05 May The Inquiry Into Anti-Alberta Energy Campaigns: What’s Next?
The Inquiry Into Anti-Alberta Energy Campaigns: What’s Next?
In July 2019, shortly after the provincial election, the Kenney government set up the Public inquiry into anti-Alberta energy campaigns [the “Inquiry”]. Not long after, in November 2019, the environmental non-profit organization, Ecojustice, brought a lawsuit challenging the legitimacy of the Inquiry. The case was heard in court in February of this year, and we are expecting a decision sometime in the coming weeks.
In anticipation of the court’s decision, this blog will provide some legal background that will be useful for understanding what the court’s decision does and does not mean for the Inquiry and its much anticipated final report.
In doing so, the blog will talk a little bit about the nature of a public inquiry and the circumstances in which a government is able to set up this type of inquiry. It will also discuss the nature of this inquiry in particular, the exact legal challenge that Ecojustice has brought, and a few thoughts about what might happen in the court’s decision and what that might mean for the Inquiry. From there, the blog will conclude with a discussion of the possibility of another lawsuit challenging the Inquiry’s final report, if and when that report is made public.
What is a public inquiry?
A public inquiry is a particular type of inquiry set up by the government under a piece of legislation called the Public Inquiries Act.[1] In general, the government can use a public inquiry to figure out what happened in a problematic situation that is either connected with the good government of the province or that is a matter of public concern more generally.[2] Inquiries are often called to investigate tragic situations and how they came about, such as the deaths of children in foster care. They are also often used to investigate government scandals to figure out who, if anyone, is culpable and how the scandal came to pass.
Practically, under the Public Inquiries Act, the government is able to appoint one or more commissioners to conduct an inquiry.[3] In a nutshell, the job of the commissioner is to inquire into the situation and to write a report about it, all in order to provides an answer to the basic, underlying question: what happened? To accomplish this, the Public Inquiries Act gives the commissioner a bunch of legal powers that will be useful for carrying out the inquiry, including the power to hire staff, to summon witnesses, and, where necessary, to inspect public buildings.[4]
What is this inquiry?
The current Inquiry was set up by the Government of Alberta to inquire into “the role of foreign funding, if any, in anti-Alberta energy campaigns”.[5] The terms of the Inquiry are set out in its Terms of Reference, which is, roughly speaking, the formal legal document that creates the Inquiry and provides for its specific mandate.[6]
Under the Terms of Reference, the Inquiry is tasked with looking into the foreign funding of anti-Alberta energy campaigns. In this context, an anti-Alberta energy campaign is broadly defined as any “attempts to directly or indirectly delay or frustrate the timely, economic, efficient, and responsible development of Alberta’s oil and gas resources and the transportation of those resources to commercial markets”.[7] The Inquiry’s commissioner, Steve Allan, has interpreted this to mean any efforts to frustrate the development of Alberta’s oil and gas resources “in a broad and general sense”.[8] So, put together, this means that the Inquiry is looking into the foreign funding of any efforts to frustrate the development of Alberta’s oil and gas resources.
From a practical perspective, the Terms of Reference empower the Inquiry and its commissioner to write a report that makes findings and recommendations about its assigned investigations.[9] Essentially, findings are statements about what the commissioner found during the Inquiry or, put otherwise, statements about the role of foreign funding in anti-Alberta energy campaigns. Recommendations are exactly what they seem: advice for any actions the government should take based on the inquiry’s findings, including how the government could respond to foreign funding of anti-Alberta energy campaigns.[10]
Both findings and recommendations will be included in the commissioner’s final report, which is currently due for submission to the government on May 31, 2021. From there, the government has 90 days to make the report public, which means that on its current timeline we should get to see the final report some time before the end of August.
What is the current law suit about?
In the current lawsuit, Ecojustice is challenging the Terms of Reference that created the Inquiry. Basically, Ecojustice is arguing that the Inquiry was not properly created under the Public Inquiries Act, and it gives three main arguments to support this position.[11] We will briefly go through each of these three arguments in turn.
- The government brought the inquiry for an improper, political purpose.
