An environmental organization and a group of concerned citizens are asking the Supreme Court of Canada to hear a complaint that the National Energy Board is violating their rights to free speech.
ForestEthics Advocacy Association, and several individuals who live near the route of Kinder Morgan's proposed Trans Mountain pipeline expansion project, say the NEB is acting unfairly in limiting who can speak at the public hearings and in restricting the topics to be discussed.
In setting the Trans Mountain hearing schedule, the NEB rejected several hundred people who'd applied to be heard and in a ruling said it would not receive submissions concerning the broader environmental impacts related to the extraction of heavy oil in Alberta, or its use in downstream markets.
"We are appealing to the Supreme Court to hear this challenge because Canadians … deserve the right to bring forward evidence of environmental impact and to speak about climate change. We deserve the right not to be silenced," said Tzeporah Berman, one of the applicants and a spokesperson for ForestEthics Advocacy.
At a news conference to announce that the applicants are seeking leave to appeal to the Supreme Court, Ms. Berman accused the NEB of being under "the undue influence of the oil industry."
"The NEB is broken. These pipeline reviews have been manipulated and distorted," she said.
"This process is undemocratic, it's unfair and it's biased. Canadians deserve the right to engage freely in these debates and to be provided with the information that we paid for with our tax dollars," Ms. Berman said. "The NEB needs to remember that they work for us, the taxpayers, and not for the oil companies."
Both the NEB and the federal court have previously heard and rejected the arguments being put forward by the applicants, who want to participate in the public hearings and to present their concerns about the upstream and downstream impacts of the project.
Vancouver lawyer David Martin said about 1,000 leaves to appeal are made to the Supreme Court of Canada each year and only about 70 or 80 of them are selected to be heard.
He said it will likely be six to eight months before the court announces whether the appeal will be heard, and he expects the NEB hearings would go ahead in the interim.
Mr. Martin said he's hopeful the Supreme Court will hear the matter because the NEB's narrow constraints are robbing Canadians of their constitutional right to be heard.
"Freedom of expression is the beating heart of democracy," he said. "That's what this case is about."
Mr. Martin said if the Trans Mountain pipeline is built, it will be in place "for probably the next century" and the NEB has a responsibility to look at the long-term impacts.
"A long-term view must be taken, yet the board has adopted a tunnel vision. That tunnel vision has been criticized broadly, has led to allegations that the board is biased and in the pocket of the oil industry. And ultimately citizens of Canada have lost faith in its neutrality and objectivity," he said.
In a memorandum of fact filed with the court, the applicants state that the NEB "has barred hundreds of citizens" and more than 20 of Canada's leading scientists from participating in the Trans Mountain hearings.
"How could the board, the primary national infrastructure regulator, make an advance determination to exclude its own national environmental impacts scientists from being heard?" the memo asks. "History suggests that this type of outcome only occurs when some form of aberrant 'anti-scientific' ideology has captured the legislative process. It is precisely in such circumstances that the freedom of expression guarantee, the hallmark of constitutional democracy, fulfills its vital purpose and intent."
Tara O'Donovan, a communications officer for the NEB, said in an e-mail that as the matter is before the courts, it would be inappropriate for the board to comment.