Abstract
Analyses of the Green Energy Act (2009) have stated that the act had numerous shortcomings concerning the environmental impacts of the energy projects initiated within its purview. This account addresses the core points of divergence in the policy's creation that are responsible for the problematic effects. The crux of these problems comes from the ambiguity of the concept of green energy within the act due to its lack of a formal definition. The reasons for this anomaly originate from the Legislative Assembly of Ontario's address on the topic and their decision to let it remain ambiguous. This stance raises questions of whether they are fulfilling their fiduciary duties to an acceptable level. Although these questions of duty and obligation are both delicate and necessary when talking about projects that involve Canada's indigenous peoples, it is not limited to them due to the scope of the effects. Ultimately, although the policy was repealed in January 2019, there are many lessons that can be learned from the missteps of the Act.
INTRODUCTION
The Green Energy Act (GEA) is an energy policy produced by the Legislative Assembly of Ontario, Canada. The GEA deals with the moderation and proliferation of green energy within Ontario. The content of this discourse focuses on how green energy is defined within the GEA and why it is defined in such a way. These questions are important to the topic of environmental justice due to the rhetoric that frames green energy as a means of combatting large-scale environmental issues in a number of different areas such as ecology, economics, and equity. 1 Through this small acknowledgment, these answers can grant further insight into the process of transitioning from ideals to application and the sort of complicating factors that would interfere with that process. Moreover, the information gleaned from this study can serve to further aid in the analysis of the GEA as a policy and as a tool for broader sustainability goals.
Analysis begins with the primary material of the GEA. This focus shifts to secondary and periphery materials, such as, the acts and policies that precede it, and the GEA's website. Finally, primary sources in the form of Hansard verbatim transcripts of the parliamentary discussions that address the topic of the GEA when it was known as Bill 150, and the Standing Committee on General Government Hansard verbatim transcripts of the public hearings for Bill 150 will be analyzed. Parliamentary Standing Committees 2 consist of small working groups of elected Members of Provincial Parliament (MPP) tasked with reviewing a specific issue, such as Bill 150. Standing Committees exist for a limited time and hold public hearings where Ontario citizens can participate 3 by giving a presentation to the Standing Committee, if they are chosen after making an initial written submission to the Clerk of the Committee.
To provide a comprehensive analysis of the GEA, a means of measuring and evaluating the act is necessary. Although it is possible to conduct this solely through one's a priori sense of ethics, it bears more weight to have a firm tool for measurement. For this purpose, fiduciary duty, or obligation, will be used as a tool for the purpose of evaluating how ethical and legal the GEA is with respect to its content. It is only after this evaluation that this document will provide constructive suggestions on how to improve future policies and similar documents of importance with the intent of avoiding the same missteps of the, now, repealed GEA.
BACKGROUND
In 2009, the Minister of Energy and Infrastructure, George Smitherman, established the GEA under the liberal Government of Ontario, Canada. 4 The GEA was an omnibus bill, “A bill consisting of a number of related but separate parts that seeks to amend and/or repeal one or several existing Acts and/or to enact one or several new Acts.” 5 It was created with the intent of providing revisions to and superseding 20 pieces of legislation. 6 Ultimately, the GEA portion of the omnibus bill allowed for the streamlining of the Act in an effort to push for the green energy agenda. 7 A GEA Steering Committee 8 was formed from the representatives of the following organizations: Ontario Sustainable Energy Association; Community Power Fund (CP Fund); the Pembina Institute; Environmental Defence; The Suzuki Foundation; Ivey Foundation; the Ontario Federation of Agriculture; and the First Nations Energy Alliance. Although the listed parties were noted to have participated in the Steering Committee of the GEA, the extent of their involvement with the GEA and its formation is not clearly defined. This is especially true for the First Nations Energy Alliance, which is a group composed of 20 indigenous communities; the only explicit piece of information is that their legal consultant was Cherie Brant. 9 The circumstances are similar to the other groups mentioned insofar as the details are sparse.
