Citizens Take Constitutional, Free Speech Challenge Against National Energy Board to Supreme Court

A group of citizens fighting to speak about climate change and the oilsands at National Energy Board (NEB) reviews of pipeline projects, like the current Kinder Morgan Trans Mountain pipeline, are taking their battle all the way to the Supreme Court of Canada.

The group, comprised of landowners, academics, owners of business and many others, filed a constitutional challenge against the NEB’s restrictive policies that limit public participation and prevent discussion of climate and upstream oil and gas activities.

The purpose of taking the challenge to the Supreme Court “is to ask that Court to direct the NEB to do its job properly," David Martin, legal counsel, explained in a statement.

“The NEB's claim that it cannot consider scientific evidence regarding the long term impacts of the export of bitumen is simply wrong," Martin said.

"Instead the NEB is making a misguided choice to adopt an unconstitutionally narrow interpretation of its jurisdiction so as to avoid having to address the real competing public interests that pipeline approval applications necessarily entail."

In 2012, the federal government amended the National Energy Board Act, giving the NEB the final say in major infrastructure projects including pipelines.

The change, made through the infamous omnibus budget bill C-38, was accompanied by new rules limiting the length of hearings, who can participate in those hearings and what they can speak about.

“Given the potential environmental and health impacts of these pipeline projects, full public hearings on the merits and risks of the proposals are necessary to properly assess the public interest. This is precisely what the NEB has refused to do,” Martin said.

Over 468 individuals were prevented from participating in the Kinder Morgan Trans Mountain pipeline hearing process in April 2014. A group of 27 climate experts were prevented from participating on the basis that they wanted to dicuss the implications of the project for Canada's climate targets. 

The following month a small group including ForestEthics Advocacy Association and long-time environmentalist and author Tzeporah Berman, filed two motions with the NEB, challenging the constitutionality of the board’s exclusion of members of the public.

The NEB struck down the motions in October 2014, stating public hearings are not a forum for free expression.

Following a failed attempt to challenge the NEB in the Federal Court of Appeals, the group was left with no choice but to seek leave for appeal at the highest level in the Supreme Court of Canada.

“Due to rising public concern, the new CEO of the NEB Peter Watson has been touring the country telling Canadians the NEB does not have the mandate to look at issues related to climate change, and this is simply untrue,” Berman, applicant in the Supreme Court challenge, said.

“This case makes it clear that the Harper government gave them the mandate in Bill C-38 when they eliminated independent environmental assessments and gave the NEB broad jurisdiction to consider environmental impacts.”

The group argues the NEB’s role in assessing the long-term impacts of projects like pipelines — including expansion of the oilsands and associated climate impacts — “is a quintessential issue of national importance.”

Public participation in such assessments, the group also states, “is essential to democracy under the rule of law, particularly in a country whose economy and future is closely tied to the intelligent exploitation of our natural resources.” 

The Supreme Court of Canada has the authority to review any decisions made in the Federal Court of Appeal that involves matters of public importance.

The group advancing the challenge hopes the Supreme Court will restore the purpose of the NEB Act, to enable public participation and include public interest in a long-term assessment of major infrastructure projects like pipelines.

The decision will affect not only the Trans Mountain pipeline expansion, but will have implications for the Enbridge Line 9 project planned to carry oilsands crude between Ontario and Quebec as well as TransCanada’s Energy East pipeline, a massive project projected to carry more than 1 million barrels of oilsands crude to export facilities in New Brunswick each day.

Last month a coalition of groups including and LeadNow delivered a petition signed by more than 100,000 Canadians that demanded the NEB consider climate change in its review of the Energy East oilsands pipeline project.

Image Credit: Zhu via Flickr

Carol Linnitt is a journalist, editor, illustrator and co-founder of The Narwhal. Carol has been reporting on energy and environmental…

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