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Green Group Sues Canadian Govt for Restricting Public Input on Energy Projects

ForestEthics Advocacy says the Harper administration is trying to limit debate on key projects designed to expand tar sands oil extraction

Frustrated by what they say is the Stephen Harper government's blatant attempt to limit debate on key energy projects designed to expand production of the Alberta tar sands, environmental organization ForestEthics Advocacy is suing the Canadian federal government. The group filed suit in federal court yesterday (August 13), hoping to overturn legislation that they say unfairly restricts citizen participation in a publicly-funded democratic process.

tar sands mine in CanadaPhoto by howlmontreal/FlickrEnvironmentalists say oil from Canada’s tar sands is toxic, harms wildlife, and is destroying
Canada's critical boreal forests.

The lawsuit, filed in Toronto, calls for the Federal Court of Canada to strike down provisions introduced into the National Energy Board Act last year that unreasonably restrict public comment on project proposals and limit free speech. This is the first time the amendments will be challenged in Canadian court.

“Most Americans don’t realize that Canada is the number one supplier of foreign oil to the US,” said Kristi Chester Vance, deputy director of ForestEthics. “In addition to the oil from Canada’s tar sands being toxic, harming wildlife, and destroying the critical boreal forest, it now comes with the muzzling of scientists and the silencing of democratic input.”

Donna Sinclair, a resident of North Bay, Ontario is a co-plaintiff in the case. The National Energy Board (NEB) had prevented her from takin part in the public input process regarding a proposed plan to reverse the flow of Enbridge's Line 9B pipeline because she didn't live along the pipeline route — an example of one of the new conditions contained in the legislation in question. ForestEthics Advocacy and Ms. Sinclair are also challenging the bureaucratic roadblocks that the National Energy Board has created to further limit public participation.

“Through legislative changes snuck into last year’s Omnibus Budget Bill C-38, the Conservative government has undermined the democratic rights of all Canadians to speak to the issues that impact them,” said Clayton Ruby, a Toronto-based lawyer representing ForestEthics Advocacy and Sinclair. “Right now, they cannot question the development of the tar sands itself. We're challenging the legislation and the NEB’s new rules because they violate fundamental free speech guarantees enshrined in the Canadian Charter of Rights and Freedoms.”

Incidentally, the Canadian government declared ForestEthics an "enemy of the state" in 2012 for its work opposing the dirty energy industry, particularly the highly controversial tar sands development.

According to Tzeporah Berman, ForestEthics Advocacy board member, the government passed an enormous amount of new legislation through the omnibus budget bill including the undermining of water protection through the elimination of key parts of the Navigable Waters Act, changes to habitat projection in the Fisheries Act as well as altering the National Energy Board Act that, she says, unfairly restricts public comment on energy projects such as pipelines.

Changes to the National Energy Board Act made last year, Berman said, includes a reduced public comment period, from what used to be 148 days to now just 19 days.  This means that those Canadians interested in commenting on energy projects such as Enbridge's Line 9B or the Northern Gateway Pipeline (both pipelines are slated to transport tar sands oil) have a shortened window of opportunity to do so.  People are also be restricted in what subjects they can comment upon; they need to complete a nine-page application to be eligible for commenting, and the number of people allowed to give testimony is capped at 175. On top of all this, the energy board still has the right to disallow people from commenting. That's going too far, says Berman.

“The reason the lawsuit is important is because the public has the right to freedom of expression and that right is guaranteed under the constitution," she says. "This government has stripped the public's capacity to politically engage with issues that are shaping our country's future."

In June 2012, public hearings over the proposed Northern Gateway pipeline from the Alberta tar sands to Kitimat, British Columbia finally ended after stretching on for months as 1,544 people spoke on the plan. Berman calls the debate "robust." Natural Resources Minister Joe Oliver, in an open letter to Canadians, said the process was hijacked by "environmental and other radical groups," and railed against the delays, pledging to streamline the process. And then he went ahead and did just that.

Berman says she is confident the lawsuit has merit. ForestEthics has they asked the court to expedite the case. Fees for the case, said to be $150,000 just to get started, will be met through a massive fundraising effort also underway.

"The fact that this government has come out to support pipelines reflects their lack of respect for democracy and the opinions of Canadians," Berman said. "We had a robust debate over Northern Gateway and many people are now saying that project is dead. Thousands were heard. We need a robust discussion and that will impact the future of this country."

Ron Johnson
Is based in Toronto, Canada, where he is an editor for Post City magazines and contributes to The Globe and Mail, Maclean’s, The National Post and the London Business Times.

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