Former BC Hydro CEO highlights potential bias by NEB member on Kinder Morgan panel

"Let's be clear -- I'm not accusing Mr. Hamilton of bias," Eliesen told the Vancouver Observer. "But I am suggesting strongly that because of Hamilton's involvement and judgment in three very recent hearings undertaken by the NEB on related matters to Kinder Morgan, he's put in a position of very significant apprehension of bias."

Former BC Hydro CEO Marc Eliesen

Former BC Hydro CEO Marc Eliesen, an intervenor for the Kinder Morgan Trans Mountain pipeline expansion hearing, has put in a motion to the National Energy Board asking them to disqualify one of the three panelists on the file.

In a letter to the NEB yesterday, Eliesen argued that David Hamilton -- who, along with Lynn Mercier and Philip Davies, will be evaluating the applications -- is in an "untenable position" because of his recent work with projects relevant to the Kinder Morgan Trans Mountain pipeline expansion. 

"Let's be clear -- I'm not accusing Mr. Hamilton of bias," Eliesen told the Vancouver Observer."But I am suggesting strongly that because of Hamilton's involvement and judgment in three very recent hearings undertaken by the NEB on related matters to Kinder Morgan, he's put in a position of very significant apprehension of bias."

Eliesen pointed to three judgments that Hamilton was involved with recently that relate to the Trans Mountain pipeline expansion. They are: the Kinder Morgan toll application (May 2013), Kinder Morgan Cochin pipeline reversal (June 2013), Chevron Canada's application for priority destination of the Burnaby oil refinery (July 2013). Eliesen said the problem wasn't Hamilton's position on these issues, but that his recent experience would undermine his "objective consideration" regarding the Trans Mountain pipeline expansion.  

Eliesen, who held positions such as deputy minister of energy in Ontario and CEO of Ontario Hydro, said he recognized the potential for bias because of his extensive experience in the energy sector. 

"The only reason I'm aware of this because I'm old enough to recognize these areas -- I've been involved in the energy sector for 30-40 years," Eliesen said.

He said a similar problem came up in a Supreme Court case in 1978, in which then-NEB chair Marshall Crowe was found to be in a position of a "reasonable likelihood of bias" over an application by the Canadian Arctic Gas Pipeline Ltd. 

"When I reviewed the court decision (from 1978), it was abundantly clear...They emphasized the matter that the principle of justice must not only be done, but must be seen to be done. In this case, it's most appropriate that Mr. Hamilton disqualify himself," he said.

"In my judgment, he (Hamilton) has been put in an untenable position," Eliesen said. "The kinds of issues that are going come before the Trans Mountain expansion project are issues on which he's already formulated judgments...so he should either recuse himself, or be disqualified from this particular hearing." 

NEB spokesperson Stacey Squires said "the motion is now before the Board, which will respond in due course." 

Marc Eliesen Notice of Motion 1 April 10, 2014-1

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