Restrictive NEB pipeline hearing rules violate Charter free-speech guarantees, environmental group claims

Steve Mertl
National Affairs Contributor
Daily Brew
A sign that reads "Danger due to pipeline maintenance" is seen on a work site for the "Line 9" Enbridge oil pipeline in East Don Parkland in Toronto, March 6, 2014. The National Energy Board is set to make a decision on whether to allow Enbridge to reverse the flow of and increase the capacity of oil in a pipeline between southern Ontario to Montreal that has in operation for years. REUTERS/Mark Blinch (CANADA - Tags: POLITICS ENERGY)

An environmental group has launched a Charter challenge against restrictions on who can appear before National Energy Board (NEB) hearings into the controversial Trans Mountain oil pipeline expansion proposal.

ForestEthics Advocacy has filed a notice of motion to the NEB claiming legislation passed by the Conservative government changing the rules on who can speak at NEB hearings unfairly limits public participation in the process and narrows its scope. It claims that violates Section 2 (b) of the Charter guaranteeing freedom of expression.

The changes presumably were intended to keep hearings from dragging out and becoming bogged down with testimony from individuals who may have no more than a general interest in the issue.

But critics claim the amendments to the National Energy Board Act unreasonably cuts the amount of time and restricts who can testify and about what.

"The NEB has interpreted this new legislation as giving it the mandate to almost completely frustrate the public’s right to effectively participate in its hearings," David Martin, ForestEthics Advocacy's legal council said Tuesday in a news release.

"As a result NEB hearings have lost their essential purpose. If the public cannot be heard the public interest cannot be assessed."

The environmental movement and opponents of major energy developments have been in a running fight with the Conservative government ever since the law was amended three years ago.

[ Related: Foreign influence aspect of Gateway pipeline debate has Americans scratching their heads ]

They claim the changes were made at the behest of the oil industry, intent on squelching opposition to oil sands development and related projects such as the Northern Gateway pipeline and Kinder Morgan's $5.4-billion Trans Mountain expansion. It would twin an existing line into an export terminal in suburban Vancouver and roughly triple the 300,000 barrels a day of crude now flowing under heavily built-up neighbourhoods. The oil would come from Alberta's oil sands.

Changes in the NEB rules include a requirement that anyone who wants to even write a letter to be submitted at a hearing must fill out what ForestEthics called an "invasive" 11-page application, a process critics contend is designed to scare off potential witnesses.

Furthermore, the rules prevent witnesses from addressing anything not directly connected with the project, such as the general impact of oil sands development on climate change.

The Globe and Mail reported the NEB received applications from 2,118 individuals and organizations looking for standing at the Trans Mountain hearings. Last month, the board said 1,250 of them were limited to writing letters and another 468 were told they couldn't participate at all.

The motion calls for the NEB to reopen the application process.

"Freedom of speech is not an optional component of our democratic contract, but rather one that has traditionally been robustly defended," the motion says.

"This Board is statutorily obligated to determine whether the Trans Mountain Project is in the public interest and to respect Canadians' section 2(b) rights in doing so.

"Creating complex application procedures, narrowing standing opportunities, and suppressing any speech that requests an assessment of 'what's in the pipe' and the effects of increased oil sands production is simply incompatible with both the NEB's statutory purpose and the Applicants' Charter rights."

ForestEthics Advocacy launched a similar challenge to restrictions on hearings for Enbridge Inc.'s Line 9B project, which calls for reversing an existing 40-year-old pipeline between Sarnia and Westover, Ont., to move diluted oil sands bitumen to Eastern Canada.

The NEB rejected that application and went on to approve Enbridge's application but prominent Ontario lawyer Clayton Ruby, a member of ForestEthics Advocacy's board, has taken the issue to the Federal Court of Appeal. If he wins, the NEB could be forced to reopen the hearings, the Hamilton Spectator reported in January.

[ Related: National Energy Board approves Enbridge's Line 9 reversal plan ]

Hearings by the joint review panel into Enbridge's Northern Gateway proposed oil sands pipeline were also problematic. It was subject to new federal rules that NEB and environmental assessments resource projects should take no longer than two years.

Some hearings in B.C. communities were cancelled because of concerns about potentially volatile protests, and at others, the public was banned from sitting in the hearing room, restricted to watching on TV screens at some other location.

The Conservative government has had a longstanding antipathy towards environmental groups it sees as trying to stall vital national energy projects.

Former natural resources minister Joe Oliver (now finance minister) criticized groups extremists using "foreign money" to advance their agenda in Canada.

The NEB must make its report on the Trans Mountain expansion by the summer of 2015. The Northern Gateway project was approved by the review panel last December, subject to some 200 conditions, but Prime Minister Stephen Harper has until this summer to make a final decision.

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