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National Energy Board Workshop - How to Participate in a Hearing

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Public Participation and Land Matters

June 2007

This document is intended to help those who wish to participate in an NEB hearing understand the options for participating as well as provide some samples and templates for preparing hearing materials.

We would like to hear your comments on whether this information has been valuable and useful. Please let us know what we could do to improve the material. Send your comments to: comments@neb-one.gc.ca.

Participating in a National Energy Board Public Hearing

Basic hearing steps:

  1. An application is filed by the company with the NEB.
  2. The public is notified about the application through the Hearing Order and public notices.
  3. Intervenors register to participate in the hearing.
  4. The company and intervenors in the hearing file written evidence.
  5. Information requests are submitted and answered based on the evidence that is filed.
  6. People who don't wish to fully participate in the hearing may submit a letter of comment explaining their position on the project or provide an oral statement at the hearing.
  7. If there is an oral hearing, participants gather on a specific date to ask oral questions of witnesses and to provide final argument.
  8. The panel makes a decision on the application and releases the decision to the public.

What is a Hearing Order?

Once the NEB decides that an application is complete and that it requires a hearing, the NEB issues a document called a Hearing Order. A Hearing Order gives a brief description of the proposed project, the list of issues that will be considered, as well as details on the steps in the hearing process and the schedule for the various steps, including the date, location and time of the hearing if it is known.

The Hearing Order also includes information on how people who want to participate in the hearing may get involved. Included in this are deadlines for the various steps in the process such as applying to participate, submitting evidence or letters of comment and asking questions.

How can I participate in a hearing?

There are three ways you can participate in the hearing:

  • write a letter of comment;
  • make an oral statement; or
  • become an intervenor.

Letters of Comment

If you want to share your views on a project but do not otherwise want to participate in the hearing, you can do so by submitting a letter of comment to the Secretary of the NEB. You must also send a copy of this letter to the applicant. A letter of comment should include your view on the project and also include information to support that view. Letters of comment will be accepted up to the deadline noted in the Hearing Order.

Letters of comment will be taken into consideration during the hearing process. They will not be considered sworn evidence and are not subject to questioning. Letters of comment may therefore not be given the same weight as sworn evidence in a hearing. The decision on the amount of weight to be given to a letter of comment rests with the NEB panel.

All letters of comment become public documents once they have been submitted. They will be available on the NEB website and copies are sent to all parties participating in the hearing.

Letters of comment do not necessarily have to object to a project. Some letters of comment may contain information on issues concerning the construction or operation of the pipeline. Sometimes the NEB panel will use this information when they set conditions the company must meet should the project be approved.

Oral Statements

Another option for participation is to make an oral statement at the hearing. People making oral statements are not considered to be intervenors. You must apply to the NEB to make an oral statement. This application process is very simple - state your interest in the project and the reason you wish to make an oral statement.

Your oral statement should focus on topics in the list of issues that has been identified for that hearing. This list is outlined in the Hearing Order. You may be asked questions based on the information you provide in your oral statement.

Intervenor

An intervenor is someone who has an interest in a proposed project and would like to have the option of fully participating in the hearing. Being an active intervenor requires a commitment to the hearing process and a commitment of your time. There also may be some costs associated with being an intervenor, such as preparing your evidence, making copies and sending documents to other parties.

Intervenors may present evidence, question other witnesses and give final arguments during the written and oral portions of the hearing. Intervenors can also be questioned on any evidence they present.

Intervenors can be:

  • landowners;
  • area residents;
  • government agencies;
  • Aboriginals;
  • companies; or
  • any other individual or group.

To become an intervenor, you must apply to the NEB within the time frame set in the Hearing Order. You will be granted intervenor status if the NEB considers that your interest in the proposed project justifies your participation in the hearing. If there are a number of intervenors with similar interests in the project, you may want to consider applying as a group and having only one or two representatives speaking for that group.

To submit a letter of comment, apply to make an oral statement or become an intervenor, please use the NEB's application form. This form is found on our website: www.neb-one.gc.ca. Follow the links from the "Regulatory Documents - Submit Documents" link on the home page. You may also print off the application and send it in.

How much work is involved in participating in a hearing?

The amount of preparation and work commitment depends on the option of participation you choose. Writing a letter of comment is the least demanding as you do not need to participate or appear at the actual hearing to give your input on the project. Making an oral statement requires more involvement in that you must first apply and then prepare and deliver your oral statement.

