Does Redford’s “Prerogative” Trump the Law?

When a Queen’s Bench justice compares Redford’s government to the corrupt regime of former Quebec premier Maurice Duplessis you know you’ve hit rock bottom.

Justice Marceau made the damning comment in his ruling that the Redford government violated the principles of natural justice by refusing to allow an environmental coalition to participate in a review of an oilsands project.

Premier Redford

Premier Redford’s response?  It’s the government’s prerogative to decide who’s “directly impacted” by an oilsands project and who’s not.

This is a big deal because if the government decides you’re not “directly affected” you can’t file a Statement of Concern—this means you can’t participate in the application process and you can’t appeal the decision after it’s rendered.  You have no voice.

The Court Case*

After successfully filing 14 Statements of Concern over the course of a decade the environmental coalition comprised of Pembina and the Fort McMurray Environmental Association hit a wall.  Four requests to file Statements of Concern were rejected.  The Coalition took the government to court and had the good luck to draw Justice Marceau as the presiding judge.  Providence smiles on the righteous. 

Justice Marceau found that the government breached the principles of natural justice by creating a secret policy that “hijacked” the government’s approval policy.  This secret policy changed the interpretation of “directly affected” such that the Coalition would never again qualify as a Statement of Concern filer.  The reasons for this change were (1) Pembina was no longer cooperating with a government environmental initiative and (2) it published “negative media” about the oilsands.  It’s the George Bush principle:  if you’re not with us you’re against us.      

Maurice Duplessis (1890-1959), député, avant s...

Premier Maurice Duplessis

Justice Marceau concluded that it’s “…difficult to envision a more direct apprehension of bias unless it is the Premier of Quebec telling the Quebec Liquor Commission to revoke a restauranteur’s liquor license because the proprietor of the restaurant is a Jehovah’s Witness.” The judge was referring to former Quebec premier Maurice Duplessis whose corrupt reign was known as “The Great Darkness” (1939 to 1959).

The judge’s point?  No public official is above the law.

The government reacts—poorly  

Redford’s government quickly spun up into damage control mode.

Environment Minister McQueen issued a scathing press release castigating the NDP for “referring to documents from five years ago.” This is bizarre given that the Coalition’s application was made in March 2012.**

McQueen prattled on about premiers “of every persuasion” (?) working hard to develop the economy through responsible resource development.  She touted the Premier’s progress on the Canadian Energy Strategy, the carbon levy and the new regulations that allow Albertans who are directly and adversely affected to provide a notice of concern to the regulator.   

Energy Minister Hughes chimed in saying that this problem would never occur under the new regulatory process because if presenters demonstrate that their input is meaningful, valuable and will assist the regulator, they’re in.***What planet is this man living on?  

Minister Hughes

Let’s get one thing straight about the new legislation, it is now harder not easier to file a Statement of Concern because you can’t file unless you’re “directly and adversely affected” by a project.  The addition of the second hurdle—demonstrating that you’re adversely affected—makes Minister Hughes’ platitudes about meaningful and valuable information irrelevant unless it demonstrates adverse impact.  Bottom line, now you have to jump through two hoops not one.

The Alberta Energy Regulator

Oh and if this wasn’t bad enough, the newly minted CEO of the Alberta Energy Regulator is none other than Mr Jim Ellis, the deputy minister in charge of Environment when the secret policy to silence the Coalition was implemented.

Mr Ellis declined to be interviewed but his representatives say there is no policy against a “specific group” and that the briefing note (policy) prepared for Mr Ellis is “for information only”.  Furthermore, this decision begins and ends with the Director for the Northern Region.  So the Director could create a policy on a whim and his boss, Mr Ellis, was powerless to stop him? 

This would be ludicrous but for Mr Ellis’ recent comments about a “breakdown” in how the Alberta government creates policies.**** Mr Ellis says that when he was deputy minister of Energy the province sold $3.5 billion worth of shale gas leases but had no policy in place to get ahead of the drilling activity.   Did they not see it coming?  

What’s next?  

Ms Redford’s PR department will continue to fill the air with incoherent media releases in the hopes that we’ll get confused and go away.

Mr Ellis, CEO of the Alberta Energy Regulator and his boss, Mr Protti, industry insider and Chair of the Alberta Energy Board, are going to Washington DC to spread the good word about Alberta’s new energy regulator.

