Law Times

Law Times • November 18, 2013 Page 9 FOCUS Pipeline debate NEB challenged over new hearing rules BY CHARLOTTE SANTRY Law Times A Toronto lawyer is arguing a constitutional case against energy legislation as part of a broader mission to curb the environmental impact of oil. Clayton Ruby is representing the ForestEthics Advocacy Association and Ontario resident Donna Sinclair in a joint lawsuit against the attorney general of Canada and the National Energy Board. The group argues s. 55.2 of the National Energy Board Act violates s. 2(b) of the Canadian Charter of Rights and Freedoms by stifling people's right to speak against pipeline projects. "We're carrying out a constitutional attack on a very narrow aspect of this," says Ruby, a lawyer with Ruby Shiller Chan Hasan. "If the Constitution was very different, it would say, 'We can't kill people for profit.' But that's not in our Constitution. We're talking about freedom of expression." The group's notice of application, filed at the Federal Court of Appeal on Aug. 13, calls for an order to quash changes affecting the consultation process for the proposed Enbridge pipeline reversal between North Westover, Ont., and Montreal. Historically, any interested party would be able to make a submission to the board about the merits of a pipeline project. But following a decision on Feb. 19, 2013, parties must first fill in a nine-page application form. The board has also advised it won't take account of arguments relating to "the development of oilsands or the downstream use of the oil transported by the pipeline." The decision stemmed from a 2012 amendment to s. 55.2 of the act that allows the board to only consider representations from those directly affected by an application or those deemed to have "relevant information or expertise." The notice of application suggests the board has interpreted its authority in an "unconstitutional and unreasonable manner." It adds: "The requirement of filling out a form as a prerequisite to participation, which participation is not guaranteed, creates a chilling effect on would-be applicants' speech." Ruby, who is chairman of the ForestEthics board, believes the amendment to the act reflects the government's reticence to take steps to preserve the environment. "The Harper government is determined to make Canada a leading oil producer without taking any safeguards — and they have cut safeguards — to make sure [the oil industry isn't] ruining the environment and killing people," he says. "Oilsands pollute the water, [causing] high death rates . . . but they're in the far North so nobody cares," he adds. The proposed Enbridge project affects a 639-kilometre segment of the Line 9 pipeline. The company has already secured approval for a reversal of the section between Sarnia, Ont., and North Westover. Enbridge has also requested to increase the capacity of the entire Line 9 to about 300,000 barrels per day from 240,000. It wants authorization to transport the heavy crude oil that comes from the oilsands. In their constitutional application, the applicants highlight what they see as the climate consequences of oilsands growth plans. "Downstream of oilsands, aboriginal people are experiencing an increase in respiratory diseases, cardiovascular problems, and rare cancers that appear to be caused by toxic substances from the oilsands." Gowling Lafleur Henderson LLP associate Scott Smith argues the changes to the act have adversely affected his aboriginal community clients' ability to participate in energy project consultations. "The form is very difficult to complete," he says. "It's onerous and time-consuming." Although the board provides some funding to support the participation of groups directly affected by projects, the money doesn't fully offset the costs of legal fees and travelling to hearings, says Smith. "There's a real danger that when we exclude the public and aboriginal people and there isn't adequate consultation and people don't have a forum in which to express their concerns that it can lead to other types of complications." He highlights the events of last month when frustrated protesters stormed a hearing in Toronto on the Line 9 Enbridge project. The board had to cancel the final hearing day due to security concerns. A decision on Line 9 is expected next year. The Department of Justice and the board declined to comment on the ForestEthics lawsuit. LT When it comes to IP in Canada, We're Well Read Ridout & Maybee LLP: Editors of the Canadian Patent Reporter it all starts somewhere www.ridoutmaybee.com Untitled-1 1 12-01-23 9:05 AM STAND OUT FROM THE REST WITH WESTLAW® CANADA CASE NOTEBOOK Use Westlaw® Canada Case Notebook to analyze and share key case information at a level beyond the competition. Intuitive, highly integrated, and fully supported – the fresh choice. For more information, visit www.westlawcanada.com CaseLogistix Carswell-38787_LT_Nov18_13.indd 1 www.lawtimesnews.com Case Notebook 13-11-12 9:57 AM

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