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Standing Up for Nature and Democracy in Federal Court

August 14, 2013

This week, the latest chapter in Canada’s David and Goliath struggle between citizens and Big Oil unfolded as a BC non-profit organization, Forest Ethics Advocacy, launched a constitutional challenge to new requirements in the National Energy Board Act that have the effect of silencing citizens concerned about tar sands pipelines.

We have previously written about these undemocratic limits on public comment, which were introduced last year in Bill C-38, and how the National Energy Board (NEB) has relied on them to create substantial procedural hurdles for citizens who wish to participate the review of pipeline projects –in particular with respect to an application by Enbridge to reverse a portion of “Line 9” in order to transport of bitumen from the Alberta tar sands to the east.

As we previously reported, concerned citizens were required to complete a lengthy form applying to the NEB before they could submit even a letter of comment, which the NEB retained the discretion to deny. Furthermore, the Notice of Application to the Federal Court in the recently launched challenge details how individuals and groups who applied and disclosed that they intended to make submissions on matters related to the tar sands were denied the right to participate or were downgraded from intervenor to commenter status. This is because, according to the form, the NEB had already closed its mind to considering the relationship between the pipeline and the development of the tar sands, despite the fact that increased pipeline capacity is a key enabling factor for tar sands expansion. As Forest Ethics Advocacy notes:

Comments by people who live up or downstream from the tar sands and are experiencing serious health impacts, or people who are concerned about health risks posed by increased toxic emissions at tar sands refineries, or people who want to expose the link between the tar sands and climate change are forbidden from expressing any analysis of a project's impacts.

Information about health and environmental impacts from citizens and scientists have therefore been excluded by law from the analysis of a project's impact.

The applicants in the federal court case, Forest Ethics Advocacy and two citizens who were impacted by the new NEB rules, submit that the new section NEB Act (s.55.2) violated their freedom of expression under the Charter and should be struck down.

This court case is an important test of the constitutionality of steps taken last year by the federal government to silence citizens concerned about tar sands pipelines, and one that the West Coast Environmental Law Association is pleased to support. Please consider doing so as well.