Ms McQueen, the Environment minister, refuses to return from Europe to address this mess.  Her excuse?  She’s trying to convince European Union leaders not to discriminate against oilsands-derived fuels.  (Note: Canada sells no crude to the EU and the EU members she’s visiting are Slovakia, Croatia, Greece, Sweden, Austria and France.)

And hopefully Mr Hughes, the Energy minister, is studying the Responsible Energy Development Act so the next time he’s asked what the government intends to do about a breach of natural justice he’ll actually know what he’s talking about.

The opposition parties are making hay (as they should) with the government’s penchant for secret policies implemented behind closed doors for the purpose of silencing the people.

Make no mistake.  This case is more than a simple misunderstanding of governmental “prerogative”.  To quote U of C law professor, Shaun Fluker, Justice Marceau’s decision “provides Albertans with a basis upon which to stand against government officials who seem fixated on removing public participation from the landscape.”*****

That’s our rallying cry.  It’s time to take a stand against “The Great Darkness”.

*Pembina Institute, Fort McMurray Environmental Association v Director, Northern Region, Alberta Environment and Sustainable Resources Development and Southern Pacific Resource Corp. Docket: 1203 18391, Registry: Edmonton, particularly page 16.

**Media Release dated Oct 3, 2013

***Calgary Herald Oct 5, 2013, C1

****Daily Oil Bulletin Sept 30, 2013


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27 Responses to Does Redford’s “Prerogative” Trump the Law?

  1. Arts Squared says:

    Thanks, Susan. Nice evidence of the change coming to Alberta!

    • True, doing this kind of stuff behind closed doors makes it all the more difficult to catch them at it–but that’s exactly what the Redford government did when it passed the Responsible Energy Development Act and put in place the Regulator, CEO’d by the former Envirnoment DM, who reports to the Alberta Energy Board, chaired by industry insider Protti, who takes his direction directly from Energy Minister Hughes. And it’s all legal because that’s what REDA says. So much for transparency!

  2. Ted Woynillowicz says:

    What will be Redford’s next move to avoid adressing these issues in public via Question Period? Will she follow in the footsteps of her new secret friend, .BC.’s Christy Clark and cancel the fall sitting of the legislature so that ‘serious work could proceed’?

    • The purpose of the Legislature is to provide a forum for debate about the leading issues of the day and to create laws. The suggestion that it must be cancelled so that “serious work” can proceed confirms that the debate that normally happens in the Legislature has been moved behind closed doors. This is an abuse of the democratic process and further proof that we must all stand against The Great Darkness whereever we find it–unfortunately we’re finding it everywhere!

  3. the salamander says:

    deny deny deny .. lie lie lie .. wave your arms

    obstruct obstruct obstruct .. litigate litigate litigate
    deny deny deny
    scream Jobs Jobs Jobs

    Emulate the shallow farce of Stephen Harper
    Sell out to the bribes from Corporatist Energy

    Boast Boast Boast .. Lie Lie Lie

    Scarecrow political creature sucking blowing
    in her own squalid tailwind ..

    Courage ?

    Zero Zero Zero

  4. Mare says:

    Repeat the lie often enough & it begins to sound like truth.

    Thanks again, Susan, for helping me digest this stuff!

    • The biggest lie of all is the commitment to greater transparency. Luckily we still have judges like Justice Marceau who are prepared to call it as he sees it, even if he sees it as akin to Duplessis’s Great Darkness.

  5. Carlos Beca says:

    Now I understand why Alison Redford coming from behind and won the PC leadership race. She is ruthless and if given a chance she will become known as the Alberta Imelda Marcus. I have always respected education as at least a means for higher critical thinking. I am not so sure anymore. Here is a lawyer with an extensive resume in Canada and abroad that cannot understand basic justice. I will no longer postpone reading ‘The Wisdom of Psychopaths’ by Kevin Dutton.
    The decision of excluding the coalition between the Pembina Institute and the Fort McMurray Environmental Association is mind boggling. The excuse for that decision is idiotic to say the least. She could have as well said that it is between the company and the government whose members benefit from their donations. I felt for a minute that our leader was Robert Mugabe.
    Energy Minister Hughes’ reaction was not too bad considering the premier is on a different planet as well. As far as McQueen, well she had already planned a tourist trip to those countries and it just felt right to just stay and let the other aliens resolve the problem. After all if the premier can take a trip to China every quarter one to Europe seems appropriate.
    The only positive about this episode of the 41 year long soap opera ‘Alberta Lunacy’ is that there still one sane judge after all. They are not extinct yet. I thought they were. Congratulations Maurice, I am proud of you and I am sorry you are going to be overruled and probably kicked out of the system but that is the price we all pay to speak for what is right these days.