Being an intervenor can be quite time consuming and require a great deal of effort to properly prepare and participate. The amount of time and effort involved depends on how active you wish to be. Before the oral hearing phase of the process there is a great deal of work to be done if you intend to participate in all the steps of the hearing. This includes reading the application and many written documents submitted by other parties, preparing questions on those documents, preparing, filing and serving your own written evidence and responding to any questions asked of you. Participating in all of these steps is not required, however, you may choose to do, all or just some of the above.

While attendance for the entire hearing may not be possible, try to attend for the opening of the hearing so you can register your appearance and tell the Board how you intend to participate. Also, you should try to attend on the days when the issues you are most interested in are being presented. If you cannot attend everyday, it is important to keep track of the progress of the hearing, particularly if you intend to ask questions of witnesses, otherwise you may miss your opportunity to do so.

What is an information request?

If you are registered as an intervenor, you can request additional information[1] about the application from the company or from others who have filed written evidence. The NEB can also issue information requests to anyone involved in the hearing. These written requests and responses are posted on the NEB's website to the extent possible.

[1] A sample information request is included with this package. See "Samples" section.

Preparing for the oral hearing

Participating in an oral hearing may at first seem challenging, but being prepared will ease some of the stress.

Oral Statements

Prepare your oral statement so it is organized and as complete as possible. Also, be prepared to answer questions on your oral statement.

Hearing preparation tips for Intervenors:

  1. Review information you receive from the applicant and other intervenors in advance of the hearing.
  2. Prepare your questions and argument so they are organized and as complete as possible.
  3. If you are an intervenor, ensure you bring a copy of all the evidence that you have previously filed with the Board with you, and review these before you participate.
  4. Be prepared to answer questions about your evidence.
  5. Prepare in advance any questions you may want to ask the applicant or other intervenors during the hearing, but do not repeat questions that have already be asked and fully answered.

How are oral hearings structured?

NEB oral hearings are conducted similar to court proceedings. Information is presented and questions are asked similar to how that is done in a court of law.

Evidence

Evidence refers to reports, statements, photographs and other material or information that supports the view that you are presenting[2]. It must be filed with all participants and the NEB before the oral hearing by the deadlines set out in the Hearing Order. Evidence may be filed electronically. Unless you are not required to appear at the hearing, any evidence that you provide must be adopted under oath during the oral phase of the hearing.This means that you will be sworn in, and then you will confirm that the evidence was prepared by you or under your direction or control, and it is accurate to the best of your knowledge and belief.

[2] A sample information request is included with this package. See "Samples" section.

If no other party has any questions for you may not have to appear at the hearing. In that case you may be permitted to swear and adopt your evidence by affidavit before or during the oral hearing.

Other participants in the oral portion of the hearing who take an opposing position to you may question you on the evidence you present. Please be prepared to answer questions on your evidence.

Witnesses

Witnesses are those people who can best answer questions on the evidence provided. In some cases they may be professional experts or lay persons who can answer questions on the evidence filed.

An expert witness is someone with specific knowledge about a part of the project. This expertise is normally acquired through education and experience, but the NEB panel may recognize other people as expert witnesses who have specific skills or knowledge. For example, an expert witness could be someone who has particular knowledge in soils or drainage in general or pertaining to a specific area.

The expert witness will most often submit a statement on their training and qualifications along with their evidence. Sometimes during the hearing, there may be discussion around who is classified as an expert.

The company will normally have several witnesses to answer questions related to the engineering, geology, environmental or economic issues in an application. Intervenors may present witnesses to answer questions on their evidence. In some cases the intervenor may be his or her own witness.

Your witnesses may also assist you in preparing a case by providing advice on the issues. It is up to you to decide whether or not having an expert witness will help you make your case.

Cross-examination

Cross-examination is when participants in the hearing ask the witnesses or other participants questions[3] to test the evidence that participant has filed.

[3] Sample hearing questions are included in the "Samples" section of this package.

If you are an intervenor, you have the right to cross-examine the applicant's witnesses and other participants who take an opposing position to you during the hearing, but you must ask your questions at the time those witnesses or participants are appearing at the hearing to be cross-examined. Once those witnesses or participants have been excused, your chance to ask them questions has passed.

When planning your questions for a cross-examination, make sure your questions are related to that person's area of expertise and do not repeat questions that have already been asked and answered fully.

Final argument[4]

After all participants in a hearing process have had a chance to present evidence and cross-examine witnesses, they are given the opportunity to make a final argument. This involves a summary of a person's position on a project based on the evidence on the hearing record. You cannot present any new evidence when you make your final argument. The NEB panel members will determine whether final arguments will be made orally or in writing.

