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ENCANA SHALLOW GAS INFILL DEVELOPMENT PROJECT
AND EUB APPLICATION NO. 1435831
___________________________________
JOINT REVIEW PANEL HEARING CONDUCTED PURSUANT TO:
SECTION 4.5 OF THE "AGREEMENT TO ESTABLISH A PANEL
FOR THE ENCANA SHALLOW GAS INFILL DEVELOPMENT PROJECT"
AND THE EUB'S RULES OF PRACTICE
_______________________________________
PROCEEDINGS AT HEARING
OCTOBER 23, 2008
(Evening Session)
VOLUME 15
PAGES 3392 TO 3504
________________________________________
Held at:Energy Resources Conservation BoardGovier Hall, 640-5th Avenue S.W.
Calgary, Alberta
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APPEARANCES
JOINT PANEL:
Robert (Bob) Connelly, Panel ChairBill Ross, Panel MemberGerry DeSorcy, Panel Member
CANADIAN ENVIRONMENTAL ASSESSMENT AGENCY (CEAA):
Marie-France TherrienJeff DavisLucille Jamault
ENERGY RESOURCES CONSERVATION BOARD (ERCB):
JP Mousseau, Esq., Board CounselMeighan LaCasse, Board CounselJodie SmithJennifer FitzGeraldMirtyll AlbiouPeter HuntBruce GreenfieldCarrie DickinsonShaunna CartwrightKen BanisterTom ByrnesSteve ThomasKarl JorsLawrence JonkerDarin BarterBob Curran
PROPONENT
Shawn Denstedt, Esq. ) For EnCana CorporationMs. Terri-Lee Oleniuk )Ms. Leanne Campbell )
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INTERVENERS:
Kirk Lambrecht, Esq. ) For Government of Canada,Jim Shaw, Esq. ) Environment Canada,Robert Drummond, Esq. ) Natural Resources Canada,
) Department of National) Defence, Parks Canada,) Agriculture Canada,) Department of Fisheries) and Oceans
Ms. Jennifer J. Klimek ) For the EnvironmentalMr. H. Binder ) Coalition
)
John McDougall, Esq. ) For the SuffieldMs. Kelly Lemon (student) ) Environmental Advisory
) Committee
Keith Miller, Esq. ) For the Suffield Industry) Range Control
REALTIME REPORTING:
Mainland Reporting Services, Inc.Nancy Nielsen, RPR, RCR, CSR(A)Tambi Balchen, CRR, CSR No. 9166
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INDEX OF PROCEEDINGS
DESCRIPTION PAGE NO.
Department of National Defence, EnvironmentCanada, and Natural Resources CanadaWitness Panel Stood Down
3397
Opening Submissions of the SuffieldEnvironmental Advisory Committee ("SEAC"),by Mr. McDougall
3397
Suffield Environmental Advisory Committee("SEAC") panel:
Olaf Jensen (on former affirmation)Rob Kennedy (duly sworn)
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Presentation of the Suffield EnvironmentalAdvisory Committee ("SEAC"), by Mr. Kennedy
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Presentation of the Suffield EnvironmentalAdvisory Committee ("SEAC"), by Mr. Kennedy
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Cross-examination by the Coalition, byMs. Klimek
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Cross-examination by the Government ofCanada, by Mr. Lambrecht
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Cross-examination by EnCana, byMr. Denstedt
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Cross-examination by the Panel Secretariat,by Mr. Mousseau
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Questions by the Joint Review Panel, byDr. Ross
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Questions by the Chairman 3499
(SEAC PANEL EXCUSED) 3502
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INDEX OF EXHIBITS
DESCRIPTION PAGE NO.
EXHIBIT No. 007-008: Curriculum Vitaeof Mr. Rob Kennedy
3399
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(PROCEEDINGS COMMENCED AT 6:30 P.M.)
(DEPARTMENT OF NATIONAL DEFENCE, ENVIRONMENT CANADA, AND
NATURAL RESOURCES CANADA WITNESS PANEL STOOD DOWN)
THE CHAIRMAN: Good evening, Ladies and
Gentlemen. We are ready to begin once again and we
will just -- one announcement. We will take a very,
very quick break for maybe just a minute or two in
about an hour just to change something with the
reporters and then we'll continue on roughly until
about 8:30 and we'll take a longer break at that
point, about 15 minutes.
Mr. McDougall, you may begin, please.
OPENING SUBMISSIONS OF THE SUFFIELD ENVIRONMENTAL ADVISORY
COMMITTEE ("SEAC"), BY MR. MCDOUGALL:
MR. McDOUGALL: Thank you, sir.
Distinguished Panel, Ladies and Gentlemen, my
name is John McDougall. I act on behalf of the two
individuals that are, are here from, from SEAC, and
who have agreed to give evidence to the Joint Review
Panel on the Project in issue; Mr. Kennedy from the
ERCB and Mr. Jensen from Environment Canada.
As has been identified several times to the
Panel, the third member of SEAC is Rob Burland from
Alberta Environment and is not in attendance this
evening.
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Further, just for further confirmation,
Mr. Burlind and Alberta Environment have not been
involved in the submission to the JRP. They have not
been involved in the input to the information request
answers provided by the two members from SEAC and they
have not been involved in the preparation or the
presentation of tonight's material.
Given that SEAC operates under a requirement
of unanimity, SEAC per se cannot give formal evidence
qua SEAC as Mr. Burlind is not here. Notwithstanding
that fact, the two remaining members, Mr. Kennedy and
Mr. Jensen, thought it was important to provide
information that the Panel requested of them about
SEAC to the JRP, and have agreed not only for the --
to provide the submissions and the Information
Requests, but also to give evidence here this evening.
However, while we may refer to tonight's
evidence as "SEAC's" and questions in cross may be
directed to "SEAC", what is in fact meant is that this
is an informal submission and evidence of two members
of SEAC rather than, in fact, SEAC qua SEAC.
Sorry, I know that's a lot of "SEACs" and
"quas". Thank you.
THE CHAIRMAN: I think we understand,
Mr. McDougall.
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MR. McDOUGALL: Thank you. I was just about
to say, and having said that, and on the assumption
that everyone understands that and certainly there
were no objections to our filing both of the
submission and of the Information Requests, we'll now
proceed with, with SEAC's presentation.
Firstly, a couple of housekeeping matters,
introduction of the two members from SEAC, sitting
closest to the Panel is Mr. Rob Kennedy from the ERCB,
and to his left, who has also been -- should be known
to the Panel and everyone here, has been giving some
evidence in the last couple days is Mr. Olaf Jensen
from Environment Canada.
Next, I have the Curriculum Vitae for
Mr. Kennedy which I propose to, to give to
Mr. Mousseau and to the Panel to mark as an exhibit.
I have already given a copy to my friends.
THE CHAIRMAN: That should be
Exhibit 007-008.
EXHIBIT NO. 007-008: Curriculum Vitae of
Mr. Rob Kennedy
MR. McDOUGALL: That's, that's what I have as
well, sir.
And Mr. Jensen's CV is already marked as, as
I understand it, Exhibit 003C-004. I don't propose to
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mark that as a separate exhibit under, under SEAC's
list of exhibits.
MR. McDOUGALL: Now, Mr. Kennedy and
Mr. Jensen, I understand that you have a presentation
to give this evening?
A. MR. KENNEDY: Yes, we do.
Q. And perhaps it may be an appropriate time to swear the
witness?
THE CHAIRMAN: Yes. I believe Mr. Jensen is
already -- has already sworn in, so I just remind you,
Mr. Jensen, that remains to be the case but we will
need to swear Mr. Kennedy in.
MR. McDOUGALL: Thank you, sir.
SUFFIELD ENVIRONMENTAL ADVISORY COMMITTEE PANEL:
Olaf Jensen (on former affirmation)
Rob Kennedy (duly sworn)
THE CHAIRMAN: Please proceed.
MR. McDOUGALL: Thank you. Gentlemen, was
the presentation that you are about to, to give this
evening to the JRP prepared and authored solely by the
two of you.
A. MR. KENNEDY: Yes, it was.
A. MR. JENSEN: Yes, it was.
Q. And is the evidence you are about to provide true and
correct to the best of your belief?
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A. MR. KENNEDY: Yes, it will be.
A. MR. JENSEN: Yes.
Q. And do you adopt the presentation you are about to
give as the -- your evidence on behalf of SEAC
subject to my earlier caveat?
A. MR. KENNEDY: Yes.
A. MR. JENSEN: Yes.
Q. Thank you. Please proceed.
PRESENTATION OF THE SUFFIELD ENVIRONMENTAL ADVISORY
COMMITTEE ("SEAC"), BY MR. KENNEDY:
A. MR. KENNEDY: Thank you. Mr. McDougall.
Good evening, Mr. Chairman, Panel Members,
Ladies and Gentlemen. My name is Rob Kennedy and I'm
here with Olaf Jensen. We're both members of the
Suffield Environmental Advisory Committee, which we
will hereinafter refer to as "SEAC", and we are here
today at your behest to present an overview of SEAC's
roles and responsibilities as it relates to past and
present natural gas developments in the NWA, including
the proposed Project.
As requested we will also be, be providing
some history and context of SEAC as well as some
comments on our role in Pre-disturbance Assessments
and in reclamation.
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Presentation Summary
In this presentation, we intend to first
summarize those sections of our submission, which is
Exhibit No. 007-002, Registry No. 470, which are
especially relevant to these hearings for the Joint
Review Panel.
Next, we intend to provide the current
operational context at CFB Suffield and the NWA. And
the role of SEAC in the Environmental Assessment to
date.
Finally, we intend to provide a detailed
discussion on current considerations and observations
of the two SEAC members at this hearing, importantly,
considerations as to why the Memorandum of Agreement
1975 should be replaced by a successor agreement and
considerations if the Project is to proceed.
Mr. Jensen will now summarize relevant
extracts from our submission.
Summary of Submission
A. MR. JENSEN: Thank you, Panel Members. We
will now summarize our submission presented to the
JRP. We intend to provide the introduction to the
report in order to set the context for our submission.
Next we intend to provide extracts from the executive
summary and follow that with a summary of salient
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extracts from the background.
Finally, we will summarize some of the
especially relevant points from the practice section
of the submission.
We feel it is important that this information
be read into the record as it provides relevant
background to the material that will follow and form
the bulk of our Opening Statement.
Introduction
The Joint Review Panel, respecting the
proposed EnCana Suffield Shallow Gas Infill
Development Project, requested SEAC to present
evidence at the public hearings on the Project and in
particular on the committee's, and I quote:
"Roles and responsibilities as it
relates to past and present natural
gas developments in the National
Wildlife Area and especially to the
proposed Project."
THE CHAIRMAN: Mr. Jensen, just one word of
caution. If you could slow down a little bit, I think
that would be appreciated, please.
A. MR. JENSEN: My apologies.
THE CHAIRMAN: Especially when you're
reading, it's -- there's a tendency of course for all
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of us to read quicker so.
A. MR. JENSEN: Thank you.
THE CHAIRMAN: Thank you.
A. MR. JENSEN: The Panel is particularly
interested in learning more about SEAC's role in
Pre-disturbance Assessments and in the reclamation and
closure phases.
Executive Summary
SEAC was established and its roles flow from
the 1975 and 1977 memorandums of understanding signed
between the Province of Alberta and the Department of
National Defence. In recognition of the fragile
nature of CFB Suffield and its ecological value, SEAC
was created as an oversight and advisory body at CFB
Suffield.
SEAC's primary geographic area of
responsibility is the restricted development zone but
it also provides advice with respect to activities on
the remainder on the Base.
SEAC's role is defined in four documents:
the Oil and Gas Master Agreements, the Suffield
Environmental Protection Objectives and the
Environmental Protection Regulations.
The committee is comprised of an employee
from Environment Canada, an employee of Alberta
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Environment and an employee from Energy Resources
Conservation Board. The committee provides advice to
the Base Commander at CFB Suffield who obtains a
recommendation from SEAC for decisions with ecological
implications.
SEAC is primarily responsible for considering
applications with regards to environmental factors and
making a recommendation to the Base Commander as to
whether or not a specific project should be approved.
Additionally, the committee causes inspections to be
made.
The current members of the committee have
been representatives on SEAC since approximately
January of 2007. It is our understanding that SEAC
has, as per the terms of the agreements, provided
regular advice through the Base Commander, as requests
caused inspections to be made in the form of annual
field reconnaissance and heard submissions from
industrial operators at annual general meetings.
Background
In the Memorandum of Understanding signed
between the Minister of Defence and Alberta Minister
of Energy and Natural Resources in 1975, with respect
to access to oil and gas at CFB Suffield, and I quote:
"Portions of the Base are extremely
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fragile in nature and valuable from
an ecological point of view and
have not heretofore been used for
Military purposes and should be
preserved to the extent possible."
Further, in the South Saskatchewan River Bank
Zone, and I quote:
"Natural gas development should be
limited to wells recommended for
approval by the Suffield
Environmental Advisory Committee."
In the Middle Sand Hills Zone:
"No natural gas development for
this zone should be undertaken
until the completion of an
Environmental Impact Assessment of
the zone."
