Last week Jason Kenney unveiled his Fight Back Strategy. No longer would Alberta be apologetic about the energy industry. From now on Alberta, the federal government and the industry were going to fight back.
Prepare to be razzle dazzled!
- War Room
Kenney will set up a war room in the Ministry of Energy to respond aggressively and in real time to lies and myths about Canada’s energy industry “through paid, earned (?) and social media”. If necessary, the war room will include satellite offices (war roomlets?).
The war room will be funded by Alberta taxpayers. They have the right to ask how much it will cost and more importantly whether it will be incrementally more effective than the Notley government’s campaign which includes cross country tours, meetings with industry and government reps, media campaigns, etc. If not, it’s a PR stunt.
- Use legal tools to attack foreign-funded political activists masquerading as charities
Kenney’s lawyers will put together an “evidentiary case” alleging that charities like the David Suzuki Foundation are in flagrant violation of charities laws. They’ll send the case to the Canada Revenue Agency and the feds. If CRA and the feds don’t take action, Alberta’s Attorney General will sue for mandamus forcing them to act.
Same question as #1. How much will this cost? Will it be effective? Even if AG gets CRA to consider the case that doesn’t mean CRA will rule in Kenney’s favour. And if it does, so what.
- Financially support pro-development lawsuits, including those brought by pro-resource aboriginal groups
Kenney will create a litigation war chest to fund First Nations who want to be “partners in prosperity” but have not been contacted under the duty to consult.
There’s a reason these FN have not be contacted. They’re not owed a duty to consult; expanding the duty to consult beyond those to whom it is owed is lunacy.
Kenney asked why the courts and media focus on the minority of FN who oppose pipelines, instead of consulting with groups like the Eagle Spirit consortium who he said should have been consulted before the government vetoed Northern Gateway. He said the FN who opposed Trans Mountain at the Federal Court of Appeal were funded by Tides (were they?) but the Eagle Spirit consortium had to crowdsource funds to hire lawyers.
This is so garbled it will take some time to sort out.
First, the “Eagle Spirit consortium” is not a First Nations group. It’s owned by Eagle Spirit Energy Holdings Ltd, a corporation backed by a number of FN and the Aquilini Group, a diversified group of companies founded by Luigi Aquilini who emigrated to Canada from Italy. Aquilini is involved in property development, construction, management, hospitality, sports and entertainment, technology, renewable energy and agriculture.
Second, the “Eagle Spirit consortium” includes a number of FN who “staunchly opposed” Northern Gateway because they want their own pipeline (which is expected to open in 2020) to proceed.
Lastly, Kenney did not explain why the “duty to consult” should be extended to corporations or FN who opposed Northern Gateway, nor did he explain why Alberta taxpayers should fund lawsuits brought by corporations owned by multi billionaires.
- Put pressure on political leaders who block Canadian energy, including potentially cutting off oil shipments
Kenney would initiate reprisals against BC ranging from periodic safety inspections on products passing through Alberta and the “ultimate sanction” of periodically reducing energy shipments.
Reprisals may make Kenney feel better, but they’ll have no impact on the Federal Court of Appeal which suspended Trans Mountain because the NEB failed to consider the impact of marine traffic and the federal government failed in its duty to consult.
Kenney would petition the federal government to declare Trans Mountain “for common advantage” under section 92(c).
Kenney acknowledged such a declaration would be purely symbolic and would have no effect so why is he still talking about it?
- Equalization referendum to address unfairness of transfers to provinces blocking Alberta’s resource development
Kenney said Alberta has been “tremendously generous to Confederation” but if politicians try to block Alberta’s resources, he’ll trigger a referendum on Section 36 of the Constitution requiring the federal government to change the equalization formula now, not five years hence.
Kenney admits triggering the referendum doesn’t guarantee Alberta will get the desired outcome but he’ll do it anyway to “elevate Alberta’s demand for fairness to the top of the agenda”.
In other words, Kenney is proposing a plan that will enrich the lawyers, pull on government resources and distract Albertans from the fact that Kenney signed off on the equalization formula when he was a member of Harper’s Cabinet. This is a waste of government resources and tax dollars.
The strategy Kenney is no longer talking about
Okay, here’s the sequins in your eyes part.
When Kenney initially set out his fight back strategy he said as premier he’d call up the CEOs of major energy companies “to discuss a new approach to social license”, namely replicating the litigation strategy of Resolute Forest Products which sued Greenpeace and others for defamation and violation of RICO laws. The lawsuits started in 2013 and are proceeding in fits and starts on both sides of the border.
Having served as General Counsel for two large publicly traded companies I know Canadian companies detest litigation. They’re distracting, they drain the company of time, money and resources that could be better spent elsewhere, and they frustrate the heck out of the company’s directors and shareholders who just want it all to go away. Such lawsuits are called SLAPP suits, Strategic Lawsuits Against Public Participation, they make companies look bad and increase sympathy and support for the NGOs.
This is a Trumpian idea: Kenney thinks he has the right to tell corporations what to do. It’s utterly inappropriate in a modern democracy. Someone must have told Kenney he’d crossed a line because while he raised it in his speeches it does not appear in his five-point strategy meme.
Kenney’s fight back strategy boils down to diverting taxpayer dollars to fund a PR campaign and a litigation war chest while at the same time threatening reprisals against those who cross him. Markham Hislop rightly summarized Kenney’s strategy as vengeance, not vision.
Kenney is fond of saying we can’t spend our way out of a recession, it’s time someone told him we can’t sue our way to recovery.
Anyone who believes otherwise has sequins in their eyes.