National Energy Board Act Court Challenge – Backgrounder

Backgrounder

In 2012, the Harper government passed sweeping legislative changes restricting the rights of everyday Canadians to have their say on proposed oil projects. This violates citizens’ rights to free speech and puts our natural environment at risk.

A group of concerned citizens introduced a motion before the National Energy Board asking that provisions of the National Energy Board Act that unduly restrict public comment on pipeline proposals were unconstitutional. They also challenged National Energy Board rules, which prevented any discussion of the wisdom of tar sands development at the hearings for Kinder Morgan’s proposed Trans Mountain Expansion Project.

When the motion failed, the concerned citizens brought their case to the Federal Court of Appeal. They have now sought leave to appeal to the Supreme Court of Canada.

Taking the case to the Supreme Court of Canada

What is this case all about?

• This case is about government limits on citizen’s expression in public hearings.
• The National Energy Board (the “NEB”) has a mandate to conduct reviews to assess whether proposed pipeline infrastructure projects are in the public interest.1
• Under the authority provided in the recently enacted s. 55.2, the NEB is only required to hear from any person (individual, company, organization, or group) who is “directly affected” by a proposed project and may hear from any person who has “relevant information or expertise”.
• In addition, the NEB takes the position that it will not “consider the environmental and socio-economic effects associated with upstream activities, the development of tar sands, or the downstream use of the oil transported by the pipeline” (the “Excluded Issues”).
• Applying the NEB Act and the Excluded Issues, the NEB is limiting expression in the public review process for the Trans Mountain Pipeline Expansion Project (the “Proposed Project”). The NEB has excluded hundreds of concerned citizens from expressing their concerns in the review process and is limiting the content of expression of those who were granted standing.
• We say s. 55.2 of the NEB Act and the NEB’s content-based limits on participation violate freedom of expression.2
• We believe that the NEB has erred in construing its own statute to preclude the public from expressing their concerns in the review process. We want to ensure that the NEB properly considers the public interest within the context of Canada’s national economic, energy and environmental policy, including taking into account the long-term implications of large-scale infrastructure projects.

What is the history of this case?

• The NEB received over 2,000 applications to participate in the review process for the Proposed Project. By applying the restrictive threshold in section 55.2 of the NEB Act, and the “Excluded Issues,” the NEB has precluded the public from meaningfully expressing their concerns in the review.
• In April 2014, the NEB granted intervener status to 400 applicants and commenter status to 1,250 applicants; 468 individuals and associations that applied to express concerns about the Proposed Project were denied any participatory status whatsoever.3
• In May 2014 Lynne M. Quarmby, Eric Doherty, Ruth Walmsley, John Vissers, Shirley Samples, ForestEthics Advocacy Association, Tzeporah Berman, John Clarke and Bradley Shende (the “Applicants”) filed two motions with the NEB challenging the constitutionality of s. 55.2 and the NEB’s decisions to limit participation and exclude the public from the review process (the “Motions”).
• On October 2, 2014, the NEB dismissed the Motions (the “Decision”).4 In its Decision, the NEB conceded that it expressly limited the issues it will consider in its review. The NEB held that the public hearings are not a forum for free expression.
• The Applicants applied for leave to appeal to the Federal Court of Appeal (FCA) on the basis that the NEB’s restrictions on public participation based on the content of the expression of applicants’ concerns violate the NEB’s constitutional obligations and that it will fail to fulfill its legislative mandate, under the CEAA Act and the NEB Act, to consider the public interest and undertake a complete environmental assessment of the Proposed Project.
• On January 23, 2015, the FCA denied, without reasons, the Applicants’ application for leave to appeal the NEB’s Decision.5

What is going to happen next?

• The Applicants are seeking leave to appeal the case to the Supreme Court of Canada.
• The Supreme Court of Canada can decide to hear an appeal of any final decision of the Federal Court of Appeal that, in its opinion, involves a matter of public importance of such a nature or significance as to warrant a decision by the Supreme Court of Canada.6

What is the public importance of this issue?

• We believe that it is a quintessential issue of national importance that the NEB takes into account the long-term impacts of large-scale infrastructure projects. This review should include the cumulative impacts of upstream activities (such as the expansion of tar sands extraction) and the impacts of downstream use (including climate change). To do so requires a proper construction of the NEB Act and the NEB’s mandate, and the striking down of provisions that are inconsistent with the purpose of the NEB Act and the NEB’s mandate.
• Public participation in the statutory forum specifically created to assess the public interest 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. A consensus is emerging in the national dialogue on this issue: responsible governments
• and Canadians want to engage in a more far-sighted assessment of the competing public interests at stake when evaluating large-scale resource projects.7 Unfortunately, the current federal government has embraced and memorialized in the NEB Act a narrow, short-term, opportunistic, interpretation of the scope of the NEB’s review process that precludes this critical debate.
• Our hope is that the Supreme Court of Canada, as the court of last resort, will grant leave so that it can take a longer-term view of these questions and restore the purpose of the NEB Act to permit public participation and a full assessment of the public interest that takes into account the long-term costs and benefits of projects that impact the entire country.

