When an intervener asks a question to a witness during the National Energy Board hearings into the proposed Northern Gateway project, an answer isn't always immediately forthcoming.
Often the Northern Gateway witnesses will confer among themselves or seek out documents from support staff before replying to the question. Occasionally, the chairperson of the witness panel will determine that the person to whom the question was directed is not the best person to answer the question.
This week, one intervener group is asking for the Joint Review Panel to clarify the rules about how and when witnesses can confer and who should be providing the answers. In a 16-page motion, B.C. Nature and Nature Canada are asking the panel to rule on the obligations of witnesses during the proceedings and, if the rules are defined differently from how they've been applied so far, they want to be able to re-question certain witnesses.
"I recognize that the panel has the right to define the rules as long as the meet the standard of natural justice," B.C. Nature/Nature Canada lawyer Chris Tollefson said. "We say they haven't defined the rules, that's the problem. Nowhere in their rules does it say witnesses can confer, nowhere in their rules does it say witnesses can intercept questions or that they can discuss the evidence outside of the hearing room while under oath."
Northern Gateway spokesman Todd Nogier said the idea of having witness panels in the first place is to provide a series of experts who can answer questions on different topics. He said it's natural there would be times they would have to discuss among themselves.
"Sometimes the experts have to determine who is the best to answer a question," he said.
Nogier said it's interesting that Tollefson is bringing his motion now, given the witnesses have been conferring and delegating questions throughout the process.
Tollefson said the issue came to a head when he questioned the most recent witness panel on shipping and navigation last month. He said questions were intercepted by different witnesses, some witnesses became argumentative and some questions went entirely unanswered.
Specifically, he was concerned that other witnesses weren't letting marine oil spill probability expert Audun Brandsaeter answer questions.
"We wanted the chance to engage with him about his report and we feel we were denied that," Tollefson said.
The request to re-canvas certain witnesses only applies to the shipping and navigation panel and Tollefson said he didn't want to speculate on how broadly it could be interpreted to other witnesses panels which have already completed their testimony.
B.C. Nature/Nature Canada is awaiting for a response from the review panel. It's possible the panel will ask for input from Northern Gateway or other interveners before offering a ruling.
Depending on how the panel rules, Tollefson said he could make a case at final arguments that some witness testimony shouldn't be given as much weight if it came from a non-expert answering a question directed at an expert.
The joint review panel returns from its Easter break today.
