Environmental law charity Ecojustice files legal challenge of Alberta public inquiry

Ecojustice, the environmental charity targeted by Alberta Premier Jason Kenney’s government, has launched a legal challenge of the province’s controversial inquiry into alleged foreign-funded attacks on Alberta’s energy industry.

In a judicial review application filed Tuesday in Calgary, Ecojustice asked the court to halt the $2.5 million Public Inquiry Into Funding Of Anti-Alberta Energy Campaigns, which it says was created for “partisan political purposes” and has been tainted by bias from the outset. 

“The inquiry has been called not to address a matter of pressing public interest, but to justify a predetermined intent to harm the reputations, economic viability, and freedom of expression of certain organizations who have opposed the Government of Alberta’s position with respect to oil and gas development,” Ecojustice’s application states.

The Canadian charity’s application says public comments made by the United Conservative Party, Premier Kenney, and Justice Minister Doug Schweitzer show the inquiry was not designed for independent fact-finding. 

Therefore, Ecojustice argues, the inquiry has been called for an “improper purpose” outside the Public Inquiries Act, and Alberta’s lieutenant governor did not have the authority to order it.

The legal charity further alleges the matters the inquiry will investigate, such as the charitable status and foreign funding sources of Canadian organizations, fall under federal jurisdiction and so are similarly outside the provincial Public Inquiries Act.

Ecojustice said the inquiry’s terms of reference also predetermine facts that have not yet been independently established by the commissioner. For example, it presumes there is foreign funding of anti-Alberta energy campaigns, and that Canadian organizations disseminated false or misleading information about the province’s oil and gas industry.

“Each of these predeterminations, made before any evidence had been put before the commissioner, transforms the inquiry from an independent fact-finding mission into a predetermined demonstration of misconduct, resulting in a reasonable apprehension of bias,” the application states.

None of Ecojustice’s claims has been proven in court. 

Justice minister appointed political supporter to head inquiry

In July, Justice Minister Doug Schweitzer effectively appointed the inquiry’s commissioner, Steve Allan, a Calgary insolvency accountant. Allan has close ties to Dentons, the Calgary law firm where Schweitzer had been a partner in the insolvency and bankruptcy division until his election in April. Allan is to be paid about $290,000.

Over the past week, CBC News revealed in several stories that Allan:

  • Gave a $905,000 sole-source contract for legal services to the inquiry to Dentons law firm in Calgary, where Allan’s son Toby is also a partner.

  • Donated $1,000 to Schweitzer’s 2017 UCP leadership campaign and a total of $750 to the UCP; 

  • Campaigned for Schweitzer in 2018 as he sought the UCP nomination, and urged several dozen contacts to vote for him in the election, in part because “”if the UCP wins, there is an excellent chance Doug will be in cabinet.” 

Alberta’s ethics commissioner has twice declined requests from the opposition NDP to investigate alleged conflicts of interest. 

Both Allan and Schweitzer have refused numerous interview requests from CBC.

Ecojustice has written to Allan several times, including in October after it discovered the same donations later made public by CBC. The charity had concerns about both bias and lack of fairness in the inquiry, as well as Allan’s ability to remain impartial in his role. It also threatened to take legal action.

Barry Robinson with EcoJustice says the charity has written to Allan several times, including in October after it discovered the same donations later made public by CBC. (CBC)

In response to its September letter, Ecojustice said Allan told them he had not yet decided how the inquiry would proceed. But the charity said the inquiry’s terms of reference were not amended and “Allan has continued to conduct interviews under the auspices of the commission.”

The charity said Allan also did not acknowledge the donations to Schweitzer and the UCP. In its court application. Ecojustice said the donations “contribute further to the reasonable apprehension of bias.”

“There is absolutely nothing wrong with Commissioner Allan making donations to a political party or supporting a candidate,” Ecojustice lawyer Barry Robinson said in an interview.

“But then you cannot act as an independent commissioner considering allegations made by that same party.”

Critics call inquiry ‘undemocratic’

Kenney called the September Ecojustice letter to Allan “entirely predictable” and a “regurgitation” of the “laughable” letter sent the previous week by Amnesty International, which had also criticized the inquiry for allegedly attempting to stifle legitimate public criticism of the oil and gas industry in relation to climate change.

Earlier this month, in a 174-page letter to Allan, the Muttart Foundation, one of Edmonton’s most prominent charities, criticized the inquiry into so-called anti-Alberta activities for being polarizing, undemocratic, and unfounded. 

The foundation said the inquiry was creating a “climate of fear” for suggesting there is a price to be paid for disagreeing with the government. At a committee meeting, Schweitzer deflected questions about appointment process, and portrayed Allan as the victim of a smear campaign. 1:56
At a legislative committee meeting Tuesday, Schweitzer deflected questions about the appropriateness of appointing Allan, a political supporter, to the lucrative position of inquiry commissioner. Instead, he portrayed as the victim of smear campaign. 

“How [Allan] has been dragged through the mud over the last few weeks is appalling, and the fact that the NDP lines of attack on this are the same as Ecojustice is appalling, absolutely appalling,” Schweitzer said. 

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