How The Tories Took Away Our Voice: The Responsible Energy Development Act (Bill 2)

While we’ve been frothing about the government’s refusal to admit that there’s something fundamentally wrong with a political party accepting a $430,000 campaign donation from a single benefactor, Redford`s government is quietly going about its business—eliminating our right to stop an energy project even if it’s not in the public interest.

If Bill 2, the Responsible Energy Development Act, is passed Albertans will have no say on whether a project should go ahead; all they can do is fuss about the details when it does go ahead.

How did Albertans lose their voice with respect to the most important industrial activity taking place in our province?  The same way we lost our voice with respect to the delivery of healthcare—the government “streamlined” the legislation by “gutting” it.

This process took almost 3 years.  (The Morton/Stelmach slap-down and ensuing PC leadership race derailed things for a year).

In the spring of 2010 the government declared that Alberta’s regulatory framework for oil and gas development was uncompetitive.  In political circles that’s called “framing the question”—there was no evidence to indicate that regulations were indeed making the industry uncompetitive; the government simply declared it so.

Energy Minister Morton (Fred or Ted or whatever his name was) appointed three parliamentary assistants to a task force:  Diane McQueen, Energy assistant (now Environment Minister), Cal Dallas, Environment assistant and Evan Berger, Sustainable Development assistant.

Between Apr and Nov 2010 they consulted with “invited” stakeholders, including NGOs, 19 Alberta government departments, 47 First Nations, 3 Treaty Associations and 10 industry associations made up of all of the oil and gas heavy hitters.

Not to be cynical, but I’d wager that the input from “stakeholders” like the Town of Beiseker or Ducks Unlimited didn’t carry nearly as much weight as input from the industry participants who, for some reason, got twice as much air time as the rest of the invitees.

In Oct 2010 the task force unveiled its “preferred” option to the stakeholders.  Apparently they were delighted (although given what we now know about Bill 2 I suspect the non-industry stakeholders had no idea what the task force was talking about).

A glossy report was published in Dec 2010.  It said that Alberta had an urgent need to “enhance” its regulatory system to keep the oil and gas sector competitive (we’d come full circle).

The report made 6 recommendations.  One was the creation of a single Regulator that would pick up the responsibilities of the Energy Resources Conservation Board, Alberta Environment and Sustainable Resource Development.

This recommendation was a Trojan horse.  It sounds like “streamlining” but actually results in “gutting” because it eliminates the Energy Resources Conservation Board and the Energy Resource Conservation Act which requires the ERCB to consider whether a project is in the “public interest” in each and every case.

The “public interest” is based on the social, economic and environmental impacts of a project.  It can be as narrow as a farmer’s concerns about the impact of an oil well on his crops and livestock or as broad as the cumulative effects of an oil sands upgrader on air and water quality and a community’s ability to provide services and infrastructure

Shell Albians sands north east of Fort McMurray Photo credit jasonwoodhead23

A consideration of the “public interest” weighs these competing interests—if a balance is not achieved the project must be rejected—however the Regulator’s ability to make that decision has vapourized.

If the new Regulator can’t consider the “public interest”, who can?  Why the government of course.

The “public interest” is now a matter of policy to be decided behind closed doors by government officials and industry representatives.  And if they decide it’s in the “public interest” to exploit Alberta’s natural resources at breakneck speed, so be it.  It’s not up for public debate in front of the Regulator.

Bill 2 allows the Minister (we’re not sure who but likely it will be Energy, not Environment) to force the Regulator to make decisions that are consistent with the government’s policies for energy resource development, land management, environmental management and water management.**

And just in case the Regulator is not clear on what those policies are in a specific case, Bill 2 has created a new government-appointed board of directors, complete with CEO, that is responsible for the “general management” of the Regulator’s affairs*** (Welcome to Superboard 2, The Sequel).

The Alberta government has regulated energy resources since 1938.  Whether a project is in the public interest or not has been a threshold question for the Regulator for decades.  Not one of Alberta’s premiers, including the polar opposites Lougheed and Klein, found it necessary to relieve the Regulator of its duty to consider the public interest, let alone smother the Regulator with direct input from the Minister and his hand-picked board of directors.

