The Supreme Court of Canada has refused leave to appeal a challenge to the constitutionality of the public participation provisions of the National Energy Board Act.

In Quarmby, et al. v. Attorney General of Canada, et al., 2015 FCA (36353), the applicants sought to argue that the test in section 55.2 of the National Energy Board Act for public participation in the Board’s hearings infringes s. 2 (b) of the Canadian Charter of Rights and Freedoms  (freedom of expression).

Section 55.2 states that

…the Board shall consider the representations of any person who, in the Board’s opinion, is directly affected by the granting or refusing of the application, and it may consider the representations of any person who, in its opinion, has relevant information or expertise. A decision of the Board as to whether it will consider the representations of any person is conclusive.

In its Ruling No.34, the National Energy Board ruled that these provisions do not infringe freedom of expression

Background

Trans Mountain Pipeline ULC applied to the National Energy Board for a Certificate of Public Convenience and Necessity to expand its oil pipeline infrastructure between Alberta and British Columbia.

As part of its review process, the Board conducted an environmental assessment and held a public hearing. 2,118 parties applied to participate in the hearing. 1198 requests to participate were granted. 452 requests for intervener status were granted commenter status. 468 applications were denied. One of the applicants was granted intervener status, three were granted commenter status, seven were denied participation, and Ms. Quarmby did not apply.

The Board dismissed a motion by the applicants asserting in part that s. 2 (b) of the Canadian Charter of Rights and Freedoms  (freedom of expression) was infringed by the Board’s test for standing and its decisions on participation. It dismissed a procedural motion requesting an oral hearing of the Charter  motion. The Board also dismissed arguments that its Application to Participate process, its Ruling on Participation, and its List of Issues for the hearing breached s. 2 (b) of the Charter .

The Federal Court of Appeal dismissed application for leave to appeal the Board’s decision in January 2015 and the Supreme Court dismissed application for leave to appeal that decision with costs on September 10, 2015.

Comment

This case is significant not only to hearings under the National Energy Board Act but also to hearings in environmental assessments under the Canadian Environmental Protection Act, 2012, under which a participant in hearings must be an “interested party”.

“Interested party” is defined as a person who, in opinion of the responsible authority or the review panel, is directly affected by the carrying out of the project or has relevant information or expertise.

These provisions were part of wholesale changes made to federal environmental legislation in 2012 by federal omnibus budget implementation bills C-38 and C-45

We discussed those changes at length in our posts at the time and earlier this year:

Canada’s Federal Budget: Sensible Streamlining or Unwarranted Removal of Environmental Protection?

What does Canada’s federal budget mean for Aboriginal environmental rights?

Canada Continues Rollback of Environmental Regulation

Federal Court: Canada had duty to consult First Nation on changes to environmental legislation

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Manning Environmental Law is a Canadian law firm based in Toronto, Ontario. Our practice is focussed on environmental law, energy law and aboriginal law. 

Paul Manning is a certified specialist in environmental law. He has been named as one of Canada’s leading Environmental Lawyers by Who’s Who Legal: Canada and ranked by Lexpert as one of Canada’s Leading Energy Lawyers.