Canada: Freedom Of Expression Before Environmental Regulators And Tribunals?

Last Updated: December 11 2013
Article by Meredith James and Dianne Saxe

Environmental regulators and tribunals bear substantial responsibilities and make important decisions regarding development in Canada. If they won't listen to opponents of a project, will they breach the Canadian Charter of Rights and Freedoms?

The issue has been raised before the courts recently regarding both a pipeline approval before the National Energy Board and regulation of ongoing fracking activities before the Alberta Energy Regulator. The AER replaced the Energy Resources Conservation Board (ERCB), and provides "full-lifecycle regulatory oversight of energy resource development in Alberta – from application and construction to abandonment and reclamation, and everything in between."

The mandate of both bodies are set by their statutes. Often, they cannot consider all the issues that members of the public want to raise. Those adversely impacted by development often claim that the tribunals and regulators are not doing enough to protect them, and are overly concerned with approving development.

At the very least, many say, they ought to listen to what we have to say. Frustration with the restrictions on who can communicate with decision-makers, and how, lead to two recent claims that claimants right to freedom of expression under the Charter had been infringed.

Restrictions on communication with environmental regulators may violate the right to freedom of expression.

In 2011, Jessica Ernst launched a lawsuit against EnCana, the ERCB and the Alberta government for the contamination of her property and drinking water due to EnCana's fracking program. A component of her claim against the ERCB was that by barring her from communicating with it through the usual public communication channels it breached her Charter right to freedom of expression.

Ms. Ernst voiced her concerns about the negative impacts of oil and gas development near her home and was also a vocal critic of the ERCB. She claimed that the ERCB "seized on an offhand reference to Weibo Ludwig ... and used it as an excuse to restrict her speech by prohibiting her from communicating with the ERCB through the usual channels." (Note: Mr. Ludwig was convicted of bombing and sabotaging well sites near his home in Northern Alberta. He was also investigated following a string of pipeline bombings in BC).

She was informed that all staff at the ERCB Compliance Branch had been instructed to avoid further contact with her, and that she had been reported to the Attorney General, the RCMP and the ERCB's Field Surveillance Branch. Her letter requesting clarification was returned unopened.  She was later directed to the ERCB Legal Branch, which informed her that the ERCB would not reopen communication until she agreed to raise her concerns only with the ERCB and not publicly through the media or through communications with other citizens. Her subsequent request to communicate unhindered with the ERCB, and to file a formal objection to oil and gas development under the usual ERCB regulatory process, received no response. Sixteen months later, she was again allowed to communicate freely with any ERCB staff.

Ms. Ernst alleged that the ERCB infringed her right to freedom of expression in two ways: 1) by "punishing her for criticizing the ERCB in public and to the media" and 2) by prohibiting and restraining her communication with the ERCB. She argued that this was not a claim to a positive right, as the ERCB suggested, but rather a claim against the ERCB's arbitrary and punitive restriction on her communication.

The ERCB brought a motion to strike out this portion of her claim. The Alberta Court of Queen's Bench found that, although this claim was novel, it was not necessarily "doomed to fail", and did disclose a cause of action, and so should not be struck out on that basis.

But, statutory immunity applies to personal remedies under the Charter.

The ERCB also argued that Ms. Ernst's Charter claim was barred by the statutory immunity provision found in Section 43 of the Energy Resources Conservation Act, RSA 2000, c E-10 (ERCA) (since repealed and replaced by the Responsible Energy Development Act, SA 2012, c R-17.3). In response, Ms. Ernst argued that the government could not legislate immunity to protect itself from legal action arising from its own Charter breaches.

Applying appellate and Supreme Court jurisprudence on the issue of whether a limitation period applies to a Charter claim, the Court distinguished between whether the claim is personal (for example, seeking damages for breach of an individual's Charter rights) or general (for example, seeking to strike down legislation).

It concluded that where a party seeks a general remedy, a statutory immunity clause will not apply. However, where the claim is personal, it is barred by the provision; Ms. Ernst's claim was therefore struck out.

Is there a right to participation in tribunal decision-making?

Forest Ethics Advocacy and Donna Sinclair, an individual who has family living near the controversial Line 9 pipeline, recently filed a Notice of Application to challenge new regulations restricting participation in the NEB's public hearings. Under the new rules, the NEB is required to hear from those who are directly affected and may hear from those who have relevant information or expertise.

They claim that participation in the NEB hearings is a right that is guaranteed under s. 2(b) of the Charter and that the new regulations arbitrarily restrict participation to those who are directly affected and grants the NEB undue discretion to determine what is relevant information or expertise.

Further, they claim that the rules surrounding participation influence, or restrict, the content of the submissions. The requirement that those who wish to participate in the hearing, where such participation is not guaranteed, must complete a form creates a chilling effect on the applicant's speech. The application form also advises 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." This, they say, is an unjustifiable content-based restriction.

The Application has not yet been heard.

If not before the tribunal or regulator, then where?

These challenges reflect growing public frustration that environmental tribunals and regulators are not responsive to their concerns. Streamlining environmental decision-making comes at the cost of excluding information that many people consider relevant to the decision whether development is appropriate and responsible. Protestors recently succeeded in shutting down the NEB Line 9 hearings in Toronto, demonstrating that if the public concerns are not heard before the tribunal, they may be heard on the streets.

This article was originally published on SLAW.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Meredith James
Dianne Saxe
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions