Enbridge Pipelines (“Enbridge”) applied to the National Energy (the “Board”) for approval of its pipeline expansion project. The Board granted approval on conditions, but the applicants sought judicial review of three interlocutory decisions made by the Board.

Administrative law – Decisions of administrative tribunals – National Energy Board – Natural resources – Oil and gas – Environmental matters – Charter of Rights and Freedoms – Freedom of expression – Participatory rights – Judicial review – Application to participate in hearing – Standing – Compliance with legislation

Forest Ethics Advocacy Assn. v. Canada (National Energy Board), [2014] F.C.J. No. 1089, 2014 FCA 245, Federal Court of Appeal, October 31, 2014, Trudel, Stratas and Near JJ.A.

During its deliberations, the Board ruled that the environmental and socio-economic effects of upstream activities, the Alberta oil sands development and the downstream use of oil transported via the pipeline were irrelevant and would not be considered by it.

During the proceedings before the Board, 158 of 177 applications to participate in the proceedings were granted. Eight applicants were denied the ability to participate, including Sinclair.

Sinclair and the Forest Ethics Advisory Association (“Forest Ethics”) sought judicial review of the Board’s decision on the basis that the denial of participation rights breached Charter s. 2(b), and that removal of certain environmental issues from consideration was unreasonable.

Subsection 52(2) of the National Energy Board Act, R.S.C. 1985, c.N-7 requires the Board to have “regard to all considerations that appear to it to be directly related to the pipeline and to be relevant.” The applicants argued that this section of the Act mandates a consideration of the larger environmental effects of pipeline expansion, including the contribution to climate change made by the oil sands. They argued that the failure of the Board to allow the applicants to participate on these issues violated their freedom of expression s.2(b) Charter rights.

The Board is required to consider certain representations from parties directly affected by the application under consideration. As well, the Board may permit others with relevant information or expertise to make representations before it.

Sinclair argued that her religious faith gave her a detailed interest in the matter, and that her work exploring relationship between aboriginal peoples and the land gave her particular, relevant expertise. Sinclair was one of eight applicants who were not even granted an ability to participate by letter of comment.

Although the Board has the power to hearing constitutional issues raised in proceedings before it, the Court held that Sinclair was barred from seeking Charter relief because she failed to raise the issue before the administrative law decision maker. Forest Ethics failed to raise a constitutional issue before the Board, and was not directly affected by the Board’s decision, and so lacked standing; the Board’s denial of Forest Ethics’ participation was upheld on these twin grounds.

The Board’s powers would not extend to being able to declare a section of relevant legislation of no force and effect if it violated the Charter, but could include the ability to disregard a certain provision on constitutional grounds and rule on the claim as if that provision were not in force, with the parties being free to seek a remedy of a formal declaration of invalidity before a Superior Court on review (Okwuobi v. Lester B. Pearson School Board, 2005 BCC 16 (paragraphs 45-46).

The substance of the interlocutory decisions was reviewed on a reasonableness standard. The Court acknowledged that the three separate decisions were interdependent, and that therefore the reasonableness or unreasonableness of one decision could affect the reasonableness of the other decisions.

The Board’s decision to eliminate the environmental issues from consideration was upheld as reasonable because their mandate is to regulate construction and operation of inter-provincial oil and gas pipelines, and the National Energy Board Act does not require them to consider larger, general issues such as climate change. The Act also specifies that issues to be considered must be “directly related” to the pipeline and relevant, and the Board is given a wide berth in defining what it considers to be directly related. The Board does not regulate the upstream or downstream facilities whose activities were to have been highlighted in the applicants’ proposed arguments.

The Board’s decision regarding participation in its own process was entitled to a degree of deference and was upheld as correct. The Board is the master of its own procedure, and applications to participate are procedural in nature. The Application to Participate was not too complicated or time consuming, and the Court did not consider that participation should be granted to anyone who wished to appear: “Board hearings are not an open-line radio show where anyone can dial in and participate. Nor are they a drop-in centre 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.” (para. 76)

The refusal to permit Sinclair’s participation was reasonable, given the interests in fairness and efficiency of Board proceedings. The Board’s reasons accurately recounted Sinclair’s submission, and the fact that her interest lay in her religious beliefs and Canadian citizenship generally.

The application for judicial review was dismissed with costs to Enbridge and the Attorney General of Canada.

To stay current with the new case law and emerging legal issues in this area, subscribe here.