Public Inquiry Into Anti-Alberta Energy Campaigns To Proceed After Court Dismissal

• Published date: 14 June 2021
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Energy and Natural Resources, Energy Law, Oil, Gas & Electricity, Constitutional & Administrative Law, Trials & Appeals & Compensation
• Law Firm: Borden Ladner Gervais LLP
• Author: Mr Michael Marion and Brett Carlson

On May 14, 2021, the Court of Queen's Bench of Alberta dismissed the challenge by Ecojustice Canada Society (Ecojustice) to Alberta's public inquiry into "anti-Alberta energy campaigns" (the Public Inquiry). The decision in Ecojustice Canada Society v Alberta, 2021 ABQB 397 (the Ecojustice Decision) effectively greenlighted the Public Inquiry and allowed it to proceed.

The Public Inquiry, announced by Premier Jason Kenny in 2019, seeks to examine alleged anti-Alberta energy campaigns supported by foreign organizations. Ecojustice immediately opposed the Public Inquiry and brought an application for judicial review on the basis that the Public Inquiry was unlawful.

The Ecojustice Decision represents a small victory for the Government of Alberta in an ongoing series of energy-related constitutional legal battles that have taken place over the past few years. More broadly, however, the Ecojustice Decision reaffirms the high level of deference afforded to provincial public inquiries, which could signify that the province may rely on such powers more frequently in the future, especially as it relates to the province's energy sector.

Background

On July 4, 2019, Premier Kenny commissioned the Public Inquiry, seeking to investigate alleged foreign-funded efforts to undermine the province's oil and gas industry. The Lieutenant Governor in Council initiated the Public Inquiry by Order in Council 125/2019 (the OIC), and Jackson Stephens Allan was appointed as the Commissioner pursuant to the Public Inquiries Act, RSA 2000, c P-39 to conduct the Public Inquiry in accordance with Terms of Reference appended to the OIC.

The $3.5 million Public Inquiry received immediate backlash from certain environmental and activist groups, including Ecojustice. On November 19, 2019, Ecojustice filed an application for judicial review at the Court of Queen's Bench of Alberta, claiming that the Public Inquiry was unlawful, and arguing that:

1. The Public Inquiry was brought for an improper purpose and therefore ultra vires the authority granted to the Lieutenant Governor in Council under section 2 of the Public Inquiries Act;
2. Certain matters identified in the OIC and Terms of Reference were matters of exclusive federal jurisdiction and therefore ultra vires the jurisdiction of the Lieutenant Governor in Council; and
3. The OIC and Terms of Reference for the Public Inquiry, the political context of the Public Inquiry, and Commissioner Allan's political donations to the United Conservative...