McQueen’s Damage Control Strategy: The Erosion of Natural Justice Continues

“It is incredibly irresponsible and I think they’re trapped in an extremely ineffective strategy of damage control.”  — Rachel Notley NDP MLA*

Environment Minister McQueen is back from her European junket.  She’s had a few days to consider Justice Marceau’s decision which flayed her department for refusing to allow an environmental coalition (Pembina and Fort McMurray Environmental Association) to participate in an application for an oilsands project.  Here’s what she has to say:

“My job is to make sure we allow [the directors] to do their job and that it goes through a proper process.  And I think that’s what happened”.

Diana McQueen

Actually that’s not what happened.  And the good judge, Justice Marceau, described in painstaking detail just how it didn’t happen when a director “hijacked” the government’s own approval process to deny the Pembina’s right to be heard by making up additional criteria to bar their eligibility to participate.  It doesn’t get any clearer than that.

However now that she’s out on the ledge there’s nowhere for Ms McQueen to go but step off into thin air.  She argued that the fact that Pembina was able to take the case to court—and win—shows that the system is working:

What’s important is that we have a process that allows for people, if they don’t like decisions, to really be able to appeal.”

Damage control

Let’s analyze the PC’s damage control rationale (it’s certainly not a “strategy”).

  • Justice Marceau said that the director of Environment violated the principles of natural justice when he refused to allow Pembina to participate in an oil sands application.  Minister McQueen says the directors did their jobs properly.  Rationale: Justice Marceau is wrong and the government is right.
  • The government has a process that allowed Pembina to appeal being banned therefore the system is working.  Ummm…that process is called “If you don’t like it, sue me!”  The less expensive and speedier appeal process contained in the legislation does not apply in a situation like this where an intervener is denied the right to file a Statement of Concern in the first place.  Rationale: very few interveners will have the money or the resources to launch a law suit to protect their right to be heard. So we’re good. 

Damage control is effective only if it makes a modicum of sense.  Justice Marceau’s decision stands as the law in Alberta unless and until it is overturned on appeal.  Stamping one’s tiny foot and saying the law isn’t the law won’t cut it.  But continuing to pursue this incoherent and irresponsible argument will conflate this issue into the PC’s very own “lakes of fire” moment–only this time the loony espousing the “law” as they see it is not a fringe candidate running for office in the hinterland but our very own Premier and her loyal cabinet ministers.  Unbelievable!

*Calgary Herald, Oct 9, 2013, A4

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13 Responses to McQueen’s Damage Control Strategy: The Erosion of Natural Justice Continues

  1. Ted Woynillowicz says:

    Susan, you nailed it. The government is drinking its own cool aid and believing its own concocted and misguided thinking. Sad to say, they are in the same orbit as the Wildroser crew.

    • Ted, for me the real question is this: Does the government really believe that it’s above the law or is this more political swagger in order to avoid looking weak. Both scenarios are equally frightening because they lead to the inevitable conclusion that we live in a banana republic ruled by egomaniacs!

  2. Einar Davison says:

    Really good point! If our government really belongs to the people of Alberta, why should the government require the people of Alberta to sue our own government to be heard? Shouldn’t that be a given that the Government would want to hear us. Shame Shame Ms McQueen!

    • The irony of Ms McQueen’s comment is that Justice Marceau’s decision in the Pembina case demonstrates that our judicial system works (due to the independence of the judiciary). It absolutely does not demonstrate the the government regulatory system works because McQueen’s comments indicate that the government is still fine with its directors making decisions riddled with bias and, as you point out Einar, forcing legitimate interveners to sue in order to protect their rights to be heard.

  3. Carlos Beca says:

    Thank you Susan for this second update. Did not see anything on the paper this morning. The fact that the Oilers came back from a 3-0 defecit is way more important and takes two pages of the SUN almost to the detail of the underwear colour used by the 5 million dollar celebrities.
    The government is trying again to hide another disgraceful atittude and they are running out of places to hide. We already know them all.
    It is very simple – this government is completely incompetent. It hurts.

  4. Janet Keeping says:

    Dear Susan, I share your outrage. The remarks by both the Premier and the Minister that I have seen in the media on this court decision have been astonishing. I have been thinking all day about McQueen’s comments and am going to try to write something too. It is very disturbing to think that both Redford and McQueen think they can just brush off a judge’s considered opinion that the rules of natural justice — basic fairness — have been so blatantly violated. Thank you for speaking out. Accountability and the rule of law — both foundations of our democracy — are at stake.

    • Thanks Janet. These comments are astonishing and frightening. For the benefit of our readers, I’d like to point out that Janet is a highly respected lawyer with a long history of working to support social justice and democracy. She co-founded the Alberta Civil Liberties Union, worked for the Canadian Institute of Resources Law, was the director of that organization’s Russian programs and held leadership roles at the Sheldon Chumir Foundation for Ethics in Leadership and Transparency International. In other words, if Janet is outraged, we have good reason to be worried!
      Oh and Janet is also the Green Party of Alberta.

  5. jillbrowne says:

    “What’s important is that we have a process that allows for people, if they don’t like decisions, to really be able to appeal.” (words the Minister is reported in the Calgary Herald as having said)

    Appeal? This was not an appeal, it was an application for judicial review. The difference is important.
    The judge found that the decision-maker acted improperly. We rely on government officials to make important decisions every day. We have a right to expect them to follow the rules, not to make up new ones.

    • Very well said Jill. We do indeed have a right to expect government officials to follow the rules for decision making and not make up new ones. And we certainly have the right to expect the Premier to obey the law. The way I see it Premier Redford had two choices after Justice Marceau rendered his decision. She could have accepted it with a bland face-saving comment like “We thank the judge for clearing up a gray area and will ensure that decisions are properly made in the future”. Or she could have gone into neutral by saying “We’re studying the decision and considering whether to appeal”. Instead she chose door number 3—go on the offensive with bluster “It’s my prerogative to do what I want, so there”. This is not the kind of responsible behavior one expects from one’s premier.

      • Carlos Beca says:

        Susan not just one’s premier. Alison Redford is a lawyer and if she simply dismisses a judge then what comes next? To me this is a scary violation of the rule of law. Egomaniac is the proper word. Furthermore we just cannot go a day without some kind of government joke. Today is the Homecare again. As everyone predicted except the all mighty government, the Homecare companies are another bad decision and it is causing a lot of problems. They were the bottom feeders and now they cannot provide the needed staff to serve seniors appropriately with whatever funds they are getting. Anyway I will shut up before I say something I will regret. You are right Susan, incompetent is a kind word for this government. This is appalling.

    • kent Hehr Mla Calgary Buffalo says:

      Excellent post Susan. Bang on as usual!

  6. Well it seems we have come full circle, back to the days when wild Bill was mayor of Edmonton and anything was o.k., ethical or not and the people of Edmonton just lapped that up. I see similiar trends here with Alison and her slaves. It is just unfortunate that it costs so much to persue getting elected as a mla because I am sure a lot of people would compete but it puts such a burden on there family. I heard the other day that Griffiths from Wainwright was a very likeable and honest guy but just look at how Alison and Co. have corrupted him bigtime.

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