Introduction

The broad concept of “independence” in the context of regulatory tribunals may be widely understood at an intuitive level. However, understanding the meaning of independence – identifying the content of the concept and applying it in specific circumstances – is a continual challenge. All the more so when we realize that, outside the realm of judicial independence of the superior courts, absolute independence does not and cannot exist in a parliamentary democracy. On reflection, we are forced to accept that, in fact, independence is a relative concept, the meaning of which is context-specific. Nevertheless, we probably all share a general understanding of what we mean when we speak of independence in reference to regulatory tribunals.

Several recent legislative changes, both federally and provincially, have undermined this general understanding of independence with respect to energy regulation tribunals in particular. These developments indicate a trend by governments to play a more direct role in the regulatory process, by arrogating unto themselves final decision-making authority over some matters previously thought to best be decided by independent tribunals, at arm’s length from government, or by introducing mechanisms aimed at ensuring better alignment of the outcomes of the regulatory process with overall government economic and development policies. It might be asked: Is independence of energy regulation tribunals dead?

The question arises not only because of recent government initiatives that are outlined in this article, but also because of perceptions in some quarters of the independence (or more accurately the lack of independence) of such tribunals. A recent Op-Ed column in the New York Times on development of the Canadian oil sands referred to the National Energy Board as “an ostensibly independent regulatory agency” and to the Alberta Energy Regulator as “quasi-independent.”¹

Many would argue that the trend, which appears to be driven by the increasing politicization of all things energy-related, should be resisted and that energy regulation should be left to independent regulators. The political arena, it is said, is no place for analyzing and resolving the highly controversial – and frequently emotional – issues that arise with respect to energy development and use. It is interesting to note in this regard at least one recent call in the U.S. for the review of divisive projects such as Keystone XL to be assigned to an “independent” agency.² But that is overly simplistic.

“Energy regulation” is not, of course, a single function; rather, it comprises a wide variety of matters, ranging from authorizing exploration and development activities to the construction and operation of production and distribution facilities, financial regulation, market oversight, and energy use and conservation. The appropriate role of the regulator is likely to vary depending on the specific function.

It is the legitimate authority of government to decide what that role should be, function by function. Obviously there will be debate. Would it be appropriate, for example, to leave final decisions on controversial projects, such as Northern Gateway,³ in the hands of an independent tribunal, without any further recourse other than judicial review? At the end of the day, there is no right or wrong answer to the question of whether these projects are in the public interest – there is a legitimate question whether a final determination should be left to a tribunal that is not directly accountable to the public. On the other hand, final decisions on financial matters such as tolls and tariffs might appropriately be left to an arm’s length process.

There will, of course, be debate about exactly what is the appropriate role for regulation, and independent tribunals, with respect to the many aspects of energy development and use. Part of that debate should be whether any particular mechanism for injecting government into the overall regulatory process respects the concept of independence and its underlying elements to the greatest extent possible.

An important distinction must be kept in mind in furthering the debate. Criticism of an alleged lack of independence is often, on closer examination, not about independence in the legal sense; rather, some criticism that is expressed in terms of independence is really about the scope or breadth of a tribunal’s mandate. The more detailed the assignment of responsibilities, the less independent a tribunal might be thought to be. Indeed, detailed statutory prescriptions may mean a tribunal is left with such a narrow mandate that it is in reality little more than an administrative agency and has only limited scope to act independently of government. At the same time, statutory tribunals are, by definition, tribunals of limited jurisdiction, with boundaries around the matters assigned to them. No one would seriously advocate the establishment of a tribunal with a mandate to simply “regulate energy matters in the public interest.”

Jurisdictional boundaries do not themselves undermine independence in the sense in which we generally speak about tribunal independence. Rather, the concern in the present context is with independence within the exercise of a tribunal’s mandate – the extent to which a tribunal is free from external influence when performing its responsibilities, regardless of whether its mandate is defined narrowly or broadly.

Another preliminary observation may be helpful. The Supreme Court in Committee for Justice and Liberty v. National Energy Board (the Crowe case)⁴ affirmed that the reasonable apprehension of bias (an element of independence) is a ground for challenging a tribunal’s application of the principles of natural justice and fairness. The Court was, of course, concerned with the external apprehension of bias by third parties. It is submitted that the question should also be considered from within: do the tribunal members themselves perceive that their independence is not compromised, directly or indirectly, by the overall framework within which they must function? Do they believe that they are independent?

