Federal hearings into the proposed Enbridge Northern Gateway pipeline project are unfair because company witnesses are allowed to huddle before answering questions during cross-examination, says a lawyer for two conservation groups.
Chris Tollefson, a University of Victoria law professor representing BC Nature and Nature Canada, has also complained about long, "scripted answers" and about witnesses who are passed information from company experts sitting in the back rows of the hearing room.
"Our view is that this is a pressing issue that needs to be addressed by the [Joint Review Panel] before going forward," Prof. Tollefson said in an interview.
The hearings into the Enbridge proposal to build a pipeline from Alberta to the British Columbia port of Kitimat are set to resume Thursday in Prince Rupert. The panel is charged with assessing the environmental impact of the project.
But Enbridge rejects Prof. Tollefson's complaints, saying it is adhering to the same rules that apply to every participant in the hearings and that its goal is to give the most detailed and accurate information it can to the Joint Review Panel.
"Conferring is a normal part of the proceedings … It's a process that allows for full and comprehensive answers to the questions being asked," said Todd Nogier, an Enbridge spokesman.
He said it is standard practice in such hearings to allow witnesses to consult or refer to documents while giving testimony.
"This type of hearing process is one that is quite common for regulatory proceedings. This isn't a criminal court. This is a hearing process and the rules that are set by the Joint Review Panel are quite clear and are such that all participants have to follow them," Mr. Nogier said.
"It's done openly," he said of company experts consulting with witnesses during cross-examination. "And it has been occurring right from the first day of the hearings and every day of the hearings since. It's not something that is new or novel whether we are talking about these proceedings or regulatory proceedings in general."
In a notice of motion filed Tuesday, however, Prof. Tollefson asked the panel for a procedural declaration that witnesses must "refrain from conferring with other witnesses, counsel or other parties with respect to their testimony while under cross-examination."
He said the hearings should not continue until his complaint has been addressed and the rules surrounding cross-examination have been clarified.
"This issue is currently before the Joint Review Panel in the form of a motion … and the JRP will make a ruling on this motion in due course," Kristen Higgins, a spokeswoman for the National Energy Board, said in an e-mail when asked for comment.
Prof. Tollefson said his concerns about the fairness of the hearing process have been building for some time, but he decided to make a formal complaint only after questioning members of a Northern Gateway panel on shipping and navigation.
In the motion, he states that the panel members paused for huddles 39 times during a little over five hours of cross-examination.
He states that when he asked one witness a question, the witness would often confer with others before answering, that sometimes one witness would interject to answer questions he'd put to someone else and that "there was also a pronounced tendency for witnesses to answer questions using the plural 'we' as opposed to the singular 'I.'"
Prof. Tollefson's motion also complained that the Joint Review Panel "appears to allow the practice of sworn 'front row' witnesses communicating with unsworn 'back row' Northern Gateway staffers in the course of giving their testimony."
Barry Robinson, a lawyer for Ecojustice, a legal non-profit representing several environmental groups, said he thinks the application is well founded.
"There does seem to be excessive conferencing among the witnesses," he said. "It does seem it's been building [throughout the hearings] and I think the shipping and navigation panel was just so blatant you couldn't ignore the things that were happening."
Art Sterritt, executive director of Coastal First Nations, said his group pulled out of the Enbridge hearings in February largely because of concerns about fairness.
"There's such a thing as due process and we didn't think we were getting that," he said. "There's just no real procedural fairness in the exercise … We feel Northern Gateway is basically calling the shots there."