As the federal government prepares to make major changes to the way Canada reviews industrial projects, environmentalists are challenging the panel assessing the Northern Gateway pipeline to prove it's not biased.
Over the past few weeks, federal ministers have carried out a high-profile dispute with environmental groups, some of which have been labelled "radicals." Prime Minister Stephen Harper has said he is working quickly to bring forward new rules creating more rapid review processes that can't be "hijacked" by such groups. He has warned about "foreigners" gumming up regulatory processes. The clear inference was to the Gateway review.
Now, Ecojustice, a legal group representing environmental advocates, is questioning whether that political pressure is affecting the ability of the three-person joint federal review panel to properly assess Gateway, a $6.6-billion project that would carry Alberta crude to the West Coast for export to Asia and California.
In a motion filed Friday, Ecojustice asks the panel to determine whether statements from Mr. Harper and Natural Resources Minister Joe Oliver, "constitute an attempt by those ministers to undermine or have had the effect of undermining the panel" in a way that would create "unfairness in the hearing process."
Ecojustice, which filed the motion on behalf of Living Oceans Society, Rainforest Conservation Foundation and ForestEthics, urges the panel to issue a statement confirming its independence.
It also wants the panel to urge the government to butt out, asking it to request "that ministers of the Crown refrain from further public comments on the proceedings of the panel and participants in the proceedings until the panel's proceedings are concluded."
The motion comes as environmental groups scrutinize the panel's work for signs of bias – although Devon Page, executive director with Ecojustice, said they have not seen evidence that the panelists have been tainted.
Indeed, the panel has gone to great lengths, in the hearings it has been conducting across western Canada, to maintain its independence, declining to reply to federal comments. In a statement Friday, panel spokeswoman Annie Roy said the panel "is an independent body" that is fulfilling its mandate to assess the project through a public process.
And though they have angered some, it does not appear that ministers commenting publicly on the Gateway process are doing anything wrong. Legal experts contacted by The Globe and Mail said it would be nearly impossible to mount a bias case based on statements from political leaders. While the joint review panel is called upon to be unbiased, federal ministers are not.
Indeed, Cabinet must eventually take a stand on the project, deciding whether to approve or deny it once the panel's work is over.
With the Ecojustice motion, the panel has several possible options for response, said Devon Page, executive director of the legal group. It can refuse the motion, take it under advisement, or agree to consider the issues at the hearing.
Mr. Page argued that calling environmental participants in the Gateway review "radicals" has affected their appearances before the panel. That alone, he said, begs for a response.
"In the public hearings to date, people that have been invited to make comments have felt compelled to either reference the situation [with statements from Ottawa]or to distance themselves from it," he said. "So, certainly, it already has affected the hearing process. And if the effect of that is to taint the participation, or taint their evidence, it's appropriate for the National Energy Board to caution the outside world against interfering with their process."