Alberta inquiry commissioner pushes back against legal application to halt his work

The commissioner of Alberta's public inquiry into alleged foreign-funded attacks on the oil industry has pushed back against a legal challenge to suspend his work, arguing an environmental law charity can't prove it will be harmed by his inquiry's findings.

In an Aug. 27 legal brief, commissioner Steve Allan also says he still has not yet determined the process under which the organizations he is scrutinizing will respond to his investigation, even as the Oct. 30 deadline for his final report looms.

In July, Ecojustice sought an injunction that would halt Allan's work until the court rules on an earlier legal challenge by the charity.

Ecojustice filed a judicial review application in November 2019 that asked the Court of Queen's Bench to shut down Allan's inquiry. It alleged the inquiry was created for "partisan political purposes" outside the authority of the Public Inquiries Act and had been tainted by bias from the outset.

• Environmental law charity Ecojustice files legal challenge of Alberta public inquiry

A hearing on the application was originally scheduled for April but was delayed indefinitely due to the COVID-19 pandemic.

Ecojustice's injunction application cited the fact that Allan had not provided information on how organizations will be allowed to respond to his findings.  The charity said it and others may suffer "irreparable reputational harm" if Allan releases those findings under a process not yet fully defined, and before the court rules whether the inquiry is valid.

But in his reply to the injunction request, Allan says the environmental law charity cannot show any risk of harm that would warrant an injunction before the court hears the legal challenge.

He says Ecojustice was previously told that his final report, due to the energy minister by Oct. 30, will not be publicly released until January 2021, giving the court "ample opportunity to hear and determine the judicial review by then."

Ecojustice has "suffered no damage, reputational or otherwise, and is under no imminent risk of this happening," Allan's brief states.

"Further, there are strong policy considerations, as well as practical considerations, in favour of public inquiries being allowed to proceed once commenced."

In an Aug. 28 brief, the Alberta government called any harm Ecojustice has alleged "speculative," and said legislative acts like the creation of an inquiry are presumed to be valid and in the public interest.

The government also said there is no evidence that the charity or any other organization will be called soon — or at all — to respond to Allan's findings.

None of the allegations from any side has been proven in court.

Inquiry procedural rules 'under development'

Allan says Ecojustice's injunction request raised concerns about "procedural fairness" the charity did not include in its 2019 judicial review application.

"In any event, Allan has accommodated, or will do so, Ecojustice's procedural concerns for the conduct of the public inquiry," the brief says, adding the procedural rules of the inquiry remain "under development.

"There is no indication that evidence gathered in the course of the public inquiry's facts investigations or preliminary findings have been published or are soon to be published," it states.

In July 2019, Premier Jason Kenney announced his UCP government would spend $2.5 million on a provincial inquiry into "foreign-funded special interests" and their campaigns to stop oilsands development. The move was widely condemned by environmental advocates and others, such as the non-profit Pembina Institute, as an attempt to intimidate and silence critics.

Despite it being a public inquiry, the commissioner's work has been shrouded in secrecy. The government did not release Allan's interim report, provided in January, and Allan has not disclosed who he has interviewed as part of his investigation.

Reframing of inquiry

The government has several times amended the scope and scale of the inquiry.

On June 25, Energy Minister Sonya Savage said Allan would receive an additional $1 million and a four-month extension to complete his work. In an order-in-council, she also changed the wording of the inquiry's terms of reference in a way that hinted at the possibility that foreign funding of anti-Alberta energy campaigns may not have actually happened.

• Wording tweaks change terms of Alberta inquiry into environmentalist foreign funding

A subsequent Aug. 5 order-in-council from Savage limited what the inquiry is expected to yield. 

It added a phrase that says Allan "may" make findings and recommendations related to raising awareness of any foreign funding of anti-energy campaigns, how the government can best respond to those campaigns, and any additional eligibility criteria for grants that the province should consider. All of those were outlined as expectations under the inquiry's original terms of reference.

Allan's legal brief suggests this reframing gave him direction he lacked for nearly the first year of the inquiry.

The orders-in-council "put Allan in a position, for the first time, to gauge the more precise and exact nature of the parties and activities regarding which he had an obligation to report," it states.

Now, Allan's inquiry can progress to the second stage and allow parties to respond to his findings — with, the brief says, "a view to satisfying the obligations of procedural fairness which Ecojustice says is owed to it."

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