Trudeau’s National Energy Board tampering a worrisome sign

Permanent members to be prematurely and summarily dismissed, Ron Wallace writes.

Following the election of the Trudeau government in 2015, government House Leader Dominic LeBlanc wrote to 33 individuals who had been granted pre-election appointments, or renewals, by the previous government.

It was an unprecedented move that engendered concerns about potential government interference with the judiciary.

One letter was sent to one of Canada’s most respected and capable Inuit environmental research scientists and educators, recently appointed to the National Energy Board as a permanent member.

The government quickly retreated, when challenged, from this brash action that was at odds with the government’s prior statements regarding the need for respectful Aboriginal reconciliation.

The National Energy Board was born as a result of the great pipeline debate of 1957, one of the most spectacular confrontations in Canadian parliamentary history and one that led to the fall of the Liberal government of Louis St-Laurent.

Wisely, Parliament deliberately created the NEB to separate it, and its quasi-judicial members, from political influences in making independent, national-interest determinations for pipeline proposals. Notably, seven-year NEB appointments were made deliberately to exceed the term of any one government to further ensure unfettered discretion and decision-making powers.

The letters issued by LeBlanc in late 2015 were the first in a series of developments aimed at downgrading the independent, decision-making powers of the NEB. Having failed in its initial attempt to remove members, the Trudeau government has since returned with a vengeance by introducing new legislation to “modernize” the NEB.

Now, not just one permanent member to the NEB, but all the members currently located in Calgary are to be disposed of through an act of Parliament.

Further, in a subtle shift of decision-making authority away from Calgary, the new appointees will no longer be required to be based there.

The independence, skills, training and traditions, developed since the inception of the NEB, are widely acknowledged to have provided for one of the safest and most economically efficient energy pipeline systems in the world.

Nonetheless, this government has chosen to disregard the personal and professional impacts to the current NEB members who, under the terms of their appointments, could only be removed through a joint address to both houses of Parliament.

Now, they are to be summarily and prematurely dismissed.

As expert tribunal members in the highly developed regulatory disciplines of pipeline safety, economics, tolls and tariffs, route selection and engineering, all the current members were selected, trained and appointed to hear specialized legal evidence related to major pipelines.

This government now proposes to replace them through the Canadian Energy Regulator Act, a step that will presumably enable the appointments of a clean slate of kinder, gentler souls who may be more attuned to other, pressing pipeline considerations, such as “the intersection of sex and gender with other identity factors.”

Unfettered by the long-standing NEB traditions that allowed for careful succession planning and training in engineering, finance and other vital complexities associated with tolls and tariffs, the new appointees will soon be tasked with the assessment and regulation of multibilliondollar pipeline projects.

The Liberal government has misunderstood the differences in skills required for governmental policy departments, assessment agencies and quasi-judicial regulators of pipelines and, in so doing, it has undervalued current appointees to the NEB.

Such a cavalier loss of institutional memory, especially for long-regulated pipelines, constitutes a significant blow to industry and the public.

Surely, these events will occasion pause in corporations that would contemplate risking hundreds of millions, if not billions, of dollars to submit to such an arbitrary, undefined “modernized” pipeline assessment and regulatory system?

Additionally, given the recent history of how NEB permanent members are to be summarily, prematurely removed from office, one might also be concerned about future candidates who consider potential appointments to the Canadian Energy Regulator and other quasi-judicial agencies.