SEAC is not a legal entity but was established
and its membership defined in the 1975 Gas Master
Agreement which states in Section 12.3, and I quote:
"Canada and Alberta hereby
establish a Committee called the
"Suffield Environmental Advisory
Committee" consisting of three
members: one appointed by Canada,
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being an employee of the Department
of the Environment (Canada); one
appointed by Alberta, being an
employee of the Department of the
Environment (Alberta); and one whom
Alberta will cause to be appointed
from the Board [AEUB]."
Section 12.4(a) and (b) contain the following
direction regarding SEAC, and I quote, Section 4:
"The Suffield Environmental
Advisory Committee:
(a) shall in accordance with
the Suffield Environmental Surface
Protection Objectives prescribed in
Appendix 2 to Schedule 'D' of this
Agreement, cause inspections to be
made to ensure the proper
application of the Suffield Oil and
Gas Environmental Protection
Regulations prescribed in
Appendix 3 to Schedule 'D' of this
Agreement.
(b) shall give to Alberta, or
its assignees the opportunity to be
heard and to make representations
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in respect of matters being
considered by the Committee."
12.6:
"The Suffield Environmental
Advisory Committee is responsible
to and shall report annually upon
its activities to Canada and
Alberta, and to the Base
Commander."
Section 12(7):
"Notwithstanding any provisions of
the Suffield Oil and Gas
Environmental Protection
Regulations, the Base Commander may
in any particular case, for the
purpose of Appendix 2 and the
application of Appendix 3, but only
upon the recommendation of the
Committee,
(a) give or refuse to give
such consent or approval for the
performance or doing of such an act
or thing or
(b) order the performance or
the cessation of such act or
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thing."
Suffield Environmental Surface Objectives form
part of the Oil and Gas Master Agreements.
Section 12.4 of the Master Agreements refers SEAC to
apply the Environmental Protection Regulations. There
are two sets of regulations: The Suffield Oil and Gas
Environmental Protection Regulations and the Suffield
Oil Environmental Protection Regulations. Although
these documents are titled "regulations", neither
document appears to be legislative.
Section 2.2 of both regulations contains the
following statement and I quote:
"Whenever the Land Conservation
Regulations refer to the
Development and Reclamation Review
Committee [or DRRC], the reference
shall, for the purposes of the
Agreement and the application of
these regulations, be deemed to be
a reference to the Suffield
Environmental Advisory Committee
instead and in lieu of the DRRC as
constituted under Section 21 of the
Land Conservation Regulations."
The role of the DRRC is to make a recommendation
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to an approving authority with regards to applications
for development and reclamation approval having regard
to environmental factors. The Provincial legislation
from which the DRRC is established, the Land Surface
Conservation and Reclamation Act and the Land
Conservation Regulations have since been repealed.
In 1993 the Land Surface Conservation and
Reclamation Act was repealed and replaced by
Section 247 of the Environmental Protection and
Enhancement Act. No provision was introduced into the
new Act for the continuation of the Land Conservation
Regulation.
Our understanding is that in the past SEAC
has taken on the role of the DRRC by reviewing an
applicant's development and reclamation plans
including review, in certain cases, of surface
disturbance reports and water management reports.
SEAC was then responsible for providing a
recommendation, both with regard to development and
reclamation to an approving authority as defined by
the now repealed LSCRA.
Practice
As mentioned, SEAC consists of Rob Kennedy
with the Energy Resources Conservation Board, myself
with Environment Canada Canadian Wildlife Service and
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Rob Burlind with Alberta Environment. Each of these
members is new to SEAC as of January, 2007. Since
that time SEAC has received two requests for advice
and have made one annual, now two annual field
reconnaissances, and have written one annual report
which was presented verbally in draft form to the Base
Commander at the AGM, Annual General Meeting, in
August, 2007 and in final form in January, 2008.
A second annual report was tabled at the
Annual General Meeting this September at Suffield.
Past SEAC activities are understood by the current
SEAC members to be as follows:
- review development and reclamation
applications;
- review other applications and proposals
such as land spray while drilling,
holding cells, subsurface applications,
seed mixes for reclamation and spill
remediation;
- attend annual field reconnaissance;
- provide annual report;
- attend Annual General Meeting;
- attend other meetings as requested;
- participate in other activities,
including appropriate dispute
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resolution and the reclamation
subcommittee;
- provide advice to the Base Commander
and educate parties in areas of
knowledge.
Operational Context
On July 9, 1973 the first well was spudded on
a Suffield Block. In this photo, for your interest, a
British Army Training Unit Suffield, or BATUS,
helicopter is seen hovering near this first well in
the attached picture. A number of evaluation wells
were drilled up to the period ending in 1975 when the
governments of Alberta and Canada drafted the Gas and
Oil Memorandum of Agreement.
Since the inception of SEAC with the signing
of the agreements, drilling has continued reaching a
brief plateau during the period from 1990 to 1995 and
picking up pace after the year 2000. As we have heard
during these proceedings, an MOU to establish the NWA
was signed in 1992 and the NWA was formally created in
2003.
As indicated by EnCana, there was no drilling
in the National Wildlife Area during the decade from
1987 through to the end of 1997. Drilling in the
restricted zones resumed in 1998 when the current well
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density of 8 wells per section, or roughly 1100 wells
in the National Wildlife Area was achieved.
In addition, there are at present more than
10,000 wells on CFB Suffield. Mr. Rob Kennedy will
now read into the record the final part of our
presentation to the JRP.
PRESENTATION OF THE SUFFIELD ENVIRONMENTAL ADVISORY
COMMITTEE ("SEAC"), BY MR. KENNEDY:
A. MR. KENNEDY: Thank you, Olaf.
We have summarized our submission that was
provided to the JRP and we feel it is vital that we
now provide the Panel with our observations and
suggestions that the JRP may wish to consider while
formulating its recommendations.
During our annual SEAC reconnaissance, we
routinely look at specific sites and review, in
detail, issues at these sites. At the end of these
field tours, we present an annual report to the Base
and industry at the annual Oil and Gas Meeting.
Within the SEAC annual reports we have tried
to capture the bigger issues, those issues that
present themselves after a review of all of the sites.
In our submission and presentation to the JRP, we have
taken a similar approach.
We have identified what we feel are the big
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issues. We believe this is necessary so that the JRP
has relevant information in making its recommendations
as it may pertain to the role of SEAC. In making our
observations, we hope to aid the parties involved in
the development of oil and gas to work together in an
atmosphere of cooperation and common understanding.
We hope that will contribute to ensuring the
protection of the environment at Suffield and
especially the NWA. We hope to help clarify matters
in fairness to ourselves as current SEAC members and
for those who might one day replace us.
We should be so lucky.
We are going to split this presentation into
observations of the current situation and observations
for the future.
Current
The current situation. It is our observation
that in regards to SEAC there are two large issues:
One is an overall lack of clarity which has resulted
in differing interpretations and thus disconnects
amongst the parties. In our opinions, the second
large issue for SEAC is that of resources for SEAC.
With respect to a lack of clarity we refer
specifically to the following:
(1) the role of SEAC;
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(2) the geographic area of responsibility
for SEAC;
(3) the reporting structure or
responsibility for SEAC;
(4) the authority of SEAC;
(5) the environmental standards and
expectations for SEAC, and perhaps that
can be identified as a regulatory gap;
and
(6) the processes for development
applications and approval, reclamation
and requests for review.
We would now like to expand on those items.
Role of SEAC
Since we took the role in about January, 2007
it became apparent to us that each party, primarily
the Base and EnCana, have had differing views as to
the role of SEAC.
In fact, we, too, have puzzled over our role
and due to the pressure of being caught in the middle
of the two parties and with limited resources, we
intended to develop our own terms of reference. This
did not occur because of individual work loads in
2007. In 2008 SEAC was invited to participate in the
present hearing and we believed that the JRP would be
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faced with reviewing the role of SEAC and this would
potentially lead to changes for SEAC; thus we have not
pursued the concept of creating our own terms of
reference.
The Panel has heard evidence from EnCana
stating that the 1975 Memorandum of Agreement provides
the role of SEAC in clear terms. The Panel has also
heard evidence from the Department of National Defence
regarding their view of the role of SEAC. While we
believe there is a common thread in that they both
view SEAC as providing some form of environmental
oversight, there are differences in interpretation as
to when, where and how that oversight is implemented.
It appears to us that there is a lack of
agreement on the Memorandum of Agreement and its
interpretation. In short, there is no agreement on
the Agreement. As a result, SEAC gets caught in the
middle trying to balance the expectations of the
parties to the Agreement, Canada and Alberta and its
assignees.
We have taken the approach that SEAC exists
to provide environmental advice to the Base Commander.
This view is based on the customary practice of SEAC,
the way in which previous SEAC members did business
and relate that role of SEAC to us. Indeed, on
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cross-examination on October 17th, we believe
Mr. Protti of EnCana observed that SEAC was originally
created to provide support to the Base Commander.
Further, the Base Commander seems to have the
same view. He feels that SEAC is only to provide
advice as per his request. For example, as per his
evidence regarding the role of the Base's range
sustainability section and the accompanying flow chart
for the development applications, it becomes apparent
that SEAC only provides review when requested by the
Base Commander because the range sustainability
section has taken the main role in reviewing and
providing recommendations for approval on applications
from industry for oil and gas development.
It should be noted that to date the current
SEAC has not received any applications for development
for us to review. We believe that SEAC is often seen
by both EnCana and the Base as at least a partial
solution to their differing views, an arbiter in the
case of disputes, if you will.
Geographic Area of Responsibility
The Memorandums of Agreement outline some
geographic areas for which reviews by SEAC are
required. However, as testimony has been presented
throughout this hearing, it appears evident that some
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of the special geographic areas are no longer
identified. The maps of the areas of concern vary and
differ. The mixed grasslands area, for example,
appears in early reports but is absent in the
Memorandum of Agreement and then re-appears in the
D and R applications during the initial development
period.
Reporting Structure
As per the 1975 agreement, SEAC is comprised
of one person from the Energy Resources Conservation
Board, one from Alberta Environment and one from
Environment Canada which is provided through Canadian
Wildlife Service.
Further, in Section 12(6), it states that
SEAC is to report to the Base Commander, Alberta and
Canada. Certainly SEAC can identify the Base
Commander, but we are not aware of any specific
individuals to whom we report when we report to
Alberta or Canada. The issue that this creates is
that when SEAC feels it needs resolution to an issue
such as the need for more resources, there is
uncertainty as to who SEAC should approach.
Similarly, when it comes time to replace a
SEAC member, how that person is chosen and on what
qualifications is unknown. At this point in time, it
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appears that each member is identified within its
agency by the person vacating SEAC. A process is not
identified nor is a chairperson for the SEAC
identified although, by customary practice, the
chairperson is the member from the ERCB.
It should be noted that the chair of SEAC is
nothing more than a contact person for parties wishing
to contact SEAC and there are no further
responsibilities attached to the position of the
chair.
Authority of SEAC
Over the course of the hearing there has been
some discussion over the ability of SEAC to create
regulations as per parts of the Memorandums of
Agreement. Yet we cannot envision under what
statutory authority we would be empowered to be able
to make a regulation. Importantly, how would SEAC
ensure compliance with any such regulation as there is
no provision for determining compliance and nor are
there any enforcement provisions.
Currently SEAC does not create regulations,
rules or policies, nor do we intend to. SEAC provides
advice and recommendations to the Base Commander. It
has been our view from the beginning that we are
advisory in capacity and that the Base Commander can
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either accept or reject our recommendations. We don't
believe that the Memorandums of Agreement allow us to
exercise any direct control over either industry or
the Base.
Environmental Standards and Expectation (Regulatory Gap)
The Memorandums of Agreement speak of certain
environmental considerations for different parts of
the Base, specifically the environmental surface
protection objectives identifies that the major
surficial resources, and that is a quote, for the two
restricted zones are the geological features, the
native flora and fauna, birds of prey, and ungulates.
Today we have the Species At Risk Act, the
National Wildlife Area, and concerns about
biodiversity. In short, the expectations for the
protection of the environment have changed
significantly, yet this is not captured in the
Memorandums of Agreement and there is little to
provide guidance and terms of reference for SEAC.
Similarly, the issue of reclamation was
investigated extensively during this hearing. At
present time, SEAC does not have clear direction on
reclamation standards and what standards apply on the
Base. It was recognized that the standards appear to
have changed over time and that existing standards may
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not be applicable to the unique situation at Suffield.
And, finally, who is responsible for
reclamation? Alberta Environment has stated that they
no longer have any responsibility for reclamation at
Suffield. The Memorandum of Agreement appears to
delegate responsibility for reclamation to the ERCB
while others point to SEAC and the Base Commander.
These uncertainties need to be addressed.
The effect of all this is that no single
document provides the necessary guidance to SEAC in
order that the committee might determine its role and
purpose on how to discharge its duties. The multiple
documents that might give direction appear
contradictory.