    • Yes, the fact that the PCs have been in power for decades has surely contributed to their feeling of invincibility. It appears that once they lost Peter Lougheed as their leader they shifted to doing whatever it took to keep the oil companies happy. This is a very short-sighted plan. The oil companies are crystal clear that they need both a “social license” as well as a regulatory license to proceed, however the government’s actions have put this in jeopardy. If we can’t trust the government to protect the public interest in accordance with the principles of natural justice we certainly won’t trust the oil companies to put the public interest ahead of shareholder return. What a mess!

  6. carlosbeca says:

    Well that first sentence is ‘Now I understand why Alison Redford came from behind and won the PC leadership race’
    Sorry – when I am upset things happen.

  7. Superb piece, Susan. I used to teach the Roncarelli case as an example of the bad old days which were gone forever, due to modern Canada’s increased respect for the rule of law. Little did I know that mini-Putins existed in Alberta.

  8. jillbrowne says:

    Nicely done, Susan, thank you.
    Elephants in the room:
    What training and supervision is provided to civil servants in decision-making roles whose prior background does not include the workings of government or the principles of administrative law?
    What is the state of the concept of ministerial responsibility in Alberta – just a romantic notion?
    What is and was the culture inside the part of government involved in this matter: was Pembina a “problem” to be solved?

  9. Great questions Jill. The Director of the Northern Region is empowered by the legislation to make decisions with respect to standing to file a Statement of Concern. The fact that he felt he could expand the grounds for refusal and his deputy minister didn’t see this as improper is frightening. Speaks volumes about the culture inside the Environment Dept then…and Ms McQueen’s reaction to the decision by attacking the NDP speaks volumes about the culture today.

  10. Julie Ali says:

    Hi Susan,

    I am pretty sure that they will find a way to bypass this ruling. They will appeal the judgement and then Mr. Harper will do as he has done in the Jessica Ernst fracking lawsuit against EnCana and cherry pick a judge to reverse this judgement.

    I have no confidence in the Progressive Conservative Party of Alberta which in my mind is now the CAPP party. The AER is the CAPP party regulator and all decisions by this body will be to ensure that oil industry projects are fast forwarded. I have repeatedly asked for the environmental testing results for the CNRL disaster and we have nothing on the website at AER that I could find. Where are the environmental testing results for this mess? Good question. Does the government of Alberta do environmental testing? Did they ever do environmental testing? Why don’t they provide the results of the water, air and land testing to citizens? We live in a province where we have had two spills per day that I –for one –wasn’t aware of. We live in a province where folks in Rosebud are paid big bucks by EnCana so that they shut up about excess methane in their well water (burning water). We have a province where we have oil spills in the Red Deer River with benzene left over and why don’t we hear about this? I only found out about the benzene when I was leafing through Alberta Views today. A preview of the article is here:

    So what the heck is going on in Alberta?

    1) Tight control of the message so that we were dumb, deaf and blind for decades.

    2) When untidy truths got out–we got vilification of the messenger and even RCMP visits and persecution (Wiebo Ludwig was the precursor case that lead to the current environmental radical story of both Harper and Redford).

    3) Closed door meetings between bigwigs in the Alberta cabinet who seem to decide things without any sort of input from Albertans like the electrical transmission lines that cost us big bucks and doesn’t seem to be necessary other than for purposes of servicing big oil and providing electrical services to folks across the border–so then why are we subsidizing big oil and other folks in other countries?

    4) Puny royalty rates that we are kept in the dark about-that aren’t even collected –and obscenely favorable conditions before the fricking oil industry gets to the payout period. We are losing tons of cash. You only have to look at the yearly profits made by big oil to see how much we are losing and for what purpose? I haven’t looked yet at the contributions of big oil to the Tories in Alberta but I imagine that big oil does give generously–as generously as the land developers, housing folks and construction folks give to the incumbents for Edmonton city council.

    5) Starvation and poor governance of all portfolios. They have too many managers getting too much money for doing too little work in health and education (the Ministers could easily be fired and their staff and we would be able to manage just fine without them). The farce is that we are paying for all the Tory hanger ons (and their families) when we could have a decent health and education system in the public arena without the messes we currently do. But no, everything has to go private because the Republican Tea party has this ideology that has to be satisfied even if we are subsidizing the private sector businesses –and in the process paying more for the same thing. The P3 schools, the P3 highways and the P3 projects galore that Redford is planning is going to ensure we are mortgaged for decades when we could instead have simply got a bank loan from a bank or two and done the same work at a cheaper rate in the public arena. But no, that would be contraindicated. We must have the greatest transfer of public wealth to the private sector to prove we are free market champions. Not.