With its first argument, Ecojustice is alleging that the Inquiry has been politicized to the point that it is outside of the scope of what is allowed under Public Inquiries Act.
Behind this argument is the idea that government cannot act outside of the powers granted to it by legislation. In this case, the Public Inquiries Act allows the government to set up a public inquiry to look into matters of good government or matters of public concern. Essentially, Ecojustice is alleging that the purpose of this Inquiry is actually political and, accordingly, that it is not genuinely an attempt at conducting a public inquiry. According to Ecojustice, this means that the Inquiry is not the sort of thing the government is allowed to do under the Public Inquires Act and, as a result, it was improperly created.
- The inquiry proceedings give the perception of bias.
With its second argument, Ecojustice takes the position that the Terms of Reference and the political statements that have been made about the Inquiry suggest that the outcome of the Inquiry is predetermined and, therefore, create the perception of a biased proceeding.
This argument relies on the fact that, legally, a public inquiry must be carried out in a manner that is fair. This includes a requirement that the inquiry be carried out by an impartial decision-maker, which means both a decision-maker that is actually impartial, but also a decision maker that appears to be impartial. To decide if this is the case, the courts will ask: would a reasonable person, informed of the relevant circumstances, think the decision-maker is unbiased?[12]
In this instance, Ecojustice argues that, due to the politicization of the Terms of Reference, no reasonable person would think that the Inquiry is impartial. As a result, the Inquiry does not meet its basic legal requirement for an unbiased proceeding.
- The inquiry deals with matters outside of provincial jurisdiction.
Finally, Ecojustice argues that some of the matters that the Inquiry is supposed to deal with under its Terms of Reference are outside of provincial jurisdiction and, so, cannot be included in the Inquiry.
Roughly, the argument here is that, as it was originally set up, the Inquiry was supposed to look into the anti-Alberta operations of any and all Canadian organizations. This clearly goes beyond the borders of the province and, accordingly, the powers of the provincial government.
What is the court likely to decide?
To be honest, it’s hard to say. From its inception, the Inquiry has been hugely politicized, and it’s certainly tempting to question if it was ever set up as a genuine fact-finding exercise. Ask yourself, was the Government of Alberta really open to the possibility that there was no foreign funding of anti-Alberta energy campaigns when it created the Inquiry?
Along the same vein, consider the significant jingoism behind the words used in the Terms of Reference: we are not looking into environmental campaigns, we are looking into anti-Alberta campaigns. Likewise, we are not looking into opposition to pollution or to greenhouse gas emissions, we are looking into opposition to “the timely, economic, efficient and responsible development of Alberta’s oil and gas resources”.[13] In other words, Alberta oil and gas – good, environmentalists – bad. These are hardly the words of a neutral, fact-finding expedition.
Yet, all the same, the Inquiry may still live to fight another day. The government has twice changed the Terms of Reference and, in doing so, has watered down some of the inflammatory language.[14] Minor changes to the wording of the Terms of Reference and, suddenly, the Inquiry is looking into the existence of foreign funding, “if any”. Similarly, in the original Terms of Reference, the Inquiry was required to make recommendations to the government about how to stop foreign funding to environmental groups. Now, it merely has the option of making such recommendations, should the findings of the Inquiry make it appropriate to do so.
All in all, what this means is hard to sort out. It is pretty difficult to forget the initial politicization of the Inquiry. Nevertheless, the government has made some efforts to reframe the venture in more neutral terms, possibly in response to the arguments raised by Ecojustice.
At the end of the day, it will be up to the judge to decide if the changes to the Terms of Reference are enough to justify allowing the process to go forward to completion—or, if the initial politicization of the Inquiry has poisoned the well, so to speak. If the Terms of Reference had not been altered, I might have guessed that Ecojustice would be victorious in court. However, with the changes, the waters are somewhat murkier, and it is harder to say what the court will do.
Either way, I think the question at stake in the court case will boil down to this: is it possible, based on the Terms of Reference, for the Inquiry to carry out a fair and neutral investigation?
What are the potential consequences of this decision?
