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Citizens' constitutional challenge to NEB Kinder Morgan hearings to move to federal court

Burnaby Mayor Derek Corrigan at "Rally to Stop Kinder Morgan" September 14 - Photo by Mark Klotz

The NEB rejected a motion from landowners, academics, businesspeople and environmentalists challenging its restrictions on public participation on the Kinder Morgan Trans Mountain pipeline today. ForestEthics Advocacy, one of the applicants in the legal challenge, announced it's now taking the fight to federal court. 

"It's a bold move, but it's a necessary one," said ForestEthics Advocacy campaigner Sven Biggs. "It's unconstitutional that they (the NEB) are taking away people's right to have a voice on this issue." 

Biggs said applicants will also be seeking an immediate injunction against the NEB to prevent the review process until their court case is heard. He said he's confident about the odds of winning: the applicants' legal counsel, David Martin, has never lost a case in federal court. 

At the core of the challenge is citizens' democratic right to participate in process around major energy projects. Texas-based pipeline giant Kinder Morgan is currently applying to triple the capacity of its existing Trans Mountain pipeline from Edmonton to Burnaby. If approved, the pipeline would carry 890,000 barrels of bitumen from Alberta's oil sands to a terminal in Burnaby, and result in a five-fold increase in oil tankers through the Burrard Inlet. 

The National Energy Board recently changed its rules to limit participation, such that only people who were directly affected by the project (e.g. landowners whose property would be dug up by the project) would be able to speak at the hearings. 

The motion filed by citizens in May objects to the change in rules that restrict people from taking part in the hearings. In order to streamline the hearings process, it required applicants to fill out a lengthy 11-page application form even to write a letter of comment on the project.

Of the 2,000 people who applied to the Kinder Morgan pipeline expansion hearings, 468 people were rejected outright, while another 452 people were downgraded so that they could only submit a letter of comment. 

The NEB also stated that topics such as climate change and oil sands expansion should not be covered during the hearings. 

“Canadians deserve a fair public debate about the future of our economy and energy systems.  Right now, they aren't getting it," said author and environmental advocate Tzeporah Berman, who is also an applicant in the hearings. 

Applicants allege that the NEB's new restrictions violate section 2(b) of the Canadian Charter of Rights and Freedoms, which guarantees freedom of expression. Some say they will keep the pressure on until the hearings become more open for public participation. 

“The question of whether the pipeline (expansion) will be economically viable -- all that would be turned upside down if the NEB really considered factors like climate change or ocean acidification so it's just much safer for their careers to just put the blinders on or pretend that the issue doesn't exist," said Ecopath Planning principal Eric Doherty, who is also involved in the challenge. 

He said climate change is the defining issue of the age, and that citizens need to keep pushing for the issue to become a part of the discussion.  

"Things like the end of the slave trade -- that didn't happen through lawsuits, but through public pressure. It has to get to the point where [regulators] will not be able to go to a cocktail party without people talking their ear off about it," he said. 

“It makes no sense to shut over 450 people out from even writing a letter to voice their input to the National Energy Board. This is a huge decision that will affect people's communities for generations to come,” Josh Paterson, executive director of the BC Civil Liberties Association, wrote in May.

“The National Energy Board and the federal government have changed the rules, keeping out what people have to say. In a democracy, we should be encouraging participation, not building walls to keep people out of public decision-making.”

A comment from the National Energy Board is pending. 

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