OH NOTICE OF MOTION

Transcription

1 Northern Gateway Pipelines Inc. Section 52 of the National Energy Board Act Application for Northern Gateway Northern Gateway Project NEB File OF-Fac-Oil-N Filed 27 May 2010 OH NOTICE OF MOTION Name of person Bringing Motion This Motion by the Intervenor, Coastal First Nations, is made pursuant to Hearing Order OH (the Hearing Order ) and section 35 of the National Energy Board Rules of Practice and Procedure, 1995, SOR/ Decision or Order Requested a) An order that Northern Gateway must provide full and adequate responses to those portions of Coastal First Nations Information Request #2, and those of other Intervenors, identified herein by a fixed date; b) The review of the Northern Gateway Project be adjourned until Northern Gateway has provided the requested responses to the Information Requests detailed herein; c) The Hearing Order be amended to set new and reasonable deadlines for Information Requests since the deadline for filing will have passed; d) The Hearing Order schedule be amended to ensure that the deadlines for filing Intervenor written or oral evidence occurs no less than 3 weeks after the information, determined by the JRP as being required, is filed by NGP, including any supplemental reports or studies (e.g. the risk evaluation referenced in 121 and the Marine Habitat Compensation Plan referenced in JRP IR8.19). e) Such other relief as the Panel may consider appropriate in the circumstances. December 9, 2011 Date Submitted Art Sterritt Executive Director Coastal First Nations: Great Bear Initiative

2 Statement of Facts 1. On November 1, 2011, Coastal First nations (CFN) submitted Information Request #2 to Northern Gateway (NGP) in accordance with Hearing Order OH On November 24, NGP filed responses to CFN IR#2 (A36974). Northern Gateway has failed to fully and adequately respond to the CFN Information Requests described below. Grounds for the Motion 3. The List of Issues attached to Hearing Order OH states that all of these issues apply to both the terrestrial and marine components of the Project. The List of Issues includes: Potential impacts on Aboriginal interests (2.1) Potential effects on the environment including the effects of the environment on the project (3.11) [i.e. the effects of weather on oil tankers] Consultation with the public and Aboriginal groups on the Project (5) Risks of potential hydrocarbon releases related to the Project including: the likelihood of failures, accidents and malfunctions, potential release volumes, consequences of any release, including geographical extent (13) Proposed plans and measures for emergency preparedness and response. (16) Financial resources and other compensation measures available in the event of an accident or malfunction. (17) 4. The Hearing Order OH also states that the Panel will include in its review of the Project factors identified in this Appendix [#4]. The scope of the Project identifies in Part 1 marine transportation of oil and condensate including the Hecate Strait and the proposed shipping routes within the 12 nautical mile limit of the Territorial Se of Canada. The Factors to be Considered include: the environmental effects of malfunctions or accidents, measures that are technically and economically feasible and that would mitigate any significant adverse environmental effects of the project. 5. This Motion is made pursuant to Section 10 of the Hearing Order and section 35 of the NEB Rules of Practice and Procedure, NGP responses to the CFN Information Requests, and those of other Intervenors, identified below are in effect non-responses in that they fail to provide the information requested. 7. CFN requires the information requested in order to prepare its evidence (deadline December 22,

3 8. The information requested is also used by CFN members in order to prepare their written and oral evidence, to be presented at Community Hearings. 9. The information requested is also necessary: to inform CFN Information Requests to government intervenors (who play a significant role in regulating the marine environment); to assess the adequacy of measures proposed to prevent or mitigate potential adverse effects including whether they are technically and economically feasible; to inform future recommendations with respect to the Project. 10. Responses are required to fully understand and assess the nature and extent of the effects of marine transportation, including accidents and malfunctions, will have on: the marine environment and First Nations Aboriginal Rights and Title and Interests. 11. NGP has not provided adequate information about marine transportation risk and risk assessment for Coastal First Nations and other intervenors to assess the potential risk and identify the potential evidence they may need to file to address this risk. It is unreasonable to require intervenors to file their written evidence, or present oral evidence, before Northern Gateway has provided full and adequate responses. 12. Because of the potential catastrophic consequences of oil spills, there has been a de facto moratorium on oil tankers in the Queen Charlotte Sound and Hecate Strait for many years. If this Project were to go ahead, this de facto moratorium would end. Consequently, this assessment must be thorough and comprehensive. 13. CFN are very concerned that there be a healthy marine economy so that their communities can grow and develop a sustainable economy, using resources and access that has sustained them for thousands of years. 14. For the Information Request process to be fair, the proponent cannot refuse to answer legitimate and relevant questions. The JRP should not give NGP licence to decide what questions it will answer. The JRP must require full and adequate responses in areas where NGP has not provided sufficient information to enable a scientifically and technically valid assessment of the proposed Project risks and effects. 15. The failure of NGP to provide full and adequate responses to Coastal First Nation Information Requests makes the filing deadlines for IR #2 and intervenor evidence unreasonable. 3

