Burnaby formally asks NEB to cancel Kinder Morgan hearing

In the City of Burnaby’s strongest worded letter yet to the National Energy Board, the B.C. municipality has formally urged the pipeline regulator to cancel and restart the entire Kinder Morgan hearing process, citing extraordinary conflict of interest concerns — especially following the hire of the company's consultant to the NEB.

As a National Observer exclusive reported August 1, the Harper government appointed Calgary-based oil executive Mr. Steven Kelly precisely as national media attention was diverted by the impending start of the Prime Minister's federal election call.

Controversially, Kelly's consulting firm was also hired two years earlier by Kinder Morgan, when he wrote and submitted an economic report to the NEB to justify the $5.4-billion Trans Mountain pipeline expansion proposal. Kelly will soon sit on the NEB's board in October just as other board members will deliberate on whether Kinder Morgan’s $5.4 billion oil sands pipeline is in Canada’s economic and environmental interest.

The city’s lawyer, Gregory McDade, says Kelly’s hire means the whole pipeline hearing must now be thrown out to "erase the perception of bias" toward Kinder Morgan.

"Burnaby is of the view that the review process for the project has been irrevocably tainted by [his] appointment,” the lawyer wrote in a Sept.4 letter now on the NEB website.

“[The pipeline hearing] must start again from the beginning with the appointment of a new panel in order to cure what the board has referred to as “concerns about the integrity of this hearing process,” he added.

Kinder Morgan said Friday that a new energy consulting firm, Muse Stancil & Co., will prepare a new report to replace Kelly’s evidence.

"Trans Mountain is prepared to submit the Muse Stancil report by Sept. 25. However, it is ultimately up to the NEB to determine the revised regulatory process for our application,” wrote company spokesperson Ali Hounsell.

Kinder Morgan hearing likely after the election now

The board says it will respond to Burnaby's request letter to nix the hearing, once the company has had its chance to comment.

But following the outcry from the Kelly appointment (the National Observer story got more than 29,000 Facebook shares), the board said it took appropriate action to "strike the evidence prepared by Mr. Kelly from the hearing record." The public hearings are now delayed as a result.

Burnaby city councilor Sav Dhaliwal said Kelly's appointment was the “last straw” in the city's nearly two year battle over the pipeline, that has even the Mayor promising to get arrested to stop it. The councillor even suggested the Conservative government may have deliberately appointed Kelly to force the NEB to delay the hearing until after the election when it would cause less embarrassment.

“By the way they’ve been rigging this process, I think they did this to not have this [pipeline hearing] in the limelight," said Councillor Dhaliwall.

“Particularly because the Conservative government was already in the headlines for the Senate scandal — the last thing they wanted was to take attention away from their [campaign] platform and announcements and on to this hearing," he added.

The hearings this month were expected to draw huge protests over the project, just as the pipeline did on Burnaby Mountain last November. Crowds as large as 800 gathered, and more than 100 citizens were arrested in protest of the company's drill tests.

Dustin Rivers from Squamish Nation (Skwxwú7mesh-Kwakwaka'wakw) gives a speech to the 800-plus-crowd that showed up on Burnaby Mountain just prior to the arrest clashes in November 2014. Photo by Mychaylo Prystupa, National Observer.

'You [NEB] clowns have d**ked us around'

Burnaby city councilor, Nick Volkow, also said very colourfully on Friday that the 20 months that the city has spent reviewing Kelly's evidence has been a huge waste of taxpayer money —possibly more than one million dollars.

"You clowns have [expletive] us around for so long, and we've spent so much friggin' money on this, and you had such a rigged system at play, that we'd like our [taxpayer] money back," said councillor Volkow.

A lawyer for an anti-pipeline group called Pipe Up has also formally written the NEB to cancel and re-start the hearing, citing similar concerns as the city.

Mayor Derek Corrigan, who is currently in Japan, told the Burnaby Now recently that the NEB’s chair, Peter Watson, very likely would have known about the controversial appointment of Kelly by the federal Conservatives, but did not stop it. Watson just completed a cross-country PR tour to present its message that the board applies strict requirements to make sure a pipeline protects Canadians and the environment.

The council for the leafy suburban city, home to 220,000 and next to Vancouver, has long said the pipeline expansion endangers the safety of its citizens and threaten conservation areas. Fire officials have also cited seismic and emergency response concerns in oil pipeline disaster scenarios. The company has countered that its project is safe, and will be built to world-class environmental standards.

Pipeline politics in federal election

The Conservative Party, the Minister of Natural Resources, and the PMO were asked to provide a comment on this story Friday, but have so far not responded.

Meanwhile, NDP leader Tom Mulcair recently told the National Observer in a sit-down interview:

“You cannot approve Kinder Morgan, any other pipeline for that matter, because Stephen Harper has gutted the environmental legislation to allow the public to see if there had been a thorough, credible evaluation and assessment of a project —that’s not the case anymore.”

"We’d make sure we’d put back a system that Canadians could have confidence in —like I did when I was the provincial minister of the environment —and I would make sure it was enforced rigorously,” Mulcair added.

Justin Trudeau's Liberals have similarly pledged to overhaul Canada's environmental review system for oil pipelines, and involve more communities and Aboriginals in the process. And Elizabeth May's Greens have pledged to stop all oil pipelines that would export raw bitumen and result in "risky tanker schemes."