In light of the uncertainty of the verdict, let’s look at this question from both possible perspectives: if Ecojustice wins or if the Inquiry wins. As we do this, keep in mind that, in its lawsuit, Ecojustice is specifically challenging the Terms of Reference of the Inquiry, essentially saying that the Inquiry was improperly set up. This is different from challenging the process of the Inquiry or, even, the potential findings and recommendations the Inquiry could make. We will consider that kind of challenge at the end of this blog, so, for now, be aware that we are specifically looking at the Terms of Reference that created the Inquiry.
Back to the possible results of the court decision, if the court agrees with Ecojustice that the Inquiry was improperly set up, then the remedy would be to quash the Terms of Reference. Effectively, this would undo the legal basis for conducting the Inquiry, which would stop the Inquiry in its tracks. In other words, the Inquiry would be over, and it would not be allowed to issue its final report or carry out any further work. Additionally, all of the work that the Inquiry has done so far would be tossed into the garbage, as if the Inquiry never happened.
From there, if the government wanted to continue with the project of investigating foreign funding into anti-Alberta energy campaigns, it would have to start over and create a new inquiry. It should go without saying that this new inquiry would have to avoid the problems with the first Inquiry, or it would be quashed by the courts all over again.
On the other hand, if the court does not agree with Ecojustice, then, quite simply, the Inquiry will continue with its mandate and will submit its final report to the government, presumably on or before its May 31, 2021 deadline.
Wasn’t there a previous court decision?
Yes. In fact, there were two previous decisions in this case.
The first decision was in response to an intervenor application, which means an application by third parties to be allowed to present arguments in the lawsuit.[15] In a nutshell, to be allowed to present arguments, third parties to a lawsuit must show that they have a direct interest in the matter and that they have particular expertise or a perspective that will help the judge to make a decision.[16] In this case, the judge decided to grant intervenor status to an oil and gas industry consortium, thereby allowing them to present arguments in the lawsuit about whether the Inquiry is a matter of public concern.[17]
Legally, the more interesting decision is probably the second one, which was in response to an application by Ecojustice for an interlocutory injunction.[18] To clarify those words somewhat, an injunction is an order from the court for a person to stop doing something or to refrain from doing something. An interlocutory injunction is specifically an order for someone to stop doing something or to refrain from doing something, pending the final decision in a lawsuit. In this instance, Ecojustice asked the court to stop the Inquiry from proceeding with its work, pending the resolution of its legal challenge to the Terms of Reference.
What was the result of that decision?
To decide whether or not to grant an injunction, the courts use a three-part test. Under that test, the person asking for an injunction must prove three things.[19]
- There is a serious issue to be tried. This just means that there must be a legitimate legal issue at stake in the overarching lawsuit. It is a relatively low bar.
- The person asking for the injunction would suffer irreparable harm if it is not granted. This one means pretty much what it sounds like: the person asking for the injunction must show that if the injunction is not granted, then that person would suffer irreparable harm (or, at the very least, harm that cannot be compensated with money).
- The balance of convenience between the parties favours granting the injunction. This step recognizes that granting the injunction may inconvenience the other side and considers the balance of that harm against the harm of not granting an injunction that was set out in step 2.
In this instance, the Court denied Ecojustice’s application for an interlocutory injunction. In making this decision, it found that there was no evidence that the Inquiry will do irreparable harm to Ecojustice, because, as of the time of the decision, it was purely speculative that the Inquiry would even implicate Ecojustice.[20] Additionally, the Court found that the balance of convenience weighed in favour of allowing the Inquiry to proceed, given the lack of evidence of irreparable harm, as well as the purpose of the Inquiry, which is to serve the public interest.[21] As a result, the Court denied the application for the injunction, thereby allowing the Inquiry to continue its work pending the final decision in the lawsuit.
If Ecojustice loses its case and the Inquiry continues, then what happens next?
After the Inquiry submits its final report, then the government will have 90 days to make that report public. At that point, we will be able to see what the Inquiry has been up to for the last nearly two years.
Importantly, once the final report has been released, then anyone who has been affected by it will have the option of challenging it in court through a process called a judicial review. Basically, a judicial review is a special type of court case where a judge reviews a decision made by a government official.
