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In whose interest?

Alberta's public inquiry in foreign funding of campaigns opposing the energy sector is not going well. That's because it has fallen short of minimum standards of fairness.

oil pump-jack in ALberta

Public inquiries can be risky for governments. For all their promise in exposing hard truths, restoring public confidence in our institutions and laying the groundwork for overdue reforms, they can also be expensive and time consuming, and damage a government's reputation. And if mishandled, people may lose confidence in the inquiries system itself.

That appears to be what's happening to Alberta's inquiry into foreign funding of environmental groups – an exercise that critics say is a disguised witch hunt against charities that advocate on environmental issues.

More than a year into his investigation, the inquiry's commissioner, Steve Allan, has drawn fire for refusing to examine whether statements made by foreign-funded groups opposing the development of Alberta's energy industry are misleading or false, as per his original terms of reference. The reason, he says, is that he lacks the time and resources to carry out a review of the province's regulatory system. His budget had initially been set at $2.5 million, and he has asked for an extension beyond the current October 30 deadline to deliver his final report.

Allan’s decision is supported by amendments made to the inquiry's terms of reference during the summer. The original terms were clear that he was to "inquire into anti-Alberta energy campaigns that are supported, in whole or in part, by foreign organizations." In the new wording, the focus has been narrowed to "the role of foreign funding, if any, in anti-Alberta energy campaigns" [our emphasis].

"To my mind, it definitely raises alarm bells and red flags," says Martin Olszynski, an associate law professor at the University of Calgary. "The commissioner's not going to bother to fact-check whether or not what these groups were saying was, in fact, true or not. He's just going to just compile a report that says these groups oppose development and they receive foreign money."

What could be the purpose of that kind of inquiry, Olszynski asks, other than to invite opprobrium on environmental groups?

"The report will provide a list of groups that oppose the oil sands and that receive foreign funding, neither of which on its own is, in any way, shape or form, contrary to law or even in any way misfeasance," he says.

It’s worth noting here that it’s hardly unusual in the charitable sector to receive foreign funding. But in this case, the issues are framed in such a way that the government could use the inquiry's findings against its opponents. In a long letter sent to Allan in November 2019, the Edmonton-based Muttart Foundation, which supports the charitable sector, raised concerns that the inquiry is creating a "climate of fear" by fuelling the sentiment that there is a "price to be paid for taking a position that is different that of the government."

According to the Muttart Foundation, 284 charities in Alberta received a total of $88.5 million from foreign sources. That accounts for less than three per cent of their revenue. Among the top recipients were post-secondary institutions, religious charities and international development charity and an arts organization – none of which have been targeted by the inquiry.

The inquiry's apparent partisan intent is the basis of a legal challenge by Ecojustice, an environmental law charity. The inquiry's mandate, it says, will lead to violations of Canadians' right to freedom of expression and association.

Making matters worse, says Olszynski, there are no indications that Allan plans to hold any public hearings. In January 2020, the commissioner filed an interim report that has not yet been made public.

According to Allan's interpretation of the terms of reference, "an analysis would require extensive scientific evidence and experts" on a wide range of environmental matters "at incredible expense."

"But of course, the other part that he conveniently omits to mention is that there have been many assessments of the regulatory system in Alberta," says Olszinski referring to the Radke Report in 2006 on the rapid growth of oil sands development, the Royal Society of Canada report on Environmental and Health Impacts of Canada's Oil Sands Industry in 2010, and a pair of reports in 2011-2012 critical of environmental data monitoring systems.

“This stuff exists,” says Olszynski. “Of course, he might say, ‘Well they don’t tell a complete picture.’ Sure, but that doesn’t mean you can wave them away entirely and try to wave away that part of your mandate.”

It all amounts to what appears to be abuse of power on the part of the government, says Olszynski. He even draws parallels with the Roncarelli case in 1959, in which the Supreme Court of Canada held that then-Premier Maurice Duplessis had acted arbitrarily and without good faith by revoking the liquor licence of a Jehovah's Witness.

"To my mind, it's a pretty clear attack on various kinds of rights — the freedom of people to associate and to find common cause; the freedom of expression; the freedom to criticize the government and criticize a sector where people have legitimate concerns about development."

The trouble with public inquiries is that they are "entirely creatures of governments," says Ed Ratushny, a professor emeritus at the University of Ottawa's law faculty and author on the topic. "They have broad powers to create them, select the commissioners, terminate them, gerrymander the terms of reference and control their budgets provided they have legislative and constitutional authority."

Even so, "the conduct of the commissioner in conducting the inquiry is circumscribed by the principle of fairness," Ratushny adds. "As a result, the accountability of governments for playing fast and loose with public inquiries has been left to public opinion."

"The whole thing seems quite strange to me," says Ratushny about the Alberta inquiry, specifically, adding it was probably a mistake for the Kenney government to launch it. He acknowledges that it "might find more political advantage than harm in continuing this rhetoric, but the inquiry itself is difficult to defend." He adds, "the Premier might want to get off this track."

Not that it wouldn't be valuable to question more broadly issues surrounding the financing of charities. "I guess this would raise the question of how environmental advocates should be financed, if not through charitable donations?" he says. "What is the line that separates 'public interest' and political support?

Olszynski doesn't necessarily disagree. "I think it can be a valid question to look at, but then you can't only look at one side of this. That betrays the lie, because if you were genuinely concerned about foreign funding, then you look at all foreign funding," he says. "You don't just look at foreign funding of the message that you don't like. I don't think you can have it both ways.