May 6, 2014 (Vancouver) — A group of landowners, business people, academics and environmental advocates are launching a second constitutional challenge to the NEB review of the Kinder Morgan Trans Mountain pipeline. The motion filed asserts that the NEB review process unfairly restricts public participation as a result of process design, unduly rejects participant applications, and refuses to hear concerns related to climate change or oil sands development.
“Last year in Omnibus Bill C-38 the Harper Government snuck in amendments to the NEB process that restrict who can speak before the National Energy Board and limit what individuals are allowed to say.” said ForestEthics Advocacy, Tar Sands Campaign Director, Ben West. ForestEthics Advocacy is one of the applicants in the legal challenge.
“President Obama has set a ‘climate test’ for Keystone yet in the Kinder Morgan pipeline review NEB does not allow Canadians to talk about climate change“ said applicant and noted activist Tzeporah Berman. “Canadians deserve a fair public debate about the future of our economy and energy systems. Right now, they aren’t getting it.”
The U.S. company has applied to nearly triple the capacity of its Trans Mountain project, a 1,150 km pipeline carrying tar sands bitumen from Alberta to the British Columbia coast.
Kinder Morgan proposes to increase shipments from 300,000 barrels per day to 890,000 by 2017. Testimony filed in the legal challenge by Dr Mark Jaccard and Dr Danny Harvey illustrate that oil sands mining would increase significantly to meet the intensified barrels-per-day target with significant climate implications and tanker traffic off the BC coast would also grow dramatically, increasing the risk of a major oil spill.
“The National Energy Board was established to conduct public hearings in order to assess whether or not an infrastructure proposal such as that made by Kinder Morgan is in the public interest, and in the past, it has done so. But in 2012, at the urging of the oil industry, the Harper Government amended the NEB Act so that its hearings would be completed in an unreasonably short period of time, and would curtail the public’s right to meaningfully participate. The NEB has interpreted this new legislation as giving it the mandate to almost completely frustrate the public’s right to effectively participate in its hearings. As a result NEB hearings have lost their essential purpose. If the public cannot be heard the public interest cannot be assessed,” said David Martin, legal counsel to the applicants.
“This motion will challenge this new law on the basis that it violates the public’s Charter s. 2(b) guarantee of freedom of expression. The Kinder Morgan proposal, if approved, will have a fundamental impact upon Vancouver, British Columbia and Canada for the rest of this century and beyond. It is vital that there be a full public hearing as to the risks and benefits of this proposal so that the public interest can be properly assessed. This legal challenge will fight for the public’s right to express itself and to be heard.”
New rules passed by the NEB in response to the Harper government’s new laws require Canadians to fill out an
invasive eleven-page application form, to be allowed to even write a letter to the National Energy Board, which approves pipeline projects. Because of the new rules, many individuals who apply will never be permitted to have their say (and even more will never apply in the first place). Furthermore, Canadians with comments about human health impacts, downstream environmental impacts, or climate change effects are not permitted to comment on those issues.
“It makes no sense to shut over 450 people out from even writing a letter to voice their input to the National Energy Board. This is a huge decision that will affect people’s communities for generations to come,” said Josh Paterson, executive director of the BC Civil Liberties Association. “For years, anybody who wanted to express themselves on these large projects could freely write a letter and actively participate in these public hearings. Now the National Energy Board and the federal government have changed the rules, keeping out what people have to say. In a democracy, we should be encouraging participation, not building walls to keep people out of public decision-making.”
This is the second time the National Energy Board Act amendments will be challenged. In August 2013, ForestEthics Advocacy launched a similar lawsuit related to Enbridge’s proposal to reverse the flow and substantially increase capacity of its Line 9B pipeline. The Line 9B case will be heard in court in Ontario in early spring.
For background information and a full list of citizen participants and bios and to download the full motion, supporting testimonies or affidavits go to http://forestethics.org/neb-legal-docs