If SEAC reviews development applications, is
it zero impact we are trying to achieve, is it minimal
impact? Are we okay to allow a 50 percent loss of
habitat and species? Add to this mix all of the
various land uses that impact Suffield and it becomes
obvious to us that it is difficult at best for SEAC to
determine acceptable impacts of development.
And if SEAC is to review and approve
reclamation, what standards are we going to use?
Processes for Application/Approval; Reclamation, Requests
for Review; Appeals
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It is our observation that there is a lack of
clarity and agreement on the processes for
applications for development, reclamation, requests
for review, and there is not an appeal process for any
recommendation that SEAC arrives at. It is our
observation that there is confusion and disconnect
over the role of SEAC in the application process,
applications for reclamation, requests for review, and
appeals. One shouldn't need to go through minutes and
e-mails from the past years to determine the process.
It should be housed in one document that is agreed
upon by all the relevant parties, and as modifications
are made, they are likewise agreed upon and housed in
that document.
In anticipation of questions from the JRP, we
would like to note at this point in time the current
SEAC has not received a D and R Application, nor has
it received an application for reclamation, though we
understand industry is preparing to begin sending
reclamation applications for review by SEAC.
Further, we have not received a formal
application request to review the three wells that are
being applied for by EnCana and we do not consider
that information provided at the hearing is a request
to SEAC to review the application.
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We don't believe there is currently an appeal
process for recommendations that SEAC may make nor are
we certain this is a necessary mechanism.
Resources
The current members of SEAC each have
full-time roles and responsibilities within their
respective organizations. Excuse me. This means that
SEAC, where it can, and does, become a secondary
consideration in light of those other
responsibilities.
This results in considerable delays and an
inability to undertake more than the annual tour,
annual report, and the occasional request for review,
and even those have become a stretch.
In summary, we have been doing the best we
can with what we have. SEAC is uncertain as to who
they would approach for more resources. Would it be
the respective organizations? Would it be the
provincial and federal governments?
Housed within the context of resources is the
question of the makeup of SEAC. Currently SEAC is
comprised of one person from each of the ERCB,
Canadian Wildlife Service, and Alberta Environment.
However, the jurisdictional role of Alberta
Environment seems to be problematic so there is some
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question about the continuation of that role. Alberta
Environment states it does not have jurisdiction on
the Base as it is Federal land.
The current SEAC has advocated an increase in
resources for the range sustainability section as a
partial answer for the resourcing issue that SEAC
faces. Whether the increased capacities and abilities
of the range sustainability section amount to a
replacement or a complement to SEAC has yet to be
determined.
FUTURE
As we see it, the JRP will likely play a
major role in determining the future role of SEAC.
SEAC was created by the Government of Canada and the
Government of Alberta. The recommendations of the JRP
will, in our view, form any future discussions that
are necessary in creating a future agreement between
the parties. The two of the three SEAC members
present at this hearing do not have a preference as to
the role that SEAC plays in the future, if any role at
all. However, we do strongly feel that there is a
need for environmental oversight. We rely on the
expertise and wisdom of the JRP and the wishes of the
Government of Canada and the Government of Alberta.
The JRP may recommend that SEAC should retain
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its current role, whatever that is. The JRP may
recommend that SEAC have an expanded role. The JRP
might recommend that SEAC have a lesser role than
present. Or the JRP may recommend that SEAC may have
no role at all if the JRP identifies an existing
structure or organization which would accommodate the
SEAC functions or if the JRP felt a new entity was the
better way to go forward.
What we want to do, though, is to provide the
Panel with our observations so that, whatever
governance model is recommended, it will create a
functional structure that is agreed upon by the
stakeholders and has the necessary clarity of
responsibility and role to avoid further confusion,
that it be supported by and agreed upon documented
processes and standards and it be properly resourced.
If SEAC is to remain in some role, then it is
our observation that two documents may be necessary.
One document would be a successor to the 1975 and 1977
Memorandums of Agreement in relation to SEAC's role,
geographic area of jurisdiction, reporting structure,
and authority of SEAC. The second document would
encompass standards and processes.
I - Successor to Existing Memorandums of Agreement
Firstly, the successor to existing
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Memorandums of Agreement. It is our observation that
the issue around lack of clarity and lack of agreement
could be resolved through the creation of a successor
document to the Memorandum of Agreement. It is our
observation that the rewrite or modification should
encompass the following items:
- the role of SEAC;
- the geographic area of responsibility
for SEAC;
- the reporting structure or assignment
of responsibility for SEAC;
- and the authority of SEAC.
It is also our observation that a rewrite of
the Memorandums of Agreement with respect to the role
of SEAC should be undertaken by the governments of
Alberta and Canada and should include stakeholders,
including SEAC, and those with relevant expertise.
We also observe that a requirement for the
governments to routinely review the Memorandum of
Agreement for the purpose of applicability might avoid
a situation in which we find ourselves today.
The redrafting of the Memorandum of Agreement
should not dilute the environmental protections that
exist; rather, those protections should be re-affirmed
and even perhaps strengthened.
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We have expanded on some of the points as
follows:
The Role of SEAC: The JRP would likely need
to closely review the role of the range sustainability
section, the existence of other organizations, and
then determine whether or not SEAC is necessary and/or
how to meld existing roles.
Geographic Area of Responsibility: It needs
to be determined if SEAC's role is limited to
clearly-identified geographic areas of Suffield,
including the NWA, or does it apply to all of
Suffield?
Reporting Structure: If SEAC is going to
continue to play a role, it will be necessary to
determine a clearly-identified party or parties who
can address issues such as resources, funding,
choosing successors, et cetera.
Authority of SEAC: If SEAC is to provide
more than advice or recommendations, then it should
have a clear authority and a means of enforcing any
requirements. This, in itself, leads to a need for
more administrative infrastructure and resources for
identifying non-compliances and levying enforcement.
II - Standards and Processes
With respect to the other areas where we
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observed there to be a lack of clarity, once again,
our observation is that the governments of Canada and
Alberta, in consultation with the Base, industry,
Environmental Coalition, and SEAC, should create a
second separate document that provides the following:
- environmental standards and
expectations;
- processes for applications, reclamation
and special requests; and
- appeal processes, if any.
The reason for a separate document is that
these matters would likely change with more frequency
than those contained in the Memorandums of Agreement.
These documents need to be supported by the parties
and reviewed on a routine, periodic basis to ensure
applicability. Any subsequent modifications should be
rewritten in the document and would require the
sign-off by the appropriate parties. The document
should be such that, at any point in time, it can be
relied upon to accurately reflect the agreed-upon
standards and expectations and the processes.
Environmental Standards and Expectations (Regulatory Gap)
There is an immediate need to determine what
standards will apply for development and for
reclamation. We would anticipate some sort of gap
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analysis to determine what legislation and regulation
exists and then, with stakeholders, determine which
will apply and identify environmental issues where
gaps still exist. For these areas, it may be that an
agreement will need to be reached on whether or not to
apply provincial standards to federal lands.
These new standards need to be documented and
housed in a document. Again, any changes need to be
signed off and the document should provide an accurate
reflection of the standards and expectations at any
given time.
Processes for Application/Approval; Reclamation; Requests
for Review; and Appeals.
Development Applications and Reclamation.
The processes for development applications
and for reclamation and for requests for review need
to be agreed upon and documented in one document in
order for SEAC to undertake any meaningful role.
Appeals
If SEAC is to become an integral part of the
approval process, we expect that industry will want an
appeal process especially for those instances where an
application is denied. This need for an appeal
process would also be important if SEAC becomes
involved in compliance matters.
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Again, if a distinct and standard-alone
appeal system is implemented, it will create the need
for administrative infrastructure and resources and
the process will need to be clearly identified and
agreed upon and housed in a document.
III - Resources
We have reviewed the issue of resources from
the perspective of what is required for SEAC currently
and from the perspective of the application by EnCana
and its proposed PDA process. Even if SEAC was to
remain in the same role and function as today, it is
our view that it still requires further resources.
Each of the current members already has a full-time
role within their respective organization.
Additionally, the role of SEAC has changed
over time from the perspective of the number of issues
and from the perspective of the depth and complexity
of both technical and regulatory matters that need to
be considered.
It is our view, that dependent upon the
future role of SEAC, at the very least, each of the
three representatives should be in a full-time
position dedicated to SEAC and would need to be able
to effectively utilize other resources within each of
the respective agencies as required. This is
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something that needs to be approved and supported by
each of the agencies, though, as we do not believe
there is currently the necessary capacity in our
respective agencies and, thus, funding for extra
resources may be required. In other words, we don't
think there's anybody sitting in an empty office
waiting for a job title and a role to play.
As an example of the current need for
resources, we are aware that there is likely to be a
deluge of reclamation applications coming in the very
near future. Even assuming clarity had been achieved
around roles, standards and expectations, and
processes, the current structure of SEAC would quickly
create an unmanageable backlog.
SEAC and its members have been praised and
repeatedly referenced throughout these hearings, which
kind of makes your head swell a little bit. If the
Project is approved, then SEAC will have a very heavy
responsibility placed on it. And if the environment
is negatively impacted as a result of that
development, it is our feeling that, quite suddenly,
SEAC would be seen as the responsible party. In other
words, we would be falling from grace.
The burden of responsibility, accountability
and professionalism necessitates a more robust, more
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professional structure for SEAC if it is to continue
and to enjoy an expanded role.
EnCana has identified the need for additional
resources to carry out that role and function they
propose. We agree that extra resources would be
required but believe there is a need to better
understand some of the details. Given the
uncertainties about the current and future role of
SEAC, this is difficult to do. We do, however,
provide the following for the consideration of the JRP
with respect to resourcing SEAC as proposed by EnCana:
Subject matter experts
EnCana has employed a number of experts on
plants, animals, insects, et cetera, and presumably
each of them has field personnel working for them.
Indeed, the federal panel also consisted of many
experts. And as I look behind me...
If SEAC is to review the applications for
approval, it would need a battery of experts as well.
Under the cross-examination of Mr. Mousseau, we
believe EnCana stated it would be providing not only
the application but the alternatives that were
reviewed by EnCana in arriving at the application.
This will require significant expertise to review the
material in a thorough and independent manner that
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would provide SEAC with the assurance it was making
the right recommendation. The importance of this
review and approval process is paramount. As
Mr. DeSorcy recognized, that we only get one chance to
get this right. It is our belief that the current
SEAC committee has neither the resources nor the
expertise to carry out all aspects of the necessary
review being proposed by EnCana.
The makeup of SEAC
Would SEAC contain representatives from the
public, such as the Environmental Coalition? Would it
contain members from the Base? Would it possibly
contain members from industry?
Appeal process
If SEAC is to become an integral part of the
process, we expect that industry and/or the Base will
want an appeal process. This need for an appeal
process would also be important if SEAC becomes
involved in compliance matters. Again, the need for
administrative infrastructure and resources becomes an
issue.
Costs
Additional resourcing means costs. Where
this financing comes from needs to be determined. If
it is government funded, then the governments need to
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understand and support the SEAC structure, role and
need for resources. It also means that if a test
period is proposed, the purse strings need to be
opened for increased funding if it is proven necessary
during the test period that more resources are
required. Trying to resource SEAC from current
resources within government agencies is not likely a
good way to go forward.
Timing
EnCana has proposed a three-year plan for the
drilling of 1275 wells with a caveat provided by
Mr. Protti that this might be expanded to four or five
years, but no longer, in order to accommodate the
economics. As such, even if SEAC was only to review a
percentage of the applications, this would amount to
approximately 120 applications per year for review.
We arrived at that number by looking at 1275 wells
over three years, dividing that by three, which comes
out to 425 wells per year. Of those, 20 percent would
be non-routine. And 20 percent of 425 is 85. Ten
percent of the balance is 34. 85 plus 34 equals 119.
And with my math, I rounded it up to 120.
EnCana has proposed a one-month turn-around
time for the applications each year, though they would
provide information as it became available. This
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timing in itself would necessitate a greater number of
resources. We heard the Base Commander say all NWA
applications would be considered non-routine. We also
heard the Base Commander say that he has met with the
ERCB Chairman regarding resources. To date, the ERCB
SEAC representative, me, has not been informed by
anyone in the ERCB about more resources being provided
to SEAC.
IV - Environmental Considerations
We want to remind the Panel that, as we
stated, there seems to be common agreement that in
some shape or form SEAC currently provides
environmental oversight at Suffield. On that note, we
have two observations:
Firstly, there has been much discussion on
the regulatory process, but we would like to remind
the JRP that one of the main drivers for this hearing
was the recognition by the former SEAC that
development in the NWA requires consideration of
environmental effects including cumulative effects.
The second observation is in regard to the
concept of a test period for the development process
proposed by EnCana. During the hearing, to this point
in time, the concept of testing the process of
application and approval, and then monitoring the
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effects, has been discussed. We believe a test period
would be an appropriate methodology provided that the
test period began after the necessary roles,
responsibilities, processes, and resulting
infrastructure was agreed to by all the parties and
was in place, including a successor to the 1975
Memorandum of Agreement.
It is also our observation that, as this
would be a test, and if the test were to fail, then it
could have negative impacts to the sensitive
environment of the NWA. Therefore, we would suggest
that the testing of the process for application
approval and resulting monitoring be applied to
development outside the NWA but still on Suffield.
