result in substantial

prejudice. Northern Gateway would be prohibited from engaging in activities necessary to meet

pre-construction conditions. For example, Potential Conditions # 75 – 77 require Northern

Gateway to file a final Geohazard Assessment, Mitigation, and Monitoring Report with the NEB

for approval, at least six months prior to commencing construction. In order to complete this

report geotechnical investigations, associated cutting, drilling and boring must be completed,

7 Transcript Volume 88, Paragraph 8999; Transcript Volume 85, Paragraphs 5352 – 5353, 5552 – 5553,5567; Transcript Volume 87, Paragraph 7335.8 Transcript Volume 91, Paragraphs 12306 - 12320 and Transcript Volume 155, Paragraphs 31010 –31013.

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yet the Geohazard Assessment, Mitigation, and Monitoring Report must be filed six months

prior to construction.

12. It is submitted that as long as the activities are not undertaken for the purposes of "installing or

preparing to install" the oil pipeline, the condensate pipeline or Kitimat terminal, pre-

construction activities cannot be considered to be commencement of construction.

13. In the NEB's decision confirming the commencement of construction of the Keystone XL pipeline

prior to the expiry of its sunset clause, it was held that earth moving constituted construction.9

In that case the pre-construction work, including geotechnical investigations necessary to

complete and file the Environmental Protection Plan ("EPP"), did not constitute commencement

of construction.10 The EPP had to be filed and approved as part of the certificate release

process. It was only the earth moving on the Hardisty Terminal site that took place after the

certificate release that constituted construction under the terms of the sunset clause.

14. Northern Gateway cannot delay further investigation work pending issuance of the JRP's final

report and the issuance of final proposed conditions. Certain pre-construction conditions will

take 18 to 24 months to complete. If Northern Gateway were precluded from undertaking this

work until the issuance of the JRP's final report or the subsequent issuance of a certificate,

Northern Gateway would be seriously prejudiced. It is not reasonable to preclude Northern

Gateway from achieving the work necessary to comply with potential pre-construction

conditions. This work is not materially different than the types of activities that were necessary

to advance the Northern Gateway Application and they are permitted under the NEB Act.

Relief Requested

15. Northern Gateway requests that the JRP confirm that in issuing its Potential Conditions it did not

intend to preclude Northern Gateway from continuing work on the Project necessary to comply

with pre-construction conditions and that the definition of "Construction" should not be

interpreted to include investigative work, including geotechnical work, of this nature.

9 NEB letter dated 27 October 2011 (A2G5K4).10 Environmental Protection Plan, Main Report, filed July 22, 2008 (A79351) at F-4.

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Evidence Supporting the Request

16. The Affidavit of Mr. John Carruthers is attached as Schedule B to this Notice of Motion. The

Affidavit includes, as Exhibit 1, correspondence from the Haisla Nation, which takes the position

that Northern Gateway is precluded by the Potential Conditions from undertaking further

investigative work.

All of which is respectfully submitted this 1st day of May, 2013.

__________________________________

Per: Dentons Canada LLP

Richard A. Neufeld, Q.C.

Counsel to Northern Gateway

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Schedule A

Excerpts from Exhibit A346-5 - Collection of Potential Conditions – Northern Gateway Pipelines

Inc. – Enbridge Northern Gateway Project – Hearing Order OH-4-2011

# Range Potential Condition

9 Transportation Service Agreements (TSAs)

a) Northern Gateway must file with the NEB, within 60 days of executing all TSAs, butnot less than six months prior to commencing construction, the long-term,unconditional TSAs executed with shippers demonstrating that sufficient commercialsupport for the Project has been secured.

75-77 Geohazard Assessment, Mitigation, and Monitoring Report

Northern Gateway must file with the NEB for approval, at least six months prior tocommencing construction, a final Geohazard Assessment, Mitigation, and MonitoringReport that describes, at a minimum:

a) in a table and/or using maps, the specific and combined geohazards identified thatcould have a reasonable probability of impacting the Project;

b) specific design measures such as grading, special materials, installation procedures,protective structures, increased burial depth, erosion mitigation measures, andmonitoring that will be implemented to mitigate individual and combined geohazards;

c) staff qualifications for those making decisions regarding the assessment andmitigation design; and

d) ongoing monitoring requirements.

