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’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.
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?
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?
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