This would have the additional benefit of perhaps
developing a process and system which could be applied
to the whole Base and not just the NWA.
V - Conclusion
Over the course of our tenure on SEAC, and
over the course of the hearing in the past weeks, it
appears evident to us that there is wide disparity of
interpretations of agreements, roles,
responsibilities, standards, and processes amongst all
the parties. The overall effect of this, in our
opinion, is to create an atmosphere of confusion and
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disconnect amongst the parties. Within this
atmosphere of confusion and disconnect, we feel that
the parties often look to SEAC to provide what might
be termed as an arbitration role in regards to
environmental matters. But, again, each party has a
different expectation of SEAC in regards to its role
and how it is exercised.
We understand that ADR amongst the parties
was attempted and failed. From our observations, an
alternative is for the governments of Canada and
Alberta to resolve the lack of clarity and agreement
through creating, firstly, a successor agreement to
clearly define roles, geographical areas of
jurisdiction, reporting structures, and authority for
SEAC; and, secondly, creating a document or documents
to clearly lay out the applicable environmental
standards as well as processes for development,
applications, reclamation, requests for review, and
any necessary appeal processes.
Finally, resources and funding for SEAC in
its current role, in an expanded role, or resources
and funding for an alternative environmental oversight
body can then be determined.
It is our hope that this Panel will recognize
these same issues that we have identified and address
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them by providing the necessary recommendations.
It is also our hope that this will be the
first step towards clarification -- I can't say
"clarification", but you know what I mean -- the first
step toward clarification so that the parties can move
forward with a new sense of consensus and cooperation.
Thank you.
THE CHAIRMAN: Thank you, Mr. Jensen. And,
Mr. Kennedy, for the clarity of your presentation,
we've heard that word quite a bit, on the matter of
clarity of your mandate, I think we will hear quite a
bit more, actually, as we proceed through
cross-examination. But I think, given the -- just
before -- or, Mr. McDougall, I think we just need to
take a minute for the court reporters to do some
technical change and then we'll be right back.
MR. McDOUGALL: Exactly what I was going to
suggest, sir.
(BRIEF TECHNICAL BREAK - 7:33 P.M.)
THE CHAIRMAN: I think we're ready to go
again. Mr. McDougall, first, you wanted to add
something.
MR. McDOUGALL: Not at all. I was going to
suggest the five-minute break that you had suggested
at the beginning.
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THE CHAIRMAN: Okay.
MR. McDOUGALL: So that concludes the direct
examination. And I turn it now over to my friends for
cross-examination.
THE CHAIRMAN: Right, thank you. We will
begin with you, Ms. Klimek, from the Coalition. And
just in order of, of others who may or may not wish to
cross-examine, we would have the Government of Canada,
EnCana, the Secretariat with Mr. Mousseau, and then
ourselves.
So, Ms. Klimek, please proceed.
CROSS-EXAMINATION BY THE COALITION, BY MS. KLIMEK:
MS. KLIMEK: Good evening, Mr. Chairman,
Panel Members. Good evening partial SEAC board.
Thank you for that presentation. I managed to take
about five pages out of my cross, so everybody will be
happy with that. Mr. Jensen, a marathon will be easy
after this day.
Q. Now, I understand from discussing with your counsel
that there is a draft 2008 report; is that correct?
A. MR. KENNEDY: Excuse me, yes, that is
correct. We presented the 2008 report at the Annual
General Meeting. I believe the dates were
September 10th and 11th of this year at Suffield.
Q. And would it be possible to get a copy of that?
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MR. McDOUGALL: Yes, I have spoken to my
friend and we'll undertake to provide that. We
thought we had a copy, but one was not immediately
available, so I believe we will be able to find one
relatively quickly to provide to my friend.
THE CHAIRMAN: Okay, we'll add that as an
exhibit when we receive it.
MS. KLIMEK: Thank you.
Q. Now, I understand from all your discussions that all
decisions have to be unanimous; is that right?
A. MR. JENSEN: Yes, that's correct.
Q. And is there any provision, if you can't agree with --
does, does a recommendation go ahead or does it fall
off the table or is there any discussion about what
happens then?
A. There is a provision, a provision in the Memorandum of
Agreement if SEAC can't reach a unanimous decision.
Q. And it's sort of a pseudo appeal, am I right?
A. MR. KENNEDY: Sorry, if I might just add to
Mister...
A. MR. JENSEN: "Jensen."
A. MR. KENNEDY: Jensen's answer. Jensen's
statement was that, to this point in time, the current
SEAC has never had a situation where we've had a lack
of unanimity.
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A. MR. JENSEN: And we're not aware of any
time in the past that that provision has been enabled.
But, according to the Agreements, what would happen in
the case after a lack of unanimity within SEAC is it
would be referred up to a board consisting,
essentially, of the chair of each of our respective
organizations or the CEO of our organizations.
MR. McDOUGALL: Panel, just for
clarification, that is set forth in Section 12(8) of
the '75 Agreement.
THE CHAIRMAN: Thank you.
MS. KLIMEK:
Q. I was looking at that section, and I guess it says
what it says, and so I won't ask anything more about
it.
Now, did either of you receive any
explanation about why Alberta didn't participate in
the presentation or the, or the submission?
A. MR. KENNEDY: You know as much as we know.
They, they -- I believe that you had made a request
for Alberta to attend and you were presented with a
letter. And so you have the same understanding that
we do.
Q. So you didn't receive anything more than what I've
got?
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A. No, we did not.
Q. Okay. Now, I'm just trying to understand a little bit
how you mesh your roles. And maybe I'll start with
you, Mr. Kennedy. Working with the ERCB, do you have
much work on the Base in your, your day-to-day job?
A. No, I don't.
Q. So this is truly a side job or, I don't say "a side
job", but it's an extra to what you have; it doesn't
dovetail with anything that you do at the ERCB, then?
A. The way I look at it is that, yes, it is an add-on job
to what I already have as I consider a full role on a
daily basis and, thus, the SEAC work becomes
secondary.
Q. Okay, now, Mr. Jensen, you, on the other hand, spend
quite a bit time at the Base, don't you, in your
other job?
A. MR. JENSEN: Well, these days I feel like
I live at Medicine Hat. With respect to my current
job and with SEAC, I do spend more time at Suffield
than the other two members of the committee, that's
correct.
Q. Now, I'm just trying to understand, when you're at the
Base, is there a clear delineation between what's a
SEAC role or a CWS role or Environment Canada role,
or, when you're out there, you're sort of getting
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information for both jobs?
A. I think the Panel can appreciate the sort of difficult
position I'm in with this role and with the panel.
With respect to my work at Suffield, generally there
is a fairly clear distinction. I go there for SEAC,
specifically for SEAC reconnaissances, or I go there
for Suffield Grazing Advisory Committee, or for other
work with the Wildlife Service.
Q. And I guess if you see a problem or something you
think SEAC should be looking at when you're there in
your other job, do you take it over to SEAC, or how
do you work with that? I'm thinking, just -- but the
reason this comes about, I see there's a lot of, in
your submission, roles where SEAC has been involved
with problems on the site or, or things like that.
And I'm anticipating that you see some of them out
there. Do you take them over to SEAC or?
A. I think that would be a fair assumption.
Q. Okay. Now, I note that you -- maybe just -- before I
go into that, Mr. Kennedy, Mr. Jensen just
acknowledged some of the difficulties wearing two
hats and I'm wondering if this ever occurs in your
line of work that the ERCB ultimately may be the
approving body of these projects and yet you're at
the other end making a recommendation on whether it
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should be approved. Is there any issues working
around working for an organization at both ends of
the approval?
A. MR. KENNEDY: To this point in time, there
has not been any what I'm going to term as a conflict
of interest. I think that's probably what you're
getting at. And to this point in time, when I put on
that SEAC hat, that's a separate entity.
Q. Okay. Now, do you see that raising any red flags if
you're getting 400 applications that are ultimately
going to end up in front of the ERCB down the way?
For not just you, but for anyone from the ERCB.
A. Could you just clarify that question a little bit?
Q. Well, if this Project gets approved, the ultimate
authority who is going to sign off at the end of the
day is the ERCB, right? As I understand the process,
the ERCB ultimately will be deciding whether or not
to give a licence on any particular well. You would
agree with me?
A. Any, any well that needs to be licensed by the ERCB.
Q. Yes.
A. Any well in this province here.
Q. And I, and I -- and this isn't personal to you, so
please don't take it that way.
A. No.
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Q. It's anybody who is from the ERCB that, when these
Non-Routine Applications, whether it's all of them or
20 percent, come in to SEAC, they're going to make a
recommendation to the Commander, they work for the
organization that's going to make the decision at the
other end, so it seems they're at both ends of this
approval. And I'm just wondering if you see that as
being a problem or something that may have to be
dealt with in the future.
A. So far, and in my role I'm not involved with the
approval process at the ERCB end of it. And to this
point in time, there has not been any concern or
conflict that I'm aware of.
Q. Okay, now -- maybe we'll come back to this when we get
a little bit further in.
Now, when -- and I think you'd said you
hadn't received any applications for approval since
you were there since 2007. Am I right on that? Did
I understand that right?
A. MR. JENSEN: That's correct. To this
time, the two current SEAC members here have not
received an Application for Development for review.
Q. Okay. Now, I don't know if you've had an opportunity
to look back, but, or -- and, currently, you've
thought about this a little bit because you talked
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about the future, but maybe -- I'm just wondering
what your thoughts are.
If you -- in the past, did SEAC have the
ability to access resources to look at these
non-routine if they needed a water expert or someone
to assist them in doing that recommendation; did they
have the ability to do that, do you know?
A. It's been -- as far as I know, there is an ability to
access other, other experts. I don't know how often
that's been acted upon. In the past, it appears, from
my understanding, that SEAC has identified as far back
as 15, 20 years ago their lack of resources with
respect to reviewing applications for development.
Q. Okay. Now, I'm going to talk a little bit about your
other role and that's the oversight and the
reconnaissance and the inspections. And I guess when
you come, when you go out to look at wells, and we've
seen some of the issues that you've dealt with in
your submission, are those referred to you or did you
just find them or how do you determine what you're
going to look at?
A. MR. KENNEDY: Prior to the tour, and '07
was probably somewhat of an anomaly in that we were
just new to the process, most of those sites were
chosen either by industry or by the Base. And,
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typically, they are examples of something, you know,
we'll say either, I'm going to say "good" or "bad",
depending on who -- what's wanted to be showcased.
This last annual tour in 2008, we had
developed a better sense for the tour and we provided
recommendations as to what we would like to see on the
tour as well as industry and the Base choosing sites.
A. MR. JENSEN: And Ms. Klimek, I should make
it clear to the Panel, too, of course SEAC's role is
not limited only to EnCana's developments on the Base.
We also review sites from other industrial operators
on the Base. I believe the second largest corporation
on the Base is Harvest Energy. So we do spend time at
a number of different sites.
Q. And I saw that from your submission that you have gone
to other ones and I appreciate that we've got that
clarified.
Now, when you -- I guess, once you see -- you
go out and see these sites, you have some discussions
and do a report yourself on what you think has worked
well or not so well on recommendations; is that a
fair statement?
A. MR. KENNEDY: We look at each specific site
and look at the good or the bad aspects that may be
present at that site. And from that, we make
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observations specific to that site, which may include
a return visit, and we also try to determine whether
or not there's a bigger picture issue that is arising
from those sites and identify that.
Q. Okay. Now, when you're out looking at the sites do
you take -- Mr. Jensen, I know you have some
ecological experience. Do you, Mr. Kennedy, on being
able to look at them and decide whether they're doing
what they should be doing?
A. If you're asking if I'm an expert, I was going to ask
you if there's such a thing as an expert generalist.
Q. So is it your own --
A. No --
Q. I'm sorry.
A. No, sorry, I'm not trying to be smart.
Q. No.
A. No, I, I rely on the expertise of Mr. Olaf and
Mr. Burland.
Q. Okay. Now, just from the sites you've seen in the
last -- you started in 2007, right, so you've had two
-- when you do these reviews in the tours generally,
are they the same time every year or --
A. MR. JENSEN: They're roughly the same time
of year. That being said, the 2007 was an anomaly
with all the pressures coming to bear on the Base with
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workload and such, but generally it's a, it's a summer
tour and a fall meeting.
Q. Okay. Now, this is pertaining to the application
here. Have you seen or looked at any, I guess,
infractions or problems with EnCana's sites in 2007?
MR. McDOUGALL: Sorry, if I could just -- are
you talking about the three wells, is that what you're
talking about?
MS. KLIMEK: No, no, I'm just on -- on the
NWA is what I'm looking at. When they've gone out and
done their tour, have they seen anything there that's
caused them concern with the sites, on their
inspections.
MR. McDOUGALL: Okay. The current, existing.
Do you understand the question?
MS. KLIMEK:
Q. Yeah, the existing ones.
A. MR. JENSEN: I think I understand the
question. As I've mentioned, we have looked at sites
in the National Wildlife Area that are EnCana sites.
