Ecojustice Blog – Climate change Posted on March 5, 2014 (updated: February 17, 2015)

Who gets to speak at the Trans Mountain pipeline hearings?

Barry RobinsonBarry RobinsonLawyer

In 2012, after more than 5,000 people signed up to make 10-minute oral statements to the Joint Review Panel considering the proposed Northern Gateway pipeline, with the hope of fast-tracking future pipeline approvals.

Bill C-38 set strict time limits for the environmental assessment process and limited those who could be involved in future hearings to “interested parties.” To even write a letter of comment, a person has to be approved as an “interested party.” Interested parties are defined as people who would be directly affected by the pipeline or who have relevant expertise or information to share with the National Energy Board (NEB).

In a letter written by Kinder Morgan lawyers, submitted to the NEB on Feb. 19, 2014, the pipeline company argues for even tighter restrictions on who can participate in the hearings into the proposed Trans Mountain pipeline expansion project. In its letter, Kinder Morgan argues for a narrow definition of “directly affected” and argues that participation, beyond those directly affected, should be limited to experts who have information directly related to the project.

But Kinder Morgan may have gone too far.

In a letter written by Ecojustice to the NEB on behalf of our clients, Living Oceans Society and Raincoast Conservation, we argue that Kinder Morgan has misinterpreted the law. The test of “directly affected” that Kinder Morgan argues for comes from cases before appeal courts, not from the Canadian Environmental Assessment Act — the law says that one of the purposes of the Act is to provide opportunities for meaningful public participation during an environmental assessment.

The Canadian Environmental Assessment Act also says that a person with relevant expertise information has a right to be heard. Therefore, the birdwatcher who has knowledge of which species frequent a local wetland or the amateur naturalist who knows which part of the forest is used by the local deer herd, may not be seen as an expert in the eyes of a court, but they still have relevant information that can assist the NEB in assessing the environmental impacts of the pipeline.

Kinder Morgan also suggested in its letter that the NEB has the discretion to hear or not hear from a person who has relevant expertise or information. However, the Canadian Environmental Assessment Act says that the NEB must ensure that a person who has relevant expertise or information has an opportunity to participate in the environmental assessment of the pipeline.

The Bill C-38 changes to the Canadian Environmental Assessment Act and Kinder Morgan’s letter to the NEB also raise broader questions.

When a pipeline company claims that a pipeline will have economic benefits for all Canadians, shouldn’t all Canadians have the right to comment on the potential environmental impacts of that pipeline?

And, should any Canadian have to ask for permission just to write a letter of comment to a government decision maker? That doesn’t sound like an open, fair and just process.

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