With its controversial Line 9 Project, Enbridge
Pipelines is seeking approval from the National Energy Board to
reverse a 639 km segment of the Line 9 pipeline between
North Westover, Ontario and Montreal, Québec, and to
increase the capacity on the entire Line 9 from approximately
240,000 barrels per day to approximately 300,000. They are
also seeking permission to transport heavy crude oil, presumably
sourced from the oil sands, on the line. Can people who live near
the pipeline effectively oppose the project?
In the 2012 Jobs, Growth and Long-term Prosperity Act,
the Conservative federal government changed the criteria for
participating in public hearings on pipelines. "To
participate in a hearing, you must either be directly affected or
have relevant information or expertise. The Board is required to
hear from persons who are directly affected, and may hear from
persons who have relevant information or expertise. Anyone wishing
to participate in a facilities hearing must apply for and be
granted status to participate."
"Section 55.2 of the NEB
Act Violates the Applicants' of Freedom of
Section 55.2 of the NEB Act unjustifiably violates the
Applicants' rights under s. 2(b) of the Charter.
Section 2(b) of the Charter guarantees the Applicants'
rights to freedom of expression. Participation in an NEB proceeding
is a right that is guaranteed by s. 2(b ).
The Government bears the burden of justifying the infringement
of the Applicants' rights under s. 1 of the Charter. The
Government cannot satisfy that burden because the criteria set out
ins. 55.2 of the NEB Act are arbitrary.
The language of s. 55.2 grants the NEB authority to screen out
applicants based on arbitrary criteria. The NEB is required only to
grant participatory rights to those who are "directly
affected." That requirement is arbitrary.
Under s. 55.2, the NEB is not required to hear submissions from
persons who have "relevant information or expertise." The
NEB "may" hear from such individuals if, in the NEB's
"opinion", their expertise or information is relevant,
but it is not required to do so. This grant of discretion gives the
NEB an absolute discretion to determine which experts' opinions
it will hear.
The NEB's Requirement that Applicants Complete the
Form Violates Section 2(b) Rights
In addition, the NEB has interpreted its authority under s. 55.2
of the NEB Act in an unconstitutional and unreasonable manner. The
requirement of filling out a form as a prerequisite to
participation, which participation is not guaranteed, creates a
chilling effect on would-be applicants' speech.
The Government's goal of ensuring that NEB proceedings are
orderly and efficient can be achieved with less draconian measures.
A shorter and less intimidating form could be used, or, instead of
requiring the completion of a lengthy form as a prerequisite for
any form of participation, the NEB could have considered all
applications and accepted all letters of comment and then give each
submission whatever weight it thought appropriate.
The NEB's Decision to Preclude Submissions on the
Oils Sands Violates Freedom of Expression
In addition to creating burdens for applicants which stymy
public participation, the NEB has created an unjustifiable
content-based restriction on the Applicants' free speech
rights. The Application to Participate Form advises would-be
applicants that the NEB "will not consider the environmental
and socio-economic effects associated with upstream activities, the
development of oil sands, or the downstream use of the oil
transported by the pipeline."
The NEB's decision that it will not even consider the impact
of this pipeline on oil sands expansion and climate change is
manifestly unreasonable and an unjustifiable limit on the
Applicants' s. 2(b) rights.
Climate change and other environmental effects resulting from
greenhouse gas .emissions are potentially the most significant
consequences of pipeline expansion. While the NEB is permitted to
conclude that the benefits of the pipeline outweigh its negative
effects, it is not entitled to cut off important speech about the
oil sands and prevent the Canadian public from having its say on
this issue of national importance.
The NEB pipeline review process ought to allow for consideration
of this information, given that environmental considerations are
part of its mandate."
This is likely the first of many challenges to new rules for
participation in public consultations regarding proposed energy
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It is relatively common knowledge that the government has a "duty to consult" aboriginal groups when undertaking actions or making decisions that could adversely affect aboriginal rights, aboriginal title and treaty rights.
On April 5, 2017, an Expert Panel established by the Minister of Environment and Climate Change (the "Panel") released its report, Building Common Ground – A New Vision for Impact Assessment in Canada, The Final Report of the Expert Panel for the Review of Environmental Assessment Processes (the "Report").
Our April 7 post on the report of the Expert Panel reviewing federal environmental assessment processes noted that the report contains recommendations for greater inclusion of Indigenous peoples in federal environmental assessment processes.
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