4 Failure to Provide Full and Adequate Responses 16. The responses which NGP has provided to the following Information Requests are not full and adequate (as required by s. 34 (1)(a) of the NEB Rules), as outlined in detail below: CFN IR 2.1 (g) 17. CFN requested the following information: If the costs of clean up and compensation, damages, and natural resource restoration for a spill of a tanker in relation to the Enbridge project were at least the same as those of the Exxon Valdez ($4 billion), and the total of all of the tiers of funding available in Canada is approximately $1.3 billion, please explain who would pay the difference. 18. The information is needed in order to assess the extent to which Canadians would have to pay for the cost of oil spills and to determine the extent to which the project is in the public interest. 19. NGP s response indicates that the clean up and compensation costs beyond $1.3 billion would depend on the circumstances of the incident. For example, there may be issues associated with whether the ship owner or charter qualified for limited liability (e.g., there was recklessness on the part of the ship owner). 20. NGP s answer is not fully responsive and the substance of the response is inadequate. Since the $1.3 billion amount is half of the cost of clean up and compensation for the Exxon Valdez spill, a fuller and more forthcoming answer is needed. CFN 2.1 (i) 21. In light of NGP s answer to CFN IR1 f), suggesting that it is ok for taxpayers to pay for clean up and compensation cost since they benefit from the developments, CFN requested a fuller explanation of the potential costs and benefits to taxpayers. 22. CFN requested that NGP provide information on the extent to which, federal and provincial governments in Canada have included potential clean up and compensation costs into their royalty and tax regimes. 23. NGP s response that is the Government of Canada sets both the amount of funding available under the Ship Sourced Oil Pollution Fund ( SOPF ) and the levies applied to establish and maintain this fund. Consideration of potential clean-up and compensation matters is within the jurisdiction of the Federal government and it exercises this jurisdiction by deciding when to collect levies for the SOPF and how much those levies should be. In making such determinations, consideration is presumably given to the amount available pursuant to international funds to which Canada subscribes. If the amount of funding for the IOPCF and the SOPF is 4

5 determined to be inadequate as a result of the perception of past or future spill risks, the mechanism to build or replenish funds to cover clean-up and compensation costs would presumably be through the reinstatement of levies. 24. This answer is totally non responsive to the question asked. 25. The information is needed in order to assess the extent to which Canadian would have to pay for the cost of oil spills and to determine the extent to which the project is in the public interest. CFN 2.2 (c & d) 26. NGP s primary measure to prevent and mitigate impacts to fisheries is the idea of creating a Fisheries Liaison Committee (FLC). 27. In order to determine the feasibility of this measure and the ability of First Nations to participate in the FLC effectively, CFN requested information or whether Enbridge was prepared to provide financial support to First Nations. 28. NGP did not respond to this question but only indicated that Northern Gateway, potentially together with other operators, will fund an initial operational budget. 29. NGP has not provided any information on whether or not NGP intends to include First Nation participation costs in the operating budget. Nor is there any information on how long NGP intends to fund the FLC. 30. NGP s describes the membership of the FLC as including everyone except the tanker owners. NGP lists all the interested parties for membership but is vague about the tanker owners NGP would welcome participation by other shippers and vessel operators. 31. In order to assess the feasibility of this main fisheries mitigation measure, a fuller description is required that includes how First Nation participation will be funded, and whether or not its membership will include the tanker owners, the ones with the liability for incidents outside the Terminal area. CFN IR 2.2 (h) 32. NGP has indicated that they did not consult with First Nations on Vancouver Island because those First Nations would be unlikely to be affected by routine operations and that there was little possibility of an oil spill from a large incident reaching Vancouver Island. 33. NGP s response to IR 2.2. h, indicates that it is not able to confirm that, following such an incident, spilled oil could, theoretically, not reach the north coast of Vancouver Island. 5

