Ecojustice demands changes to Alberta public inquiry into ‘foreign-funded,’ anti-oil activism, threatens lawsuit

Ecojustice, a member of Tar Sands Campaign, received only 14% of revenue from foreign funds in 2018, 11% in 2017, rest was Canadian

An environmental law group is demanding that the Alberta government amend the terms of reference for its public inquiry into foreign-funded activism and warns that it will launch legal action if Premier Jason Kenney doesn’t comply. The odds that will happen are precisely zero.

Steve Allan, commissioner, Alberta public inquiry into anti-oil and gas inquiry.

Vancouver-based Ecojustice sent a letter Tuesday to Calgary forensic auditor Steve Allan, commissioner of the Alberta Public Inquiry into Anti-Energy Campaigns, arguing that the “Inquiry is ill-conceived, promulgated for purely political purposes, and does not meet the test of expediency or being in the public interest.”

During the recent Alberta election campaign, Kenney promoted the “research” of conspiracy theorist Vivian Krause, whose Energi Media has debunked. The United Conservative Party promised a $2.5 million public inquiry into anti-pipeline environmental groups. In early July, Allan was appointed to head the inquiry, which will report next summer. He can only call witnesses located in Alberta and given that most of the activist groups are located in other provinces, he will have a difficult time persuading them to cooperate with his investigation.

Devon Page, Ecojustice executive director, says his group has three issues with the inquiry’s terms of reference.

The first is the perception of bias created by Premier Kenney, industry trade groups like the Canadian Association of Petroleum Producers, and boosters who loudly and publicly condemned what they see as a threat to the Alberta economy.

Devon Page, executive director, Ecojustice.

“The basic test for bias in the courts is whether a reasonable person would perceive it as such,” Page said in an interview. “I think it’s just so clear that Jason Kenney intended this inquiry to achieve a biased outcome.”

The Ecojustice letter provides several examples of the Premier’s alleged bias, including this tweet from May 6: “It’s time to fight back against
foreign-funded groups that lead a campaign of economic sabotage against our province.” Comments such as this have “the effect of transforming the nature of the inquiry from one that was a fact-finding mission with the hallmarks of fairness into an ‘exhibition’ of misconduct,” Ecojustice wrote in the letter.

The second issue is that the inquiry is intended to oppress the freedoms of expression and association of oil and gas opponents, who have the legal right to dissent and protest under the Charter of Rights and Freedoms. According to the letter, “the Inquiry will create the insidious effect of stigmatizing and chilling Canadian organizations who campaign and advance allegedly “anti-Alberta” beliefs about the oil and gas industry…”

It makes the important point that even if environmental groups have spread false and misleading information about the Alberta oil sands or pipeline projects, governments cannot use legal or other means to suppress their freedom of association.

“At its core, this [the inquiry] is intended to stifle public debate about Alberta’s oil and gas future in the context of climate change,” says Page. “Politicians can say whatever they want, but as soon as they try to muster the authority of government in a way that stifles public debate on the issues, then that constitutes an abusive process. A number of the legal cases have gone so far as to say that that threatens democracy because the core of democracy is open debate about policy decisions.”

Ed Whittingham, former executive director, Pembina Institute.

The third issue is procedural fairness, which is about protecting the reputation of those called before the inquiry or who may be the subject of the investigation. Take Ed Whittingham, for example. The former director of the Pembina Institute was appointed to the Alberta Energy Regulator board by former Premier Rachel Notley, then falsely accused by Kenney of being a “radical environmentalist” bent on destroying the oil and gas industry. The truth is that Wittingham is a long-time champion of environmentally responsible development.

Pembina will be called upon by Allan to submit information to the inquiry and may be subpoenaed to testify publicly if the commissioner decides to hold hearings. Will the highly respected think tank, which makes half of its revenue by providing services to oil and gas companies, and its employees be treated fairly?

“The current Inquiry is clearly a situation in which the reputations of various organizations are at stake and indeed have already been tarnished by unfounded comments of certain political leaders and others speaking out in the media,” Ecojustice wrote in the letter to Allan.

The inquiry’s terms of reference allow the Commissioner to request changes to those terms and the letter sets out revisions Ecojustice thinks will resolve its concerns. If Allan has not acted within 30 days, Ecojustice says it will launch a legal challenge to the inquiry.

Then there’s the tiny matter of Ecojustice’s participation in the Tar Sands Campaign, which has been the focal point of Krause’s complaints. That fact alone guarantees either silence or obstreperous bluster from the government side, not compromise and accommodation.

Energi Media asked Ecojustice how much of its funding came from outside Canada. Data provided – which is also available on the Canada Revenue Agency website – indicates the law group received 14 per cent of its revenue from donors outside Canada in 2018 and 11 per cent in 2017.

Other members of the loose coalition of environmental groups interviewed by Energi Media for the deep dive show that US funding accounted for between two and 10 per cent of their revenue. Tar Sands campaign funding fell dramatically after Alberta launched the Climate Leadership Plan in late 2015 and in 2019 is expected to be less than $1 million, according to campaign organizer Tzeporah Berman.

Facts and legal precedent be damned, acquiescing to Ecojustice’s demands is not in Kenney’s political interests. He’s too entrenched in his attack on activists to retreat even an inch. Based on his response to recent criticisms from Amnesty International, it’s also not in his nature.

Expect Ecojustice’s legal challenge to proceed next month.

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