I certainly wouldn't say we've been looking at
infractions. We were looking at sites for a number, a
number of different reasons; either ones that have
been requested by EnCana as good examples of
reclamation or ones that have been requested by other
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parties, or by EnCana, as examples of rutting and
trail degradation and the reclamation efforts that
follow.
Q. Okay. And that's what I'm looking at; for rutting and
those types of issues. Have you seen many of those
on the -- or what have you seen?
A. I think it's important to emphasize, too, a point
we've made in both of our annual reports, and that is
with regard to the number of sites we visit. So
putting it in context, there is roughly 1100 sites on
the -- 1100 wells in the National Wildlife Area.
I believe -- in 2007, I believe we didn't
visit any or maybe visited one site in the National
Wildlife Area. Last year we went to maybe a half a
dozen. So regardless of the, those sites we went to
in the National Wildlife Area, I don't think we got
any kind of a representative sample, especially with
reference to discussion the last few days on sample
size and significance. I certainly don't think our
6 out of 1100 give us any indication from our personal
point of view what's, what's going on on the ground.
Q. That's fair enough. And I appreciate that. But maybe
can you give us your observation, what you saw on
those sites that you were out? Were they reclaimed
well? Weren't they? I mean, you're getting some
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from industry so I'm assuming some of those did well
and maybe some not so well?
MR. McDOUGALL: Perhaps I could ask the Panel
whether or not this is the necessary information that
they would need to hear. I mean, my understanding of
what was requested of the two members of SEAC was to
provide general roles or responsibilities of what they
do as opposed to provide specific examples and
particularities about each and every wellsite that
they may or may not have seen. So I'm not necessarily
objecting; I'm just questioning whether or not we need
to go down the road of the particularities of each and
every well site that they may have seen and whether it
was good, bad, or indifferent.
THE CHAIRMAN: Well, thank you,
Mr. McDougall. I wonder also if the sample size of 6
or 7 wells is really going to tell us anything,
Mrs. Klimek, but I'll leave that to you.
MS. KLIMEK: Well, I'm not going to
belabor this long. I'm just trying to get a sense of
what they're looking at out there and what they're
seeing, so.
Q. And I don't need a lot of detail, Mr. Jensen, but.
A. MR. JENSEN: Once we receive a copy of
that 2008 report and you can review the 2007 annual
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report as well, you can quickly get a sense. We've
attached a photograph with every site we visited. I'm
just quickly flipping through our 2008 draft
agreement.
We flew over the National Wildlife Area and
viewed some sites from the area, very briefly. We
landed at a site in the, in the northern portion of
the National Wildlife Area to look at an example of a
shallow gas lease. And we were looking there at above
ground infrastructure in the National Wildlife Area,
some Crested Wheatgrass around the wellhead, and
example of the reclamation of the pipeline meeting to
a wellhead.
And I haven't found the other four sites,
I've referred to, but I don't believe we visited a
whole lot of other sites, except for a flyover, and
that was looking briefly at access trails in and out
of the well sites.
Q. Okay. Now, in your role as SEAC, do you have any role
with follow-up on non-compliance issues or -- what's
your -- do you have any involvement with those?
A. MR. KENNEDY: And this is from an ERCB
perspective is that if we encounter something that is
a non-compliance or if the Base alerts us to something
that they are concerned about, what I do is contact
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the Medicine Hat field centre and have the folks from
there go out and investigate.
Q. Now, does the ERCB take -- do they deal with surface
non-compliance issues on the Base?
A. Could you define "surface non-compliance", please.
Q. Well, if there's a problem with an environmental
infraction. If there was rutting or some
degradation, would that go to the ERCB, on the Base?
A. No, that would not. What I am talking about are ERCB
non-compliances.
Q. Okay.
A. In other words, something that's in contravention of
our requirements, the ERCB requirements.
Q. Okay. Mr. Jensen, from your perspective?
A. MR. JENSEN: I'm sorry, my --you're asking
about my perspective relative to infractions in the
National Wildlife Area?
Q. Well, does SEAC -- what I'm trying to get at, if there
has been some breach of a regulation or a permit or
something like that, and SEAC, you know, it's been
reported to SEAC, you go out and look at it, or you,
for some reason, you see it on your tour, do you do
follow-up with that? What's your role in that after
you identify it?
A. At the present time we have not personally been
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involved in any infractions in the National Wildlife
Area in respect to our role in SEAC. I keep -- I
should say, also, my understanding is that the
monitoring and enforcement, or at least surveillance,
is done by the Base at this point.
Q. Okay. I guess my next question is: Does the Base
draw in your expertise when they have an issue with a
well anywhere I guess in the NWA to provide any
advice or expertise or, on those issues?
A. Not -- I should say, if I understand your question, in
the past it is my understanding that SEAC has been
requested to provide advice where there has been a
perceived, I'll use the word loosely "infraction", or
some contravention of an existing policy or setback.
We have not personally been involved at any issues in
the National Wildlife Area.
Q. Okay.
A. But keeping in mind that SEAC's area of
responsibility, as we outlined in our presentation, is
the restricted development zones which may or may not
contain the National Wildlife Area, as well as some
portion, some other portions of the Base.
Q. Now, in your role as oversight, and as I see, one of
the things is oversight of environmental issue -- I
will slow down. In your role with oversight and
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watching for environmental issues, do you have any
observations that would help the Board as to whether,
from a SEAC perspective, are they being dealt with,
is there some authority, or is there a gap in that
vis-a-vis things that are happening on the Base and,
in particular, the NWA?
A. This is a problem when you confer too long with your
colleague. Could you repeat the question?
Q. Well, what I'm wanting your observations that in
reviewing the inspections and seeing what's happening
out there, and your job being environmental
oversight, from where you sit, are there any gaps in
the in the scheme out there to deal with
non-compliance issues or infractions? From where
you're sitting what does it look like?
A. I think there's two components to the answer. There's
the question of do we have a role to play in
compliance. Am I correct? And secondarily are we out
there looking for issues that relate to compliance?
Q. And I think there's a third. If you are seeing those,
from where you're looking, do you see any gaps on who
is taking care of them in your annual reports and
when you're hearing from the Base or industry?
A. I'll try and answer your question and just steer me in
the right direction if I'm going way off track.
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So I think we've tried to identify in our
presentation, Mr. Chairman, that there is a gap in the
sense that there's only, well, two, sometimes three of
us, that perform this oversight and oversight role,
but this is at this point in time done primarily upon
request. We're not in the field as field surveillance
officers. We visit the Base at the Base's request.
So we're not pretending at all that we're taking --
doing any kind of systematic survey of the Base to
look for possible infractions or to review successive
reclamation by any industrial operator on the Base.
When it comes to compliance, I think we've
been fairly clear that we're not quite sure what
compliance would entail. And I think that's come up
in the minutes, previous SEAC minutes, at least it's
my understanding it has, that when SEAC issues a
direction or a directive, what compliance follows?
So I believe I've answered I think two parts
of your question and I've already forgotten the third
but I'll blame that on the late hour.
Q. My third was, do you have any recommendations or, you
know, any observations on gaps that you would see
from your perspective?
A. And these are gaps with respect to compliance?
Q. Right.
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A. Yes.
Q. Follow-up, I mean, maybe seeing if things are being
done properly and follow-up when they are not being
done properly.
A. MR. KENNEDY: The one gap that we've
identified is that Alberta Environment has
requirements that would apply in the rest of the
province but do not apply on the Base because it's
federal land. And, therefore, our understanding at
this point in time is that Alberta Environment will
not enforce compliance with their requirements. So
that the gap that exists is that there's places where
there isn't federal legislation or requirements to
address certain issues and that's the gap that we've
identified.
A. MR. JENSEN: I should point out that it's
also my understanding that these issues of a gap have
been identified as far -- for over a decade.
Q. My last question is: From your perspective, is there
enough auditing or actual, and, if not you, somebody
else, actually going out there and looking at the
sites to ensure that things are being done as they
should?
A. MR. JENSEN: Perhaps the best way to
answer this is to refer to our 2007 annual report.
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This has been provided as an exhibit. And I believe
it was the appendices attached to our submission,
which is 007-002. And you'll forgive me if I don't
flip that up on the screen immediately, but I can cite
from the agreement here, if you'll just give me a
moment. So we've identified in the two years
that we've been on the committee that there is a
gap -- sorry, does the Panel wish to pull it up before
I cite from it? I don't think you need to, but.
THE CHAIRMAN: Maybe just identify from
where. We have the exhibit, but.
A. Sure. Hold on. It's a sad reflection on the state of
affairs when your computer goes to sleep before you
do. I don't know if you have it available, but here
it is. It's coming up slowly. All right. So I think
I gave you the Exhibit number which, our submission to
the Panel. It's on PDF page 52 out of 77.
THE CHAIRMAN: Thank you.
A. So what we tried to address in the last couple years
is we -- the Base provides that, or invites SEAC to
participate in this annual field reconnaissance. It
has been our understanding that in the past, this, I
understand, was thought to be some sort of audit or
survey of sites that were problematic. I'll just read
from the Section 1.3 at the bottom of the page. So
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(as read):
"As of 2007, CFB Suffield has had
over 15,000 wells drilled on the
federal land that encompasses the
Base. This includes almost 1200
wells drilled in the National
Wildlife Area. The selection of
serials for the annual
reconnaissance allows the committee
to visit only a tiny proportion of
wells, roads, pipelines and other
infrastructure on the Base. The
annual reconnaissance is a means of
providing the committee with some
operational context as well as some
concrete examples of practices
around which the committee can
frame its discussion. The
reconnaissance is not a replacement
for an auditing and review process
and it should not be considered as
such. The SEAC reconnaissance is
opportunistic, and from an auditing
and evaluation perspective, is
statistically invalid. The sample
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size is simply too small to
adequately evaluate performance and
compliance without, for example, a
supporting independent audit."
And we have encouraged the Base I believe at both
meetings to perhaps contract an independent audit.
And also, we have supported their initiatives with the
range sustainability section to do field surveillance
and some sort of systematic audit.
MS. KLIMEK: Those are all my questions.
Thank you.
THE CHAIRMAN: Thank you, Ms. Klimek for
those questions to help us clarify our understanding
of SEAC's role.
Mr. McDougall.
MR. McDOUGALL: Sir, I can't remember whether
you wanted to take your break at 8:00 or at 9:00.
THE CHAIRMAN: I was thinking, actually,
about in between at 8:30.
MR. McDOUGALL: 8:30, okay, so the next is
Mr. Lambrecht, then, for cross-examination.
THE CHAIRMAN: Yes.
CROSS-EXAMINATION BY THE GOVERNMENT OF CANADA, BY
MR. LAMBRECHT:
MR. LAMBRECHT: Mr. Chairman, I don't think
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I've ever had an experience in my career where a
witness who was sitting on a panel where I represented
that witness then changed hats and was represented by
another counsel and was cross-examined by myself.
I intend to ask questions solely of
Mr. Kennedy because I realize there's a lot of high
voltage here and I don't want to be accused of any
sweetheart deals.
So Mr. Kennedy -- and as I mentioned earlier,
counsel only controls the questions, they don't
control the answers. And I'm not attempting to
control the witnesses in any way; I'm attempting to
insulate the parties whom I represent in a
communication with you because I think you're an
employee of the Board. And I think, for my purposes,
the information, the limited information that I want
to ask of you is adequate if it comes from you.
So I note -- so I would like to start with
that preamble.
MR. McDOUGALL: Yeah, and Panel,
Mr. Lambrecht was kind enough to tell me that he was
going to do that prior to his cross-examination. I
have identified that to Mr. Kennedy. I have no
difficulty with that. I think that that's probably
fair. With the caveat that, to the extent that
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Mr. Kennedy does require some discussion with
Mr. Jensen, that he be at least allowed to have that
discussion. I'm not sure that he's going to need it.
I suspect that my friend's questions are probably
directed more regulatory than not, but I guess I don't
want to foreclose the ability that my colleagues, my
clients have an ability to discuss that should it be
necessary.
THE CHAIRMAN: Understood, I think.
MR. LAMBRECHT:
Q. So the Panel has specifically asked SEAC to attend to
discuss its role in the PDA process. The most recent
demonstration of the PDA process is in Exhibit
002-117 at Appendix J. That's the reply of EnCana
filed on August 13th. And at page J12 of that
document, there's a sentence that I would like to
read to you. Now, if you would like to look at the
document, perhaps Mr. Jensen can assist you.
A. MR. KENNEDY: If you knew how technically
challenged I was, it's a good thing Mr. Jensen sits
beside me. I would like to read it if I could and if
Mister -- if it's allowable --
Q. Right. Let me -- it's a long document. And let me
focus specifically on what I would like to ask you to
read without limiting it in any way what you would
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like to read.
It's on -- there are passages of this, and
I'm going to extend this into the document described
as the EPP, I think, about what's, what EnCana sees
SEAC doing. And so in the PDA process on page J12
there's a reference to this. And it appears in the
paragraph under the bullets.
A. MR. KENNEDY: I think I have it here if you
want to continue. I would just -- I would like to let
you know at the outset I have not reviewed this PDA
process, but by all means, go ahead.
