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Government Amendments to Bill 46 Insufficient

Premier Stelmach Must Have All-Party Committee Hear From Albertans

Calgary – November 29, 2007 – Local landowner groups – including the Lavesta Area Group, Pembina Agricultural Protection Association and Livingstone Landowner Group – and the Pembina Institute are repeating their call for Premier Stelmach to send Bill 46 to an all-party committee to have public hearings and improve the bill before passing it in the legislature.

Bill 46 is the Alberta government's proposed legislation to shift the regulation of electrical transmission lines and other utilities from the Energy and Utilities Board (EUB) to a new Alberta Utilities Commission. The bill addresses whether and how Albertans can be involved in energy and utility decision-making. The government's proposed amendments to Bill 46 fail to address concerns regarding Albertans' ability to effectively participate in the energy decision-making process. The amendments to Bill 46 dealing with public participation effectively revert to the EUB's outdated and insufficient public hearing process, which has recently been the subject of increased scrutiny in light of the EUB spying scandal.

"The government's amendments fail to address Bill 46's fundamental flaws," says Joe Anglin of the Lavesta Area Group. "The government needs to be improving how Albertans can have a say in development, not perpetuating the failings of the EUB."

Steve Kennett, Senior Policy Analyst with the Pembina Institute, says, "Reverting to the EUB’s status quo approach to hearing from concerned Albertans about energy projects is illogical. The EUB and its approach to public hearings have lost legitimacy with Albertans. An all-party committee is the best venue for fixing Bill 46."

The Alberta government uses all-party legislative committees to facilitate a more in-depth look at issues and allows for public input into the legislative process through written submissions and/or public hearings.

"We're disappointed that the government is more focused on getting Bill 46 passed than on ensuring it will serve the citizens of Alberta's long-term needs," says Jolene Shannon, Consultations Manager with the Pembina Agricultural Protection Association. "By sending this bill to an all-party committee the government will instigate a transparent and accountable public process while ensuring the final piece of legislation clearly defines the mandate, resources and political support to truly protect the public interest. If the government refuses to hear from us they prove they are already discounting the legitimate and informed concerns of Albertans."

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The Pembina Institute’s letter to Premier Stelmach regarding Bill 46 is available at http://www.pembina.org/pub/1546

For information contact:

Steve Kennett, Senior Policy Analyst, Pembina Institute
Phone: 403-269-3344x115

Joe Anglin, Lavesta Area Group
Phone: 403-843-3279

Jolene Shannon, Pembina Agricultural Protection Association
Phone: 780-514-2855

John Lawson, Livingstone Landowner Group
Phone: 403-628-2271

Backgrounder

The proposed amendments to Bill 46, released by the government on Tuesday, November 27, fall far short of ensuring effective public participation in the decision-making process of the new Alberta Utilities Commission (AUC). Although the government has attempted to respond to public concern by removing or amending some particularly egregious sections of Bill 46, two fundamental problems remain unresolved. First, it is difficult to determine what participation rights will be recognized in practice because of the complexity and vagueness of Bill 46 and the discretion granted to the AUC. Second, Bill 46 reverts to the highly restrictive test for public participation that is currently used by the Alberta Energy and Utilities Board (EUB). Referring Bill 46 to public hearings before an all-party committee is the best way to fully address these important issues before the Bill is passed in the legislature.

The Government's Proposed Amendments

Three amendments are particularly relevant to public participation.

Changes to subsection 9(3) have removed the provision that would have allowed the AUC to refuse to hold a hearing when it appears that "no person will be directly and adversely affected in a material way" by its decision. The AUC's discretion to refuse to hold a hearing when it is satisfied that the applicant has met the relevant rules respecting each landowner that may be directly and adversely affected (section 9(3)(b)) has now been limited to situations where no person has requested a hearing. [Amendment A]

Section 21 has been amended to give the AUC discretion to make rules allowing eligibility for funding to any intervener, not simply local interveners (i.e., directly and adversely affected landowners). [Amendment C]

Consequential amendments to the Electric Utilities Act have changed wording regarding the consideration of the need for transmission facilities. [Amendment O(b)(c)(d)]

Remaining Uncertainty Regarding Rights to Public Participation

Despite these amendments, public participation rights under Bill 46 remain uncertain in several key areas.