First Principles

The Supreme Court of Canada was clear in Ocean Port Hotel Ltd. v. British Columbia (Ocean Port):

Ultimately, it is Parliament or the legislature that determines the nature of a tribunal’s relationship to the executive. It is not open to a court to apply a common law rule in the face of clear statutory direction. Courts engaged in judicial review of administrative decisions must defer to the legislator’s intention in assessing the degree of independence required of the tribunal in question.
*   *   *

[G]iven their primary policy-making function, it is properly the role and responsibility of Parliament and the legislatures to determine the composition and structure required by a tribunal to discharge the responsibilities bestowed upon it. While tribunals may sometimes attract Charter requirements of independence, as a general rule they do not. Thus, the degree of independence required of a particular tribunal is a matter of discerning the intention of Parliament or the legislature and, absent constitutional constraints, this choice must be respected.⁵

In addition to the fundamental points that there is no general right to independence, and that the legislator’s intention must be respected, note the phrase “the degree of independence…”

Ocean Port was applied last year by the Saskatchewan Court of Appeal to uphold the dismissal of members of the Saskatchewan Labour Relations Board under the authority of section 20 of province’s Interpretation Act 1995,⁶ which empowers the Lieutenant Governor in Council, on a change of government, to end the term of office of any member of any board, commission, agency, or other appointed body of the Government of Saskatchewan.⁷ Leave to appeal has been granted by the Supreme Court of Canada.

Macauley and Sprague in their leading Practice and Procedure Before Administrative Tribunals go so far as to question the very idea of independence with respect to tribunals:

[A]dministrative agencies are not independent. They never were independent and never will be independent. If they ever became independent, they would not then be administrative agencies. The association of the word ‘independent’ with ‘administrative agencies’ in Canada is…a misnomer.⁸

Professor Ron Ellis, one of Canada’s most experienced and distinguished regulators and author of the recently-published Unjust By Design: Canada’s Administrative Justice System,⁹ told a Canadian Bar Association conference in Ottawa last December:

[T]he evidence is perfectly clear…that [with the exception of certain Quebec tribunals] none of Canada’s tribunals whether they be regulatory agencies or adjudicative tribunals, nor any of their members, are independent – not in law, not in fact.¹⁰

A startling conclusion indeed!

Against this background, four examples are offered of legislated mechanisms intended to circumscribe the roles of specific energy regulatory tribunals, with implications for the independence of those tribunals.

National Energy Board

The role of the National Energy Board in reviewing proposals for new pipeline facilities under the National Energy Board Act¹¹ was fundamentally changed in 2012. Previously, the Board itself decided whether to issue a certificate of public convenience and necessity authorizing the construction and operation of pipeline facilities.¹² A decision by the Board to issue a certificate was subject to the approval of the Governor in Council. However, the GIC could only approve or reject, but not amend, the Board’s decision. Where the Board decided to deny an application for a certificate, its decision was final; no further approval was required and the GIC had no role.

The amendments to the NEB Act in 2012 redefined the role of the Board, which is now mandated, not to decide on applications for certificates, but to instead make a recommendation to the GIC.¹³ Decision-making authority is vested directly in the GIC (that is to say, cabinet), which is free to accept or reject the recommendation of the Board. Where the Board recommends that a certificate not be issued, it must nevertheless include in its report to the GIC the terms and conditions it considers necessary or desirable in the public interest in the event that the GIC should direct the Board to issue a certificate, notwithstanding the Board’s recommendation to the contrary.¹⁴

This is a substantive change in the role of the Board, made explicitly for the purpose of removing the Board’s decision-making authority. The then Minister of Natural Resources told Parliament:

We are also ensuring that there is clear accountability in the system. The federal cabinet will make the go, no-go decisions on all major pipeline projects, informed by the recommendations of the National Energy Board…

We believe that for major projects that could have a significant economic and environmental impact, the ultimate decision-making should rest with elected members who are accountable to the people rather than with unelected officials. Canadians will know who made the decision, why the decision was made and whom to hold accountable.¹⁵

Views may legitimately differ on the wisdom of this redefinition of the Board’s role, which, in and of itself, need not have compromised the Board’s independence within its newly-defined role. There is, however, much more to the scheme, the details of which raise serious concerns about independence.

