National Energy Board restrictions on who can participate in the Kinder Morgan pipeline review are being challenged by a group of people who say they have been robbed of their right to free speech.
In a notice of motion, the NEB is being asked to reject as unconstitutional recent federal legislative changes to the National Energy Board Act that limit public participation in hearings on Kinder Morgan's Trans Mountain pipeline expansion proposal.
"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.
The project would twin a pipeline that has been in operation for 60 years. It would nearly triple, from 300,000 to 890,000 barrels per day, the amount of oil being shipped. If it goes ahead, tanker traffic will increase through Vancouver harbour and around the southern tip of Vancouver Island.
The motion was filed on Tuesday by eight individuals and ForestEthics Advocacy Association, an environmental organization. If the NEB rejects it, the applicants say they will take the case to Federal Court.
"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," Mr. Martin said in a statement. "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."
Mr. Martin said that in adopting the changes, the NEB has severely restricted the public's right to be effectively involved in the process.
Sarah Kiley, a spokeswoman for the NEB, said the board has not yet determined the process for considering the motion.
"As there is a constitutional challenge contained in the motion, the people who filed the motion were required to notify the Attorney General of Canada and of each of the provinces. As I understand it, this has happened," she said in an e-mail. "There is a notification period of 10 days during which we will wait to hear from the Attorney Generals' office. From that point we will determine the process for considering the motion and go from there."
The NEB received applications from 2,118 individuals and organizations seeking standing at the Kinder Morgan hearings. It advised 1,250 of those applicants last month that they could participate only by writing letters. Another 468 were told they could not even submit letters.
"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," Mr. Martin said. "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 be heard."
In the notice of motion, the applicants ask for a declaration that the amended NEB Act "is unconstitutional as it violates the applicants' freedom of expression as guaranteed by … the Charter of Rights and Freedoms."
The notice asks the NEB to reopen the application process to "allow all persons interested in and affected by the proposed pipeline to participate fully."
The application also seeks to have the NEB broaden its scope to hear submissions regarding the project's affect on climate change.
"This board cannot determine whether the proposed pipeline is in the public interest without a full consideration of the environmental effects," the notice of motion states. "The project is being proposed in order to increase pipeline capacity in support of growing oil production. Without acknowledging that increased production of oil sands is having a devastating effect on the environment, and resulting in climate change, this board cannot even begin to address the issues which it has deemed relevant."
The applicants who claim they were unfairly denied participatory standing include Tzeporah Berman, a board member of ForestEthics Advocacy; Lynne Quarmby, a professor at Simon Fraser University, and several people who live along the pipeline route.