After three days of testimony and cross-examination last week, the National Energy Board hearing on KM LNG’s application to export natural gas via its proposed Kitimat plant was put on hold pending the results of talks between the company and the Gitxaala (Kitkatla) First Nation.
When the hearing began last Tuesday, the first item up was supposed to be the April 26 Gitxaala motion for a stay of proceedings until it had received “full and adequate responses” to information rerquests it had submitted to KM LNG.
However, at the request of Gord Nettleton and Robert Janes, representing KM LNG/Apache and the Gitxaala respectively, it was postponed to Thursday morning to allow “ongoing discussions” between the two parties.
However, with the rest of the proceedings taking far longer than anticipated, it was further delayed until Friday morning.
At which time Janes told the board the Gitxaala were prepared to withdraw their motion – without prejudice and subject to a couple of conditions – given “the parties are in negotiation that they beleive will be successful if further time is allowed to continue these discussions.”
Nettleton confirmed KM LNG/Apache were “onside” with this proposal.
After nearly an hour and a half of in-camera deliberation, the board delivered the following ruling:
“The board allows Gixaala’s request to withdraw its motion. The hearing will proceed with the evidentiary and final argument stages. However, the board will refrain from rendering a decision on the application unless Gitxaala and KM LNG, prior to September 15, 2011, each notify the board that the settlement is final.”
If the board did not hear from the two parties that a settlement had been reached by that date, “Gixaala is free to renew its motion, in which case the board may re-open the proceeding.”
Meanwhile that still left two issues to be covered:
q “consideration of the potential environmental effects of the proposed exportation and any social effects that would be directly related to those environmental effects, including any such effects to aboriginal interests”, and
q “consultation with the public and aboriginal peoples.”
The board said they would announce “shortly” how it would proceed on those matters.
In its notice of motion the Gitxaala noted the NEB had already indicated it would not re-examine the federal and environmental assessments.
However, the board’s hearing order had also said that, “as part of its public interest determination”, it would consider potential environmental effects and any social effects directly related to those environmental effects.
The Gitxaala argued the potential environmental impacts – and potential impacts to Gitxaala title and rights – of between 75 and 150 LNG tankers plying waters within its traditional territory were relevant to “the Canadian public interest”.
It also pointed out that the federal and provincial assessments had only looked at the potential impacts from tankers “between the terminal and the shipping lanes in the middle of the Douglas Channel” and had not considered what those effects might be along the entire proposed tanker route in Canadian waters.
Potential effects of tanker wakes included “scouring intertidal species and eggs, creating hazards for smaller vessels and damaging archeological sites and sensitive areas.” There were also concerns about effects on mortality and behaviour of fish, marine animals and marine and terrestrial birds.
Nor had there been any assessment of the impact on “Gitxaala commercial fisheries and food, social and ceremonial fisheries, and shellfish harvesting, including fishing/gathering effort and safety within Gitxaala territory.”
While KM LNG had responded to Gitxaala concerns in many cases by saying they would be dealt with in the TERMPOL (Marine Terminal Review Process), the Gitxaala essentially argued that was putting the cart before the horse.
“Until the NEB actually sees the TERMPOL committee report, it is impossible for the NEB to know whether any identified risks have been sufficiently addressed in the context of the NEB’s public interest determination,” the motion pointed out.
In opposing the Gitxaala motion, the Haisla Nation – they will be the landlord and taxing agency for the project – pointed out that it had been consulted and participated in the environmental assessment process and the concerns of the Haisla and other First Nations had been addressed.
“Neither the Gitxaala nor any other party challenged the scope of the environmental process at the time,” it added.
“It is regrettable that the Gitxaala chose not to participate in the environment assessment process when that opportunity was available. In the particular circumstances of this project, the Haisla believe it would be inefficient for the board to conduct a second process equivalent to the environmental assessment,” the Haisla response continued.
The Haisla added they supported Gitxaala participation in the TERMPOL process. an arena where they could raise their various concerns.