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Environmental regulators and tribunals bear substantial responsibilities and make important decisions regarding development in Canada. If they won’t listen to opponents of a project, will they breach the Canadian Charter of Rights and Freedoms?

The issue has been raised before the courts recently regarding both a pipeline approval before the National Energy Board and regulation of ongoing fracking activities before the Alberta Energy Regulator. The AER replaced the Energy Resources Conservation Board (ERCB), and provides “full-lifecycle regulatory oversight of energy resource development in Alberta – from application and construction to abandonment and reclamation, and everything in between.”

The mandate of both bodies are set by their statutes. Often, they cannot consider all the issues that members of the public want to raise. Those adversely impacted by development often claim that the tribunals and regulators are not doing enough to protect them, and are overly concerned with approving development.

At the very least, many say, they ought to listen to what we have to say. Frustration with the restrictions on who can communicate with decision-makers, and how, lead to two recent claims that claimants right to freedom of expression under the Charter had been infringed.

Restrictions on communication with environmental regulators may violate the right to freedom of expression.

In 2011, Jessica Ernst launched a lawsuit against EnCana, the ERCB and the Alberta government for the contamination of her property and drinking water due to EnCana’s fracking program. A component of her claim against the ERCB was that by barring her from communicating with it through the usual public communication channels it breached her Charter right to freedom of expression.

Ms. Ernst voiced her concerns about the negative impacts of oil and gas development near her home and was also a vocal critic of the ERCB. She claimed that the ERCB “seized on an offhand reference to Weibo Ludwig … and used it as an excuse to restrict her speech by prohibiting her from communicating with the ERCB through the usual channels.” (Note: Mr. Ludwig was convicted of bombing and sabotaging well sites near his home in Northern Alberta. He was also investigated following a string of pipeline bombings in BC).

She was informed that all staff at the ERCB Compliance Branch had been instructed to avoid further contact with her, and that she had been reported to the Attorney General, the RCMP and the ERCB’s Field Surveillance Branch. Her letter requesting clarification was returned unopened. She was later directed to the ERCB Legal Branch, which informed her that the ERCB would not reopen communication until she agreed to raise her concerns only with the ERCB and not publicly through the media or through communications with other citizens. Her subsequent request to communicate unhindered with the ERCB, and to file a formal objection to oil and gas development under the usual ERCB regulatory process, received no response. Sixteen months later, she was again allowed to communicate freely with any ERCB staff.

Ms. Ernst alleged that the ERCB infringed her right to freedom of expression in two ways: 1) by “punishing her for criticizing the ERCB in public and to the media” and 2) by prohibiting and restraining her communication with the ERCB. She argued that this was not a claim to a positive right, as the ERCB suggested, but rather a claim against the ERCB’s arbitrary and punitive restriction on her communication.

The ERCB brought a motion to strike out this portion of her claim. The Alberta Court of Queen’s Bench found that, although this claim was novel, it was not necessarily “doomed to fail”, and did disclose a cause of action, and so should not be struck out on that basis.

But, statutory immunity applies to personal remedies under the Charter.

The ERCB also argued that Ms. Ernst’s Charter claim was barred by the statutory immunity provision found in Section 43 of the Energy Resources Conservation Act, RSA 2000, c E-10 (ERCA) (since repealed and replaced by the Responsible Energy Development Act, SA 2012, c R-17.3). In response, Ms. Ernst argued that the government could not legislate immunity to protect itself from legal action arising from its own Charter breaches.

Applying appellate and Supreme Court jurisprudence on the issue of whether a limitation period applies to a Charter claim, the Court distinguished between whether the claim is personal (for example, seeking damages for breach of an individual’s Charter rights) or general (for example, seeking to strike down legislation).

It concluded that where a party seeks a general remedy, a statutory immunity clause will not apply. However, where the claim is personal, it is barred by the provision; Ms. Ernst’s claim was therefore struck out.

Is there a right to participation in tribunal decision-making?

Forest Ethics Advocacy and Donna Sinclair, an individual who has family living near the controversial Line 9 pipeline, recently filed a Notice of Application to challenge new regulations restricting participation in the NEB’s public hearings. Under the new rules, the NEB is required to hear from those who are directly affected and may hear from those who have relevant information or expertise.

They claim that participation in the NEB hearings is a right that is guaranteed under s. 2(b) of the Charter and that the new regulations arbitrarily restrict participation to those who are directly affected and grants the NEB undue discretion to determine what is relevant information or expertise.

Further, they claim that the rules surrounding participation influence, or restrict, the content of the submissions. The requirement that those who wish to participate in the hearing, where such participation is not guaranteed, must complete a form creates a chilling effect on the applicant’s speech. The application form also advises applicants that the NEB “will not consider the environmental and socio-economic effects associated with upstream activities, the development of oil sands, or the downstream use of the oil transported by the pipeline.” This, they say, is an unjustifiable content-based restriction.

The Application has not yet been heard.

If not before the tribunal or regulator, then where?

These challenges reflect growing public frustration that environmental tribunals and regulators are not responsive to their concerns. Streamlining environmental decision-making comes at the cost of excluding information that many people consider relevant to the decision whether development is appropriate and responsible. Protestors recently succeeded in shutting down the NEB Line 9 hearings in Toronto, demonstrating that if the public concerns are not heard before the tribunal, they may be heard on the streets.

This article was originally published on SLAW.

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