6 34. CFN believes that: the JRP scope of assessment includes accidents and malfunctions; the assessment of the risk of an oil spill needs to include the potential consequences of a large spill; the First Nations on Vancouver Island, Central Coast and Haida Gwaii have Aboriginal Rights and Title that could be adversely affected by a large oil spill and the practice of those rights occurs in the Queen Charlotte Sound and Hecate Strait; and Canada is relying partially on the information collected in the JRP process to fulfill its consultation obligations 35. For the aforementioned reasons, CFN asked NGP to identify where in the CEAA guidance materials, the CEAA Act or the JRP Agreement, it instructs proponents that they need not consult First Nations on the potential effects of accidents and malfunctions that could impact their current use of lands and resources for traditional purposes by Aboriginal persons or potential impacts on Aboriginal rights and interests. 36. NGP s response makes absolutely no mention of the CEAA Act or guidance materials. 37. Failure to consult with First Nations, whose constitutionally protected rights are affected by the project, has many implications, not least of which is the ability of Canada to rely on the JRP process to fulfill its obligations. CFN IR 2.2 (j) 38. Information on the potential effects of a spill has two purposes: at the JRP decision level, the consequences of a large spill is fundamental in assessing the risk of the oil tankers associated with the project; and the information can be used for spill response planning and establishing baselines for remediation and compensation. 39. CFN requested the following information from NGP: Since Enbridge has taken the position that a spill risk is a multiplication of probability times consequences, and has acknowledged the potential for long-term socio-economic effects a) why has baseline date not been collected so that the effects of a spill on community wellbeing can be determined and compensation and restoration effected; b) what prediction and quantification does Enbridge give for the potential long-term socio-economic effects on First Nation communities? 40. NGP response is Northern Gateway has and will continue to obtain information on Aboriginal groups whose traditional territories overlap with the pipeline RoW, the Kitimat Terminal, and the CCAA. 6

7 41. NGP s response to: a) is incomplete and fails to mention First Nations along the Central Coast, Vancouver Island and Haida Gwaii who would be impacted by a large oil spill in the OWA; and, b) is non-responsive. 42. Accordingly, the Application is missing essential baseline information to identify and quantify the consequences of a large oil spill on First Nations and the environment and to inform the risk assessment. CFN IR 2.2 (n) 43. Enbridge has stated that it is committed to meeting or exceeding minimum regulatory requirements and industry practice to drive the possibility of an accident or malfunction to as close to zero as practical. 44. CFN identified several mitigation and prevention measures in CFN IR 1.40 that could reduce the risk of incidents and oil spills and requested NGP to calculate how much each would further reduce the possibility of accidents and malfunctions to zero. 45. NGP responded by indicating that The Marine Shipping QRA identifies and assesses the primary risk mitigation measures. Calculations of the level of risk reductions potentially available in respect of the items referred to have not been done. [emphasis added] 46. NGP s answer is non responsive. CFN IR 2.5 (e) 47. The issue of corrosion of double hull oil tankers has been recognized by the international maritime body, the IMO, and the issue of the corrosiveness of the proposed NGP cargo, DilBit, has been raised in the JRP review. 48. Accordingly, CFN requested that NGP explain the extent to which the probability of an incident would be decreased if vessels had coated deckheads and inner tank bottoms to deal with aggressive corrosion in cargo tanks. If coated deckheads and inner tank bottoms would reduce potential incidents and oil spills, please explain why Enbridge will not commit to using such vessels since Enbridge has stated that it is committed to driving "the possibility of an accident or malfunction to as close to zero as practical." 49. NGP s response to this was to refer to its response to Haisla Nation IR 2.23c. In that response NGP noted that In 2008, the International Maritime Organization ( IMO ) introduced changes in the regulations for coating in cargo tank and ballast areas in tankers and enacted regulation IMO MSC.291(87). This regulation will require all tankers delivered after January 2016 to have coating in specific areas of the cargo tanks. 7

