Whether one agrees or disagrees with the policies of the Trudeau government, it cannot be denied that the actions of his government have caused a widespread distrust of government agencies that were once trusted. This may be a short term strategy for electoral success but is ultimately self-defeating..In 2015, the Trudeau government ran on a platform demanding that the National Energy Board be "modernized" because (as they portrayed it) it was hopelessly buried in detritus from the previous nine years of the Harper government. The Liberal party felt that it had a winning strategy in maligning a government agency to express its anxiety over the changes in the Canadian Environmental Assessment Act, which was passed in the omnibus bill of 2012..It turned out to be a winning strategy. As members of the National Energy Board we watched in horror as, in December of 2015, Prime Minister Trudeau’s Privy Council sent out letters to appointed and independent members of several boards and agencies asking them, for the good of democracy, to step down so that the Trudeau government could appoint people who better represented the vast diversity of Canada both in race and geography. The NEB Board Member who received such a letter was told that he should fall on his sword so that a person of indigenous descent with an advanced degree in the biological sciences from a distant part of Canada could take his place. One person who received the letter (five days after taking up his appointment) was a Labrador Inuit with a PhD in animal ecology and significant experience in Natural Resource management. So much for reconciliation. Perhaps some due diligence was in order before sending the letter to him..But who cares? Perhaps when one agency and its independent appointees are impugned, such attacks can lead to efforts to manipulate the independence of other departments and agencies. Perhaps the Honourable Jody Wilson-Raybould felt similarly when her independence was challenged and her integrity as the Attorney General was impugned in the SNC-Lavalin affair. This episode cost the Trudeau government, and hence Canada, two capable cabinet ministers and was a major step backwards in reconciliation. Once again, attacking the independence of government appointees is a self-defeating, slippery slope that can lead to unintended consequences..What sort of consequences, you ask?.To shore up the reputation of the embattled NEB, its CEO took the fateful step of holding ex parte meetings with industry players across Canada to explain the role of the agency. It was problematic that some of the meetings were contemporaneous with active hearings involving those same industry players. A meeting in Quebec led to a charge of interference and an apprehension of bias which resulted in considerable additional expense to the proponent of the Energy East project and ultimately, to the withdrawal of that pipeline application..The final coup de grâce leading to the demise of the National Energy Board was the introduction and passage of Bill C-69 which has been called the 'anti-pipeline bill.' Much has been said about this bill which in actual fact, is very similar to the antecedent National Energy Board Act. The attempts at modernization appear to have ended with the 2015 election and the biggest changes in the legislation were those which rendered the timelines for project approval almost incomprehensible. (Not so incomprehensible to some apparently. A pro-pipeline lobby group declared the legislation to be acceptable until its membership sent the lobbiers back to declare that there was nothing acceptable at all about it.).The larger point is that the supposed modernization of the NEB Act did not include improvements to the Act. Significantly, there have been no major energy infrastructure projects proposed since the 2018 passage of Bill C-69. The only personnel changes to the agency were to sack the 13 permanent and temporary NEB members for not representing the diversity of Canada. Those 13 comprised five people from provinces other than Alberta, two individuals with PhDs, two engineers, two lawyers, two with extensive northern experience, three energy specialists and one environmentalist. Two were females. Some had been appointed by a Liberal government and the others by a Conservative government. For three of the Members, Bill C-69 could be interpreted as a bill of attainder given the way their contracts were severed. (A bill of attainder is an act of a legislature declaring a person, or a group of people, guilty of some crime, and punishing them, often without a trial. The last such act in Britain was in 1798 against Lord Edward FitzGerald for leading a rebellion in Ireland.).The attainted ex-members feel an odd sense of pride in being such historic outliers..The independence of appointees to government agencies and departments, constrained only by the legislative limitations of their appointment, is a cornerstone of the constitutional law Canada inherited from Great Britain. It leads to peace, order and good government. Attacks on that cornerstone threaten the edifice above. If the decisions and dictates of appointees are problematic, then it is appropriate to review the process of vetting the appointee..It is never appropriate to attack the independence of the position. In these strange and fractious times, governments in Canada and beyond would do well to refocus their attention on this fact..Murray Lytle, Ph.D. is a retired engineer living in Alberta. His resource development career took him around the world, and he was one of the last permanent members of the National Energy Board before it was modernized to the Canadian Energy Regulator.
