In his book On Tyranny historian Timothy Snyder sets out twenty lessons from the 20th century to help democracies resist the “the usurpation of power by a single individual or group, or the circumvention of law by rulers for their own benefit.”
These lessons are as relevant for Alberta as they are for the rest of the world especially given Mr Kenney’s predilection for ginning up his base by creating up a $30M war room, commissioning a public inquiry into “the anti-Alberta energy campaigns” and setting up panels to hear Albertans vent about being short changed by Confederation.
While all of these activities are concerning, the one that goes beyond the pale is the public inquiry into anti-Alberta energy campaigns. Why? Because the other two stunts simply foment anger and division, but the public inquiry may violate the principles of natural justice and procedural fairness.
This is where Professor Snyder’s lessons on tyranny come in.
Professor Snyder urges professionals to remember their ethical standards: don’t sit on the sidelines when political leaders act badly; step up to stop politicians from subverting the rule of law.
Thankfully Alberta’s lawyers and legal scholars have embraced this lesson.
ABlawg is the University of Calgary Faculty of Law blog. It posts commentary on court and tribunal decisions and legislative and policy development in Alberta and beyond. Its goal is to foster debate and discussion. It does not purport to offer legal advice, but its posts are of such caliber that many have been cited by the courts including the Supreme Court of Canada.
When ABlawg speaks, people listen. That’s why we need to focus on two recent posts by Professors Martin Olszynski and Shaun Fluker on the “anti-Alberta” inquiry. Rather that step through these posts in detail (I couldn’t do them justice) I’ve provided a summary of some of the concerns that were raised.*
First a little background. The Inquiry was commissioned in early June. The first phase, the investigative phase, has been running for four months. The commission will produce an interim report by Jan 31, 2020. This process is shrouded in secrecy. The second phase may include a public hearing. A final report will be issued by July 2, 2020. The Commissioner is Steve Allen, a forensic accountant.
Right, let’s examine what Professors Olszynski and Fluker had to say:
- The Inquiry was commissioned under the Public Inquiries Act. It must be carried out in good faith and with the proper intent. The law does not allow the PIA to be used to punish a person for exercising their rights, or arbitrarily and illegally trying to strip them of their rights. Or to put it another way, the PIA cannot be used in an overtly political way.
- The Inquiry’s mandate confirms its target is a specific group (Canadian environmental NGOs and others who’ve intervened in hearings or raised concerns) and suggests its findings may lead to adverse consequences for that group, but it’s unclear whether these groups have been afforded the legal right to know and meet the case against them. This includes the right to counsel, the right to call witnesses, and perhaps to cross-examine other witnesses including Kenney’s favourite researcher Vivian Krause.
- The Inquiry’s Terms of Reference are ambiguous because “anti-Alberta energy campaign” is defined as an attempt to delay or frustrate “the timely, economic, efficient and responsible development” of Alberta’s oil and gas resources. Who’s to say development has been timely, etc when the government has stacks of reports that conclude development has not been timely, etc. If development has not be timely, etc, then how will the commissioner determine that the target groups have slowed it down?
- The Commissioner is directed to consider “misleading or false information”. Who decides what information is false and misleading in this complex regulatory area?
- Alberta politicians insist Alberta is a leader in environmental performance but independent expert reports dating back to 2006 raise serious concerns about emissions, land disturbance, reclamation (including tailings ponds and end-pit lakes), cumulative effects and monitoring regimes.
The ABlawg posts include references to a letter submitted by Ecojustice lawyers to the commissioner. They argue a public inquiry must be impartial, but Mr Kenney’s references to a “well-funded political propaganda campaign” to “defame our energy industry and landlock our resources” and his praise for “the valiant research of Vivian Krause” undermine the impartiality of the Inquiry.
Furthermore, Mr Kenney’s use of the term “anti-Alberta” (which also appears in the Terms of Reference) is pejorative. Pejorative comments about witnesses or parties to an Inquiry, or the nature of the Inquiry, contribute to a reasonable apprehension of bias because they signal to the public that evidence of wrongdoing is forthcoming.
Ecojustice says such comments transform the nature of the Inquiry from a fact finding mission to an exhibition of misconduct and are “reminiscent of the darkest days of the activities of the House Un-American Activities Committee.”
Which brings us to another one of Timothy Snyder’s lessons On Tyranny. This lesson applies to all citizens not just professionals. Snyder urges citizens to listen for dangerous words and to “be angry about the treacherous use of patriotic vocabulary.”
The state of Alberta
Is my concern that Alberta is on the slippery slope to something other than democracy overblown?
Maybe, but when Mr Kenney responds to a question asking if he’s proceeding with litigation to repeal the federal carbon tax by saying “Our first effort was to get a democratic decision from Canadians—that didn’t happen on the carbon tax.”
Two-thirds of Canadians voted against the federal Conservative party on Oct 21, 2019. If that isn’t a democratic decision, I don’t know what is.
But then again Mr Kenney and his supporters appear to think Alberta’s right to elect federal representatives is the same as its right to determine who becomes prime minister.
*I’ve simplified the legal language and urge readers to read the original posts.