8 50. However, NGP refuses to commit to tankers 10 years or under and will only commit to using tankers 20 years and under. Accordingly, CFN s question remains appropriate and remains unanswered. CFN IR 2.9 (g) 51. CFN requested quantification information on the average number of days per year in the summer, for the past 10 years, that sea conditions, such as screaming northwesters, large enough to prevent the use of Caamaño Sound, occurred. 52. NGP s response does not provide the requested quantification Northern Gateway recognizes that there will be periods where weather conditions, primarily in the winter, would require the use of an alternative route to the Caamaño Sound entrance and have allowed for the use of an alternative route via Browning Entrance during these periods.; 53. The information is needed to assess marine transportation risks and measures proposed to prevent or mitigate these risks. 54. Tankers unable to enter or leave Caamaño Sound in severe weather conditions increases the risk of an incident. The information also serves to inform the feasibility of establishing a Pilot Station at that location. CFN IR 2.10 (a & b) 55. One of the main measures to prevent incidents in the CCAA proposed by NGP is to have pilots on board laden tankers. 56. However, in order to understand the extent to which using pilots eliminates or reduces the risk of an incident, one needs to know if there have been incidents when pilots are on board and the nature of those incidents. 57. Accordingly, CFN requested NGP to: a) describe all the specific incidents in which vessel incidents occurred in BC despite pilots being on board and whether they occurred because the vessel s master did not follow the pilot s direction; and b) provide information on what, if any, penalties or repercussions are for ships masters ignoring pilot s instructions and whether or not any such penalties have ever been assessed. 58. NGP has not provided the information because they claim that Pilotage on the BC Coast is the responsibility of the Pacific Pilotage Authority ( PPA ) and is regulated under the Pilotage Act and the Pacific Pilotage Regulations. Northern Gateway does not have access to this information and suggests the PPA is in a better position to provide it. 8

9 59. NGP has indicated in its Application and IR responses that it has had communications with the PPA and fails, in this response, to indicate whether it has bothered to even ask the PPA for the information so they could respond to the question. CFN IR 2.10 (c) 60. In order to assess all the potential ways of reducing the risk of an incident, CFN requested information from NGP to explain whether there are any technical reasons why pilots cannot be employed in the OWA at the Dixon Entrance. 61. NGP s responded by saying that it has assessed the risk of a tanker incident along the proposed routes in Dixon Entrance and Queen Charlotte Sound to be low. The OWA of Queen Charlotte Sound and Dixon Entrance are not within the Compulsory Pilotage Area (as described in the Pacific Pilotage Regulations under the Pilotage Act) and tanker crews are qualified to sail in these waters without pilots. 62. The NGP response fails to provide the information requested. 63. CFN understands that there may be regulatory reasons at present for pilots not being required in the non-regulated portion of the OWA but wanted to know if there were any technical reasons that prevented their use in the OWA. CFN IR 2.10 (e) 64. Some ships using Kitimat currently use the Pilot Station at Pine Island on Vancouver Island. However, NGP refuses to commit to using this station. 65. In order to assess the use of this station, which would reduce the risk of an incident in the Queen Charlotte Sound (OWA) by having pilots on board laden tankers, and NGP s refusal to do so, CFN requested information from NGP to explain how much the extra transport cost would be to change the proposed designated route to enable pilots to board and disembark at Pine Island. 66. NGP responded by stating that Northern Gateway believes the use of the Pine Island station would unnecessarily place tankers in an area of higher density ship traffic and unnecessarily increase tanker transit time in BC coastal waters. 67. NGP s has not answered the question asked. CFN IR 2.10 (h) 68. As a result of the IR process, we now know that because of the hours of work rule, tankers will require 2 pilots on board. 69. CFN requested information to determine if there would be a sufficient number of trained pilots available for the project. 9

