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(Chuck Mitchell/THE CANADIAN PRESS)
(Chuck Mitchell/THE CANADIAN PRESS)

Barrie McKenna

Riding roughshod over Dief’s legacy Add to ...

Eager to paint the country in a Conservative hue, the federal government recently put John Diefenbaker’s name on a prominent Ottawa building, a human rights prize and an icebreaker.

The government is showing much less reverence for the former Tory prime minister’s most enduring achievement – the National Energy Board.

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The “Chief” created the NEB in 1959 to ensure, as he put it, that “Canada’s energy resources are used effectively and prudently, to the best advantage of Canadians.”

That’s a role the Conservatives apparently now want firmly in the hands of the federal cabinet, not the independent, quasi-judicial NEB.

The massive budget implementation bill, which Parliament could vote on as early as this week, would give cabinet the right to override any future NEB rulings that stand in the way of resource development.

The move has provoked a storm of protest from environmentalists and native groups, who worry that cabinet power will be used to ram through projects, such as the Enbridge Inc.’s Northern Gateway pipeline.

It isn’t just about the environment or aboriginal rights, or even that Ottawa has prejudged the process by making it clear it wants the pipeline built.

All Canadians should be concerned, regardless of how they feel about pipelines.

Undermining the NEB’s authority and independence turns back the clock on five decades of credible resource regulation – a model that’s respected and emulated around the world. The rationale offered by Ottawa for overriding the process is that putting power in the hands of cabinet offers greater accountability.

“We believe that elected officials should make decisions based on the national interest, not unelected bureaucrats,” Natural Resources Minister Joe Oliver said recently. “This legislation will ensure that Canadians clearly know who made a decision and why.”

That’s odd because, as Mr. Diefenbaker put it so well, doing what is right for all Canadians is the NEB’s raison d’être. It’s very purpose, enshrined in law, is to regulate pipelines, energy exports, power lines and Arctic extraction projects in the best interests of Canadians.

The agency is structured to ensure that everyone has a voice, in a court-like setting that’s transparent, and free of political meddling or lobbying.

The Calgary-based board operates as a court of record, not unlike a civil court. It holds hearings, swears in and interrogates witnesses, and collects evidence. All parties – from individuals to global conglomerates – can participate as intervenors.

The board isn’t controlled by bureaucrats, as Mr. Oliver suggests. It’s made up of nine members appointed for seven-year terms – order-in-council appointments by the government of the day. Board members often cycle in and out of the oil patch, ensuring that the industry’s views are well represented.

Over its lifetime, the NEB hasn’t exactly been unfriendly to the energy industry. In fact, it’s rare that the board rejects outright any of the roughly 750 applications it gets each year. (In its early days, the NEB did wisely limit natural-gas exports on several occasions when it looked like there might not be enough gas to meet domestic needs.)

And until the government announced its U-turn in regulatory authority last month, the industry seemed pretty happy with the NEB.

“I think we’ve got a world-class regulatory framework that benefits all Canadians, and the NEB is certainly a key element of that,” David Collyer, president of the Canadian Association of Petroleum Producers, gushes in a testimonial prominently displayed on the NEB website. “They play a very important role in ensuring that we’ve got [a] secure, reliable, affordable energy supply for Canadians, and sustainably develop our abundant energy resources.”Ö

Pierre Alvarez, Mr. Collyer’s predecessor, calls the NEB “fair and constructive.” No hint there that the oil patch sees the NEB as a roadblock.

Decades of jurisprudence give both the industry and ordinary Canadians certainty that the NEB’s decisions are fair and evidence-based.

Here’s the real danger. The omnibus bill gives Ottawa carte blanche over as many as 750 decisions a year – potentially 3,000 over a four-year term. That’s a lot of authority for Canadians, with their X-mark in the voting booth, to grant to a cabinet dominated by one man.

It also de-legitimizes the NEB and injects needless uncertainty into the process.

Decisions about multibillion-dollar projects, with sweeping economic, social and environmental consequences, shouldn’t be nakedly political. They should be made deliberately, in the best interests of all Canadians.

DiefÖ would surely say the same thing.

Follow on Twitter: @barriemckenna

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