[4] Some additional guidance on final argument is included in the Handout and Tips sheet included with this package.

Samples

Sample Form of Written Evidence

File No. OF-Fac-Oil-Exxx-xx xx
[company name]
[project name]

Written Evidence of [Your Name]

Your evidence should contain the issues that you would like the Board to address and should be set out in consecutively numbered paragraphs. It can be in either narrative form (see below) or question and answer format. The following is for guidance only. The information to be presented and the amount will vary in each case.

  1. I am , [your name] [description of the role you have that makes you an intervenor; e.g.,  job title, landowner, fisherman, trapper, non-government organization, interested person etc] and what are the issues you have an interest in.

  2. In this paragraph, set out more information about the description of yourself provided in paragraph 1. For example, you have owned this piece of land for x years and have farmed it or you have fished in a particular area for x years.

  3. For each additional historic fact, start a new, numbered paragraph.

  4. After the required background, historic facts, provide evidence about the specific application before the NEB. You can provide information about your knowledge of the issue of concern. It is helpful to explain the basis for that knowledge or belief.

    a. Example: you know that a pipeline in a similar type of soil on your property has caused x impact to that soil type in the past; or
    b. Example: you believe that a pipeline on your land will do x to the soil on your property.

  5. If a neighbour has told you about a similar situation, then you can explain the situation. The neighbour could be a witness for your case if he or she is agreeable to testifying.

  6. You can also attach photographs and state in a paragraph what the photographs are about. Be as specific as possible with respect to the location of the subject of the photograph, the time, date, etc that it was taken, explain the weather conditions if it is relevant.

  7. Include as many numbered paragraphs as required to fully lay out your evidence. Reference any other materials you may be attaching as part of your evidence.

Template for an Information Request

Information Request
To: [company name] or [intervenor]
From: [your name or organization that intervened]

[Company Name]
[Project Name]

Information Request No. 1

Comment: Your Information Request (IR) may include several questions. For each IR, number sequentially showing the IR number first. For example: IR #1.1, 1.2, 1.3 (as shown in this sample)

1. Reference:

  1. Application, page number...
  2. Application, page number...

Preamble:

Comment: The preamble provides the context for your question. It summarizes the parts of the evidence you are relying on and it should indicate where your question is coming from.

Request:

Comment: Be as specific as you can with your request. You will get more useful information if you are clear and specific.

Sample Information Request

Information Request
To: [company name] or [intervenor]
From: [your name or organization that intervened]

[Company Name]
[Project Name]

Information Request No. 1

Comment: Your Information Request (IR) may include several questions. For each IR, number sequentially showing the IR number first. For example: IR #1.1, 1.2, 1.3 (as shown in this sample)

Nice Beach: Noise & Consultation

1. Reference:

  1. [Company] application, s.2.4.3.1, General Installation Procedure, Land to Marine Transition, p.75-77
  2. Horizontal Directional Drill (HDD) Feasibility Study, p.2
  3. Horizontal Directional Drill (HDD) Feasibility Study, p.11-12
Comment: Your references are to the evidence that has already been filed (usually the application or evidence from other intervenors). Your references should be as specific as possible, so everyone can find the evidence relied upon.

Preamble:

Reference (i) indicates that the HDD will be set up in the parking lot of the Nice Beach boat launch and will last approximately 27 days. It also indicates that, given favourable geological conditions, drilling could be suspended during evening and overnight and that drilling will take between two and four weeks.

Comment: The preamble provides the context for your question. It summarizes the parts of the evidence you are relying on and it should indicate where your question is coming from.

Reference (ii) indicates that to the west, east and north there are residential homes within a 40 m radius of the HDD site and that summer boat traffic is significant.

Reference (iii) provides some information about noise abatement measures that could be employed and gives an example of measures that reduced HDD noise to 45 dBA at a distance of 180 m from the site. This reference also states that the HDD drill is estimated to take 5-7 weeks.

Request:

Please provide:

Comment: Be as specific as you can with your request. You will get more useful information if you are clear and specific.
  1. with respect to the example in reference (iii), the audible noise of the HDD drill at a 40 m radius in that case;
  2. clarification of the expected duration of the drilling at the Nice Beach boat launch;
  3. the audible noise in decibels caused by the HDD drill at the most affected residences;
  4. a description of the noise abatement measures that will be employed for the HDD;
  5. a description of the consultation undertaken with residents in the area about the HDD; including but not limited to:
    1. the anticipated noise level;
    2. the expected duration of the drilling;
    3. the possibility that the drilling may need to take place during the evenings and overnight;
    4. any outstanding concerns and how they will be addressed.