The report must include a copy of the report(s) by the independent geohazard working group(or committee) comprised of specialists from various organizations, including, but not limitedto, governments, local experts, and consultants for Northern Gateway.

For the pipeline, Northern Gateway must assess the terrain from height of land on both sidesof the pipeline route in the Coast and Rocky Mountains.

78-79 Tunnel infrastructure

Northern Gateway must file with the NEB, at least six months prior to commencing tunnelconstruction activities:

a) a report on the characterization of the rock mass quality and groundwater conditionsexpected to be encountered during construction and how they will be addressedduring construction;

b) details of mitigation measures for control and treatment of groundwater during andfollowing construction;

c) details of mitigation measures for the treatment of sulphide-bearing rock, ifencountered;

d) tunnel confined space entry procedures during and following construction;

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e) final cross-sectional design drawings; and

f) details of the construction plans for the tunnels including but not limited to:

i) construction methods to be used;

ii) permanent road access;

iii) tunnel portals and doors;

iv) geohazard mitigation measures at tunnel entrances;

v) tunnel lining system;

vi) ground support system;

vii) ventilation and lighting;

viii) location, size, and design of waste rock disposal areas; and

ix) location, size, and design of staging areas.

83-84 Watercourse crossing design

Northern Gateway must file with the NEB for approval, at least four months prior tocommencing construction:

a) an updated aquatic catalogue for all watercourse crossings based on centerlinesurveys;

b) a Watercourse Crossing Inventory, in both Adobe PDF and Microsoft Excelspreadsheet formats, describing the watercourse name and numerical identifier,coordinates, stream class, width of wetted channel, primary and secondaryconstruction methods, minimum pipeline cover (except for aerial crossings),navigability, fish habitat status, and level of assessment;

c) detailed final design drawings and plans for all high-, medium-high, and medium-riskwatercourse crossings to mitigate environmental or safety concerns including thedesign flood level, calculated vertical and lateral scour potential, and proposedmitigation measures;

d) detailed final design drawings of typical designs for open-cut and isolated crossings ofvarious watercourse types;

e) a description of how available and applicable Aboriginal Traditional Knowledge andTLU studies have been taken into consideration in developing the designs; and

f) a summary of Northern Gateway’s consultation with Fisheries and Oceans Canada,Environment Canada, the British Columbia Ministry of Environment, and AlbertaEnvironment regarding the design of watercourse crossings. This summary mustinclude any issues or concerns raised by those consulted with regarding thesedesigns and how Northern Gateway has addressed or responded to those issues orconcerns.

87 List of infrastructure sites

Northern Gateway must file with the NEB, at least 90 days prior to commencingconstruction, and any updates as they are available, a complete list of all infrastructuresites (based on the definition provided in advance of this table) to be used for the Project. Thislist must include information on each site’s location, structures to be installed, the anticipated

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date for commencing construction, and activities involved in its construction. The initial list andupdates to it must also include the condition numbers (those under the “prior to commencingconstruction” phase heading) that are applicable to each site and an indication of whethereach of those conditions has been or remains to be satisfied.

88 Construction schedule

Northern Gateway must file with the NEB, at least 90 days prior to commencingconstruction, a detailed construction schedule identifying major construction activities and,on a monthly basis from the start of any clearing to the beginning of operations,updated construction schedules.

98-100 Acid rock drainage monitoring and follow-up program

Northern Gateway must develop and implement a follow-up program to determine the post-construction water quality of groundwater drainage from the portals of the Hoult and Cloretunnels, acid rock drainage from the associated acid rock storage sites, and the receivingwater bodies.

