NEB Closed Doors "Potentially Unlawful"

bccla.org Jan. 21, 2016

Vancouver – Coast Salish Territories (January 21, 2016) – The BC Civil Liberties Association has written to the National Energy Board to call on it to immediately open its hearings into the Kinder Morgan Trans Mountain Expansion Project to the public.

“The National Energy Board needs to unlock its doors and let some sunshine in” said Laura Track, lawyer at the BCCLA. “The hearing room has row after row of empty chairs while interested members of the public are locked out. The Board is legally a court, and like the courts it has a duty to make its hearings open and physically accessible. Telling people that they can watch online just isn’t good enough.”

The BCCLA’s letter argues that the National Energy Board, like other courts of law, is bound by law and the Constitution to be open to the public according to the “open courts” principle. The courts have stated that the public must be able to see how the decisions that affect them are administered, and that means that courts and tribunals like the National Energy Board cannot refuse public access unless there is a “serious danger” to be avoided. Hearings must also be forums where the people understand they are free to enter without specifically requesting admission.

“Under Canadian law, a public hearing should only be closed if there is a real and substantial risk to the administration of justice” said Track. “There is no evidence of any threat to the proceedings that meets the legal test to keep the public out. That’s why we think closing these hearings to the public is potentially unlawful.”

The National Energy Board has stated that it has closed the hearings out of concern for disruptions and the fact that there were instances of civil disobedience associated with the project in the past. It claims the closure is needed to “limit potential distractions and to provide a fair, efficient and safe” opportunity for participants to make arguments. The BCCLA argues that the mere fact of controversy or past protests does not meet the standard of a risk to the proceedings that is “real, substantial and well-grounded in the evidence,” sufficient to legally justify a closed hearing. In the event of any disruption to the Board’s proceedings, the Board has sufficient power to control its proceedings and to ensure order by ejecting those who might disrupt the hearing without resorting to closing the hearing room.

“The National Energy Board itself has said that public trust is low, and that it needs to build the public’s trust and confidence. Shutting the public out does not help. We have the open courts principle to ensure that regular people are free to be present when public decisions are made, and to see justice being done. It’s essential to our system of law, and providing web access to watch at home is no substitute. The public must be able to attend these hearings in person. We call on the National Energy Board to open these Burnaby hearings to public audiences immediately,” added Track.

Read the BCCLA letter to the National Energy Board here.

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