The Alberta government has revised the mandate of a public inquiry investigating the funding of environmental charities, which is currently facing a legal challenge that is attempting to derail the entire process.
The inquiry was launched nearly a year ago as part of an election promise from Premier Jason Kenney, who has claimed that foreign foundations have poured millions into campaigns targeting the province’s energy sector. Many of the environmental groups targeted by Mr. Kenney’s government say U.S. funding accounts for just a small portion of their overall budgets.
Environmental law firm Ecojustice, which has been singled out by the Kenney government, is arguing in court that the inquiry is unconstitutional, in part because it says the original terms of reference prejudged the outcome. The group argues the inquiry’s mandate assumed from the outset that there is, in fact, a foreign-funded plot targeting the oil patch, which environmentalists reject as a conspiracy theory.
The provincial cabinet changed the terms of reference last week to instruct the inquiry, led by forensic accountant Steve Allan, to look at the “the role of foreign funding, if any,” which appears to leave open the possibility of the inquiry concluding that there is none.
The change was made as the government gave the inquiry a four-month extension and an extra $1-million, which represents a budget increase of 40 per cent over the original cost of $2.5-million.
Devon Page, the executive director of Ecojustice, said the changes appear to be an attempt to save the inquiry from his group’s legal challenge. However, he said the new terms of reference don’t make the inquiry any less problematic.
“[The changes] amount to window dressing,” he wrote in an e-mail. “They do not address the substantive issue of a biased inquiry that has cast anyone who complains about Alberta’s lack of action on climate change as anti-Albertan.”
Mr. Page said he expects the legal challenge to be heard this summer, although the timing has been complicated by the COVID-19 pandemic. The extension will likely allow the case to be decided by the time Mr. Allan finishes his work, although government lawyers had already indicated during that court process that the report wouldn’t have been released until the fall even under the old timeline.
Amir Attaran, a University of Ottawa law professor who represents Progress Alberta, another group that is frequently attacked by the Premier, said the inquiry remains unconstitutional.
“The fact that the inquiry has, as its threshold, that somebody is running an ‘anti-Alberta’ campaign gives it an enormously subjective character,” he said in an interview.
“You cannot have a state exercise that is predicated on an ideological inquest into whether somebody’s actions are pro-Alberta or anti-Alberta. You are violating freedom of expression and freedom of association.”
Mr. Attaran has threatened a separate legal challenge from Progress Alberta. He said that would depend on whether the inquiry makes any negative findings against the group.
Kavi Bal, press secretary for Alberta’s energy minister, said in a statement that the changes were made for “legal clarity and consistency.” He did not elaborate.
The inquiry was divided into two phases – a research phase that wrapped up in January, when Mr. Allan submitted an interim report to the government, and a second phase that could include public hearings.
None of the inquiry’s work, including the report he submitted in January, has been made public and Mr. Allan has declined interview requests to explain what he has been doing for the past year. He has yet to confirm whether he intends to hold public hearings.
Some of the environmental groups that have been publicly attacked by the Premier say they have yet to be contacted by the inquiry. For example, MakeWay, which recently changed its name from Tides Canada and has been held up as a major player in proponents of the foreign-funding theory, confirmed last week that it had yet to be contacted by Mr. Allan’s office.
Alan Boras, a spokesman for Mr. Allan, said the inquiry is being conducted in private because “this is the process that’s been deemed most appropriate at this time.” He said the pandemic would also affect the potential for public hearings.
Mr. Boras played down the changes to the terms of reference as minor edits and referred questions about how they might affect the inquiry work back to the government.
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