Before making its decision, the Governor in Council is empowered to refer the Board’s recommendation or any of the terms or conditions included in its report back to the Board for reconsideration.¹⁶ The GIC may direct the Board to conduct the reconsideration taking into account any factor specified in its direction and may specify a time limit within which the Board must complete its reconsideration and submit a further report.¹⁷ The GIC may direct the Board to conduct a further reconsideration, again specifying any factors to be taken into account by the Board.¹⁸

This scheme raises fundamental concerns that the independence of the NEB could be seriously jeopardized. The reconsideration process at the direction of the GIC, requiring the Board to take into account any factors specified by the GIC, could be used in an attempt to co-opt the Board’s support for an ultimate decision that is contrary to the Board’s original recommendation. This possibility could also subtly influence the Board to move towards a recommendation that it believed would be more likely to be reflected in the GIC’s final decision. The previous arm’s length relationship between the Board and the GIC has been replaced, potentially, by an interactive process in which the Board may be directed by the GIC to reconsider its recommendation on the basis of factors specified by the GIC.

These concerns about the independence of the Board are exacerbated by two significant procedural changes that were also imposed on the Board by the 2012 amendments to the NEB Act. First, the Board is now subject to mandatory time limits for completing its review of applications for pipeline certificates and submitting its report with its recommendation to the GIC.¹⁹ In the writer’s view, mandatory time limits are themselves a direct intrusion into the independence of a tribunal on several counts. They may constrain the hearing process itself and impede the compilation of a complete record, to the detriment of parties and the tribunal itself. They may also constrain a tribunal’s ability to prepare comprehensive reasons for its decision or recommendation. Mandatory time limits are antithetical to the principle that a measure of a tribunal’s independence is the extent to which it is master of its own procedure.

In the case of the NEB, however, still further objections arise from fact that the time limits scheme directly insinuates the Minister into the Board’s procedures. Time limits for individual proceedings – not to exceed 15 months from a determination that an application is complete to the submission of a report to the GIC – are initially set by the Chairperson of the Board. This provision interferes directly with the independence of Board panels assigned to specific proceedings and is objectionable on that ground alone. The grounds for objecting to it are exacerbated by the authority of the Chairperson to take measures to ensure that time limits are met, including the ability to replace the members of a hearing panel even after a hearing has begun.²⁰ The amended NEB Act forestalls any potential challenge on this ground to procedural fairness by providing explicitly that a substitute panel member is deemed to have heard any evidence that had previously been heard by the replaced member.²¹ This is, of course, a direct rejection of the principle that he who hears must decide.

But perhaps the most serious objection to the time limits scheme in the amended NEB Act arises from the powers of the Minister to direct the Chairperson to issue directives specifying time limits in individual cases and to take measures to ensure those time limits are met.²² The scheme explicitly authorizes ministerial – that is to say political – interference in essential procedural matters and thus rejects the principle of procedural independence.

Alberta Energy Regulator

In Alberta, the Responsible Energy Development Act (REDA),²³ enacted in 2012, established the Alberta Energy Regulator (AER), combining functions previously performed by the Energy Resources Conservation Board (ERCB) and Alberta Environment and Sustainable Resource Development. The mandate of the AER is defined in broad terms to include providing for “the efficient, safe, orderly and environmentally responsible development of energy resources in Alberta…”²⁴ However, the Minister may give directions to the Regulator for the purposes of providing priorities and directions and “ensuring the work of the Regulator is consistent with the programs, policies and work of the Government…”²⁵ It is worth noting that such directions originate with the Minister alone and are not subject to the additional accountability that would follow if they were required to be made instead by the Lieutenant Governor in Council.

In addition to ministerial directives, the REDA authorizes the Lieutenant Governor in Council to make regulations, among other things, prescribing “factors that the Regulator must consider in considering an application or conducting a regulatory appeal, reconsideration or inquiry…”²⁶ The use of this authority to prescribe generic factors that the Regulator must consider would not likely compromise independence. However, any attempt to use the authority to prescribe factors that must be considered by the Regulator in processing a specific application would raise serious concerns.

The Alberta Act also provides that the Regulator shall act in accordance with any applicable regional plan issued under the Alberta Land Stewardship Act.²⁷

Collectively, these elements of the Responsible Energy Development Act are aimed at conferring on the Regulator what the Alberta government refers to as a “policy assurance function.”²⁸ Commentators have speculated that the provisions raise questions about the independence of the new AER, particularly compared to the predecessor ERCB.²⁹ However, provided they are not abused, they are reasonable mechanisms for ensuring that the AER performs its responsibilities in a manner that conforms to broader government policies, without compromising independence.

