Since the bombshell news the Supreme Court has upheld the Alberta Court of Appeal decision that Bill C-69 is a nullity (except in the instances of Federal lands) my phone has been quite busy.
I was one of the eight permanent members of the National Energy Board (NEB) whose employment was ended by this legislation on August 28, 2019, and so it is a bit personal. You need to know my biases before reading what follows.
I have no idea what the government needs to do now to repair the hole that has been created.
Does this mean all decisions by the Canadian Energy Regulator, created by Bill C-69, are now vacated? Where does this leave the employees of an agency that has no basis for existence? There are a great many questions, and I will leave it to constitutional experts to opine on the path forward because I haven’t a clue.
But, while I am surprised the court reached the decision that it did, I have never felt there was a dearth of reasons for doing so. If nothing else, the past eight years have made me pathologically cynical when it comes to Canadian politics. So, here’s a hat tip to the Supreme Court.
Mr. Trudeau won his 2015 election on the back of his constant attacks against the National Energy Board and its “industry captive” members. More than once following the election, the statements coming from Privy Council interfered with the independence of the board members and became potential hooks for the judicial appeal of NEB decisions. Apart from being really aggravating it was a dangerous undermining of Canadian institutions.
Shortly after the appointment of the last NEB board member, the Privy Council sent a letter asking that member to voluntarily step down so the new government could appoint “a qualified indigenous person.” Was that an open attack on the independence of that member?
But it gets worse. The individual receiving the letter was an indigenous person from Labrador who held a PhD in animal ecology and had previously held distinguished academic posts in Canada and Europe. How does one account for this level of stupidity coming from the Privy Council? It is almost like inviting a former Waffen SS fighter to be lauded in Parliament. Such is the blindness of ideology.
No one at the NEB was surprised when the Liberal government proposed new legislation to replace the NEB Act.
It had been a central plank in their election platform after all. What concerned many of the board members was the contorted and internally inconsistent organization and logic of the legislation, the acquiescence of the energy industry and the complete lack of consultation with active and former board members.
Call it the Stockholm symptom but without exception, the board members were more interested in getting good legislation than in protecting their sinecure (most were timing out on their appointments in any event). But that didn’t happen.
As to the energy industry, because I am retired, I can say this… from where I sat, they got what they deserved. There was very limited pushback and what resistance finally formed came too late in the process. There were efforts in the Senate to reconsider the bill, but the process was steam rolled and very few amendments were accepted.
But I have a dog in this fight and I am very cynical, so who cares what I think about those events of five years ago.
The truly good news today is that this decision affirms the court system does work and a hat tip to Jason Kenney for recognizing that.
It is also a resounding affirmation of the wisdom of Premier Smith in pushing through the Sovereignty Act.
Had that legislation been in place in 2019, some of the more egregious attributes of Bill C-69 might have been avoided while awaiting this favourable decision in a case that, by necessity, would have been brought by the federal rather than provincial governments.
In the future, the Government of Alberta will be in the catbird seat when there are federal raids upon provincial jurisdiction. Check…mate. Well done, Premier Smith!
While I lament the illegitimate manner in which my appointment was truncated, this is a good day to be an Albertan.
From 2015 to 2020, Murray Lytle PhD. P.Eng, was a Member of the National Energy Board.
