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Doors slammed shut: National Energy Board refused requests to open its hearings to the public

In January, the BCCLA wrote a letter to the National Energy Board asking the Board to rescind its decision to close the Enbridge Northern Gateway hearings to the public in Vancouver. Rather than reverse its decision, the Board’s Joint Review Panel – the panel that is conducting the hearings – decided instead to go further in closing its public hearing in Kelowna, which was originally intended to be open to the public.

As we wrote in our letter to the Board, the National Energy Board, as a court of law, must have its doors open to the public. The “open courts principle” is a fundamental principle of Canadian law, and is protected by the Constitution. The Supreme Court of Canada has made clear that a court like the National Energy Board may only restrict public access to its proceedings if there is real evidence of a serious danger to the proceedings. The Board must clearly demonstrate its reasons for restricting public access, and it may only use the method of protecting the proceedings that restricts the public’s right of access as little as is possible. In this case, the Board provided no compelling reasons at all to keep the public out of the Victoria and Vancouver hearings, stating only that there had been protests in the past in these cities, and that they have big populations. Neither of these is a sufficient reason to lock down the hearings. In Kelowna, the hearings were planned to be open until the very last business day before the hearings began, when the Board stated vaguely that it had “become aware of information regarding safety concerns if the hearing continues as originally planned.” Again, this vague reasoning is simply not good enough as a justification for keeping the public out of what should be a public hearing process. More detail would be required.

It is also not good enough to have a webcast or a viewing room at a separate location. The right to an open court process means the right for the public to actually be in the room. Using technology to broadcast the proceedings is an excellent idea to allow those who cannot make it to the hearing room itself to follow the action, but it cannot be a substitute for direct public access.

The Joint Review Panel responded to the BCCLA in a letter of January 18, stating that it would “maintain its existing process and not revisit its prior decision.” This letter stated that the public shut-out was imposed in order to minimize potential disturbances at the hearings. As we informed the Board in our letter, the Supreme Court of Canada has made clear that the risk to be avoided must be real, substantial and well-grounded in the evidence, and that simply trying to achieve an advantage for the hearing like efficiency or the avoidance of disruption is not a good enough reason. The Panel’s rationale is simply not good enough.

The Panel goes on in the letter to state that, despite its shutting the public out, “a disruption at one session in Vancouver caused a brief delay in the Panel’s ability to hear oral statements from registered speakers who came prepared to share their views with the Panel.” This is an attempt to justify their decision after the fact, and in our opinion, it is not convincing. One of the days the Panel conducted hearings in Vancouver, five young people did disrupt briefly the hearing by coming into the room wearing t-shirts displaying the words “climate crime” and using whistles to make noise. These individuals were quickly removed and the hearing proceeded as planned, without problem.

The fact that the Panel was able to quickly restore order to its hearing simply highlights that there was never a need to ban everybody from the hearing sessions. All over BC, there have been packed hearing rooms with no disruption, even as protests raged on outside the hearing’s doors. As we said in our original letter to the Board:

In the event of any disruption to the Panel’s proceedings, the Panel has sufficient power to control its proceedings and to ensure order by ejecting those who might disrupt the hearing without resorting to closing the hearing room. For example, warning disruptive individuals, and potentially using its powers to eject disruptive individuals are carefully tailored and perfectly adequate ways of protecting the integrity of the Board’s process that minimally impair the right of open public access to its proceedings. The broad refusal to allow any member of the public other than a single guest for each speaker is simply unjustified under the Supreme Court of Canada’s test.

The Panel’s after-the-fact justification is no justification at all – and in any event, the Board had a duty to provide a full legal justification before the fact. The Board failed to do this and continues to fail to disclose any reason that could legally justify its decision.

We note, incidentally, that the young activists who were escorted from the hearing room by police were released and were not charged with any wrongdoing. Without condoning the tactic of disrupting the proceedings, the BCCLA takes the position that these five young people had the right to be in that hearing room to start with, as did anybody else who took an interest in the proceedings, to bear witness in person to the decision-making process of the Board and the testimony of their fellow community members. They, and everybody else, were denied their legal and constitutional right to be present at the hearings.

The Board was able to get away with its decision because it is so difficult to launch a legal challenge to its decision. As the Board itself refused to reverse its position when confronted with legal arguments as to why its decision was incorrect, the only remedy available would have been to go to Federal Court to have the decision overturned. For the individuals whose rights to an open court proceeding were violated, it would be prohibitively expensive to mount such a legal challenge. Many of the organizations and First Nations participating in the hearings also have limited legal resources to mount a challenge to the decision. The BCCLA, as an outside organization that is not a party to the hearings, would have had to overcome an argument that we lack the legal standing to mount such a challenge, if we had tried to take the National Energy Board to court over this decision. The public should not have to take the National Energy Board to court in order to ensure its right of free access to the hearing process. Instead, the Board should take the obligations that come with its status as a court of law more seriously, and respect its constitutional obligation to have an open process.

The BCCLA is deeply concerned that this unconstitutional move to close public court hearings will be become a trend in decision-making processes for controversial projects that affect the environment. In the coming years, we expect that there will be hearings in British Columbia and Alberta to consider the expansion of the Kinder Morgan oil pipeline and tanker expansion project, as well as the Site C Hydroelectric Dam and numerous other developments that have prompted noisy debate and opposition. These processes must be open to the public, and not follow the poor example set by the Enbridge Joint Review Panel in Victoria, Vancouver and Kelowna. The BCCLA will watch closely to ensure that the public’s right to be present and to participate in these processes is respected.

Link to BCCLA letter to the National Energy Board

Link to response letter from the National Energy Board to the BCCLA