The oil tanker Everest Spirit in Vancouver harbour. Around 60 tankers a year already carry crude oil for export from the Kinder Morgan terminal in North Burnaby.

Second court challenge targets NEB pipeline hearings

Opponents to argue Kinder Morgan review denies freedom of expression

A second court challenge is being threatened by opponents of the Kinder Morgan pipeline expansion.

They’ve filed a notice of motion to the National Energy Board arguing its restricted review of the proposed Trans Mountain pipeline twinning unfairly limits public participation and violates their constitutional right to freedom of expression.

It’s expected to be the first move ahead of the filing of a constitutional challenge in the Federal Court of Canada.

The action is led by environmental group ForestEthics and supported by the B.C. Civil Liberties Association.

Plaintiffs include residents of Burnaby, Surrey, Vancouver and Abbotsford who live near Kinder Morgan facilities or the oil tanker route and whose participation in next year’s NEB hearings was either rejected or limited.

A 2012 change in federal law passed by the Conservative government capped the time the NEB can spend reviewing future pipeline projects and limited the topics participants can address.

It bars discussion of the impacts of exploiting Alberta’s oil sands, as well as climate change impacts from burning the oil overseas.

“The NEB has interpreted this new legislation as giving it the mandate to almost completely frustrate the public’s right to effectively participate in its hearings,” said David Martin, lawyer for the applicants.

“This legal challenge will fight for the public’s right to express itself and to be heard.”

He said a full public hearing on risks and benefits is vital because the new pipeline will have a “fundamental impact” on Vancouver, B.C. and Canada “for the rest of this century and beyond.”

Many critics who sought intervenor status have been denied a role in oral hearings and have instead been limited to written comment.

The $5.4-billion project would twin the 60-year-old oil pipeline that runs from northern Alberta to Burnaby, nearly tripling capacity to 890,000 barrels per day. The second 1,150-kilometre line would carry mainly diluted bitumen for export to Asia.

The North Vancouver-based Tsleil-Waututh First Nation is also going to Federal Court to argue they weren’t adequately consulted on the project’s environmental assessment or the NEB review.

Meanwhile, Kinder Morgan went on the defensive this week over wording in its project application that appeared to suggest spills bring economic benefits.

“Spill response and clean-up creates business and employment opportunities for affected communities, regions, and clean-up service providers,” the 15,000-page document stated, leading to national media coverage this week.

Kinder Morgan Canada president Ian Anderson said the statement was taken out of context from a section that examined in detail the effects of a worst-case spill.

“We all know that at the end of the day the total effect of a spill is negative and every effort must be expended to prevent such a thing from happening,” Anderson said in a statement.

He said spills aren’t part of the analysis of economic benefits the project would bring.

“No spill is acceptable to me anywhere, anytime, for any reason. Spills are not good for anyone. Period.”

– with files from Wanda Chow

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