10 70. CFN requested that NGP provide the following information: the number currently employed by PPA; the number over the age of 60; the number under the age of 60 with the 7 years experience needed to handle a VLCC; the length of time PPA would need to recruit and train the additional 6 pilots identified as needed for this Project; An analysis of how Enbridge arrived at the figure of 6 additional pilots. 71. NGP responded by stating that it is aware that the current total number of coastal pilots is in the order of 110, and has been advised that adequate levels of trained pilots will be available in the event that the Project proceeds, but is not privy to detailed data on pilot personnel. Please refer to Northern Gateway's response to Coastal FN IR 2.10a). 72. NGP has not fully responded or provided the information requested. 73. Further, NGP s response seems to indicate, but does not make clear, whether or not it has bothered asking the PPA for the information. CFN IR 2.11 (b) 74. Some ships using Kitimat currently use the Pilot Station at Pine Island on Vancouver Island which NGP refuses to use. 75. In order to assess the use of this station, which would reduce the risk of an incident in the Queen Charlotte Sound (OWA) by having pilots on board laden tankers, CFN requested NGP to explain why pilots are currently used from Pine Island for vessels to Kitimat if, as Enbridge says, they are not required outside of the mandatory marine pilotage areas. 76. NGP s responded by saying that Northern Gateway proposes pilot boarding stations in the outer section of Caamaño Sound and Browning Entrance. Northern Gateway believes the use of the Pine Island station would unnecessarily place tankers in an area of higher density ship traffic and unnecessarily increase tanker transit time in BC coastal waters. 77. NGP has not fully responded or provided the information requested. CFN IR 2.11 (c) 78. CFN requested information to determine the feasibility of creating a Pilot Station on Haida Gwaii because it is: interested in identifying ways that can reduce the risk of marine incidents; NGP has identified having tankers under control of pilots as 10

11 measure to reduce risk; the Dixon Entrance through which tankers would traverse is subject to frequent seasonal severe weather conditions. 79. CFN requested information on how long it would take to conduct a Pilot Risk Management Methodology study and feasibility study to determine safety, financial, operational and efficiency of establishing a new pilot station on Haida Gwaii, and who is responsible for initiating them and conducting them. 80. NGP s responded by stating that Pacific Pilotage Authority would be the responsible agency in conducting a Pilot Risk Management Methodology Study. 81. NGP s response does not fully answer the question asked. CFN IR 2.11 (d) 82. One way of reducing risk during the type of severe seasonal weather conditions is having tankers take shelter in anchorages or safe areas. 83. CFN is most concerned about having tankers traverse the OWA without the benefit of the measures proposed to reduce risk of tanker incidents in the CCAA. 84. Accordingly, CFN requested information that would assist in identifying, and determining the feasibility, of measures that could be taken by tankers in severe weather conditions from entering the OWA. 85. CFN requested that that NGP identify anchorages or safe areas, at the entrance to Queen Charlotte Sound and the Dixon Entrance, where vessels could be directed wait in a safe location while awaiting a pilot s arrival in poor weather conditions. 86. NGP responded by stating that The designated anchorage at Anger Island is capable of accommodating the design class of tankers. Pilots have noted that there may be viable anchorages in the area of Browning Entrance. The head of Kitimat Arm is also currently used for temporary anchorage and may be suitable for emergency situations with an escort tug in attendance. Decisions concerning places of refuge fall under the responsibility of Transport Canada. The process for selecting places of refuge is described in both the National Places of Refuge Contingency Plan ( PORCP ) and the Places of Refuge Contingency Plan, Pacific Region. As described in the Places of Refuge Contingency Plan, Pacific Region, Section This response fails to answer the question which asked for information with regard to the Dixon Entrance and, as a result, is non responsive. CFN IR 2.11 (e) 88. Weather conditions in the OWA and CCAA can be quite severe and are a risk to safe navigation. 11

