By Mike Chisholm. This article was first published on Vancouver Observer.

Affadavits cite Canadian Charter of Human Rights violations, government favoritism towards Enbridge, and an application designed to deter participation.

The  first shots have been filed in a court case that pits a BC environmental group against the National Energy Board of Canada, the Stephen Harper government and Enbridge over who can participate in publicly-funded energy hearings. A behavioral scientist says the new rules are too onerous, while two climate scientists say hearings are skewed to benefit oil and gas companies.  But government and Enbridge laywers are only cross-examining one person, and that is Tzeporah Berman tomorrow in Toronto.

In an affidavit filed in the Federal Court of Canada in September, and recently obtained by The Vancouver Observer, a University of Toronto behavioral expert says, in her opinion, new rules to screen public participation in National Energy Board (NEB) hearings are designed to deter people from having their voices heard, which is a contravention of the Canadian Charter of Rights and Freedoms.

Dr. Claire Tsai of the U. Of T. Rotman School of Management says a new requirement to fill out a lengthy and complex application form has “an immediate deterrent effect” on public-participation.

In her affidavit, Tsai says, “The form is 9 pages long. It includes legal jargon, cross-references statutes, regulations and NEB policy documents. It makes very significant demands on the applicant. Many individuals will find the Form overly complex and time-consuming and will become less willing to apply to participate….”

One of Canada’s best known climate scientist has also weighed in on the case. Former Harper adviser, Mark Jaccard, of the SFU School of Resource and Environmental Management, swore an affidavit in the case, “The environmental and social impacts of projects that facilitate expanded oil sands production, and therefore increased GHG emissions, are likely to be profound, perhaps catastrophic.

“It is my view that the exclusion of these issues skews its (NEB) regulatory assessment in favour of pipeline approval and ignores the most important costs and non-costed impacts that every responsible and honest society should be considering on behalf of people living today and in future.”

The court case was launched last August by Forest Ethics Advocacy Association against the National Energy Board of Canada and the Attorney General of Canada. Forest Ethics argues “that every Canadian has the right to give their opinion and that these bureaucratic barriers directly violate section 2(b) of the Canadian Charter of Rights and Freedoms.”

Forest Ethics launched its legal action in August following the passage of the federal omnibus Bill C-38. The legislation included a buried passage that changed the way Canadians could voice their opinions at NEB hearings. Instead of showing up and providing an opinion or letter, the public must now fill out a multi-page application justifying their right to speak. The NEB can accept or refuse the application.

“These were changes that were made as part of the overhaul back in July 2012 and it impacted the NEB as well,” says NEB spokesperson Carole Léger-Kubeczek in Calgary. “It’s to try and focus the participation of people who are directly impacted by an application for a proposed project.”

During the Enbridge Northern Gateway Hearings, and before the new regulations were established, more than 1,500 people testified at public hearings around BC. Under the new rules, that number would have been severely limited. The Harper government has indicated that it wants the public hearing aspect of major oil and gas development projects to be more efficient.

Forest Ethics co-founder Tzeporah Berman says the real reason is much more ominous. “The federal government is trying to restrict this process so we don’t have a discussion in Canada about climate change or the expansion of the tar sands and all of the impacts that expansion is having on communities, on human health, on our water, on our climate.”

The first application of the new regulations are in place for current NEB public hearing into the Line 9B Reversal and Line 9 Capacity Expansion Project from Montreal to Sarnia, Ontario. Enbridge has applied to reverse its existing 639 km oil pipeline to accommodate heavy crude oil, including Alberta diluted bitumen.

“It will deter people who are not impacted and do not necessarily have a lot of relevant information,” says Léger-Kubeczek. “If they have relevant information and they apply, they stand a chance of getting standing. But if their information is ‘oh, I just don’t agree with the project’, that’s not really relevant because you need to provide expertise and that is not what I consider expertise.”

As a behavioral scientist, Clair Tsai examined the new process and concludes that the length and complexity of the form has a “significant deterrent effect on participation.” She says applicants must first find the form, review lengthy instructions and documents, interpret legal terms and submit the form via website, fax or mail 25 copies all within 16 days.