Noise

Comment: If you have more than 1 question in your IR, it may help to put in a short description here.

1.2 Reference:

[Company] application, s.2.4.4.3, Acoustic Design, p.80-81

Preamble:

[Company]'s application indicates that the series reactors and voltage source converters are the main source of noise at the converter station, and it suggests that metal wall cladding can be installed with sound barriers to achieve lower noise levels. However, the application does not state that [Company] will, in fact, install sound barriers in the metal wall cladding at the converter station.

Request:

  1. Please clarify if [Company] will use metal wall cladding installed with sound barriers. If not, please provide a justification.
  2. Please provide the audible noise in decibels caused by the operation of the converter at the most affected residences. Please include the distances to the most affected residences.

Water Wells

1.3 Reference:

[Company] application:

  1. s.4.5.1.1.3 Zoning, p.278
  2. s.4.7.2 Monitoring, p.309

Preamble:

Reference (i) indicates that there are approximately 11 water wells within 200 m of the project footprint, that most of the wells are near the Pike substation and that only three to five of those wells are currently listed as being used for domestic use.

Reference (ii) indicates that where blasting or spills occur, or in other warranted situation, the Environmental Monitor on the project may determine that groundwater in the vicinity of the wells will be tested.

Request:

Please confirm that the water wells listed as being for domestic use will be tested prior to commencement of construction in order to provide baseline for water well quality.

Template for a Hearing Question

There are many ways to ask your questions; the following is provided as an example only.

Topic

Comment: If you have several questions, it may help you stay organized if you separate them by topic. This also helps to direct them to the appropriate witness panel (e.g., engineering panel, environment panel, policy panel).

witness panel:
Subject/issue:

Reference:

  1. (i) Application, page number...
  2. (ii) Application, page number...

Preamble:

Comment: This helps you set up the question so that the witness will understand the context.

Question:

Questions: If yes, ...

Comment: It may be helpful to anticipate the answer and prepare any follow-up questions you may have.

Questions: If no, ...

probable answer:

Follow-up Question:

probable answer:

Sample Hearing Question

Socio-Economic Matters

Comment: If you have several questions, it may help you stay organized if you separate them by topic. This also helps to direct them to the appropriate witness panel (e.g., engineering panel, environment panel, policy panel).

Witness panel: Environment
Subject/issue: Agreement with Commercial Fishers
Reference:
(i) X -22-a [Company]'s Response to National Energy Board Information Request No. 3 (A0U0F8) IR  3.4 (b)

Preamble:

  • [Company] has consulted with specialists who were responsible for developing agreements between submarine cable owners and commercial fishers for several cable laying projects (ref (i))
  • [Company] proposed a conceptual fisheries compensation scheme to the fishers in the IRs

Question: Have the discussions with commercial fishers with respect to an agreement progressed since the April responses from the commercial fishers to [Company]'s IRs?

Questions: If yes, without discussing details with respect to compensation, please advise the Panel of the progress that has been made.

Comment: It may be helpful to anticipate the answer and prepare any follow-up questions you may have.

Questions: If no, what do you perceive to be the outstanding issues (besides compensation matters)?

probable answer: effects on fish stocks (temperature effects); snagging while grappling

Follow-up Question: Does [Company] propose any mitigation to deal with the outstanding concerns?

probable answer: monitoring temperature

Hearing Tips

What do I need to know about Registration of Appearances?

  • You must be present to register your appearance.

You will be asked:

  • to state your name and who you may be representing
  • whether someone else will be representing you
  • whether you plan to cross examine witnesses and if so, which ones
  • whether you will be presenting witnesses
  • whether you plan to present final argument
  • whether you have any preliminary matters to raise with the Board
    • preliminary matters are dealt with before witnesses are called

What do I need to know about Order of Appearances?

  • The Order of Appearances is the order in which parties are called upon to present their witnesses, cross-examine and present argument
  • Unless otherwise arranged, the order follows the List of Parties that the Board prepares in advance of the hearing.

What do I need to know about Final Argument?

  • Takes place after the evidentiary portion of the hearing
  • Cannot introduce new evidence.
  • Summarizes your position on the evidence.
  • After final argument, the applicant is entitled to present reply argument to address matters raised by intervenors in argument.

 

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Date Modified:
2012-02-03