12 89. It is widely known that climate change can affect weather patterns, and accordingly, CFN requested information on how climate change is predicted to affect the frequency and magnitude of storm conditions in the Queen Charlotte Sound, Hecate Strait and Dixon Entrance. 90. NGP responded by stating that Scientific literature suggests that climate change may increase the intensity of storms globally. Please refer to Section 3.1.4, Appendix A, and Appendix D of the Technical Data Report, Marine Physical Environment, by ASL Environmental Sciences, 2010 for a description of climate variability. 91. NGP s response is general and vague and non responsive to the question asked with regard to the frequency and magnitude of storm conditions in the Queen Charlotte Sound, Hecate Strait and Dixon Entrance. CFN IR 2.12 (c) 92. One of the potential causes of marine vessels mechanical breakdown is when propellers get entangled with fishing gear. 93. Since the area traversed by tankers is subject to extensive fishing, CFN requested information on the number of vessels in the OWA or CCAA that have experienced mechanical problems as a result of fishing gear getting entangled with the propeller or gear shaft. 94. This information is needed to assess the risk of such incidents and the adequacy of proposed mitigation measures. 95. NGP responded that it has not been able to find a data source for this information. In the event of propeller fouling that may impede tanker operations terminal tugs would provide assistance. 96. NGP does not indicate whether it tried to find the data, what sources it tried, and whether or not it attempted to obtain the information from local and community knowledge or Aboriginal Traditional Knowledge as recommended in CEAA Guidance documents. 97. As such, NGP has not responded to the information request. CFN IR 2.13 (d) 98. CFN is concerned about spill scenarios in the OWA which are most likely to occur as a result of incidents caused by, or occurring during the kind of severe weather condition found there. 12

13 99. Incidents and spills in severe weather conditions are far removed from rescue and response vessels thereby increasing the response time Accordingly, CFN requested that NGP calculate how long it would take a tanker to drift onto the predominantly rocky coastlines, assuming severe winter weather conditions caused a mechanical failure in the Dixon Entrance and the entrance to the Queen Charlotte Sound NGP s response to this specific request is As noted in Northern Gateway s response to Coastal FN 1.18d), drift rates to a given shoreline will depend on a number of variables such as the size and loaded condition of the tanker, wind direction and strength, tidal (or other) current direction, strength and cycle (flood or ebb) and are also time and location dependant. Current is likely to have a greater influence on a loaded tanker, and wind on a ballasted tanker and local wind and current directions can vary substantially throughout the OWA NGP s response is general and fails to answer the question The responses which Northern Gateway has provided to the following questions presented by other Intervenors are not full and adequate as required by s. 34 (1)(a) of the NEB Rules, as outlined in detail below: Canada Canada requested that NGP provide detailed protocols and procedures related to the protection of individuals of SARA-listed species, see subsections 32(1) and 32(2) of SARA in order to assist DFO in understanding potential impacts on SARA-listed species at the individual level NGP refused to provide the information In its response, NGP claims that it is sufficient for assessment purposes to know that NGP will implement a post-approval Marine Mammal Protection Plan using monitoring and adaptive management to address issues and effects. Canada Canada noted that recent studies indicate that ship strikes do occur regularly at speeds of less than 10 knots and further that about 23% of all confirmed ship strikes causing death or serious injury to whales took place at speeds of 10 knots or less Canada requested that NGP provide an assessment of the known frequency of ship strikes on baleen whales in confined inside waters, such as those in the CCAA, using recent literature that is not considered in the ESA or in responses to information requests. 13

14 109. NGP has refused to provide the information until after the assessment is concluded: Northern Gateway has initiated a quantitative marine mammal vessel strike analysis, which will be completed in advance of Project operations. Development of this analysis will take into consideration recent literature available at the time of writing, including new literature published since preparation of the ESA. Canada Canada requested that NGP provide a mitigation table for marine mammals, including killer whales and humpback whales in order to assist DFO in understanding conclusions about impacts of oil spills to marine mammals and species listed under SARA NGP was non responsive to this request instead stating that DFO would be consulted during development of the Marine Oil Spill Response Plan and associated Geographic Response Plans, and would have input into which species would warrant focus. Canada Environment Canada states that it continues to have concerns with respect to the selection of spill scenarios used for the mass balance examples and requested that NGP provide: Additional spill scenarios, the selection of which gives consideration to areas along the marine transportation route that have relatively higher ecological values. Spatio-temporal spill trajectory figures and additional model outputs which reflect various tidal states, winds and temperatures in each of the spill locations. A more comprehensive assessment of region-specific impacts (including particular sensitivities) for each of the spill scenarios on bird groups. Provision of spill trajectory and consequence data in an integrated fashion, with ecological consequences as part of the overall risk assessment (as opposed to the spill probability-based method). Further analysis of potential chronic effects of oil exposure on marine birds, which considers the range of available scientific literature on the subject NGP declined to provide the information requested by Environment Canada stating that Northern Gateway respectfully disagrees with the Federal Government reviewers comments regarding the need for additional scenarios to be developed at this stage for the purpose of discussion in this proceeding. The evidence provided in the Application materials, particularly when supplemented by subsequent and ongoing traditional use information, and information to be provided directly to the Joint Review Panel will enable a full discussion of the range of potential spill effects on Aboriginal interests and the marine environment, as well as operational and emergency response measures to mitigate those effects. 14

