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New pipeline review rules violate charter rights, says legal challenge

VANCOUVER - Pipeline opponents are challenging the federal government's new energy board rules that restrict participation in the review hearing on Kinder Morgan's proposed Trans Mountain oil pipeline expansion.

A notice of motion was filed Tuesday asking the National Energy Board to declare the revised regulations unconstitutional.

"The applicants submit that this is a draconian, undemocratic limitation of their constitutionally guaranteed freedom of expression," said the motion, filed directly with the federal energy regulator.

"There is no justification for this violation of (charter) rights."

The revisions introduced two years ago restrict participation in project review hearings to those with a direct interest in the proposal and those who have expertise to offer.

The $5.4-billion expansion would almost triple the capacity of the existing pipeline that links the Alberta oil sands to Port Metro Vancouver.

The energy board has approved 400 individuals and groups for intervener status, which allows them to take part directly in the hearings, address the panel and question other interveners. Another 1,250 groups and individuals have been approved as commenters, or those who can submit comments but can't question other participants.

Of more than 2,000 applications for various levels of participation, 468 were denied. The board said 452 groups and individuals who requested intervener status were instead granted commenter status.

The new participation rule was among a host of amendments that included time limits and took the final decision from the board's hands, while giving it to the federal cabinet.

Ben West, of Forest Ethics Advocacy, which joined eight individuals named in the motion, said the application process itself was a barrier.

"If you look at the number of people who were actually rejected from having intervener status, who were downgraded to commentators, even of the 2,000 people who went through that process, many people are not being given the right to speak or participate," he said.

The window for interested parties to file their applications was "unreasonably short," the motion said.

The board adopted a very narrow definition of who is directly affected, it said, and refuses to hear submissions on climate change or fossil fuels.

"In the result, this board has deterred participation in this important public hearing and has suppressed expression about whether the proposed project is in the interest of Canadians," it said.

Sarah Kiley, a spokeswoman for the National Energy Board, said there have been several motions filed on the Trans Mountain review, including a motion to recuse a board member.

The panel itself deals with most motions, but because the latest involves a constitutional challenge, the board must serve the attorneys general in each province and in Ottawa with a copy.

"That has already happened," Kiley said Tuesday, hours after the motion was filed.

The lawmakers have 10 days to respond and then the board will decide how to proceed.

The nine applicants include Lynne Quarmby, a professor of molecular biology and biochemistry at Simon Fraser University, Eric Doherty, a former director of the B.C. Sustainable Energy Association and several landowners who live near the possible route.

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