Canada: Forest Ethics Brings First Legal Challenge To New Pipeline Participation Rules

Last Updated: September 2 2013
Article by Dianne Saxe and Meredith James

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."

Forest Ethics Advocacy, an environmental NGO, and Donna Sinclair, an individual who has family living near Line 9, are challenging those rules. They argue in their Notice of Application that this is an unjustifiable infringements of their rights to freedom of expression of the Charter.  Specifically, they argue that:

"Section 55.2 of the NEB Act Violates the Applicants' of Freedom of Expression

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 projects.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Dianne Saxe
Meredith James
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