What is the National Energy Board’s mandate?

• As the federal authority responsible for the environmental assessment of the Proposed Project, the NEB’s review must satisfy the mandate set out in the CEAA Act. This includes ensuring “opportunities are provided for meaningful public participation during an environmental assessment”, and taking into account a range of environmental effects
• including cumulative effects and changes to the environment in another province or outside Canada.8 The NEB cannot determine the scope of comments received in its environmental assessment.9
• The NEB also has statutory responsibilities with respect to making recommendations to the federal government about whether to issue a certificate under the NEB Act. In so doing, it must have regard to “all considerations that appear to it to be directly related to the pipeline and to be relevant”, and may have regard to “any public interest that in the NEB’s opinion may be affected by the issuance of the certificate or the dismissal of the application.”10

How does this case relate to other pipeline proposals in Canada?

• The integrity of the NEB process is crucial to ensuring effective reviews of the multiple large-scale pipeline projects under review in Canada. This is an issue of national importance.
• The Trans Mountain Pipeline Expansion Project, which bisects Metro Vancouver, would increase the pipeline system’s capacity from 300,000 bpd to 890,000 bpd. Currently, approximately five crude oil tanker vessels are loaded at the Westridge Marine Terminal per month; this number could increase to up to 34 Aframax tankers loaded with diluted bitumen per month, to be shipped out the Burrard Inlet.
• Trans Canada’s Energy East Pipeline Ltd. proposed project would connect Edmonton, Alberta, to St. John, New Brunswick, by a 4,600 km pipeline with the capacity for 1,000,000 bpd of tar sands diluted bitumen. The project is the early stages of the NEB review process in which the NEB has been applying the same content-based limits on expression by using the “Excluded Issues” to determine participation.
• The Line 9 proposed project involves a reversal and conversion from conventional crude to tar sands, of an existing Enbridge pipeline that runs from Sarnia, Ontario to Montreal, Quebec, which bisects Toronto, Ontario. This was the first pipeline project to complete the new approval process and it was approved, with conditions in March 2014. In that process, only 61 applicants were granted intervener status and 111 applicants were permitted to submit a comment letter. Applicants were excluded based on the content of their concerns.

What are the public interest issues that are excluded from the NEB review process?

• The NEB categorically refuses to allow certain public interest issues to be considered during the review process and excludes applicants who raise these concerns.
• These public interest considerations include the fact that pipeline infrastructure catalyzes increased tar sands expansion which directly exacerbates climate change. It is indisputable that carbon emissions are contributing to climate change. The Applicants provided the NEB with ample evidence about these changes as well as the direct link between rising carbon emissions and the Alberta tar sands. None of that evidence was challenged or contradicted.
• Trans Mountain’s stated purpose for the Proposed Project is to increase the pipeline system’s capacity to transport crude oil from Alberta for export to markets in the west coast of the United States and Asia. Tar sands expansion depends on more infrastructures to transport these products. The construction of this type of costly infrastructure perpetuates oil dependency because of its relatively low operating costs and the high cost of abandoning it in favour of other options “locks in” its use.
• Despite the overwhelming consensus of the global scientific community that climate change is a real and immediate threat to the environment, in recent years the federal government has taken drastic steps to limit discussion and debate about these issues. The cumulative effects of carbon emissions associated with the expansion of the Alberta tar sands are incompatible with the Canadian government’s commitment to reduce greenhouse gas emissions. Accordingly, the expansion of pipeline infrastructure that enables tar sands expansion is also inconsistent with those federal commitments.

How does this case engage freedom of expression?

• The Charter of Rights and Freedoms is designed to promote three important values: democratic dialogue, truth seeking and self-fulfillment. Where the government has decided to create a forum for expression – such as the NEB’s public review process – they are not free to place unreasonable restrictions on the content of the speech allowed in that forum or restrictions that are divorced from Charter values.
• The current federal government’s extensive legislative amendments in 2012 (passed at the urging of the petroleum industry) went too far when they curtailed the scope of public participation in the NEB’s hearings to limit expression on matters of public interest. In addition to failing to fulfill the mandate of the NEB, these limits on free expression are inconsistent with s. 2(b) of the Charter and Canadian Charter values. Exclusion of public participation on the basis of content is both incorrect and unconstitutional.
• Anyone who missed the opportunity to apply to participate in the NEB review process, or who was denied standing based on his or her concerns, is barred from submitting even a simple comment letter to the NEB. Further, even though some of the Applicants have been granted status to participate in the NEB review process, they are still prohibited from expressing concerns about the “Excluded Issues” despite the relevance of these issues to the Project. In sum, they have been gagged. This infringes their free expression.