Q. All right. If I understand the PDA process as it is
proposed, and I appreciate that it's an evolving
process, so my description of it may not be perfectly
clear either in the way it currently is or the way it
will unfold, but my understanding is that the PDA
process is intended to assist in the location of
wells and trails in order to minimize or avoid
environmental impact and disturbance. But there are
a number of exceptions, wherever possible, wherever
feasible, wherever practical in exceptional
circumstances. And in those, in those situations,
there is a proposal to, in other words -- and it's
described here. If, if, if there's going to be a
desire to maximize recovery of the gas by placement
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of a well within an area that might be considered
environmentally sensitive, the proposal is that
EnCana will evaluate the completion of that after the
completion of all wildlife surveys and alternate
locations and, ultimately, the decision to proceed to
SEAC with an application for infrastructure within
setbacks will be made after constructibility
assessments.
So if I understand this, in the broadest
terms, if, if EnCana feels that it's necessary to,
say, put a well within a setback from a Wetland, they
would proceed to SEAC. Now, with that general
understanding, my question to you is, has EnCana ever
discussed this proposed role with, with you?
A. We would observe that SEAC was not consulted during
the creation or development of EnCana's currently
proposed PDA process. However, EnCana did meet with
us in September 2008 to ask our view of the proposed
PDA process, but the third member of SEAC was not
present. We had not made ourselves familiar with the
proposed PDA process because this is something the
Panel will be considering and we declined feedback
except to express concerns about the resourcing for
SEAC.
Q. All right. That's helpful. May I ask you to have a
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look at the other documents, then? This is the
document described as the Environmental Protection
Plan. And I'm sorry, I don't happen to have the
exhibit number of that handy. The copy that I have
is the draft dated January 2008, 002-077. And I hope
this is the correct -- the most current draft. It
is, thank you.
A. I'm still waiting for his computer which is evidently
still sleepy. Could you repeat the page,
Mr. Lambrecht, please?
Q. Well, let's start with the title page. My question
is: Has EnCana ever discussed this document with
you? You had mentioned that EnCana met with you
about a month ago to discuss their PDA process, but
my question, then, is and -- is that this is a sort
of a separate concept, this Environmental Protection
Plan. Was this ever discussed with you?
A. I do not believe it was.
Q. All right. Can we turn to, say -- and I'm going to
sample some pages here because it can speak for
itself. Page 2-4, Paragraph 14, under the heading
"Non-routine Siting Process". There's a phrase
there, at the second last sentence of that paragraph
"To be approved by SEAC". Do you see that?
A. I see it, but I haven't quite read it yet.
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Q. Okay, no, take your time.
A. I've scanned over that paragraph.
Q. All right. This is one of the exceptional
circumstances mentioned and this is a sort of
assisting about rare plant species. And as I
understand it, the proposal is that, where they
cannot be avoided, EnCana would propose an alternate
site and route adjustment, together with mitigation
measures, and then the phrase is "to be approved by
SEAC".
Now, I already know this wasn't discussed
with you, so what I want to begin to try to explore
with you is your understanding of the different
perceptions of the role of SEAC by EnCana and the
government. The phrase here is "to be approved by
SEAC" which, in my mind, anticipates an approval
authority. You've been in the middle of what you've
described to the Panel as "the parties". Can you
describe what you understand to be EnCana's
perception of SEAC's role? Is it an approving
authority of some kind?
MR. McDOUGALL: I'm not really sure that it's
fair to this witness to ask him what he envisions the
proposal, EnCana's proposal is, especially after
having not read the document and only being advised of
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what the PDA process is in September of 2008. So
while I appreciate -- and I don't want to restrict my
friend from asking certain questions, I think that
particular question is beyond the scope of this
witness.
THE CHAIRMAN: Mr. Lambrecht, I think you
agree by a nodding of your head.
MR. LAMBRECHT: Yes, I think -- I do --
placing the document in front of the witness invited
the perception that this was inviting the witness to
interpret what was intended in that document. And I
think what I'm trying to explore here is something
quite different; is this witness's perception of the
differences between the parties in the role of SEAC.
So perhaps I can approach it in a different way.
THE CHAIRMAN: Perhaps you can get to the
question you want to ask.
MR. LAMBRECHT: Yes, sir. I think that would
be a good idea.
Q. In the regulations that are attached to the 1975
Memorandum of Understanding, the Surface Rights
Access Agreement, Section 8 talks about applications
that will be referred to SEAC. And there are a
number of criteria there. Within -- setbacks from
wetlands is, is one of them. Could you have a look
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at that?
A. MR. KENNEDY: Sorry, Mr. Lambrecht, could
you please repeat that section number again?
Q. Right. If you read Section 7, Subsection (2) of the
Regulations, it provides that:
"Within any area prescribed in
Section 8, the development and
reclamation application shall be
referred to the committee for
consideration by the committee."
And my understanding is that this is a reference
to SEAC.
Now the applications that are defined in
Section 8 are those within 300 feet of the high
watermark of a waterbody on a river floodplain within
a restricted development zone or within 300 feet of
the upper break of a coulee ravine or valley.
A. I'm reading that. Was that a question? I'm sorry,
I'm not trying to be smart when I say that, but.
Q. No, well, page 76 of 77 of your report expresses a
SEAC concern about the number of wells in wetlands,
at the bottom.
A. Sorry, could you please give us the page number again?
Q. Page 76 of 77.
A. And you're referring to the 2007 annual report,
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Mr. Lambrecht?
Q. Yes, sir.
A. And could you read to me, please, the line that
you're, or the portion that you're referring to?
Q. Yes, sir. On my copy it's in red and it says:
"Overall, SEAC is concerned about
the number of old wells and
pipelines in wetlands as they
create a potential environmental
liability here as well as a
potential financial liability for
industry."
Do you see that?
A. Yes, I do.
Q. Now, my understanding of the scheme of the Surface
Access Agreement, whether it be the oil one or the
gas one, is the same; that wells that are in wetlands
are to go to SEAC. Now, SEAC is expressing concern
about the number of wells in wetland. Am I to
understand that these wells are getting placed in
wetlands without being referred to SEAC?
A. The wells that, and pipelines, that we referred to in
this report are pre-existing wells and pipelines, not
new ones.
Q. Right, so you're saying you have no knowledge of the
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process that SEAC may have -- whether or not SEAC may
have had these referred to them?
A. That is correct.
Q. Okay. Were you involved in the Nishimoto well
situation, the more current one? A well in the
Nishimoto flats in 2004, a gas well in a wetland.
A. I don't believe I was.
Q. Were you involved in the oil well in a wetland at
Queenston in 2005?
MR. McDOUGALL: Again, Panel, I'll make the
same comment that I made with respect to Ms. Klimek;
and that is, is it my understanding of the information
that was to be provided to the Panel was more general
in nature and scope and it was not to be these
witnesses' responsibility to review and be cognizant
of all of the particular incidences that occurred on
the Base or, or elsewhere, especially when it's prior
to their tenure on SEAC, so I object to this line of
questioning.
THE CHAIRMAN: Thank you, Mr. McDougall.
Mr. Lambrecht? I think it's been very clear --
MR. LAMBRECHT: I don't want to override my
friend's objection, sir.
THE CHAIRMAN: -- that they are relatively
new to SEAC.
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MR. LAMBRECHT: Yes.
THE CHAIRMAN: So I think that has an effect
on that line of questioning.
MR. LAMBRECHT: Absolutely.
Q. There was some reference to a well in a wetland called
Big Bob. I'm not sure the time of that. If I might
push my luck, just one more question on this, do you
have any knowledge of that one, sir?
MR. McDOUGALL: I renew my objections, sir.
MR. LAMBRECHT: Okay.
THE CHAIRMAN: My understanding it's been
there for some time, Mr. Lambrecht, so I guess the
same, the same problem arises for these gentlemen that
have recently been appointed.
MR. LAMBRECHT: All right. Not at all.
THE CHAIRMAN: I'm not sure "appointed" is
the right word, but have recently become members of
SEAC.
MR. LAMBRECHT: Sure.
Q. The Panel also asked SEAC to give information about
its role in reclamation and closure. Now, you've
spoken about the regulatory gap. And this is
described in two letters from the department of
Alberta -- from Alberta. The first one is
Exhibit 001-051 at Paragraph Number 2.
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A. MR. KENNEDY: Is that the letter to Alberta
Sustainable Resources from the -- oh, the letter from
Alberta Justice back to --
Q. Yes, sir.
A. -- the Panel and the Coalition?
Q. Yes, sir. And you touched upon this in your evidence
that Paragraph 2 of the letter indicates that the
provisions of EPEA, the Environmental Protection and
Enhancement Act concerning conservation and
reclamation do not apply to federal lands.
A. I see that is written there, yes.
Q. Right. In -- I appreciate you may not have had
experience with this through SEAC, but in your role
with the ERCB, do you know what is meant by the
conservation provisions here in a general way?
A. I'm sorry, I do not.
Q. All right. I think you said it, but I would like to
be clear. There is an application before this Panel
for three well licences. My understanding of your
evidence is that this has not been referred to SEAC.
Is that correct?
A. That's correct.
THE CHAIRMAN: Mr. Lambrecht, just checking
the time. If you are close to completion of your
questions, we can continue on, but if you have a few
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more, then perhaps it might be a good time to take a
15-minute break.
MR. LAMBRECHT: I think I'm done. What I
suggest is we take the break. If there's anything
arising afterwards, it will be very brief.
THE CHAIRMAN: Okay. Thank you,
Mr. Lambrecht for your contribution.
MR. LAMBRECHT: Thank you, sir.
THE CHAIRMAN: We will meet -- or for your
questions. We will meet again in 15 minutes at
quarter to 9:00.
(SHORT BREAK)
(PROCEEDINGS ADJOURNED AT 8:30 P.M.)
(PROCEEDINGS RECONVENED AT 8:44 P.M.)
THE CHAIRMAN: I believe we're ready to go
again. Mr. Lambrecht, did you complete your
examination or did you have further question?
MR. LAMBRECHT: I have completed my
examination, Mr. Chairman.
THE CHAIRMAN: Thank you, sir.
Then next, Mr. Denstedt, please.
MR. DENSTEDT: Thank you, Mr. Chairman. I
spoke to my friend about this and I just wanted to
confirm with the Panel that EnCana had made a number
of attempts to consult with SEAC, but as a concern in
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relation to their status as regulators, prevented that
from occurring until sometime in I think it was August
and September. And I think my friend would agree with
that.
MR. McDOUGALL: I do. I don't -- my clients
and I have discussed when the first, first time that
EnCana requested that of us. And it may have been as
early as July or August. I'm not exactly sure. But I
was away on vacation for all of August. When I came
back, there was the meeting that Mr. Kennedy
identified in September.
THE CHAIRMAN: Thank you.
CROSS-EXAMINATION BY ENCANA, BY MR. DENSTEDT:
MR. DENSTEDT:
Q. So, Mr. Kennedy and Mr. Jensen, when you came on to
SEAC in 2007 what did you do to inform yourself about
your obligations as a member of SEAC? You can take
turns.
A. MR. JENSEN: I suppose by now it's evident
to the Panel the volume of material associated with
SEAC in its 30-some year history. During the two
years or two-and-a-half years I've been involved with
SEAC, I endeavored to read the Memorandums of
Agreement, reviewed some of the minutes, the annual
reports, speak with some of the past SEAC members, and
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try and familiar myself, familiarize myself with the
files associated with SEAC.
Q. Mr. Kennedy, did you do the same thing?
A. MR. KENNEDY: No.
Q. What did you do, sir?
A. I relied upon the information that was provided to me
by my predecessor, Ron Paulson, and his descriptions
of the activities and to some extent I undertook to
try and review the Memorandums of Agreement and
various documents, but I wouldn't say it was an
in-depth study by any means.
Q. And did Mr. Paulson give you a rundown of how the
contract worked? I'm speaking specifically about the
gas contract. I don't need to know about the oil
contract here tonight.
A. Just in very general terms. And it was, as it was
described to me, was that essentially SEAC was in an
advisory capacity to the Base Commander.
Q. And in your role as -- on SEAC -- I'll start with you,
Mr. Kennedy. If there's an issue arises at the Base,
sir, are you free to call an expert back here at the
ERCB and say, "Hey, Bob, this problem comes up. I
know you're an expert in this area. Can you give me
a hand on that?" Do you do that or can you do that?
A. I haven't done it. I have contemplated doing it.
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And, in fact, in an effort to try and obtain some
assistance from a resourcing point of view, I
contacted the environment group and our operations
branch and contacted the manager. And I don't know
the exact timing, probably about a year ago. And at
that time the proceedings of this hearing were already
being started to put -- I'll back up and try that
again. The proceedings for this hearing were being
put together and that meant that the people in that
group were unavailable for me to deal with. And I
hope that made sense.
Q. Right, yeah, and that's because of their role in this
process?