As with the 2012 amendments to the NEB Act, the REDA also includes provisions with respect to time limits and participation rights. The Act does not impose time limits on the Alberta Energy Regulator, but instead authorizes the Regulator itself to make rules for that purpose.³⁰ Section 41 of the Alberta Energy Regulator Rules of Practice³¹ provides that the Regulator may set time limits for doing anything provided for in the Rules and, on its own initiative or on motion, can abridge or extend a time limit, which it may do after the expiration of any specified time limit.

Given that time limits are not imposed externally, but are determined by the Regulator itself, there is less concern about any denial of the procedural independence of the Regulator than is the case for the National Energy Board under the amended NEB Act. Furthermore, the REDA itself does not include compliance measures that directly deny natural justice and fairness, as does the time limit scheme under the federal Act.³² However, the same general concerns arise about the effect of time limits on the ability of parties to fully present their cases and of the AER to prepare comprehensive reasons for its decisions.

Ontario Energy Board

Turning to Ontario, the Ontario Energy Board Act³³ first sets out broad objectives to guide the Ontario Energy Board in carrying out its responsibilities. These explicitly include the protection of the interests of consumers with respect to prices and reliability of service, the promotion of economic efficiency and cost effectiveness, the promotion of conservation, demand management and energy efficiency and, specifically with respect to gas, “the maintenance of a financially viable gas industry…”³⁴ Statements of objectives such as these help define the mandate of the Board and are, no doubt, more helpful to the Board itself than merely generic references to the public interest. Such statutory statements do not jeopardize the independence of the Board; rather, they are an integral and commendable part of the definition of the Board’s mandate – if left at that, they would establish a clear policy framework within which the Board could proceed to perform its specific responsibilities independently.

The OEB Act, however, goes on to provide for the issuance of ministerial directives. Under subsection 27(1), the Minister may issue, and the Board shall implement, “policy directives that have been approved by the Lieutenant Governor in Council concerning general policy and objectives.” Starting from this broad authority, the Act proceeds to provide in some detail for the issuance of directives in several specific areas, such as promoting “energy conservation, energy efficiency, load management or the use of cleaner energy sources, including alternative and renewable energy sources”³⁵ and even to amend conditions in licences already issued by the Board.³⁶ A directive may require the Board to hold, or to not hold, a hearing with respect to certain matters.³⁷

The OEB Act institutes a scheme that begins with statements of broad objectives, or policies, to guide the Board, but then authorizes, with increasing specificity, the issuance of binding directives to the Board to take or refrain from taking a particular course of action and, in the case of licence conditions, even to change decisions already taken by the Board.

General directives might be seen as a useful mechanism for ensuring the ongoing conformance of Board decisions with general government policies. Such directives themselves need not compromise independence. However, as directives become more specific and detailed, and particularly where they can be used retroactively to change decisions already taken, they beg the question of whether they undermine independence. A tribunal subjected to such directives may still be independent in the sense of being free of any interference in the performance of its responsibilities, although it might well be asked what is the value of the tribunal’s role. At a minimum, in the case of the OEB, the inclusion of such provisions indicates an unwillingness on the part of government to leave the Board to determine independently the means by which the stated policy objectives are to be pursued by the Board. Overall, the scheme reflects a nod by government to independence as a principle, but not where independence might lead to results it does not like.

British Columbia

Another example of recent government initiatives to reduce the role of the regulator in energy matters is found in the British Columbia Clean Energy Act,³⁸ which assigned to the Minister certain responsibilities with respect to B.C. Hydro that were formerly within the mandate of the B.C. Utilities Commission. These provisions are also notable examples of an occasional tendency of government to resort to direct, prescriptive measures with respect to matters that it would arguably be more appropriate to delegate to a regulatory agency.

For example, while the B.C. Clean Energy Act includes a laudable statement of the province’s energy objectives, generally expressed in broad terms,³⁹ the Act proceeds to require the British Columbia Hydro and Power Authority (B.C. Hydro) to submit to the Minister, for approval, an integrated resource plan, with detailed requirements spelled out in the Act with respect to the contents of that plan.⁴⁰ The plan must, for example, include forecasts of energy and capacity requirements, a description of consultations, a description of export demand and the potential for B.C. to meet that demand, and specifics of any planned expenditures relating to export, together with a rationale therefore. B.C. Hydro is not a regulatory agency and questions of independence perhaps do not arise. However, the approach is the very antithesis of a public administration model in which government sets broad policy and other agents, whether administrative or regulatory, are charged with implementing that policy. It is a further example of the fundamental discomfort of governments with assigning, without recourse, decision-making with respect to increasingly controversial energy matters to arm’s length tribunals or agencies.