It is unclear what rights will be accorded interveners in the event that the AUC decides not to allow oral submissions (subsection 9(4)). Bill 46 does not include the specific procedural rights enumerated in subsection 26(2) of the Energy Resources Conservation Act.

The eligibility of interveners (other than local interveners) for costs under section 21 is to be established through rules made by the AUC. These rules have not been made, so it unclear what these rules will contain and whether or how the AUC will exercise its discretion to make these rules.

The amendments dealing with the consideration of the need for transmission facilities are complicated and their practical implications for the ability of landowners and public interest groups to address this issue remain unclear.

Return to the Restrictive 'Directly and Adversely Affected' Test

The fundamental problem with Bill 46 is that it perpetuates the highly restrictive test for public participation that is currently used by the EUB. Only Albertans who can demonstrate that their rights may be 'directly and adversely affected' by a decision of the regulator have the right to a hearing. This test silences many Albertans with legitimate interests in decisions on utilities and energy projects and has contributed to widespread dissatisfaction with the EUB.

The practical effect of this test is that only landowners whose residential property rights are directly affected by utilities and energy projects have the right to a hearing. This test has been used to deny the right to be heard to non-resident landowners, adjacent landowners, landowner organizations, municipal governments and other Albertans who use the land in question for recreational, business or other purposes. For facilities on public land, there may be no-one who qualifies as 'directly and adversely affected' and therefore no opportunity for a public hearing to be held.

The 'directly and adversely affected' test has been a continuing source of controversy and litigation in Alberta. It is also inconsistent with the 'public interest' mandate of the AUC because it can prevent participation by groups and individuals with important perspectives on the 'public interest' issues raised by proposed projects.

The government's proposed amendments are entirely unresponsive to the arguments of landowner groups, environmental groups and other organizations representing Albertans that the 'directly and adversely affected' test should be replaced with a broader 'public interest' test to allow participation by the full range of individuals and organizations who have legitimate concerns with proposed projects, consistent with the Supreme Court of Canada definition for public interest standing.

The Need for All-Party Public Hearings on Bill 46

The intense public controversy around Bill 46 is evidence that many Albertans feel that their voices are not being heard in important decisions about utilities and energy development. There is still far too much uncertainty regarding the practical implications of Bill 46 for the public's right to be heard in decision-making by the AUC. Reverting to the "directly and adversely affected" test is also a return to a status quo that is clearly unacceptable to many Albertans. Bill 46 should therefore be referred to an all-party committee of the legislature for public hearings to permit a full and open discussion of the serious deficiencies in the Alberta government’s current approach to public participation and to enable Albertans to work together to correct those deficiencies in the new legislation that divides the EUB into the AUC and the Energy Resources Conservation Board.

Please distribute to colleagues, friends & supporters

To ensure that the Government :

  • understands the legitimate and well-informed concerns of Albertans;
  • considers Albertans' recommendations on how Bill 46 can be reformed to enhance Albertans' rights and freedom to defend their interests, and to contribute effectively and constructively in decision-making;
  • and hears directly from Albertans,

...the Government must stop the progress of Bill 46 through the Alberta Legislature and send it to an all-party committee where public hearings are conducted. To make sure this happens the Government needs to hear this recommendation from as many Albertans as possible. Bill 46 is moving quickly and so time is of the essence. As such we are encouraging you and your members to write emails (fastest) and/or letters (slower, but also very effective) to:

  • your MLA (find your MLA and his/her contact info on this website.)

and copy (cc:) your letter to:

  • Premier Ed Stelmach (premier [at] gov [dot] ab [dot] ca)
  • Energy Minister Mel Knight (mel [dot] knight [at] gov [dot] ab [dot] ca)
  • Kevin Taft, Liberal Leader, Official Opposition (edmonton [dot] riverview [at] assembly [dot] ab [dot] ca)
  • Brian Mason, Leader of the NDP (edmonton [dot] highlandsnorwood [at] assembly [dot] ab [dot] ca)

 

Let them know that the best thing for Bill 46 is to send it to an all-party committee where Albertans can be heard. Please take the time to contact your MLA immediately.

For further information on the perspective of the Pembina Institute on Bill 46, read our letter to Premier Stelmach at http://www.pembina.org/pub/1546. To see the Environmental Law Centre's letter to the Premier and perspective on Bill 46 visit, http:// www.elc.ab.ca.

Posted November 29, 2007 by Anonymous

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