ForestEthics Advocacy and activist Donna Sinclair represented by civil rights lawyer Clayton Ruby filed the suit Tuesday in Federal Court. The application asks the court to throw out new rules created by the National Energy Board, on the grounds that they violate Charter rights and silence dissent.
Freedom of expression, guaranteed under the Constitution to all Canadians, is vitally important, said Ruby at a news conference. The government can only interfere with that right if they can justify it under the Charter.
Under the new rules, introduced in the federal governments 2012 omnibus budget bill C-38, Canadians may no longer freely show up at public hearings on energy proposals and present their opinion or send a written statement to the energy board.
Instead they must fill out a nine-page application to the board justifying their right to speak on the issue. The board then decides which individuals or organizations get to comment, reserving the right to refuse anyone who isnt directly affected by the matter.
Ruby pointed out that during the Enbridge Northern Gateway hearings that took place in British Columbia before the new rules came in, 1,544 people or entities gave testimony. This year, under the new rules, only 175 will be heard.
What they want to do is reduce the number of critics that can be heard, he said. That chilling effect works. Few people are willing to take the time or feel comfortable enough to fill out a nine-page form.
The lawsuit names the National Energy Board and the Attorney General of Canada. The board declined to comment on a matter thats before the courts, while the attorney-general is named as a formality.
Minister of Natural Resources Joe Oliver defended the rules.
Focusing submissions ensures the review is informed by the facts material to the scope of the hearing and protects it from being used as a tool to delay decisions, he said in a statement.
Oliver said the rules were implemented after more than 4,000 people signed up for the Northern Gateway hearing, but less than a third showed up.
Ruby is also seeking an injunction to prevent the energy board from making a recommendation to cabinet on Enbridges Line 9B application until after the court challenge is wrapped up.
Line 9 is a pipeline built in the 1970s to carry oil from Montreal to Sarnia. It runs roughly parallel to the north shore of Lake Ontario and crosses the GTA. In Toronto, it runs near Finch Ave.
Enbridge now wants to reverse the flow of the 9B section of the pipeline to carry western oil east. It also plans to boost the lines flow to 300,000 barrels a day from 240,000 barrels a day, carrying either conventional crude or diluted bitumen from the oilsands.
Plaintiff Donna Sinclair applied to write a letter outlining her environmental concerns about the Line 9B proposal. However, she was rejected because she does not live close enough to the pipeline and is not considered to be directly affected.
The new rules also limit the topics that can be discussed at hearings. The application form states: The Board will not consider the environmental and socio-economic effects associated with upstream activities, the development of oilsands, or the downstream use of the oil transported by the pipeline.
Public hearings for the Line 9B reversal are planned for the fall. Of the 177 parties that applied, 60 have been granted the right to speak and 110 have been granted the right to submit a letter of comment, said energy board spokeswoman Carole Léger-Kubeczek.
The omnibus budget bill also took final decision-making power over energy proposals out of the hands of the board and transferred it to the federal cabinet. Despite this, members of ForestEthics Advocacy say that public hearings still matter.
Canadians deserve the right to engage freely in these debates, said group member Tzeporah Berman. We deserve the right to say yes or no and not have the process harshly limited by our own government in favour of big oil.
With files from John Spears