Principles

There appears to be a clear trend towards more direct involvement by governments in decision-making with respect to energy matters. There is, however, no consistent approach to how best to balance an increased desire on their part to exercise authority over – and presumably to be accountable for – ultimate outcomes. One reason may well be the tendency of governments to resort to immediate ad hoc responses to specific issues, frequently considered at the time to be crises that must be responded to immediately.

Even where there is a measured approach to redefining the role of the regulatory process, the challenge of developing an appropriate model is compounded by the fact that “energy regulation” covers a wide range of functions, from approving facilities, to regulating their safe and environmentally acceptable operation, to financial matters, to energy use, to the protection of consumers. Yet many of these diverse functions are frequently vested in a single agency. Further, the degree of independence – or the absence of mechanisms for governments to play a role in the regulatory process – is likely to vary with the function. Governments may, for example, be less inclined to become directly involved in financial regulation such as tariff and toll matters, compared to facilities matters.

Nevertheless, some general principles can provide a framework for balancing, on the one hand, the legitimate role of government in ensuring the overall effectiveness of regulatory outcomes with, on the other hand, upholding the fundamental value of the independence of the regulatory process. In general terms, the approach should be to ensure that a tribunal is truly independent within the scope of its mandate.

The starting point must, of course, be a clear statement of a tribunal’s mandate and its role in the overall regulatory process, in particular whether the tribunal is to make a final decision, or to make a decision subject to approval (as was the case with the NEB prior to the 2012 amendments to the NEB Act) or, rather, to make a mere recommendation to some other decision-maker, presumably cabinet. Whatever the tribunal’s role, the approach should then refrain from introducing mechanisms for any external influence on or interference in the substantive exercise of that mandate, as well as refrain from imposing procedural constraints on how the tribunal goes about fulfilling its mandate.

What, then, about the use of directives, which are found in various forms? Where general directions are included directly in the constituting statute of a tribunal,⁴¹ they are really just a particular means of defining the mandate of that tribunal and, as such, do not raise concerns about independence; they simply go to setting the boundaries of the tribunal’s mandate, establishing its jurisdiction, if you will.

However, authorizing the subsequent issuance of directions requires caution. Such authorization should be limited to issuing directives for the purpose of ensuring consistency between broad government policies and specific regulatory outcomes, a purpose that is perhaps best pursued by requiring that directives be issued by order in council, rather than as mere ministerial directives. In no circumstances should directives be authorized for the purpose of intervening in specific proceedings once underway (as is now possible under the NEB Act with respect to the enforcement of time limits). Directives with respect to individual proceedings may not directly undermine the independence of a tribunal in the sense of interfering with how the tribunal might have come to a conclusion on a matter. They are, however, objectionable on the broader ground that they devalue the integrity of the process and may, therefore, indirectly bring into question the independence of the relevant tribunal in that process. What is the value of a supposedly independent process if elements of the outcome can simply be changed by government?

A distinction should be drawn here between, on the one hand, models where government is authorized to issue directives to a tribunal to change an outcome ex post facto⁴² and, on the other hand, schemes where the tribunal’s role is limited to either making a decision subject to further approval⁴³ or to making a recommendation to a final decision-maker. The latter two models do not themselves involve interference in the exercise of the relevant tribunal’s circumscribed role.⁴⁴

Apart from general directives, a scheme that provides for any type of ongoing interaction between government and a tribunal with respect to the exercise of the tribunal’s mandate necessarily erodes the principle of independence. In the case of a scheme where the tribunal’s role is to make a recommendation, rather than a decision, it might be asked whether the quality of the ultimate decision by another party (usually cabinet) could be improved by providing for further input from the tribunal. Before addressing this question, a distinction should be made between, on the one hand, a process that allows the ultimate decision-maker to seek clarification of a tribunal recommendation and, on the other hand, a process that requires a tribunal to reconsider its recommendation on the basis of factors specified by the ultimate decision-maker. The latter approach, particularly as found in the amended NEB Act, strikes directly at the independence of the tribunal.