Additionally, Northern Gateway must file with the NEB:

a) for approval, at least 90 days prior to commencing construction, a description ofthe follow-up program as committed to in Volume 6A of the Project applicationincluding a schedule for reporting results to the NEB;

b) based on the NEB-approved schedule referred to in a), the results of the follow-upprogram, including monitoring results, an evaluation of the environmental assessmentpredictions and effectiveness of mitigation, and a discussion of any adaptivemanagement measures necessary.

109-111 Updated engineering alignment sheets and drawings

Northern Gateway must file with the NEB, at least 90 days prior to commencingconstruction, updated engineering alignment sheets and drawings and, as they becomeavailable and prior to their implementation, any modifications to those sheets and drawings.

130-131 Freshwater Fish and Fish Habitat Compensation Plan

Northern Gateway must file with the NEB, at least 30 days prior to commencingconstruction, a final Freshwater Fish and Fish Habitat Compensation Plan for the pipelineright-of-way. In addition to the plan, this submission must include, but not be limited to:

a) a letter of approval of the plan from Fisheries and Oceans Canada; and

b) a summary of Northern Gateway’s consultation with Fisheries and Oceans Canada,other appropriate stakeholders, and potentially-affected Aboriginal groups regardingthe Freshwater Fish and Fish Habitat Compensation Plan. This summary must includeany issues or concerns raised by those consulted with regarding the plan and howNorthern Gateway has addressed or responded to those issues or concerns.

142-143 Watercourse crossing contingency plans

Northern Gateway must file with the NEB either:

a) upon successful completion of each trenchless watercourse crossing,

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confirmation of its completion; or

b) in the event of any changes to a proposed trenchless watercourse crossing, file withthe NEB for approval, at least 21 days prior to constructing the crossing:

i) notification of any such change(s) and the rationale for the change(s);

ii) detailed design drawings and plans for the contingency crossing method tomitigate environmental or safety concerns, including the design flood level,calculated vertical and lateral scour potential, proposed mitigation measures,amended reclamation and re-vegetation measures, and fish and fish habitatmonitoring for the affected watercourse crossing;

iii) a description of how available and applicable Aboriginal TraditionalKnowledge and TLU studies have been taken into consideration in developingthe contingency plans; and

iv) a summary of Northern Gateway’s consultation with Fisheries and OceansCanada, Environment Canada, the British Columbia Ministry of Environment,and Alberta Environment regarding the design of the proposed contingencycrossing. This summary must include any issues or concerns raised by thoseconsulted with regarding the design and how Northern Gateway hasaddressed or responded to those issues or concerns.

All emphasis in originals.

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Northern Gateway Pipelines Inc.

Enbridge Northern Gateway Project

NEB File OF-Fac-Oil-N304-2010-01 01

Hearing Order OH-4-2011

AFFIDAVIT

I, John Carruthers, of the City of Calgary in the Province of Alberta make oath and say as follows:

1. I am the President of Northern Gateway Pipelines Inc. ("Northern Gateway"). Northern

Gateway has been consulting with First Nations, including the Haisla Nation, to undertake

further investigation work necessary to the completion of a Class 3 cost estimate and required

to meet pre-construction conditions anticipated to be recommended by the Joint Review Panel

("JRP").

2. On April 22, 2013, Northern Gateway received the letter attached as Exhibit 1 to this my

Affidavit.

3. I make this Affidavit in support of a Notice of Motion by Northern Gateway to the JRP to obtain

direction as to whether investigation work required to complete a Class 3 estimate and meet

anticipated conditions to be recommended by the JRP would constitute "Construction" as

defined in the JRP's Potential Conditions issued for the Northern Gateway Project.

SWORN BEFORE ME at Calgary, Alberta, thts 7/

day of April, 2013.