15 Canada The preamble to this Information Request states that The response to GOC IR 1.97 in the Response to GOC IR1 included the statement: "Inclusion of this process [oil-sediment interaction] in the spill model would result in a more rapid assimilation of the oil and thus the existing modeling can be considered conservative from this perspective. However, this rapid assimilation of oil is of concern as it likely underestimates oil portioning to sensitive benthic and near-shore sediments in both existing models. Suspended particulate matter is known to enhance oilsediment aggregate (OSA)/oil-mineral aggregate (OMA) formation and to increase dispersion of the oil. This factor does not appear to be accounted for in either the SLRoss or MWQM models. Environment Canada requests that dispersion enhancement effects by suspended sediment be included in the fate and water quality models, and that the sunken oil fate be included in the SLRoss fate model results Accordingly, Canada requested that NGP provide further information on suspended particulate matter (SPM)-oil interactions, as it relates to oil submergence and persistence in sediment, including indicating suspended sediment size distribution and the fraction of submerged oil in the fate models NGP responded that Northern Gateway does not have the information requested. This is a non responsive response. Canada The Preamble to the Information Request states that, In the second part of GOC IR 118, additional analysis was requested regarding how Aboriginal groups could be impacted by spills from the pipeline, the marine terminal or from tankers. In particular, information was requested that would enable assessment of Project impacts on potential or established Aboriginal or Treaty rights [emphasis added]. Information was also sought concerning proposed mitigation measures. To date, the requested information has not been received. Furthermore, similar to IR 76, there are concerns with respect to the selection of spill scenarios used for the mass balance examples Accordingly, Canada made the following information is requested: Additional spill scenarios, the selection of which gives consideration to areas along the marine transportation route that have relatively higher values from the perspective of asserted and acknowledged Aboriginal rights and title as well as traditional uses. A more comprehensive assessment of region-specific impacts (including particular sensitivities) for each of the Aboriginal groups on the marine shipping route. 15

16 119. NGP s response Northern Gateway does not believe that the request for additional spill modeling and assessment at that location is reasonable is non responsive. NGP states its rationale thusly, disagrees with the Federal Government reviewers comments regarding the work done to date, and the need for additional scenarios to be developed at this stage for the purpose of discussion in this proceeding. The evidence provided in the Application materials, particularly when supplemented by subsequent and ongoing traditional use information, and information to be provided directly to the Joint Review Panel will enable a full discussion of the range of potential spill effects on Aboriginal interests, and measures to mitigate those effects. JRP IR The JRP requested NGP to provide a semi-quantitative risk evaluation for the following criteria: a) Health and safety of the public and Aboriginal groups; b) Environment; and c) Economic losses for third parties, including Aboriginal groups NGP responded to this request by stating that it anticipates that the preliminary risk evaluation will be completed and filed by April Fully quantitative evaluations of the safety risk for both the terminal and the pipelines are being prepared and Northern Gateway anticipates filing by April Decision or Order Sought 122. CFN respectfully requests the following relief: a) An order that Northern Gateway must provide full and adequate responses to those portions of Coastal First Nations Information Request #2, and those of other Intervenors, identified herein by a fixed date; b) The review of the Northern Gateway Project be adjourned until Northern Gateway has provided the requested responses to the Information Requests detailed herein; c) The Hearing Order be amended to set new and reasonable deadlines for Information Requests since the deadline for filing will have passed; d) The Hearing Order schedule be amended to ensure that the deadlines for filing Intervenor written or oral evidence occurs no less than 3 weeks after the information, determined by the JRP as being required, is filed by NGP, including any supplemental reports or studies (e.g. the risk evaluation referenced in 121 and the Marine Habitat Compensation Plan referenced in JRPIR8.19). e) Such other relief as the Panel may consider appropriate in the circumstances. All of which is respectfully submitted this 1st day of November, Art Sterritt Executive Director, Coastal First Nations 16