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Group sues over Harper limits on pipeline hearings

BY PETER O'NEIL, VANCOUVER SUN AUGUST 13, 2013

OTTAWA — A Vancouver-based environmental group is challenging the federal government’s limits on participation in hearings for projects such as Kinder Morgan’s proposed pipeline to ship bitumen crude from Alberta to British Columbia.

ForestEthics Advocacy, represented by prominent lawyer Clayton Ruby, filed an action in the Federal Court of Canada in Toronto on Tuesday seeking to have 2012 legislation limiting who can participate in hearings struck down as unconstitutional.

The claim targets changes to the National Energy Board Act that limit participants to those who are “directly affected” by a project or have “relevant information or expertise.”
ForestEthics is also challenging a nine-page NEB form that prospective interveners must fill out that says broader environmental issues related to pipelines, including climate change, won’t be considered by the regulator.

Both the law and the form violate free speech provisions in the Charter of Rights and Freedoms, according to the ForestEthics court submission.
The lawsuit directly relates to Calgary-based Enbridge Inc.’s application to reverse the flow of an existing line in Central Canada, but B.C. environmentalist Tzeporah Berman said the NEB policy applies to future hearings, such as those for the Kinder Morgan project.

She warned that the changes could cut the number of participants in future hearings by 90 per cent.

“It’s McCarthyesque,” said Berman, a member of ForestEthics Advocacy’s board. “Why are we as taxpayers paying for this as a public process if we’re not allowed to voice our concerns within that process? It’s not fair, it’s not objective.”

But Natural Resources Minister Joe Oliver said the legislation was necessary to stop environmental groups like Berman’s from abusing the system to stall projects with a flood of public interventions.

“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.

Kinder Morgan plans to file its application to the NEB later this year, seeking permission to twin its existing pipeline to Burnaby, B.C., at a cost of $5.4 billion. If approved, the company projects the pipeline will triple capacity to almost 900,000 barrels a day starting in 2017.

“This is hugely relevant to the Kinder Morgan pipeline,” she said.

Berman bases her warning about Kinder Morgan’s project on a comparison between two Enbridge Inc. endeavours — its proposed Northern Gateway pipeline from Edmonton to Kitimat, B.C., and its bid to reverse the flow of a 639-kilometre stretch of pipeline from North Westover, Ont., to Montreal.

Berman said 4,455 people made submissions to the Northern Gateway review panel, which operated under the old rules. That included 1,544 who provided oral submissions. (The NEB was unable to confirm those figures Tuesday.)

By contrast, only 60 got intervener status to appear at the hearings for the Ontario-Quebec project. Another 110 were allowed to submit letters of comment, according to the NEB.
The plaintiff in the ForestEthics case, Donna Sinclair of North Bay, Ont., was one of eight applicants who was told she didn’t have expertise and couldn’t prove the Ontario-Quebec pipeline affected her. Sinclair, according to Berman, wrote on her application that she wanted to raise climate-change concerns.

Other applicants, such as Sierra Club Canada and the Council of Canadians, were denied intervener status but were told they could submit letters.

The federal government’s 2012 changes to the NEB act were preceded with complaints that environmentalists had “hijacked” the Northern Gateway process.
Oliver said Tuesday the Northern Gateway experience proves changes were necessary to avoid bogging down costly public review processes. He said more than 95 per cent of aspiring interveners in Enbridge’s pipeline reversal proposal were allowed to make submissions.

While many of Northern Gateway’s political opponents dismiss the federal review panel as biased in favour of Enbridge, Berman confirmed that the panel process was politically useful for the environmental movement.

“The increased public debate that we had as a result of the Northern Gateway process being open to the public perhaps contributed to the fact that many people now believe that pipeline is now dead.”

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