A. Exactly. Thank you.
Q. Sure. And, Mr. Jensen, if you have an issue that --
A. Sorry.
Q. Sorry.
A. What I might add is that for the last two years I have
also involved the -- he was the assistant team leader,
he is now the team leader from the Medicine Hat field
centre, Mr. Bruce Haskayne, and he has accompanied us
on the field tours and at the Annual General Meeting.
Q. And did anybody at the ERCB ever attempt to constrain
your access to any of those resources?
A. No.
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Q. And, Mr. Jensen, similarly with you, if there was an
issue came up, for example, if there was a
groundwater issue come up, were you free to pick up
the phone and call Dr. Nastev if you wanted to?
A. MR. JENSEN: Yes.
Q. And is it fair to say that SEAC is a creature of the
contract; it was created by the contract?
MR. McDOUGALL: I would ask my friend to
perhaps not use the word "contract". I think that has
a particular legal meaning. I think he is referring
to the '75 MOU -- or MOAs, Memorandums of Agreement.
I think whether or not it is in fact a contract is a
matter for argument at the end of the day, and so if
you could couch the agreement that he is referring to
as it is actually headed, I think that would be my
preference.
THE CHAIRMAN: Thank you, Mr. McDougall.
Mr. Denstedt, I'm sure you will use the title
of the document.
MR. DENSTEDT: I will respect my friend's
sensitivities.
Q. Mr. Kennedy and Mr. Jensen, I think it's fair to say
that SEAC's created by the Memorandum of Agreement?
A. Yes. We identified that in our Opening Statement as
well.
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Q. And I guess I have a curiosity question, then. When
-- Mr. Kennedy, you said in the opening presentation
that you weren't sure who to call for resources. It
looks like you should have called Her Majesty the
Queen in Right of Canada represented by the Minister
of National Defence and Her Majesty the Queen in
Right of Alberta represented by the Ministry of
Energy and Natural Resources. You had two people you
could have called.
A. MR. KENNEDY: That may be your
interpretation. I have doubts as to whether I would
have got very far.
Q. But when you said you didn't know who to call if you
were looking for resources, wouldn't that have been
one venue; call up your bosses and say, "Hey, we need
help here"?
A. Again, who would you identify as my boss?
Q. As the appointee of Alberta, Minister of Energy
Natural Resources, wouldn't you start with your
leadership at the board?
A. I think, as we presented in our statement, that that's
what we're uncertain about ourselves, is who is our
boss or do we have one?
Q. Okay. And if you can turn -- if have the Surface
Access Agreement in front of you, Mr. Kennedy, I
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think -- I'm asking you this question because you're
the one who made the statement in the Opening
presentation, so I'll ask this of you.
I think you indicated that it's your
understanding of this agreement that you provided --
SEAC provides advice to the Base Commander and he can
take or reject that advice. And I guess I'm just --
I just wanted to get you -- I wanted to understand
how you arrive at that conclusion when I look at the
words in Section 12(7) on page 19 and 20 which read
that:
"Notwithstanding any provisions of
the Suffield Oil and Gas
Environmental Protection
Regulations, the Base Commander
may, in any particular case, for
the purposes of Appendix 2 and the
application of Appendix 3, but only
upon the recommendation of the
committee, give or refuse to give
such consent or approval for the
performance or doing of such act or
thing as the committee in
particular case may recommend."
And I read that as saying the Base Commander can
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give or refuse such consent or approval as the
committee recommends. And I guess I'm curious as to
your interpretation.
A. MR. KENNEDY: Well, that's certainly one
interpretation and I can appreciate that. However, we
don't feel that it's the same interpretation for us.
And as I've stated, the customary approach that was
provided to us was that we provided advice to the Base
Commander and that's what we've adhered to.
Q. And is that understanding based on the e-mail you
received on November of 2002 from Mr. Martins, the
G3, or Major Martins?
A. Did you say in 2002?
Q. 2002. It's referenced in your evidence, Mr. Kennedy.
A. That, that was something that we relied upon, but as I
said, I think I relied -- for myself I'm speaking -- I
relied more upon the advice of my former or former
SEAC member from the ERCB, which was Ron Paulson.
Q. Okay. And Mr. Kennedy and Mr. Jensen, both this time,
when I go through the minutes, and I went through all
of the minutes since 1975, it seems to me when I read
those minutes that things worked pretty well for
25 years. And do you have any thoughts of what
happened?
MR. McDOUGALL: Could we be a bit more
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specific about the time frame about "what happened"?
MR. DENSTEDT:
Q. Well, 1975 to the year 2000 seemed, according to the
minutes, things seemed to be working pretty well.
And it's the, the, the difficulties between industry
and the Base seemed to be of more recent vintage.
And I wonder if you had any thoughts on why that had,
why that has occurred?
A. I haven't personally read the minutes for the past
25 years, so I can't comment on the relationship that
existed then. If you're asking about the present
relationship, I think that we've identified in our
2007, and I believe again in the 2008 report,
communication issues.
Q. Sure. Mr. Jensen, anything to add to that?
A. MR. JENSEN: With respect to the minutes,
I have reviewed the minutes in limited detail. My
sense is, this is my opinion based on having reviewed
the minutes and my limited experience with SEAC, is
that from 1975 to present, there has been an increase
in the number of wells and the complexity of issues at
the Base. And I think, in my opinion, for quite a
long time, things worked reasonably well because there
weren't too many issues to deal with, things could be
dealt with in a relatively small forum.
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As we mentioned in our Opening Statement,
there's an increase in complexity, increase in demand
for professionalism, an increasing number of standards
with respect to reclamation. And, again, as we
mentioned in our Opening Statement, I think it's, it's
the lack of clarity and the compounding complexity of
issues at the Base that have, over time, developed the
current, the current situation or the relationship
between, between some of the parties.
Q. And in respect of the Surface Access Agreement, is it
your view that there needs to be some -- I think it's
your view -- that what you're saying is, provide some
clarity on SEAC's role and authority and enforcement,
those types of things, but you're not saying throw
out the entire agreement; your concern is with SEAC
in particular, isn't it?
A. That's a fair statement, yes. That was our position.
We were asked to speak about the role of SEAC. And
it's in that regards that we're looking for that
clarity in those agreements. Keeping in mind, of
course, that SEAC's role applies, applies to
Applications for Development, Development and
Reclamation Applications, and so the role of SEAC is
fairly broad within those agreements.
Q. And it's fair to say that the Surface Access Agreement
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tries to deal with the shared jurisdiction between
the mineral rights holder and the surface holder; is
that fair?
A. That seems like a reasonable interpretation.
Q. And is it also fair to say that when you look at the
composition of SEAC with a member from Alberta Energy
and a member from Alberta Environment and a member
from the Canadian Wildlife Service that the
composition of SEAC attempts to reflect that shared
jurisdiction?
A. MR. KENNEDY: That would be an
interpretation. However, as we identified, there are
issues, I guess, with the Alberta Environment and the
applicability of that legislation and those
requirements to the federal land.
Q. But certainly in the agreement which was entered into
between the Province of Alberta and the Government of
Canada and approved by Order in Council and approved
by the Privy Council, the very highest levels of the
government, it appears it was their intention to
somehow address this jurisdictional issue in the
contract, or the Agreement?
A. It would seem a reasonable interpretation of that,
yes. As to whether or not that's working today, that
might be a different matter.
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Q. You bet. Separate question, right?
A. MR. JENSEN: And keeping in mind that
there is a clause in the agreement that references it
has a 20-year expiry date.
Q. And renewable annually after that, right? And which
party can terminate it?
A. You've likely got the reference handy. I would just
have to double check.
Q. I can tell you it's Alberta that can terminate it, not
Canada.
MR. McDOUGALL: Again, I'm going to suggest
that that's a matter for final argument as opposed to
having this witness try to determine what the proper
termination clause of the Memorandum of Agreement is.
THE CHAIRMAN: I'm not sure there was a
question there anyway.
MR. DENSTEDT: There wasn't a question. My
friend weighed in with a term, with a term of the
agreement and I thought it might be helpful to direct
him to the actual clause.
Q. So I think you would agree, and maybe you won't, but
you can certainly understand if you don't agree why
EnCana would be so concerned about the Range
Sustainability group being put in charge at the Base
when they don't have the independence or they don't
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have the -- reflect that shared jurisdiction
composition that currently is in SEAC?
MR. McDOUGALL: I don't think that's a fair
question to ask these witnesses. What EnCana thinks
about is something else that is within the power and
ambit of EnCana to provide, not, not these particular
witnesses.
MR. DENSTEDT: Okay.
Q. So Mr. Kennedy and Mr. Jensen, you suggested in your
opening presentation that the Range Sustainability
Unit might be an option. Does that reflect the
shared jurisdiction composition that SEAC currently
reflects?
A. MR. JENSEN: The Range Sustainability
section, in my understanding, yeah, of course is a
creature of the Base, it's an organization that exists
on the Base and reports to the Base Commander.
Q. All right. And you agree with that, Mr. Kennedy?
A. MR. KENNEDY: Yes. Just to clarify, I'm
agreeing, yes, with what Mr. Jensen said.
Q. Sure. And I think both of you talked about
independence and thoroughness and expertise. Is that
what you would suggest is a hallmark of the, whatever
organization supervised the -- supervises or oversees
the environmental obligations on the Base?
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A. Sorry, maybe it's getting late. Can I get you to
repeat that, please, Mr. Denstedt?
Q. Sure. During the course of the opening presentation,
and then some of Mr. Jensen's comments to, I believe
it was Ms. Klimek, the words that struck me that I
heard a number of times were "independence",
"expertise", and "thoroughness" in respect of
whatever group might be overseeing the environmental
obligations on the Base. And I take it that one of
your recommendations -- or that you'd recommend that
this Panel make sure those three things are in place
on whoever is in charge of the environmental
obligations on the Base?
A. MR. JENSEN: Yes.
Q. And I think, Mr. Kennedy, you mentioned the, the
potential for both appeal and enforcement powers. Is
that another hallmark of whatever organization might
be charged with overseeing these environmental
obligations?
A. MR. KENNEDY: Those, those matters, or
those -- sorry, I'm a little loss for words here.
Anyway, the enforcement and, and the appeal process is
-- you said "appeals", right?
Q. Right.
A. Yeah, are not something that currently exist. And all
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we're suggesting is that that might be something the
Panel may want to consider. I don't know if it's
necessary or not. If, if the overseeing governing
body will say for environmental concerns is in an
advisory capacity, it's likely not a necessity.
Q. And based on your experience with the, the ERCB,
Mr. Kennedy, it's fair to say that mineral rights
owners and surface owners sometimes get in disputes?
A. I think that would be fair to say.
Q. And what's needed to resolve those disputes sometimes
is an independent arbiter. Is that fair, too?
A. We have various means of resolving those disputes.
One is to get the parties together. And sometimes
that's as formal as an ADR session. Certainly
arbitration is one, one avenue that could be pursued.
We have the hearing process as well.
Q. All right. And, again, I think, I think it's fair to
say that sometimes reasonable people can and do
disagree and they need someone with a little more
wisdom and independence to settle their dispute. Is
that fair?
A. I think that's why the various processes exist is
that, yes, there's a hope that the parties can get
together and come to a solution or resolution on their
own, and that's the preferred way, but sometimes it
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takes somebody else to help that occur.
MR. DENSTEDT: Great. Thanks, panel.
That's all I had, Mr. Chairman.
THE CHAIRMAN: Thank you, Mr. Denstedt, for
those questions. Mr. Mousseau?
CROSS-EXAMINATION BY THE PANEL SECRETARIAT, BY
MR. MOUSSEAU:
MR. MOUSSEAU: Thank you, Panel. I think
I'll be brief.
Q. Mr. Kennedy, I actually want to start with your
resume, sir. Or your CV. And the reason why is,
when you were answering questions for, for
Ms. Klimek, you sort of suggested you were a
generalist and didn't have any expertise. I'm
wondering if you can comment on what role generally
the ERCB representative plays on SEAC; what, what do
they bring to the table?
A. MR. KENNEDY: Typically, sorry is the mic
working? Typically it's the ERCB regulatory
background and that review of the operations, the oil
and gas operations.
Q. And that -- would that include knowledge about well
and pipeline inspections, how those are conducted and
what's looked for?
A. To some degree, yes. That, that is part of the reason
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that I include Bruce Haskayne from the Medicine Hat
field centre on those tours is to help with the
technical side.
Q. Okay, sir, thank you. And you also had a discussion
about what the ERCB does with respect to inspections
on the Base and I think Ms. Klimek asked you, would
the ERCB enforce matters such as rutting and your
answer was "no." But if the ERCB intended on a well
site lease and there was drilling mud or other such
things on the ground, would the ERCB take any steps
in that respect?
A. Depending upon the situation, they would probably
contact the company and ask the company to clean up
the site. And depending on whether or not there was
contamination, they may contact Alberta Environment.
And, of course, that's -- I'm talking about off the
Suffield Base.
Q. Okay, sir. Under the Agreements, one of SEAC's
obligations is to cause inspections to be made to
ensure adherence to the Suffield regulations. We
talked to some degree on that. My understanding is,
currently, the SEAC practice is to do an annual
reconnaissance. My question is simply this: Do you
think the scope of inspection currently performed by
SEAC is that which was contemplated in the original
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agreement?
