By David P. Ball

Published August 14, 2013 03:55 pm |

One of Canada's top constitutional lawyers is taking the Conservative government to court over increasing restrictions on who can speak at energy board hearings -- and what they are allowed to say.

Decrying federal changes to the National Energy Board Act as a "chilling effect" and "breach of constitutional free speech," Clayton Ruby launched a court challenge yesterday on behalf of ForestEthics Advocacy, an organization he chairs.

The lawsuit, which has not yet been given the go-ahead by a judge, is challenging increased limits on who can address the board on applications for such projects as oil sands pipelines. The reforms force participants to prove they are directly impacted by a project, for instance if it crosses their property.

"This is part of a pattern of muzzling to keep the Canadian public from getting concerned," Ruby told The Tyee. "These are vital issues, and the government wants as little discussion about them as possible; they want silence… you can no longer talk about certain subjects, they narrowed the scope of what you can say, they will not hear you if you are indirectly affected, and the process requires a nine-page application form, even for a one-page submission."

Ruby cited as proof of the "muzzling" rules barring citizens from discussing climate change or impacts of the oil sands in general during pipeline or tanker hearings, even when they transport bitumen proven to escalate greenhouse gas emissions.

Compared to the more-than-thousand submissions to the board's Enbridge Northern Gateway hearings -- completed earlier this year, and almost exclusively in opposition -- current hearings into the Line 9B oil sands pipeline through southern Ontario allowed only 175 submissions, despite blockades and growing public protest.

But Minister of Natural Resources Joe Oliver retorted that the board has not impinged on free speech, since it "permits submissions from individuals impacted by the project."

"The democratic right to express a public opinion is honoured in Canada," Oliver said in an emailed statement. "The board must hear from those who are directly affected and may choose to hear from those with information or expertise relevant to the scope of the hearing.

"Focusing submissions ensures the review is informed by the facts material to the scope of the hearing and protects it from being used as a tool to delay decisions. This concern arose in the context of the Northern Gateway hearing when over 4,000 people registered to be heard, but only 1,179 actually showed up at the hearings."

Oliver came under fire in 2012 when he accused some Northern Gateway critics of being "foreign-funded radicals" in a widely reported open letter. That allegation started a firestorm where organizations such as Tides Canada and the David Suzuki Foundation were ordered to appear before a Senate committee in Ottawa and faced tax scrutiny over their pipeline advocacy.

Ruby described the government's approach as creating a "chill effect on free speech," because small organizations are scared of losing their charitable status, and increased hearing restrictions will dissuade citizens from participating.

"These hearings -- which they view as troublesome -- will no longer cause them any trouble," Ruby claimed. "They've turned the National Energy Board from a final decision-maker into an advisory board. The final decision is now made by Mr. Harper and his cabinet, not by the board."

David P. Ball is a frequent contributor to The Tyee.