However, over the decade since its implementation, there were increasing concerns about the GEA. There are numerous reports documenting the economic effects as well as the ecological impacts of the projects covered by the act
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; these studies validate the premise that the GEA produced projects that were not considered green upon their evaluation. With the groundwork laid, we can turn our attention to the focal point of this article: green energy and how it is defined within the GEA; and whether the Government of Ontario met its fiduciary responsibility to the people of Ontario. It should be noted that within Bill 150, the government's fiduciary responsibility to the Aboriginal people was clearly indicated:
(2) This Act [GEA] shall be interpreted in a manner that is consistent with section 35 of the Constitution Act, 1982 and with the duty to consult aboriginal peoples. (Schedule A, Part I, Subsection 1(2))
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METHODS
The method for obtaining information on the definition of green energy is as follows: the GEA's definition section will be reviewed; followed by the rest of the document; its predecessors; official communication channels; and the primary sources of Hansard verbatim transcripts for parliamentary debates and Standing Committee hearings will be read in their entirety. All instances of green energy will be noted, then evaluated; relevant pieces of information will be used to construct the case for the discussion. Results will be reviewed and evaluated through the use of fiduciary responsibility to the people of Canada. Finally, synthesis will occur with the results and evaluation to produce suggestions for the creation of future policy documents.
RESULTS
The GEA does not define green energy in any capacity in the definitions sections of the document: Part 1—Interpretation and General Application—Chapter 1—Definitions and interpretation—Subsection 1, and Part 3—Energy Data—Chapter 15 Section 1—Definitions. 11 Instead, definitions for Renewable Energy and its derivatives are found in the aforementioned sections. The remainder of the document is devoid of any semblance of a definition for green energy. Concerning its predecessors, many of the original documents have limited accessibility; any documents that were available were reviewed. For those whose official copies were not available, they were accessed using Internet archives. The 20 acts impacted by the GEA included 12 : Building Code Act, 1992 13 ; Clean Water Act, 2006 14 ; Conservation Authorities Act 15 ; Conservation Land Act 16 ; Co-operative Corporations Act 17 ; Electricity Act, 1998 18 ; Energy Conservation Leadership Act, 2006 19 ; Energy Efficiency Act 20 ; Environmental Bill of Rights, 1993 21 ; Environmental Protection Act 22 ; Greenbelt Act, 2005 23 ; Ministry of Energy Act 24 ; Ministry of Natural Resources Act 25 ; Niagara Escarpment Planning and Development Act 26 ; Ontario Energy Board Act, 1998 27 ; Ontario Water Resources Act 28 ; Places to Grow Act, 2005 29 ; Planning Act 30 ; Provincial Parks and Conservation Reserves Act, 2006 31 ; Public Lands Act 32 ; and Renewable Energy Standard Offer Program. 33 There is no mention of green energy in any of the preceding documents. Conclusively, a definition for the term green energy is absent from all official parliamentary documents.
Although there is no mention of any official definition of green energy within any parliamentary document, there are mentions of it found on the websites associated with the act; however, similar to many of the older documents, there is no longer an official accessible version of these sites. Fortunately, there are archived versions that will be used as evidence for the existence of a definition; although separate from the act's official documents.
The first instance is the GEA's official website, which has been deactivated and serves as a redirect to the Environmental Defence's website. 34 Using Internet archives, certain portions of the site have been recovered. In the recovered portion of the site, they do not define green energy in their “Green Energy Dictionary.” 35 However, it is described in another section of their site that is specifically dedicated to the topic of green energy; within this section, it is described as “Green energy is an environmentally friendly, sustainable source of electricity. It has several key components. The first is renewable energy—electricity that is generated using easily available, naturally occurring fuel sources such as water flows, energy from the sun, wind energy and waste. The second is conservation—the conscious reduction of electricity consumption—by being smarter about how, where and when we use it. A third aspect of green energy is its ability to effectively generate electricity on a much smaller scale than traditional ‘big power’ stations that use coal and nuclear fuels. This allows generation to be located much closer to where it is consumed. This form of green energy is called Community Power.” 36 This definition is the most explicit definition of green energy found out of the wealth of parliamentary documents related to the GEA and official media on the topic presented through websites.