    6) Meanwhile–all levels of government are in on the graft and corruption that is institutionalized throughout Alberta. We have the Katz arena in Edmonton that was forced through by a determined mayor Mandel who was no doubt encouraged— by the folks in the Downtown Business Association who all pleaded with us —“that this billion dollar project—is good for Edmonton”. They are right in one way. It is good for Edmonton–that part of Edmonton that will profit from the work. The Katz arena is a billion dollar giveaway to the folks in the Downtown Business Association, Mr. Katz, the folks like Stantec, and other close contacts of the city of Edmonton. How will the money be dispersed? I am very curious and would like to see who gets what and then trace it all back to the origins of the species.

    7) It is tiresome to see all these elected officials tell us we are getting a great city in Edmonton for the price of corporate welfare and excess bills— but the messes don’t end with the city of Edmonton and the province of Alberta. You have Harper proclaim that we must all go P3–why for god’s sake? I imagine that this P3 business is good for all the folks who get their employees to donate to political parties and then reimburse them back as SNC-Lavalin has indicated it has done in Quebec. And if they have done this in Quebec–where oil is not yet flowing–well then –I am curious what is the state of corruption in Alberta.

    8) This is a long comment isn’t it? There is so much to discover Susan. I think –that since our newspapers only publish rubbish or are not allowing their journalists to do the deep dish investigative pieces that would put Alberta on the map as the most fraudulent government in Canada (because money—so much money flows through here–there is sure to be links, connections and god knows what else under the sham of our societal image)–that we need private citizens to become curious, ask questions of government–and when the answers are not forthcoming–I would say –private citizens must follow the money.

    Where is the money?
    Why don’t we have it?
    We have so much oil.
    And yet Edmonton Public Schools cuts its staff.
    The University of Alberta is cutting staff.
    The entire provinces is cutting.
    The folks in Calgary (Manning folks) are breeding a common sense revolution for workers which will solve the problem of no money.
    But how will common sense solve the problem of insufficient revenues?

    We–the people will work longer hours for free to keep our jobs.
    We will work illegally like this and smile.
    We will show our common sense in this manner.
    Meanwhile the oil barons, the politicians and the big wigs get richer and richer.
    It’s a nice common sense revolution for the Republicans.
    It’s not so good for the ordinary citizen.

    9) And I am way off topic about the ruling.
    The Redford is going to ensure it is her way or the highway.
    This is why the federal government gutted environmental laws at the federal level.
    The provincial governments will ensure that there is limited if any public discourse.
    They have learned their lesson from the Enbridge public hearings.
    They will never give us that chance for a publicity feast of that sort again.

    Until we fire the Tories at the federal level and the Tories at the provincial level there will be only the publicity they want us to hear–which means a shut out of the environmental groups, concerned citizens and really anyone who hasn’t got land involved (even these folks will be shut up eventually—because even when they file their concerns, they will be ignored).

    So really–the judge’s ruling doesn’t matter finally in Alberta–it is as the Redford says–they will do what they want to do in Alberta. The oil monarchy is in charge for the next three years. We’re stuck. So, it simply doesn’t matter if we have input or not–they will nod their heads sagely—at the AER and do what they want to do.

    It’s pretty much China.
    Or Nigeria.

    10) But we are to keep yapping. And vote them out as soon as we can.


    • Julie, you nailed it with the comment that we need private citizens to be curious and question the government given that the government appears to have forgotten that it represents the public interest, not just corporate interest.

      Oh and speaking about the corporate interest and keeping an eye out for the wellbeing of your corporate friends, did you see the comments of Gerry Protti, chairman of the Alberta Energy Regulator with respect to the impact of the Cold Lake oil spills on CNRL’s balance sheet? While the public is up in arms about these mysterious leaks and their impact on the environment and human health, Gerry Protti is worried about the impact of the spill on CNRL’s finances. Here’s the quote “We’re working extremely hard to come up with the cause of the issue and resolution around it. But when you’re taking 40,000 plus barrels of production out of their cash flow, that has a direct impact”. (Calgary Herald Sept 17, 2013, C4) Yes, and why is this the Regulator’s concern? Shouldn’t the Regulator shut down CNRL’s operations in the Cold Lake area until CNRL (not the taxpayer funded AER) figures out what the problem is and how to fix it?