Bottom line:  the government doesn’t trust the Regulator to interpret the “public interest” appropriately.  Perhaps it doesn’t want to take the chance that an arms-length Regulator might act in the best interests of all Albertans, not just those who make hefty contributions to the party in the dying days of an election.

*”The ‘Public Interest’ in Section 3 of Alberta’s Energy Resources Conservation Act: Where Do We Stand and Where Do We Go From Here?” by Cecilia A. Low, Canadian Institute of Resource Law, Sept 2011

**Section 67(1)

***Sections 5 and 6

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10 Responses to How The Tories Took Away Our Voice: The Responsible Energy Development Act (Bill 2)

  1. Jill Browne says:

    Thanks, Susan, for bringing a serious issue forward.
    It seems that getting rid of regulators is fashionable again. Is there any merit to it? Who benefits? It’s very hard, after reading your post, to see this present action as a move that will actually protect Albertans from the excesses of capitalism.
    Does the government have a detailed rationale for what it’s doing? Does it make sense?
    I ask because clearly there is some motivation, and I would hate to believe that it is completely about self-interest and mutual back-scratching. I give Premier Redford credit for more integrity than that.
    What I do fear is happening is that the dogma of “free market at all cost” and “regulation is evil” is creeping into Alberta politics (or coming in on a tidal wave) and that when there is no other test of what is good, that is the default test that our leaders are using.
    I would love to be wrong on this.

    • Jill, this one is a case of “what’s good for the industry is good for everybody whether they like it or not”. The task force’s report, Enhancing Assurance, starts with the assumption that Alberta’s regulations used to be OK at one time but oil and gas industry has changed, activity has increased and “new knowledge has evolved concerning the complex relationships between development, the environment and society” (whatever that means). This premise supports the argument for greater coordination between government departments (sounds innocuous).

      The 6 recommendations are: (1) set up a new Policy Management Office to sort out the inconsistent policies that have developed over time, (2) set up a single regulator, (3) provide a clear public engagement process for policy development and policy assurance (“assurance” appears to mean “approval”), (4) set out a common risk assessment/management process, (5) set up a performance measurement system and report performance to the public and (6) develop an “effective mechanism” to address landowner concerns.

      The recommendations sound like harmless bureaucratic nonsense, but that’s because none of them spell out the fact that the Regulator will be barred from considering the “public interest”. If I were a non-industry stakeholder who’d taken the time to participate in these consultations I would feel utterly betrayed.

      • Susan, I was one of those “non industry” types who participated. I represented landowners. First of all they used the “delphi technique” on us…..a CIA Rand Corporation tactic to achieve “Consensus with a predetermined out come”. What we were told would happen, despite our outspoken opposition, was a “simplified regulator”…..not this outrage that lets industry and their bought and paid for government control of Albertans rights and freedoms!

      • Doug, thank you for sharing your first hand experience with us. Now we have a name for the process that leaves us all feeling outraged and helpless…it’s the the delphi technique. A very sad state of affairs, but one we can change by voting for a better alternative next time around. This time we really must do it!

  2. Midge says:

    How did Albertans lose their voice with respect to the most important industrial activity taking place in our province? By not paying attention to what has been happening since the EUB was caught spying on landowners, and no-one was held accountable. Many rural Albertans did pay attention, but many urban people saw the whole “land-use bills” thing as a landowner issue that wouldn’t affect them.

    This is just the latest in a series of legislation, designed to eliminate annoying input from any ‘stakeholders’ other than industry. It started back in 2006 with Bill 46, which came about after the government was caught spying on landowners opposing a transmission line. Next was Bill 19, the Land Assembly Project Area Act, and when that was debated on April 21, 2009, the amendment to add the words that a project should be “in the public interest” was defeated by all Tory MLAs .

