Canada’s National Energy Board has lost its virginity


It didn’t take long for the Chair of the National Energy Board(NEB) to lose his innocence.

First, Chair Peter Watson was seduced away from the Alberta government by the big bucks of Ottawa($265,000+) in August 2014, then he was accused of doing the dirty to environmentalists by restricting participation at federal NEB hearings. Finally, he rubbed elbows with a host of luminaries from coast to coast.

The elbow rubbing is a public engagement exercise that started in January 2015, concludes in June, and is projected to cost approximately $350,000, according to Steven Rowe, an NEB communications officer.

The PR exercise was precipitated after Watson was publicly denounced.

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And so the question remains: Do honest, hardworking Canadians have a right to be heard by the NEB when it is considering an application by a pipeline company to take Alberta tar sands oil to market?

In a nutshell, that’s the question a group of West Coast citizens are asking the Supreme Court to hear. They claim Canadians have the right to free speech under the Canadian Charter of Human Rights and Freedoms, and that said right includes the opportunity to be properly heard by the NEB.

The NEB is the federal government’s energy project overseer. They review inter-provincial and trans-national pipeline applications and conduct follow-up monitoring of projects.

“One of the misconceptions is the board holds hearings, then walks away,” says Rowe.

Yet, those hearings are the crux of the legal complaints.

Following legislative changes by the Harper Government, the NEB limited the scope of Kinder Morgan’s Trans Mountain Pipelines(TMP) hearing and in essence refused to grant the nine litigants “intervenor status.” The TMP hearing is an NEB application looking at whether TMP may expand and enlarge their 1,147 kilometre pipeline from Alberta to various facilities on the British Columbia coast.

Some of the nine litigants were granted commenter status, others were denied any participation in the hearing entirely, and one chose to forgo making an application owing to the narrow scope imposed.

The nine appellants are representative of many who were denied an opportunity to be heard.

“On October 2, 2013, the National Energy Board (NEB) announced that about 80 per cent of a milestone 2,100 intervention applications in the Trans Mountain Pipeline Expansion were rejected,” wrote Matthew Keen, lawyer with the BC firm Bull Housser.

One successful intervenor, Marc Eliesen, former BC Hydro CEO, abandoned the hearing upon determining the NEB was undertaking a seemingly disingenuous process.

“Unfortunately, I have come to the conclusion that the Board, through its decisions, is engaged in a public deception. Continued involvement with this process is a waste of time and effort, and represents a disservice to the pubic interest because it endorses a fraudulent process….” Eliesen wrote in an open letter to the NEB.

But Eliesen, in an uncharacteristic manner for an executive, went further in his criticism of the NEB.

“In effect, this so‐called public hearing process has become a farce, and this Board a truly industry captured regulator….

“The National Energy Board is not fulfilling its obligation to review the Trans Mountain Expansion Project objectively. Accordingly it is not only British Columbians, but all Canadians that cannot look to the Board’s conclusions as relevant as to whether or not this project deserves a social license. Continued involvement in the process endorses this sham and is not in the public interest,” wrote Eliesen.

This likely is what prompted Watson to go on a counter offensive, or more accurately a public relations offensive. First, he wrote a commentary published in the Vancouver Sun on November 6, 2014.

“Finally, I want to be clear the NEB has a duty to Parliament — and through it to all Canadians — to objectively review all of the evidence that is relevant on the Trans Mountain pipeline application and deliver a recommendation that is fair, balanced and best reflects the public interest. Our job is not easy, and I do not expect everyone will agree with us. However, I can assure you we take this obligation to the people of Canada extremely seriously,” concluded Watson in his rebuttal to Eliesen.

But all Canadians, to which Watson claimed the NEB has a duty, were not convinced.

The NEB cross-country engagement tour started—shortly after the public reply—in Atlantic Canada. Watson and a small group of NEB staff have been visiting mayors, chiefs, first responders, environmentalists and others. In Quebec alone, the NEB met with 41 mayors.

“In addition to meeting with Canadians from coast to coast to coast, the NEB’s engagement initiative includes an online discussion forum, which is open to anyone who wants to share their views about pipeline safety and environmental protection,” the NEB wrote in an April 7, 2015 press release.

There is some considerable irony that the NEB would hear from all Canadians outside of a hearing, but deny specific Canadians from being heard within a formal pipeline hearing. It sounds like a case of “We want to have intercourse, but only on our terms.”

The NEB’s Rowe sees it differently.

“The board has a difficult task to assess who is directly affected,” Rowe says. “We’re in the eye of the storm, there’s a lot more scrutiny on these projects.”

One leading environment lawyer asserts the difficult task of which Rowe speaks is an intentional plan.

“It is quite clear that the federal government specifically wanted to limit the scope of hearings,” says Dianne Saxe, a Toronto-based lawyer with a doctorate in environmental law.

She says the government wanted the NEB to look only at pipelines, not the tar sands, and not at climate change.

“They changed the law to make that the focus,” indicates Saxe, “I think their intention was to limit the range of issues and that they succeeded in doing that.”

But the pivotal question remains: does limiting related issues and limiting participants violate citizens’ rights under the Charter? The coalition of nine, guided by Vancouver lawyer David Martin believes so.

He has commenced an application for permission to appeal to the Supreme Court of Canada on behalf of Lynne M. Quarmby, Eric Doherty, Ruth Walmsley, John Vissers, Shirley Samples, Tzeporah Berman, John Clarke, Bradley Shende, and the Forest Ethics Advocacy Association.

While the issues are significant, the chances of being heard by Canada’s highest court are statistically slim. Lawyer Saxe does not give the group much hope.

“I think it’s a long shot,” she says.

But one can never predict the premarital predilections of the Supreme Court of Canada in defining government/citizen relationships.

If the 17-week average for deciding leave to appeal applications holds true, a decision on whether or not the Supreme Court will hear the Trans Mountain case should be rendered around July 20.


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