Next, it is submitted that mandatory procedures imposed on tribunals, in principle, are antithetical to the concept of independence. In order to be truly independent, a tribunal must be free to determine for itself the process by which it will perform its functions. Mandatory time limits in particular may directly impede a tribunal’s ability to compile a complete record, including an opportunity to hear and properly test evidence. They may also constrain a tribunal in preparing adequate reasons. Similarly, statutory limits on rights of participation in tribunal proceedings strike directly at a tribunal’s independence by constraining the tribunal’s authority to decide for itself what material it should have before it in order to fulfill its mandate.

Apart from their direct and indirect effects on tribunal independence, procedural constraints such as time limits and restrictions on participation rights may also have the negative effect of undermining perceptions of the integrity of the process. Both those who are excluded entirely and those whose participation is constrained by time limits are less likely to respect the process. It is submitted that both mandatory time limits and restrictions on participation rights may be counter-productive. Where mandatory time limits also contemplate the involvement of the political level of government and draconian enforcement measures, as is the case under the amended NEB Act, they are objectionable as abnegating any concept of independence. Tribunals in the field of energy regulation are well capable of dealing with both matters themselves. It is worth noting in this regard that, before the amendment of the NEB Act in 2012, the NEB had its own performance standards for processing applications within published timeframes.

Lastly, a framework that upholds the principle of independence must reflect the need for  “institutional independence.” Among other things, the tenure of tribunal members must be secure, without fear of consequences. The measures for enforcing the mandatory time limits under the amended NEB Act include the potential removal of panel members, either by the Chairperson of the Board or even at the direction of the Minister, and thus repudiate the very concept of security of tenure.

While governments frequently pay lip service to the principle of independence, they are at the same time often unwilling to live with the consequences. Such unwillingness may be grounded in validly held views about the appropriateness of ceding decision-making authority to an independent tribunal without recourse to the political level of government. In some other circumstances, governments are only too willing to leave potentially controversial matters to an independent process from which they can insulate themselves and thereby avoid direct accountability. Even then, political controversy may lead a government to seek to intervene, either indirectly or directly by resorting to legislation to fundamentally restructure the role of the regulator, as was the case with the NEB in 2012.

Redefining the role of a regulator need not, however, come at the expense of rejecting the principle of independence, particularly given that complete independence, in the sense that the superior courts are independent, is not possible in this context. The meaning of independence as applied to energy regulatory tribunals is relative, which of course is not to say that we should not be guided by the principle. The question is how to respect the principle while at the same time acknowledging the right of government to decide on the role that any particular energy tribunal is to play in the overall regulatory process.

Legislative change does not come easily and, as noted, is frequently triggered in reaction to a perceived crisis, with the result that it is most likely to be directed narrowly at addressing that crisis, with a notable tendency by governments to overreach in their responses. It is perhaps unrealistic to think that legislative change will be forthcoming to address any of the concerns identified in this article with respect to specific legislative provisions.

There are, however, two important reasons to continue to discuss the subject and to identify the issues. The first is to be ready with constructive approaches when legislative opportunities do arise.

The second and more immediate reason is that participants in the regulatory process should look to what might be done within the framework of existing legislation, both by governments and by tribunals themselves, to guard against potential infringements of the principle of independence. The mere existence of some of the discretions identified above is of course cause for concern about potential impacts on the independence of tribunals. Their de facto independence, however, may be largely determined by whether these discretionary powers are actually exercised in ways that interfere with that independence. Governments should, therefore, be appropriately circumspect, and respectful, in exercising their discretions.

However, maintaining the principle of independence is a two-way street. Faced with the potential exercise of discretion by others in a manner that could be perceived to undermine their independence, tribunals themselves must be all the more vigilant to avoid any conduct on their own part that could raise questions about their independence. Respect for regulatory tribunals, and for the integrity of the overall regulatory process, may depend in large part on formal structures. Equally as important, it is suggested, is the way in which all participants in the process in fact conduct themselves. A tribunal that is formally structured in a way that upholds the principle of independence may nevertheless conduct itself in such a way as to make a mockery of the principle. The formal structure may provide the framework, but respect for independence – recognition for independence in fact – must also be earned within that framework. Watch what the players actually do and not just what they are empowered to do. Tribunals faced with potential interference with their independence by the exercise of discretions over which they have no control should conduct themselves with added regard for maintaining their independence.

