Landowners, lawyers predict Bill 2 will get a rocky reception in Alberta, Responsible Energy Development Act described by one group as ‘worst proposed legislation ever introduced in this province’ by Darcy Henton, November 15, 2012, Calgary Herald
Energy Minister Ken Hughes is embarking on a speaking tour to sell Alberta farmers and ranchers on the Tory government’s controversial one-stop shopping energy resource development bill — but landowners and lawyers say he could get a rough ride in some parts of the province. Hughes told the Herald that over the next few weeks he wants to engage with Albertans about the benefits of Bill 2, the Responsible Energy Development Act. “It is critical from an economic perspective to get Bill 2 through, that we create a new single regulator, because that governs most of the $300-billion economic engine that is Alberta,” he said. Anticipating concerns from the public, he has introduced 15 amendments to the bill, which passed second reading in the Alberta legislature last week. “What that demonstrates is that we’re a government that listens to landowner concerns,” he said. “I want to make sure personally that this is something that landowners can be comfortable with and that ensures also that we have an efficient and effective regulatory process for applicants.” Hughes may be acting on the advice of his predecessor Ted Morton, who complained that the Conservatives faced a storm of undeserved criticism over several controversial land bills last year because they failed to explain the legislation to landowners. “There was no timely response to bogus and misleading interpretations that were being given,” said Morton, just before he lost his seat to a Wildrose rookie in Chestermere-Rocky View last April. Morton said the bills were also too technically written and not “user-friendly.” Critics say the new bill — which Wildrose Leader Danielle Smith has dubbed Franken-bill — is even more complex and confusing.
Bill 2 has been described by one landowners’ group as “the worst proposed legislation ever introduced in this province” and members have expressed fears the new law could spark violence in the oilpatch. Don Bester of the 1,400-member Alberta Surface Rights Group slammed the bill over its lack of an outside appeal mechanism. Bill 2 also eliminates references from prior legislation that would require the energy development regulator to act in the public interest and gives it “extreme dictatorial powers,” he said. Bester called the amendments tabled by Hughes “wordsmithing.” “Those words that he changed were minuscule,” he said. “It was just a public relations appeasement to the other political parties.”
Bester urged farmers as well as urban dwellers to oppose the bill or lose any chance to stop energy development in their backyards. He said it was disappointing for members of his organization that their input was ignored and none of the most controversial aspects of the bill were raised during the so-called stakeholder consultation. He said a coalition of landowners groups is meeting later this week to plan their response to the bill. But he said he is concerned some landowners will take matters into their own hands if confronted by unwanted energy development.
Hughes has argued the bill gives landowners even greater rights to notification of developments than some of the existing acts it replaces, but land rights lawyers say it strips key existing landowner rights from the six conservation bills. University of Calgary assistant law professor Shaun Fluker said the retraction of landowner rights in Bill 2 is “a colossal gaffe by the Alberta government” and a “substantial gift to political opponents of the governing Tories.” “I think it is a colossal gaffe because the government doesn’t need to be stoking any fires by stripping away these rights,” he said. “It just seems to me they are going to anger a bunch of people that they really didn’t need to. If you are the leader of the Wildrose, you must be licking your chops on this.” Fluker said it really doesn’t help the landowner to be given notice of an energy development on their land because nothing appears to propel a public hearing until after the licence has been issued. “It will only happen after the shovels hit the ground,” he said. Fluker said there is nothing in the bill to ensure there is funding available to help landowners fight the project and it is unlikely the regulator will reverse decisions it has made when it hears its own appeals. The bill eliminates appeals to the Environment Appeal Board and provides only narrow avenues of recourse to the court.
Lukaszuk Runs Away From Angry Citizens! Deputy Premier Runs Away When Asked About Bill 2! by Alberta Surface Rights Group, November 15, 2012
Yesterday afternoon at the Community Hall in Sylvan Lake, Deputy Premier Thomas Lukaszuk came into the riding for a “meet and greet” with the local residents. The purpose of his appearance was supposed to be to “listen to the concerns” of the locals, in what the Redford government likes to refer to as an “orphan riding”……in other words…….one that didn’t elect a PC MLA! The whole attitude of this government smacks of arrogance……the people of Innisfail-Sylvan Lake clearly made a choice in the April election when they elected Wildrose MLA Kerry Towle! We don’t need some big city boy like Lukazsuk coming to our community trying to ignore and undermine the good work our MLA is doing for the area!
Mr. Lukaszuk was very condescending to the people’s concerns about an emergency health care facility and a death trap intersection, which community members have been speaking out about for years! It was…..we hear you….we’re looking into it….we’ll get back to you! A recurring theme of his message was the “new definition of debt financing”……he stressed again and again that the Redford government was going to balance the “operating budget”! He insisted that this was what the government had promised in the last election……which of course was blatantly not true!