Att it/ -411

ommissi ner for • .ths in and for the Province of )

Alberta ) HN CARRUTHERS

) Laura K. Estep

13 mister & Solicitor

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Schedule B(A51689)

CONFIDENTIAL: URGENT: WRITTEN COPY TO FOLLOW BY MAIL: . FOR YOUR INFO ONLY: To:

Apr. 22, 2013 11:41AM. No, 1772. P. 1/3

Yfaisra Nation Council- HAISIA PO BOX /10i, RITANIAAT VILLAGE, BC VOT 280 PH: (250) 639-9361 FAX (260) 632-2840

FAX COVER LETTER THIS IS EXHIBIT "

TI

refemed to in the Affidcn.iit of

Date:

From:

Telephone:

HNC Fax:

April 22, 2013

Crystal Smith

(250) 639-9361 Extension 205

(250) 632-2840

-1-66 Sworn before me this_ 30 141

' D. 201E.. day of

AI % If 40AF /

mrnicvo e A C ce of Alberto

We are transmitting 3 pages (including cover page). Laura K. Estep arristet& Solicitor

If you do not receive all pages, please call Crystal Smith at the above noted contact information.

Enbridge Northern Gateway Pipelines Attention: Mr. Morgan Yates

Ministry of Forests, Lands and Natural Resources

Attention: Hon. Minister Stave Thomson

1-403-718-3525

1-250-387-1040

Donovan & Company 1-604-688 74282

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Apr. 22, 2013 11:41AM

No. 1772 P. 2/3

graista Nation Councif HAISLA PO BOX 1101, KITAMAAT VILLAGE, BC VOT 2110 TIMEPHONS (ZSO) 639.9361 PAX (250) 632-2840

April 22, 2013

VIA FAX TOt (403) 718-3525

Enbridge Northern Gateway Pipelines 3000 — 425 1" St. SW Calgary, AB T2P 3L8

Attn: Morgan Yates, Vice President. Aboriginal & Stakeholder Relations

Dear Mr, Yates:

Re: Your Letter Dated March 28, 2013

Thank you for your letter and information package dated March 28, 2013 enclosing additional information relating to proposed Tempbrary Use Permit Areas in ,Haisla Nation Territory. As you know, the Haisla Nation has previously expressed its vieW that this type of work is premature, given that the proposed Northern Gateway Pipelines Project has not been approved.

On Friday, April 12, 2013 the Joint Review Panel released proposed conditions for any certificate issued for the Northern Gateway Pipeline Project, These potential conditions included a definition of the word "construction" which reads:

Any in-field activity that may have an impact on the environment and which is necessary for installing or preparing to install, the required infrastructure, the oil pipeline, the condensate pipeline or Kitimat Terminal. Construction activities include, but are not limited to, clearing, mowing, grading, trenching, drilling, boring, blasting, dredging and conducting geotechnical investigations-.

Given the inclusion of geotechnical investigations, boring, drilling, and clearing in the definition of construction, we are confused as to why Northern Gateway is proposing to conduct such works at this point in time. Clearly they are viewed by the Joint Review Panel as being activities which could potentially require a number of conditions being met prior to being authorized.

We note that Northern Gateway have also identified additional work it proposes to undertake at the Kitimat Terminal, on land and in the marine environment. As with the geotechnical investigations identified for the previously applied for Temporary Use Permits, the work proposed for the Kitimat Terminal appears to fall within the definition of construction under the potential conditions for a certificate issued by the Joint Review Panel.

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Apr, 22, 2013 11:41AM No, 1772 P. 3/3

We presume Northern Gateway is not proposing to engage in activities which would not be allowed until a number of conditions have been met under conditions being proposed for the Northern Gateway Pipeline Project. We would therefore appreciate an explanation of how the work Northern Gateway is proposing to conduct pursuant to the Temporary Use Permits and at the. proposed marine terminal relates to the definition of construction in the JRP's proposed conditions for the Northern Gateway Pipeline Project.

The Haisla Nation remains open to meeting with representatives of Northern Gateway face-to-face to discuss matters further, but advises that.with an election pending in early July and with a number of other projects moving ahead in the Territory, the times available for meeting are limited. We will do our best to find some available dates to propose to you.

Yours truly,

Ellis Ross Chief Councillor, Haisla Nation

cc: Donovan 8( Company (Fax: 1-604-688-4282)

cc: .Hon_ Minister Steve Thomson, Ministry of Forests, Lands and Natural Resource (Fax: 1-250-387-1040)

2

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