Civil liberties group: Exclusion of public from Enbridge hearings 'potentially unlawful'

| January 14, 2013
Civil liberties group: Exclusion of public from Enbridge hearings 'potentially unlawful'

Vancouver - As the public hearings into the Enbridge Northern Gateway Pipeline project begin for the first time in Vancouver, the BC Civil Liberties Association has written to the President of the National Energy Board to challenge the Board's decision to close the Vancouver and Victoria public hearings to the public, permitting public viewing only at satellite sites several kilometres away and by webcast. 

"The National Energy Board has the powers of a court of law, it operates like a court and, like the courts, its hearings must be open, transparent and accessible," said Lindsay Lyster, President of the BCCLA. "We are baffled by the Board's unreasonable and potentially unlawful decision to close its public hearings to the public and to keep interested members of the public miles away. A public hearing should only be closed if there is a real and substantial risk to the administration of justice. The Board has provided no evidence that there was any threat whatsoever to these hearings that the Board's usual powers to kick disruptive individuals out couldn't have dealt with."

Canadian courts and tribunals, such as the National Energy Board, are bound by law and the constitution to be open to the public so that the public can see how decisions that affect them are administered. The courts have interpreted this to mean that courts, and court-like bodies such as the National Energy Board, cannot refuse public access unless there is a "serious danger" to be avoided.

Hearings must also be forums "where the public understands it is free to enter without specifically requesting admission" (See Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 43 at paras 26-27 and Palkowski v. Ivancic, 2009 ONCA 705 (CanLII) at para. 26). In the case of a disruption, the National Energy Board has numerous powers that allow it to control its own proceedings, including the power to kick audience members out.

"The principle of open courts is fundamental to a healthy democracy and is a keystone of our law. Providing distant video viewing rooms and web access is not good enough. Public hearings must be open to the light of day and the public must have a right to be physically present to view the proceedings in person.   The peaceful hearings across BC only serve to underline that the Board has no good reason to keep these hearings closed to the public. We call on the National Energy Board to open these Vancouver hearings to public audiences immediately," added Lyster. 

 

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