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Can the federal government successfully muzzle (non-aboriginal) opponents to major energy and resource projects? So far, yes.

Twice now, the Federal Court of Appeal (FCA) has been asked to consider whether section 55.2 of the National Energy Board Act and NEB decisions restricting participation in a hearing offend the guarantee of freedom of expression in section 2(b) of the Charter. Section 55.2 states that the NEB must consider representation from parties directly affected by the project, but it is discretionary whether it will permit others with relevant information or expertise to make representations.

In Forest Ethics Advocacy Association v. National Energy Board, 2014 FCA 245, challenging the NEB’s refusal to allow the Applicants to participate in the Line 9B Hearing, the Court refused to allow the Applicants to present this Charter issue. It concluded that they could not raise the Charter argument for the first time on judicial review.

Where the NEB has considered whether section 55.2 violates the Charter, however, it found that there was no infringement of the right to freedom of expression. The FCA recently refused leave to appeal NEB Ruling No. 34 concerning the Trans Mountain Expansion Project. As a result, the NEB’s ruling that neither section 55.2 nor the NEB’s participation decisions violated the Charter will stand.

Constitutional issues must be raised before the NEB first

In Forest Ethics, neither of the Applicants raised the question whether s. 55.2 violated the Charter before the NEB. As a result, the NEB did not have a chance to consider the constitutional issues they sought to put before the Court. The Court emphasized the significance of this failure to follow the appropriate process:

[42] This matters. Had the constitutional issue been raised before the Board, the Board could have received evidence relevant to it, including any evidence of justification under section 1 of the Charter. The Board would also have had the benefit of cross-examinations and submissions on the matter, along with an opportunity to question all parties on the issues. Then, with those advantages, it would have reflected and weighed in on the matter and expressed its views in its reasons. In its reasons, it could have set out its factual appreciations, insights gleaned from specializing over many years in the myriad complex cases it has considered, and any relevant policy understandings. At that point, with a rich, fully-developed record in hand, a party could have brought the matter to this Court on judicial review.

The Court cannot build such an evidentiary record in a judicial review – it must be heard by the administrative decision-maker, in this case the NEB. As a result, the Court found that were barred from invoking the Charter for the first time on judicial review.

Participation in an NEB hearing is not a “fundamental freedom”

In NEB Ruling No. 34, the NEB explained that the right of freedom of expression imposes a “negative” obligation of non-interference on the government, not a “positive” obligation of assistance. To use the Supreme Court’s description: “the freedom of expression contained in s. 2(b) prohibits gags, but does not compel the distribution of megaphones.” The NEB found that the Applicants were seeking a right to participate in the Board’s process, not the exercise of a fundamental freedom protected by section 2(b).

The Hearing is not public free for all, nor should it be

In NEB Ruling No. 34, the NEB found that itself, as a quasi-judicial administrative tribunal, was not “a public place where one would expect constitutional protection for free expression on the basis that expression in that place does not conflict with the purposes which s. 2(b) is intended to serve.” It was never intended to be a place for open public expression and, if this were permitted, it would interfere with its mandate.

The Board invites public participation in its process not merely for the sake of the exercise, but to assist it in fulfilling its statutory mandate of regulating pipelines, energy development, and trade in the Canadian public interest. In the context of a section 52 hearing, public participation allows the Board to hear evidence relevant to the questions it must answer regarding safety, the environment, and Aboriginal points of view. The evidence and submissions of parties enable the Board to make an informed recommendation to the Governor in Council as to whether any given project is in the public interest. However, under its statutory scheme, the Board is required to hear only from those persons who, in its opinion, are directly affected by a project or have relevant information or expertise.

An untrammeled right of the public to “open public expression” at the Board would undoubtedly come at the expense of the Board’s statutory objectives. It would also come at the expense of a value core to the section 2(b) guarantee: truth-finding. The Board cannot efficiently, effectively, or fairly hear the evidence it needs to assess the public interest in a project if it must hear from any and all persons wishing to express an opinion on it.

 The FCA raised a made a similar point in Forest Ethicsalthough perhaps not as politely:

[76] Board hearings are not an open-line radio show where anyone can dial in and participate. Nor are they a drop-in center for anyone to raise anything, no matter how remote it may be to the Board’s task of regulating the construction and operation of oil and gas pipelines.

What’s next?

The issue of who can participate in such hearings will likely continue to be contentious. Although the NEB granted intervenor and commenter status to approximately 400 and 1,250 persons or groups, respectively, in the Trans Mountain Hearing, and excluded only 8 applicants from the Line 9 hearings, there will always be those who feel they have not been heard.

With respect to these projects specifically:

  • The NEB approved the Line 9B Project, with conditions, in March of 2014 (before the FCA heard the Forest Ethics judicial review application).
  • Trans Mountain is in the midst of responding to information requests. Trans Mountain will present its written and oral argument in August 2015.

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