Mr. Lukaszuk started to really resemble a snake oil salesman in the eyes of most of the residents at this time! Several questions were asked of the Deputy Premier concerning property rights and in particular Bill 2, the “Responsible Energy Development Act”. He deflected as best he could and then went on to attack MLA Joe Anglin from Rimby-Rocky Mountain House-Sundre, for stirring up landowner anger over this bad piece of legislation! Quite frankly he acted in a completely arrogant and ignorant manner towards both local MLAs, Anglin and Towle! If he thinks that sells well…..he is sadly mistaken……..both Towle and Anglin are viewed as champions of the people…and rightly so!
As Anglin and landowners continued to press Lukaszuk on Bill 2, it was very evident he was getting flustered and frustrated. What he thought would be a little “love in” with the peasants wasn’t turning out very well for him! Finally, pleading ignorance of property rights issues, he agreed that he would set up a meeting to discuss Bill 2……..with as he put it……someone who knew the subject matter better than he does. He grandly announced at that time (like the Lord of the Manor!) that he would talk to the land owners present, after he had dealt with the locals on the healthcare and intersection concerns. The landowners respected his edict and waited their turn. Lukaszuk then threw out a few platitudes to the citizens……..and before anyone knew what was happening ran out the back door where his aides had the get-away car waiting….so much for that “I’ll talk to you later”! As he literally ran from the hall the catcalls and boos followed him!……..somehow I doubt he’ll be coming back to this “orphan riding” anytime soon!
We do intend to hold Thomas Lukaszuk to his promise to set up a meeting with someone who isn’t ignorant about property issues…..and particularly Bill 2. We would suggest Energy Minister Ken Hughes and Environment Minister Diana McQeen might be appropriate…….but we won’t be holding our breath! I guess we’ll see if Lukaszuk keeps his word and sets up a meeting with anyone….or if he tries to weasel out of it? …….we’ll keep you informed. [Emphasis added]
How do we fight Opressive Legislation Like Bill 2? How Can We Fight Back Against Bill 2? by Alberta Surface Rights Group, November 15, 2012
Bill 2, the proposed “Responsible Energy Development Act” will fundamentally alter forever the balance between the land owner and the oil and gas companies. The landowners are about to lose a good deal of their rights and the ability to protect their land and water. The oil companies will have gained vast power over the land owners. The Alberta government ignores the landowners and panders to the oil companies, many of them foreign owned. How did this happen? How did we let this happen? The answer of course is fairly simple and happens all over the world….the companies simply bought the government? The bloated spending of a corrupt government requires every last cent of oil royalties and lease sales, just to pay the bills! We shouldn’t be at all surprized………….. this is how the multi national oil companies have always operated in corrupt countries like Nigeria, the Sudan, and Ghana. …..and now Alberta! So what can we do? Our government won’t listen to us. Our judicial system is useless. Who will save us?
The good news is…….there is a way! It consists of three components: education, non-compliance, critical mass. [Emphasis added]
First Shot In The War Against Bill 2: Alberta Surface Rights Group demands that the Alberta Government withdraw Bill 2 immediately from the legislative approval process Press Release by the Alberta Surface Rights Group, November 13, 2012, 1st in a series on Bill 2
Bill 2 Extinguishes Property Rights
The Government of Alberta has drafted offensive and invasive legislation through the introduction of Bill 2. This legislation strips property owners and others of their right to object to any energy project that may adversely and directly affect them. Inappropriately named the “Responsible Energy Development Act”, it removes the legislation that has guided the ERCB and the former EUB for years. It eliminates any and all references that it must act in the public interest and violates the social contract that has been in place since the 1930’s for responsible development.
The New Alberta Energy Regulator is given extreme dictatorial powers to make energy related decisions.
Here is a glimpse of this new act.
“Every decision of the Regulator is final and shall not be questioned or reviewed in any court by application for judicial review”
“The Regulator, alone, may reconsider a decision made by it” and “no action may be brought against the regulator”!
Who will this new board be operating for the benefit of? Will it be to act in the interest of private businesses at the expense of the citizens of this province? Why then were all references to public interest removed from the act? Accountability currently in place with our judicial system has been eliminated in a dictatorial fashion! There is no right to appeal to a court with a judge who is unbiased. Our modern free society is based on checks and balances. This new legislation makes it extremely difficult, if not impossible for property owners and people concerned about development and it’s far reaching impacts to challenge it in our province once this legislation takes effect. Government can unilaterally dictate what it wants to do on private lands without any recourse to the long term effects and consequences. In light of Remembrance Day should we not be mindful of the scores who perished fighting for a choice and freedom? We do not think they fought and died to have future generations succumb to authoritarian tyranny which benefits a select few rather than the “public interest”.