A. It's difficult for me to answer that because I really
don't know what was anticipated in an agreement that's
30 years old. Having said that, we've had the same
questions ourselves when it says "causes inspections
to be made". What does that mean?
Q. And I take it this may be one of the areas where
you're looking for some additional direction, or that
would be useful to SEAC at this point, additional
direction regarding the scope on quantity of
inspections it would be required to carry out to meet
its obligations under the Agreement?
A. MR. JENSEN: My understanding is, is that,
to answer your first question, is that the annual
reconnaissance does meet the requirements of the
"causing inspections to be made". At least that's the
customary practice of SEAC over the last 30-some
years. But you have to put that, I think, in context
of the scale and extent of development today. And
although that, that annual reconnaissance is customary
practice and might fit with the provisions of the Mast
-- the Memorandum of Agreement, I don't think it
matches necessarily with what is required today.
That, I think, reflects the concerns we've expressed
in the annual reports and in our submission this
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evening.
A. MR. KENNEDY: I think what I might add is
that that might be another example of the lack of
clarity that exists in those memorandums. There isn't
that sufficient detail or sufficient description to,
to envision just what that meant.
Q. Okay. I'm going to refer you now to Section 5(2)(a)
of the Regulation. And this is the part of the
Regulation that essentially says, as I read it, that
SEAC is in control of developing and updating the
development and reclamation approval forms; in other
words, SEAC is the keeper and the decider of what
information is required to be filed with a
development and reclamation approval. I'll give you
a second to read that section.
A. Can you just repeat that observation again, please?
Q. Sure. Why don't I read subsection (a) and then ask my
question. So it says:
"A Development and Reclamation
Application shall:
- be in the form in the
schedule or such other form as the
committee may from time to time
prescribe and shall include such
additional information as the
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committee may from time to time
prescribe."
And when I read that section, I understood it to
mean that SEAC has the authority under this section to
determine what information industry needs to include
in its D and R approvals. And I'm wondering if
that's, that's SEAC's understanding as well.
A. That certainly could be an interpretation. We don't
believe that's the reality of the way it's working
right now. The Base is the one that is setting the
requirements for what is in the, in the applications.
There may be some historic requirements based on SEAC
that are still part of that.
As we say though, today, the reality is, is
that the Base is the one dealing with those
applications and we ourselves have never been involved
with one.
Q. I have two questions to follow that up, sir. And the
first one --
A. Sorry, and I don't mean to cut you off. The only
thing that -- I have cut you off. The only other
thing I would like to add is that that's the question
of authority of SEAC, in that if SEAC was to try to
implement or, or exert some authority, we have a
question as to where that would go and how we would
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ensure that authority was adhered to.
A. MR. JENSEN: And I think what my colleague
is referring to, if we were to draft a new application
or development and reclamation form, would it be
accepted by the parties? What would be the mechanism
for prescribing that form?
The Base has clearly developed their
Application for Development process. That is the form
for -- that is the form that exists right now. And
it's been led by the Base. Those may or may not be
reviewed by SEAC, depending on what the Base
Commander, depending on what the Base Commander needs.
Q. Okay. And I guess my two questions still remain. And
I have a number of other ones coming out of that, but
I don't think we need to get there. I guess the
first question is, is if you were to exercise this
authority, do you think SEAC, as currently
configured, has the resources to develop a
comprehensive and appropriate application process?
A. MR. KENNEDY: No. I suppose you would like
more explanation, wouldn't you?
Q. I know it's late, sir, but I think it -- to do justice
of what this Panel has to do, I think we need it.
A. No, I -- as we presented, resourcing is an, is an
issue. It's an issue right now. And to increase the
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scope of work and role of SEAC would require
considerable resources. And, again, it's difficult to
say what those resources would be until you come up
with the details around what that -- what it's going
to look like, what it's going to involve, the timing.
I hate to be as vague as that but that's the reality
of them.
Q. And just so I understand that, the latest version of
the Base's approval process, I think what I've heard
in the evidence was that was developed through the
ADR process? Is that your understanding?
A. MR. JENSEN: My understanding is the ADR
process was never completed, but the Application for
Development form, to try and avoid a couple of
acronyms, it came out of that process in terms of it
had been discussed during the ADR and the Base came to
a final form that they could work with.
Q. And was SEAC involved in those discussions and in the
development of that form?
A. MR. KENNEDY: It's my understanding that my
predecessor was involved with that. I'm not sure
about other members of SEAC.
Q. Okay.
A. And I'm not sure -- I don't know specifically about
the form. I know that he was involved with the ADR.
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Q. Okay. I just have one question left and it's for you,
Mr. Jensen. And I know that you're also a member of
SGAC, which is a horrible name, but what I really
want to know is, is that committee working any better
and is there anything that works there that can be
applied to SEAC to address some of the concerns
you've addressed, you've brought up?
A. MR. JENSEN: It is a horrible name, I
agree with you. It's an entirely different sort of
committee. It wasn't established under the terms of
necessarily the same kind of agreement as the 1975 Gas
Agreement. It's meant to provide technical advice to
the Base Commander to, to the Base with respect to
grazing activities. And the primary role of SGAC is
to, is to set the annual grazing limits for lands on
the Base that are grazed from cattle by the Prairie
Farm Rehabilitation Administration.
COURT REPORTER: Can you repeat that, please.
A. Prairie Farm Rehabilitation Administration, PFRA. Is
there anything that you can take from that
organization and apply to SEAC? They, they operate
within an entirely different context and entirely
different scales. I really don't think there's much
that's applicable from SGAC to SEAC.
I believe that's the short answer. It is a
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functional organization, it provides technical advice,
but just there, there's so much more at stake I
believe and so much more operational complexity with
the gas operations at the Base that it's -- what
happens with Grazing Advisory Committee I just don't
think is applicable necessarily to SEAC.
MR. MOUSSEAU: Thank you, Mr. Chairman.
Those are my questions.
THE CHAIRMAN: Thank you, Mr. Mousseau, for
those questions. I'll turn to my Panel colleagues to
see if they have any. Okay. Dr. Ross?
QUESTIONS BY THE JOINT REVIEW PANEL, BY DR. ROSS:
DR. ROSS: Thank you, Mr. Chairman.
Q. First a comment. I would like to thank the two of you
for a thoughtful submission and presentation.
Second, a few questions. I'm not sure if I heard you
correctly, but early in your presentation I think you
indicated that in your tenure you had been asked for
advice by the Base Commander three times, or did I
misunderstand?
A. MR. JENSEN: I've learned in the past two
weeks not to use the word "subject to check", because
it results in homework. It is referenced in the
agreements and it's approximately three, four times,
yes.
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Q. What was the subject? What were you asked to offer
advice on? That's what I was really heading towards.
A. MR. KENNEDY: One was a well on a wetland.
You can see you're taxing our memory and we apologize
for not being more on the ball. One was --
A. MR. JENSEN: The two that come first to
mind are a well in the wetland that we were asked to
look at. And also we were provided with the results
of an inspection program in Koomati, which was
following an, as you know, an infill development
program in Koomati. I believe there was, well, at
least two others, but they're not coming to, to mind
right away.
Q. That's close enough for my tastes. Thank you. Your
third member, I wonder if he has been participating
in other components. For example, did -- was he a
part of writing your last two annual reports and
going on the reconnaissance visits?
A. Yes.
Q. Okay, thank you. You indicated that there may be a
number of Reclamation Certificate applications coming
in sometime soon. If they came in tomorrow, what
would you do?
A. MR. KENNEDY: We anticipated that question.
And we're not certain, to be very honest with you. We
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would have to go back and talk to our third SEAC
member. We're actually anticipating that there might
be one within the next few days. We got a heads-up
from SIRC about that. And we've explained to SIRC
that let the company know that there's probably not
going to be anything happening too quickly on that.
And again, that goes back to the lack of clarity
around the process. For the reclamation, it goes back
to the lack of standards that we would apply and who
would sign off on that.
A. MR. JENSEN: And maybe just to expand on
that, we've -- in reviewing some of the minutes over
the past years, reclamation comes up as a constant
theme in terms of what are the standards. And this is
the big question for our group is, when we're
presented with a Reclamation Certificate -- and, for
background, we have had the same conversation with
industry at the annual meetings, when we do get a
reclamation package, what are the standards we compare
it against?
And this has come up through the years for
the last 25 years as to what are the standards?
Different things have been tested, different standards
have been proposed, but no standard has ever been
agreed upon or, where it has appeared to be agreed
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upon, it's been recorded in some minutes where the
details are lost or the appendix or annex is missing.
And I believe this is what we're referring to with the
problem with trying to sort through minutes and
e-mails to determine the correct process; is there's
no single document or registry that contains the
information that we or, hopefully our successor, will
one day refer to.
Q. Thank you. I sort of anticipated that response as
well. My last question relates to resources.
Sufficiency and so on you've really covered I think
fairly well. You indicated that the source of
additional resources was not likely to be successful
if it came from Her Majesty the Queen in Right of
your respective organize -- sorry, the two
organizations. Was that a subtle way of suggesting
polluter-pay principle ought to apply and perhaps
EnCana would be the source of funding? I, I just am
looking to see what you were getting at?
A. MR. KENNEDY: I don't think it was anything
specific, but I mean that's certainly something that
could be looked at. I think government is always
looking for extra money and, and that's certainly a
principle that's been used in the past.
Q. So is EnCana. Anyway, I, I, I have no further
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questions. Thank you very much.
THE CHAIRMAN: Thank you, Dr. Ross. Just a
few questions.
QUESTIONS BY THE CHAIRMAN:
Q. You mentioned in your advice that you have sent or
passed on to the Base Commander. I presume that
advice would be in the form of a letter, would it,
the recent advice that you have been asked to provide
to the Base Commander, is this usually in writing at
this point?
A. MR. KENNEDY: Yes, it is typically.
Q. I've seen in the past there have been certain letters
written on letterhead, for example, Alberta
Environment and that sort of thing. Do you have any
kind of letterhead that you use or any, any
stationary? The organization sounds somewhat loose,
and these are my words, obviously, but I wanted to
clarify if there's any format that you use in these
kinds of procedures.
A. MR. KENNEDY: The ERCB, we do have some --
I don't know, I think it's on the computer,
essentially, the letterhead. I don't think I've got,
say, paper that's all printed out with SEAC
letterhead, but we do have a way of putting SEAC up at
the top, if that makes sense.
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Q. Yes, that's what I'm really trying to --
A. But it --
Q. -- that's what I'm really trying to establish; that
you, when you send it off, it's very clearly coming
from the three members of SEAC and not necessarily
from a department of, of one of the governments.
A. MR. JENSEN: Yeah, that's correct. And
one of the other challenges we've had of course is
there's nothing in the Agreements that designate
necessarily who is the chairperson of the committee or
if that chair rotates, so.
But, yes, when advice is provided to the Base
Commander, it's clear it's coming from SEAC, at least
within our tenure, and my review of the files suggests
that that's been generally the case, with some
exceptions perhaps.
Q. Maybe this is more of a comment, but you can, you can
respond to it. My understanding is that there seems
to be no real procedure in place for your
appointment. I presume by that, then, that you are
quite independent. And I presume also that your
employers do not give you direction in terms of your
role on SEAC.
A. MR. KENNEDY: That's certainly correct for
me.
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A. MR. JENSEN: And that's also the case for
me. My understanding is I'm appointed to SEAC and act
independent to provide technical advice to the Base
Commander.
Q. Maybe a final comment. I hope for your sake that
somebody pays you for this work you're doing in SEAC.
But that's --
A. MR. KENNEDY: Was that your subtle hint?
THE CHAIRMAN: In any case, I -- that,
that's my final question. And I guess Mr. McDougall,
did you want to redirect any questions back to the
witnesses?
MR. McDOUGALL: I have no further questions,
sir.
THE CHAIRMAN: Okay. This, then, is the end
of our questioning. And I would like to thank you,
gentlemen, once again for taking the time, especially
late this evening, to appear before us to make your
presentation and to respond to all of the various
questions.
(SEAC PANEL EXCUSED)
THE CHAIRMAN: This closes the session this
evening and we will meet again tomorrow morning at
8:30. Thank you for joining us this evening.
A. MR. KENNEDY: Thank you for the
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opportunity.
(PROCEEDINGS ADJOURNED AT 9:29 P.M.)
(PROCEEDINGS TO RECONVENE ON FRIDAY,
OCTOBER 24, 2008, AT 8:30 A.M.)
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REPORTER'S CERTIFICATION
I, Tambi Balchen, CRR, CSR No. 9166, Official
Realtime Reporter in the Provinces of British Columbia
and Alberta, Canada, do hereby certify:
That the proceedings were taken down by me in
shorthand at the time and place herein set forth and
thereafter transcribed, and the same is a true and
correct and complete transcript of said proceedings to
the best of my skill and ability.
IN WITNESS WHEREOF, I have hereunto subscribed my
name this 24th day of October, 2008.
_____________________________________
Tambi Balchen, CRR, CSR No. 9166
Official Realtime Reporter
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