    Then along came the massive Bill 36, which further eroded the avenues for citizen participation, giving all the final decision making authority to cabinet, then #Bill 50, which let cabinet approve the transmission lines that ATCO and AltaLink wanted – untendered and without a needs assessment. Next was Bill #24 to take control of “pore space” so industry can get rid of their CO2 by sequestration without landowner interference.

    We ALREADY have no say on whether a project should go ahead or where or when or anything else and now step by step they are eliminating any process that will allow us to make a fuss about it. Bill 2 did not just appear, it is the next step that allows one industry to dictate what happens without any accountability and that affects every aspect of ALL our lives in this province. And how much do you want to bet the new ‘government-appointed board of directors, complete with CEO”, will include our favorite, Mel Knight or one or more of the other cronies that put all this in motion.

    • Midge, thank you for this excellent overview. I was very interested in Ms Blakeman’s discussion about the meaning of “public interest”, particularly the point that it appears in 121 statutes and is not defined anywhere. Cecilia Low makes the same point in her excellent paper. She says that it may be appropriate to leave “public interest” undefined given that what the public is interested in has evolved and will continue to evolve over time and with public understanding. Nevertheless it “permeates and is fundamental to the ERCB’s role” (p.4).

      That’s what makes the government’s continued attack on the “public interest” so difficult to bear.

      You’re right that this sorry situation is the result of Albertans not paying attention. But people like you and me can change that. To quote Theo Simon, a British activist fighting the use of nuclear power in Britain, “Rage, weep and thump the pillows, put the whiskey bottle out of reach, re-assess your thinking, and then figure out who your allies are and start to make a plan”. We have some time before the next election, there appears to be a rising tide of dissatisfaction in this province, let’s make a plan. The first step in my mind is to get all like-minded Albertans to work together instead of fighting each other.

  3. Carlos Beca says:

    I did not know about this bill but this is the same pattern of previous blunders.
    Alison Redford is going the wrong direction and preparing to be remembered as the premier to forget.
    Her latest great one is when she made a comment about FOIP saying that her government has already made a great contribution to transparency and access to information. In other words, ‘You should be all happy that I have allowed you a little more than what you had ….lucky you’ – someone should remind her that Namibia’s citizens now have more access to their government’s information than Albertans. Also she is our employee. She works for us citizens that together build and create this province. As far as I am concerned with very few exceptions, all government information should be available at all times. FOIP is nothing but government censorship and should be abolished. It does not have a place in a true democracy.
    This bill you talk about in your post is nothing else but the continuation of the same mindset that produced what I said above.

    • Carlos, you’re absolutely right in saying that Bill 2 is simply a continuation of the same old process that has worked so well for the PCs in the past. Midge’s comment takes us step by step through how the PCs systematically destroyed landowners rights, and the “public consultation” process used in this case is just the same as that used in the so-called public consultation process they used in developing the Alberta Health Act. They heard what they wanted to hear and then created legislation that served their purpose. Their purpose appears to be economic prosperity (which in and of itself isn’t a bad thing) regardless of its impact on the public interest (which is a very bad thing). I’m beginning to see why landowners voted for the Wildrose. A review of Hansard shows that they are fighting hard to ensure that landowners don’t lose their rights without a fight and frankly the WR is doing a good job.

  4. Bill 2 also takes away any community’s ability to act collectively to voice concerns about adverse affects any project might have on them… ie. a town, a watershed group, parents of children going to a school in the affected area, environmental groups (a big target of this bill, I believe). Effectively, what is being stripped from Albertans is our right to assembly.

    P.S. Did I miss the part when it was outlined who this “regulator” would be and how independent from the government?

  5. Will you’re absolutely right. Our collective ability to speak for the common interest of all Albertans will be lost forever once the public interest test is eliminated. Your point about the independence of the regulator is also critically important. Bill 2 hamstrings the regulator by appointing a Board to manage “the business and affairs” of the regulator (sections 5 and 6) and giving the minister the power to order the regulator to do what the government wants it to do (section 67).
    This Bill tramples Albertans’ rights. We have to keep writing letters to the MLAs (PCs and opposition) and the media to ensure that they know we won’t take this lying down.

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