[Refer also to: BILL 2, Responsible Energy Development Act by The Legislative Assembly of Alberta First Session, 28th Legislature, 61 Elizabeth II
Protection from action
27 No action or proceeding may be brought against the Regulator, a director, a hearing commissioner, an officer or an employee of the Regulator, or a person engaged by the Regulator, in respect of any act or thing done or omitted to be done in good faith under this Act or any other enactment.
Reconsideration of decisions
42 The Regulator may, in its sole discretion, reconsider a decision made by it and may confirm, vary, suspend or revoke the decision.
Exclusion of judicial review
56 Subject to sections 38, 42 and 45, every decision of the Regulator or a person carrying out the powers, duties and functions of the Regulator is final and shall not be questioned or reviewed in any court by application for judicial review or otherwise, and no order shall be made or process entered or proceedings taken in any court, by way of injunction, certiorari, mandamus, declaratory judgment, prohibition, quo warranto, application to quash or set aside or otherwise, to question, review, prohibit or restrain the Regulator or any of the Regulator’s proceedings. [Emphasis added]
Designed to Fail: Why Regulatory Agencies Don’t Work by William Sanjour, May 1, 2012, Independent Science News
But my experience has shown that by concentrating all legislative, executive and judiciary authority in one regulatory agency just makes it easier for it to be corrupted by the industries it regulates. I worked for the US Environmental Protection agency for 30 years and lived through many cycles of “Regulatory Reform,” doing the same “reforms” over and over again and expecting different results. … The theme of this article is that by dispersing regulatory authority, rather than concentrating it, we would make corruption more difficult and facilitate more sensible regulation.
Why can’t you fill regulatory agencies with honest people who won’t cave in to special interests? … The life, the existence, the future of the regulated industry depends on the pressure it can exert on the regulatory agency. … The regulated community constantly deals with regulatory agencies through congressional committees, the courts, and meetings with top government officials. … Industry also constantly interacts with individual agency employees at every level, working directly with the field inspectors and permit writers responsible for making regulatory decisions. For example, the inspector general of the Minerals Management Service concluded that officials in the agency had frequently consumed alcohol at industry functions, had used cocaine and marijuana, and had sexual relationships with oil and gas company representatives (1) … People who cooperate with industry also find that its lobbyists will work for their advancement with upper management. Those who don’t cooperate find the lobbyists lobbying for their heads.
This process of regulatory agencies being gradually taken over by the regulated parties has been the subject of academic study for many years and has earned economist George Stigler a ‘Nobel’ prize. The upshot of this research is that regulatory agencies captured by the industries they regulate are worse than no regulation at all since capture gives industry the power of government.
…
Why are regulations so ineffectual? The short answer is that regulators are pulled many different ways simultaneously. When I was writing regulations, I was told on more than one occasion to make sure I put in enough loopholes. The purpose of the complexity is to hide the loopholes.
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The reason salaried government regulators can be corrupted is that writing and enforcing effective regulations is not their number one priority. Their main objective is keeping their job and advancing their careers. The reason regulated industries ceaselessly exert pressure to corrupt government officials is that they believe managing their regulators is their only way to survive. … In their infinite wisdom, the Founding Fathers chose to separate the legislative, executive and judicial functions of government. For some reason, this example was not followed when regulatory agencies were established. … How do we get out of this? Legally: not very difficult. Politically: very difficult. [Emphasis added]
Bill 2 and its implications for landowner participation in energy project decision-making by Shaun Fluker, November 13, 2012, Ablawb.ca
Speaking of the Court’s Kelly 2012 decision, I hope it is apparent by now that Bill 2 is either unaware or completely dismissive of what Alberta’s highest court has said about landowner hearing rights and the important role hearings play in legitimizing resource development in this province. … Bill 2 is nothing short of a colossal gaffe by the Alberta government in attempting to retract legal rights for landowners.
Bill 2 Responsible Energy Development Act: Setting the stage for the next 50 years of effective and efficient energy resource regulation and development in Alberta by Shaun Fluker, November 8, 2012, Ablawb.ca
Bill 2 has ambitious plans to say the least. It creates a new regulatory agency imaginatively named the Alberta Energy Regulator to regulate energy development in the province. … Before I get into the substance of independence, let me make two general observations from a drafting perspective. What logic contributed to beginning the title of this Bill with the word ‘responsible’? The word appears sparingly in the substance of the proposed legislation. And who will think to look under the letter ‘r’ when searching the table of statutes for energy legislation or the rules that govern the Alberta Energy Regulator? Why not simply the Energy Development Act? Adding the word ‘responsible’ to the title does nothing as an adjective here, except perhaps mislead. [Emphasis added]
[Refer also to: Confidentiality Agreements, The Problem: Confidentiality agreements in lawsuit settlements can be harmful, even deadly, to the public
Risk and Responsibility: Farming, Food and Unconventional Gas Drilling ]