This week, I joined concerned community members in asserting our Charter rights by attempting to enter the National Energy Board hearings in Burnaby, B.C.
We were hoping that if we reasoned with the NEB and asserted our rights under the “open court principle,” which requires proceeding like one to open and accessible, the board would discontinue its violation of the law and allow the public to attend the “public” hearings currently underway on Kinder Morgan’s proposed Trans Mountain pipeline.
Our attempt to enter the hearings came after the BC Civil Liberties Association sent a letter to the NEB last week outlining why they believed excluded the public from the sessions could be an unlawful violation of Charter rights.
Although inside the room there were row after row of empty seats, we were not allowed inside. Security was severe, with six RCMP officers in sight and three security personnel watching as we were turned away from a public process about an oil pipeline megaproject that directly affects us in myriad ways.
The manager on site said she was doing her job, claiming that she had no decision-making power and we had to file a motion with the board — the very board that decided to violate the open courts principle in the first case.
The next morning we had insult added to the injury, as we learned about the NEB’s letter replying to the BCCLA:
“BCCLA has not raised these issues in a timely manner. The Board has also not turned its mind to whether the BCCLA has the standing to raise this matter for the Board's consideration."
Talk about nerve. The letter basically says the NEB hasn’t yet decided whether the BCCLA, an independent civil rights watchdog, has the right to bring to the board’s attention that it may well be infringing on the rights of Canadians. (Never mind that it shouldn’t be a non-profit’s job to protect a government body from violating my Charter rights.)
Trans Mountain is an export pipeline from the Alberta oil patch to Burnaby, B.C. Canada’s tar sands oil supply is radically different than conventional crude, as the oil is in a sticky tar-like sand and takes vast quantities of water, chemicals, and natural gas to process.
The Kinder Morgan proposal would triple the movement of tar sands bitumen through the Salish Sea, where I swim, crab, and kayak. If an accident occurs, bitumen sinks, forming globules that are impossible to clean up, while diluted bitumen releases carcinogenic aromatic hydrocarbons.
Legally, the pipeline violates the United Nations Declaration on the Rights of Indigenous Peoples, by cutting through unceded Indigenous territory without free, prior and informed consent and by expanding the largest industrial project in the world, the Alberta tar sands, which has been challenged for trampling the rights of the Lubicon Cree First Nation. The review process is being challenged by the Tsleil-Waututh First Nation in the Federal Court of Appeal, and the Musqueam and Squamish First Nations are also vocally opposed. The City of Vancouver is one of many municipalities opposing this expansion project, and the Province of British Columbia is formally opposed.
NEB and the ‘open court’ principle in law
When a project requires approval from the NEB, public hearings are held in order to determine its validity. According to the NEB, this is a chance for the company, those directly affected by the project, and relevant experts to provide evidence for or against the proposed project. Despite the hearings being classified as “public,” members of the public are not actually allowed inside.
The BC Civil Liberties Association state that these hearings are likely being conducted unlawfully, violating the Charter of Rights and Freedoms’ open court principle.
“The open court principle requires that court proceedings presumptively be open and accessible to the public and to the media,” explains the BCCLA. “By refusing to allow a public audience in the hearing room itself, the Panel deprives the speakers of their ability to give testimony in the presence of their community members.”
On Jan. 20, Chief Susan Miller of the Katzie Nation was denied entry into the hearings while the Katzie intervening team presented their case. She remained seated in the hallway while Chief Negotiator Debbie Miller spoke inside the hearings. She was one of many Indigenous Elders unable to attend the hearing process, including members of the Lummi Indian Band who had travelled up from the United States.
On Jan. 21, three women entered the hearing rooms with a list of more than 400 people who were excluded from the process. The three were arrested and charged with mischief for attempting to enter the room, though they were legally allowed to be present at a public hearing process.
West coast rising up against pipeline
This pipeline puts my future at risk by expanding the greenhouse gas emissions in Canada, furthering our reliance upon fossil fuels and expanding projects proven to increase cancer rates. Community members are overwhelmingly opposed to this pipeline proposal, but we have been excluded from the NEB hearings, leaving intervenors lonely with only empty chairs and nerves to keep them company.
The west coast is rising up in opposition to Kinder Morgan’s reckless proposal, as the NEB conducts their not-so-public inquiries. Over the past 10 days a drill barge for the pipeline expansion in the Salish Sea was occupied and shut down for two days by seven people,, a march of hundreds was organized by the grassroots, the NEB was served a people’s Injunction, and activists locked themselves to the doors of their Vancouver office. This past Saturday, another rally of hundreds gathered outside of the hearings, and three sat inside and were arrested.
Amid the public outcry to scrap the review process, the Liberal government has stated that it will apply new climate tests to the pipeline proposals including Trans Mountain. Whether these climate tests will be adequate and reflect concepts such as climate debt remains to be seen.
Trudeau’s government has not addressed the risks that this project poses to a livable future upstream, and they have not dealt with downstream effects or proper community consultation.
We will see what the rest of this week brings in Burnaby. On Thursday, a truly public hearing will be held directly outside the NEB charade. It will be a people's hearing, and this time the public is invited to participate. The NEB process has failed. It is up to us to ensure pipeline will not be built.