“It makes very significant demands on the applicant,” says Tsai.

“Many individuals will find the Form overly complex and time-consuming and will become less willing to apply to participate….” “These features … will inevitably operate to ensure that this Form is neither completed nor submitted by many ordinary Canadians.”

Léger-Kubeczek says the NEB recognized that the initial application form was too complicated and changes have been made to make the process easier and more efficient for the board.

“The second generation (application form) is much simpler than the first one that came out. And we are working on something that is even more user-friendly.”

Tsai argues that research has shown that any form or questionnaire that requires time and effort be invested to perform an action is considered a “hassle cost”, “however small or trivial”.

“When any mandatory form is implemented … and certain citizens who might have sought to participate but for the Form will be less likely to participate. That effect is real and significant, regardless of the length or simplicity of the Form,” writes Tsai.

“The restrictions they put on this process limits the number of people who have even tried to participate,” says Tzeporah Berman. “I expect that hundreds of people took a look at that nine page questionnaire and all they wanted to do was file a one page letter, and they thought, ‘oh, forget it’. I’m naive enough to think that the government’s role is to encourage public participation in a public process.”

The NEB says the form is designed so that only the sections that apply to an applicant are relevant. For instance, a landowner directly affected by a project would fill out certain information while an organization with certain expertise would fill out another section.

“I think it’s more efficient because you are getting to the crux of the matter and you have the scope of the application and you have the list of issues and it’s simpler for people to say this is within the scope and this is what I will speak to,” says Léger-Kubeczek. “Before you even had people not from Canada who would apply whereas now if you are impacted, no matter where you live, if you can demonstrate that you are impacted then you can participate.”

Two other affidavits from climate scientists in the same case argue that exclusion of evidence about the environmental and socio-economic effects associated with the development of oil sands or the downstream use of the oil transported by oil pipelines “skews the debate in favour of oil sands extraction and pipeline construction.” One scientist says the impact of projects that facilitate oil sands production “are likely to be profound, perhaps catastrophic.”

Forest Ethics is challenging the refusal of NEB to consider the downstream impact of major oil and gas projects. Bill C-38 restricts what people can say at an NEB hearing, rejecting applicants who, according to Forest Ethics, “are experiencing serious health impacts, or people who are concerned about health risks posed by increased toxic emissions at tar sands refineries, or people who want to expose the link between the tar sands and climate change are forbidden from expressing any analysis of a project’s impact.”

“They are defining impacted and relevant information to exclude Canadian concerns about climate pollution and the impact of the tar sands,” says Berman. “So they are trying to separate a decision over a pipeline with a decision to expand the tar sands and the implications of tar sands expansion being the primary reason Canada will not meet its climate targets. By trying to create such a narrow definition, they are silencing a critical discussion that should be happening in this country.”

“These issues are necessary to a proper consideration of the environmental impacts of the pipeline,” says University of Toronto climate expert Dr. Danny Harvey in another affidavit filed on September 18. “The exclusion of these issues skews the debate in favour of oil sands extraction and pipeline construction.”

Jaccard says it’s impossible to separate the two issues of oil sands development and the infrastructure needed to support that development.

“Since oil sands production cannot expand without an equivalent expansion of the means to transport the product to market, an oil pipeline is thus a direct contributor to the harmful climate change that the government of Canada has promised to work to prevent.”

Tzeporah Berman says five affidavits in total have been filed in the case. Enbridge has also joined the action but so far, only two individuals, Berman and Ontario resident Donna Sinclair, have been asked to be cross-examined. That cross-examination is expected to take place on Friday in Toronto.

Mike Chisholm

Mike Chisholm has worked across the country as a broadcast journalist and producer with CBC television and radio, CTV and as the national Atlantic correspondent for Global TV. He is a recipient of both a Jack Webster Journalism Award and an RTNDA award for his reporting. His focus with The Vancouver Observer is environmental and political reporting.