On August 13, ForestEthics Advocacy Association, a
Vancouver-based environmental group, and Donna Sinclair, a retired
journalist, filed a notice of application in the Federal Court of
Canada seeking a declaration that a section of the National
Energy Board Act violates the Canadian Charter of Rights
and Freedoms. The action concerns s. 55.2 of the act, which
was enacted in 2012 and governs a person's standing to
participate in hearings before the board. It provides that,
"the Board shall consider the representations of any person
who, in the Board's opinion, is directly affected by the
granting or refusing of the application, and it may consider the
representations of any person who, in its opinion, has relevant
information and expertise. A decision of the Board as to whether it
will consider the representation of any person is
conclusive."
Further to the enactment of s. 55.2, all individuals and groups
wishing to participate in the upcoming hearings into energy company
Enbridge Inc.'s Line 9B proposal are required to submit a new,
nine-page "Application to Participate Form." Line 9B is
part of an existing 693-kilometre pipeline that runs adjacent to
the northern shore of Lake Ontario and transports approximately
240,000 barrels per day of offshore crude from Montreal to Sarnia.
In November 2012, Enbridge filed an application with the NEB to
reverse its flow, increase its capacity to 300,000 barrels per day,
and permit the transportation of bitumen from Alberta's oil
sands. ForestEthics takes particular issue with page six of the
Line 9B application form, which states, "The Board will not
consider the environmental and socio-economic effects associated
with upstream activities, the development of the oil sands, or the
downstream use of oil transported by the pipeline."
ForestEthics contends that s. 55.2 and the Line 9B application form
effectively silence critics by severely restricting the ability of
the public to engage in the board's review process. To this end
they claim that during the Northern Gateway hearings (which
occurred prior to the enactment of s. 55.2), 4,455 individuals and
groups made submissions to the board. However, during the upcoming
Line 9B hearings, only 170 parties have satisfied the criteria of
s. 55.2 and will be permitted to make submissions.
The action arose when the board turned down Sinclair's
application to submit a letter of comment on Line 9B. Having family
members along the pipeline route, Ms. Sinclair raised concerns in
her submission about the environmental impact of the project,
including the expansion of Alberta's oil sands. In denying her
application, the board held that she did not possess the requisite
level of expertise or live close enough to the pipeline to make her
directly affected by it (she resides in North Bay, which is
approximately 350 kilometres away from the pipeline route).
In their application to the FCC, ForestEthics and Sinclair contend
that the board's denial is an infringement of Sinclair's
right to freedom of expression under s. 2(b) of the
Charter, arguing that the board cannot justify its
infringement of Sinclair's Charter rights because the
criteria set out in s. 55.2 of the act (namely, whether she is
"directly affected" by Enbridge's application) is
vague and arbitrary. The applicants further contend that requiring
parties to submit the Line 9B application form and limiting the
content of their submissions are an unreasonable and
unconstitutional exercise of the board's powers. They are
seeking a declaration that s. 55.2 is unconstitutional and of no
force and effect, along with an order quashing the decision to
require the Line 9B application form, and an injunction restraining
the board from making its recommendation on Line 9B until the FCC
disposes of their application.
While the respondents have yet to file their response, Minister of
Natural Resources Joe Oliver has defended the enactment of s. 55.2
and the new application form, arguing that they were required to
"focus submissions" and stop groups like ForestEthics
from using the board's review process as "a tool to delay
decisions." He also contends that the board wanted to avoid a
repeat of the Northern Gateway hearings where, according to Oliver,
large numbers of people signed up to speak but only a third
actually showed up.
Regardless of its outcome, the action commenced by ForestEthics and
Sinclair is emblematic of a larger dialogue happening across the
country between government, industry and citizens over the future
of petroleum transportation in Canada. The tragedy of Lac
Mégantic, and the proposed Northern Gateway and Keystone XL
pipelines have all brought this issue to the national spotlight,
and the forthcoming decisions of the federal cabinet will
undoubtedly shape the direction that petroleum transportation will
take in Canada for many years to come.
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