Notably, a judicial review can include two types of challenges to a government decision. The first type is a procedural challenge, which essentially says that the procedure of the government’s decision-making process was unfair. In this case, that would mean challenging the procedure that the Inquiry has followed. I talk in more detail about the nature of a procedural challenge and some of the possible procedural issues with the Inquiry in a previous blog post, which can be found here. For now, take note that there are a lot of open questions about the procedure the Inquiry has followed, especially about how secretive it has been and whether that is fair to the organizations being looking into.
The second type of challenge to a government decision is what is called a substantive review. This is just a fancy way of saying a review of the actual results of the government decision or, in this case, the final report that the Inquiry will issue. When the courts look at the substance of a government decision, like the Inquiry’s final report, they primarily ask whether it was reasonable in all of the circumstances.[22] To decide this, the courts will look at whether the report is internally coherent and based on a rational chain of analysis.[23] As well, to be reasonable, the report must both have a reasonable analysis behind it and, also, the final conclusions drawn by the report must be reasonable, especially in light of the evidence and any legal submissions that were presented to the Inquiry.[24]
At this point, it is pretty hard to speculate about what a judicial review of the Inquiry would look like, because the Inquiry has not yet finished its work. In other words, the procedure has not been finalized and, clearly, the final report has not been issued. However, whatever comes out of the Inquiry, suffice to say it will be held to the dual legal standards of fairness and reasonableness.
[1] Public Inquiries Act, RSA 2000, c P-39.
[2] Ibid, s 2.
[3] Ibid.
[4] Ibid, ss 4-7.
[5] Terms of Reference, online: Alberta Inquiry https://albertainquiry.ca/sites/default/files/2021-02/Terms%20of%20Reference%20-%200811c.pdf.
[6] See OIC 125/2019 (4 July 2019), online: Queen’s Printer https://www.qp.alberta.ca/documents/Orders/Orders_in_Council/2019/2019_125.html; OIC 191/2020 (25 June 2020), online: Queen’s Printer https://www.qp.alberta.ca/documents/Orders/Orders_in_Council/2020/2020_191.html; OIC 249/2020 (5 August 2020), online: Queen’s Printer https://www.qp.alberta.ca/documents/Orders/Orders_in_Council/2020/2020_249.html.
[7] Ibid.
[8] Ruling on Interpretation of the Terms of Reference, online: Alberta Inquiry https://albertainquiry.ca/sites/default/files/2021-01/Ruling-on-Interpretation-091420-TOR-2.pdf.
[9] Terms of Reference, online: Alberta Inquiry https://albertainquiry.ca/sites/default/files/2021-02/Terms%20of%20Reference%20-%200811c.pdf.
[10] Ibid.
[11] See “Ecojustice launches legal challenge against divisive Alberta public inquiry” (21 November 2019), online: Ecojustice https://ecojustice.ca/pressrelease/ecojustice-launches-legal-challenge-against-divisive-alberta-public-inquiry/.
[12] See Committee for Justice and Liberty et al v National Energy Board et al, [1978] 1 SCR 369.
[13] Terms of Reference, online: Alberta Inquiry https://albertainquiry.ca/sites/default/files/2021-02/Terms%20of%20Reference%20-%200811c.pdf.
[14] See OIC 191/2020 (25 June 2020), online: Queen’s Printer https://www.qp.alberta.ca/documents/Orders/Orders_in_Council/2020/2020_191.html; OIC 249/2020 (5 August 2020), online: Queen’s Printer https://www.qp.alberta.ca/documents/Orders/Orders_in_Council/2020/2020_249.html.
[15] See Ecojustice Canada Society v Alberta, 2020 ABQB 364.
[16] Ibid at para 43.
[17] Ibid at paras 84-85.
[18] See Ecojustice Canada Society v Alberta, 2020 ABQB 736.
[19] RJR-MacDonald Inc v Canada (AG), [1994] 1 SCR 311 at 334.
[20] Ecojustice Canada Society v Alberta, 2020 ABQB 736 at para 21.
[21] Ibid at para 26.
[22] See Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65.
[23] Ibid.
[24] Ibid.
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