* Rowland J. Harrison, Q.C. is the visiting TransCanada Chair in Administrative and Regulatory Law, University of Alberta; and Co-Managing Editor Energy Regulation Quarterly. This article is based on a presentation to the Eighth Annual Canadian Energy Law Forum, Fox Harb’r Golf Resort and Spa, Wallace, Nova Scotia, May 8, 2014.

1. March 31, 2014.
2. By Lee Terry, a U.S. congressman from Nebraska, as reported in Maclean’s Magazine, February 3, 2014, at 36.
3. [The recent decision of the federal cabinet accepting the recommendation of the Joint Review Panel for the Northern Gateway Project that the project be approved is discussed in this issue of Energy Regulation Quarterly in the Case Comment by Nigel Bankes.]
4. Committee for Justice and LibertyvNational Energy Board, [1978] 1 SCR 369, [Crowe].
5. Ocean Port Hotel Ltd.vBritish Columbia, [2001] 2 S.C.R. 781, at 794-95, [Ocean Port]. Emphasis added.
6. Interpretation Act 1995, SS 1995, c I-11.2.
7. Saskatchewan Federation of Labour et al vGovernment of Saskatchewan et al, 2013 SKCA 61, 2013-06-11.
8. Robert W Macauley & James LH Sprague, Practice and Procedure Before Administrative Tribunals (Toronto: Carswell, 2004) Volume 1 at 2-12.28.
9. Unjust By Design: Canada’s Administrative Justice System, Vancouver: UBC Press, 2013.
10. Presentation at the CBA Annual National Administrative Law, Labour and Employment Law Conference, Ottawa, November 29-30, 2013.
11. National Energy Board Act, RSC 1985, c n-7 (as amended), [NEB Act].
12. NEB Act, ibid, s 52.
13. NEB Act, ibid, s 52, as amended by the Jobs, Growth and Long-term Prosperity Act, SC 2012, c 19.
14. NEB Act, ibid at para 52(1)(b).
15. Hansard, May 2, 2012 at 7471.
16. NEB Act, supra note 11, s 53(1).
17. NEB Act, ibid, s 53(2).
18. NEB Act, ibid, s 53(9).
19. NEB Act, ibid, s 52(4).
20. NEB Act, ibid, ss 6(2.1)-(2.2).
21. NEB Act, ibid, s 6(2.4).
22. NEB Act, ibid, s 52(8).
23. Responsible Energy Development Act, SA 2012, c R-17.3 [REDA].
24. REDA, ibid, s 2(1).
25. REDA, ibid, s 67(1).
26. REDA, ibid at para 78(f).
27. Alberta Land Stewardship Act, SA 2009, c A-26.8; REDA, supra note 23, s 20(1).
28. See “Enhancing Assurance, Enhanced Policy Development and Policy Assurance: Report and Recommendations of the Regulatory Enhancement Task Force to the Minister of Energy,” (31 December 2010), online: Alberta Energy <http://www.energy.alberta.ca/Initiatives/2788.asp>.
29. See Harrison, Olthafer and Slipp, “Federal and Alberta Energy Project Regulation – At What Cost Efficiency?” (2013), 51 Alta L Rev 249.
30. REDA, supra note 23 s 61.
31. Alberta Energy Regulator Rules of Practice , AltaReg 99/2013.
32. As discussed above at notes 18-20.
33. Ontario Energy Board Act, SO 1998, c 15 [OEB Act].
34. OEB ACT, ibid, ss 1-2.
35. OEB Act, ibid,  s 27.1(1).
36. OEB Act, ibid,  ss 28.1(1)-28.3(2).
37. OEB Act, ibid, s 28(2).
38. Clean Energy Act, SBC 2010, c 32, [CEA].
39. CEA, ibid s 2.
40. CEA,ibid s 3.
41. For example, the direction in subsection 20(1) of the Alberta Responsible Energy Development Act, supra note 23, that the ERA shall apply the Alberta Land Stewardship Act.
42. For example, the provision in the OEB Act, empowering the issuance of directives to change licence conditions, as discussed supra note 36.
43. As was the case under section 52 of the NEB Act, supra note 11, prior to its amendment in 2012.
44. At least in the absence of any mechanism for intervening consultation between the tribunal and the decision-maker (such as is now the case under the amended section 52 of the NEB Act, supra note 11).