  11. Carlos Beca says:

    Very well said Julie. Not that it matters but you have my full agreement and more.
    The Great Tories have taken us deeply into the realms of corruption, embarrassment and now spying. It is truly amazing. To top it all these are the most religious people in Canada. Just peachy.

  12. Julia Necheff says:

    To Susan, thank you once again for a super blog. And to all the commenters – I found myself nodding in agreement all the way through your posts.

    I got involved in politics (Alberta Party) because I am tired of the corruption/intimidation/stagnation, and I want to do my bit to help change the status quo for the better. We need Alberta citizens by the hundreds of thousands to say: ‘I am mad as hell and I’m not going to take this anymore.’ And then to remember this in 2016 and to vote the PCs out of office in the next provincial election. To quote Alberta Party president Will Munsey: “If not us, then who? If not now, then when?”

    • You’re absolutely right. We can’t just grumble on the sidelines. We have to get involved. While not everyone is prepared to get out there and run for public office, we can all participate by volunteering and providing funding for candidates like you who are prepared to put yourselves on the line. I wish you the very best in 2016 Julia!

  13. Mary Thygesen says:

    Great comments Julia. Just an addition to the regulatory issue…on October 18th, the Alberta Court of Appeal gave the Fort MacKay band leave to appeal the Dover project. In my understanding, the provincial government via the AER still gets the final word. It is interesting to read the headlines this week talking about stock prices plummeting and editorial comments about how one group of 700 people could threaten Alberta’s wealth and its reputation as a good place to invest as it seeks to shut down development. Compare this with the Fort MacKay First Nation website which explicitly acknowledges the benefits of responsible oil sands development and points out that they’re asking for a buffer zone similar to the one Ft. McMurray has.

    • Julia and Mary, it’s a sad day for Albertans when we have to rely on the courts to save us from the abuses of government, but this was the inevitable outcome of Redford’s efforts to pander to the oil industry. First she dumped the Energy Resources Conservation Act in favour of the Responsible Energy Development Act—the change from “conservation” to “development” is a dead giveaway—and the public lost its voice. The courts tried to remedy the unconscionable throttling of the public interest by urging a more “flexible” interpretation of “directly affected.” Redford announced that “prerogative” puts her government above the law, and Alberta Environment says that since only two members of Metis Local 1935 live on the affected land they have no standing because they “must demonstrate that the majority of the group is directly affected”. Voila, the director of environment just re-wrote the legislation…again.

      What’s really bizarre is that Redford thinks the oil industry shares her hard line position. This is not true. In a speech about the proposed expansion to the BC Trans Mountain pipeline, Ian Anderson, president of Kinder Morgan, said “no voice will go unheard; no issue will go unaddressed.” He acknowledged that he can’t solve all the problems but he said “we can learn and understand and appreciate.” Daily Oil Bulletin, Oct 17, 2013

      The world is truly upside down when industry is more open to public input than the government we’ve elected to protect the public interest.

      • Julia Necheff says:

        Susan, I think it’s really true that the resource industry understands it needs that so-called “social licence” and has come to accept that – at least that’s what they tell us publicly. And I have wondered exactly the same thing: does the govt not realize industry realizes the old way of operating with impunity just doesn’t fly with the public anymore? If govt creates strong but fair boundaries within which industry must operate, and if the rules are applied and processes are transparent, I believe industry will adapt and plan accordingly. Seems to me what companies want is an effective, streamlined regulatory process and predictability – especially for oilsands projects which have a very long life. This, as opposed to instability when the province lurches from this policy to that policy, or backpedals or changes the rules in midstream (no pun intended). I say give resource companies an enviro framework they simply must follow if they wish to operate, and an enviro assessment process that’s fair to all sides and not mired in ridiculous red tape. It’s like parenting – set solid, consistent boundaries, apply discipline consistently, but also create the conditions that allow the offspring to succeed and thrive.

  14. Carlos Beca says:

    Julia I think you are being naive if you believe the industry understands what you called “social license”. They know exactly how to pull the right strings and that is what they do. Tell me the last time an oil company has shown any concern for the environment unless we make them to? Spill after spill it is in most cases negligence. We just have another one in our hands which looks exaclty the same as the one in Quebec. Let’s not be to quick on getting on their side because that is exactly what they want. It is not different than what the tobacco companies did to the last second.

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