Bill 46 another step back for democracy in Alberta

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Despite the fact that many Albertans have never heard of it, provincial Bill 46, the Alberta Utilities Commission Act, impacts the rights of all Albertans by reducing the public’s capacity to participate in corporate projects that will ultimately impact our common natural resources such as air, water and land.

The bill was introduced by the Stelmach Conservatives on the last day of the spring sitting of the legislature and it will be brought forward for second and third readings as early as Nov 5, 2007, when the current session resumes for the fall.

Bill 46 will break the Energy and Utilities Board into two separate entities: the Energy Resources Conservation Board (ERCB) and the Alberta Utilities Commission (AUC).

Section 9(1) of Bill 46 will give the AUC the power to make orders and issue decisions without giving public notice and without holding public hearings.
Section 9(3)(b) will allow it to refuse to hold a hearing if it appears to the Commission that “no person will be directly and adversely affected in a material way by the decision or order of the Commission.”

According to the Environmental Law Centre, The commission’s determination of whether a direct and adverse affect is ‘material’ is a question of mixed law and fact and cannot necessarily be appealed to the Court of Appeal.”

The AUC will also be able to prevent landowners and consumers from making verbal presentations to the Commission and will limit the timeframe Albertans have to appeal a decision or order made by the Alberta Utilities Commission to just 30 days.

Even more troubling, the AUC will be able to restrict the ability of landowners to hire outside legal counsel when intervening in regulatory hearings.

Bill 46 will be retroactive to Jun 1, 2003. According to the Environmental Law Centre, “The retroactivity of this provision will impact any pending legal challenges of the EUB decisions that relate to the interpretation of section 14(3) of the HEEA [Hydro and Electric Energy Act] ... upon proclamation of AUCA, the question of the EUB’s interpretation of section 14(3) will become a moot point as the Commission will no longer be required to address public convenience and need in the context of HEEA applications.”

This means that any appeals currently in process to the EUB, such as those related to the application involved in the recent EUB spy scandal, will not be addressed.

The biggest drawback of Bill 46 (as in other legislation, including that under which the Alberta Energy and Utilities Board operates) is the use of the term “directly affected,” which is very narrow in scope and does not allow for adequate public participation into hearings on corporate development.
Here’s how it works. The Independent System Operator (ISO), who is charged with maintaining the electrical transmission system, must, among other duties, ensure that there is adequate transmission service on the grid. The ISO must work with legislation under the Energy and Utilities Board (EUB), the Electric Utilities Act 2003 (EUA) and the Hydro Electric Energy Act (HEEA).

Currently, if the ISO determines that there is a need for more electric energy, a needs identification document is prepared. At this stage, a “defined route” for a transmission line is not identified and, therefore, individuals or the public cannot intervene or voice concerns because they are not sure whether or not they qualify as “directly affected.”

At the next stage, the ISO directs a transmission facility operator to submit a transmission facility application that meets the needs in the needs identification document. This application is submitted to the HEEA and will contain the specific line, with specific routing and corresponding specific landowner and environmental impacts.

The problem with this scenario is that once the transmission facility operator submits the application, the needs assessment has already been done and the ISO has determined the proposed means to meet the need.

This begs the following question: at what stage is public participation allowed? Under the proposed AUC the government will no longer be required to consider “public convenience and public need.” The system as it now stands does not allow for a lot of public input, but Bill 46 will reduce public input even more. It is imperative that the Alberta government include mandatory public participation in these hearings.

Article 16(2) of ACU, states: “The Commission may enter into any agreements it considers desirable with the Government of Canada or an agency of it or with any government of a jurisdiction outside Alberta or an agency of such a government in respect of holding hearings or other proceedings jointly or in conjunction with that government or agency.” Does this mean that the Alberta Government can enter into agreements with other countries and/or states?

Bill 46 is another attempt by the Alberta government to limit public participation in the development of our resources. I encourage you to contact your MLA, Minister of Energy Mel Knight and Premier Ed Stelmach to voice your concerns about Bill 46. Tell them that governments should provide more democracy for people, not take it away! V

Lyn Gorman is the Prairie Organizer for the Council of Canadians, a citizens-based group that works to promote and protect Canadian independence, democracy and economic justice in an interdependent world.

Bill 46 another step back for democracy in Alberta

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