The first point of primary analysis other than the GEA itself deals with the Hansard transcriptions of the parliamentary debates held within the Legislative Assembly of Ontario. The most explicit comment with respect to green energy is made by the Liberal Party in regard to the purpose of the bill; it was stated: “our duty and obligation is to do something about [climate change]… in order to help the environment and create green energy to serve our needs for industrial and domestic use.” 37 There are other mentions of green energy; however, most of them share the same level of information as what is found on the Green Energy Act Alliance's website in terms of what modes of energy production are included under the title green energy. 38 Within the debates there were also mentions, from Liberal Party members, which identified green energy and clean energy as two separate types of energy. 39 In other statements, made by the Liberal Party, there are those that assert that green energy and renewable energy are interchangeable terms, if not completely synonymous. 40
In the GEA Standing Committee hearings, the public described the impacts of green energy as not being harmful to the health of the environment, animals, and people locally and regionally (Table 1). Peter Tabuns of the New Democratic Party of Ontario, an MPP and the GEA Standing Committee, introduced a GEA amendment that defined green energy; his amendment was soundly defeated with no alternative definitions for green energy being offered by his detractors (Table 1). During GEA Standing Committee hearings, George Smitherman states that nuclear power is not covered by the GEA (Table 1). However, other Liberal Party members during Legislative Assembly of Ontario deliberations clearly assert that nuclear energy is part of the GEA and its green energy strategy (Table 1). There were tangible benefits for the Liberal Party by not defining green energy and likewise, clearly describing green energy strategy in the GEA; green energy and green energy strategy could be whatever one believed it to be, even nuclear-power generation with its radioactive waste. 41 , 42 Possibilities of mishandling, accident, and disaster only exacerbate the damage to the environment, ecological and social. 43 , 44
Defining Green Energy and Green Energy Strategy from the Green Energy (Bill 150) Standing Committee Hearings
There is one specific comment that is of importance to how you define green energy, especially with respect to impacts on indigenous peoples: “It comes down to a very minute description of how you would define green energy. I would say that hydro-electric—that's water dams—would be green energy, with the exception that often, to create a dam, you have to flood property. In many cases, it's property that has been affecting First Nations for hundreds of years. It's a huge issue in Quebec [Canada]. They have hydroelectric power, and for most of it they flooded land that was in dispute in the courts.” 45 This comment from O'Toole indicates that concerns regarding the definition were explicitly brought to the attention of the Liberal Party before the bill was made into the GEA; these concerns outline previous relevant instances within the Province of Quebec. This is to say that the Liberal Party was given fair warning and critique about the possible negative impacts the bill would have on the environment if left unchecked. This statement not only addresses these concerns, but also identifies a likely contributor to these ill effects; he specifically states that the pivotal point in this discussion is how the Liberal Party would define the term green energy. Despite this warning, green energy went undefined within the GEA and many of the official documents. The only instance where it was defined in any capacity was on the GEA website, as noted previously—and this definition was tailored in such a way as to seem amicable while doing nothing to represent the truth of the GEA—this is how the state of the definition would remain until its repeal in the January of 2019. With the information gleaned from the investigation of the transcriptions of the debates in the Legislative Assembly of Ontario, and the hearings of the GEA Standing Committee, we can conclude the results portion of the definition section of this document.
The next question that needs to be addressed is: Why was green energy defined in such a way? The parliamentary transcriptions also indicate that there were similar questions asked by both the Progressive Conservative Party 46 and the New Democratic Party. 47 Among the statements given, there were two main critical observations that were made with respect to the reason why the GEA lacked an adequate definition. The first observation introduced the possibility that the GEA is only using the term green energy to garner acceptance with the public due to its usage of the term green energy 48 ; even for those who are not as savvy with the intricacies of the term in the area of energy production, the choice of words has amicable connotations that imply positivity. 49 Consequently, regardless of the level of knowledge of the public, it is a term that demands attention and support.
Another concern that is mentioned is one that follows from the first due to the favorable dispositions people have with the term green energy for reasons that were outlined previously. The term green energy carries weight due to its relationship with movements toward a sustainable future in the face of the global topic of climate change. Owing to this weight and favorable light, many members of the Progressive Conservative Party identified the difficulty to be had with showing criticism for the bill being passed. 50 Although criticism was much more difficult than simply denouncing the bill, a great deal of it was still present within the parliamentary discussions and GEA Standing Committee hearings, especially with respect to due process. Members of Parliament commented on the lack of the normal consultative process before a bill is written, as well as the termination of the current legislative review process allowing oversight by municipalities and the public (Table 2). Moreover, Brad Duguid, the Minister of Aboriginal Affairs for the Provincial Liberal Government rightfully noted that there is a constitutional obligation of the duty to consult with Aboriginal peoples as a minimum; and, one Member of Parliament commented that the people in Ontario in general were selectively left out of the consultative process (Table 2). Finally, at a GEA Standing Committee hearing, Beatrice Olivastri, CEO of Friends of the Earth's Canada, brought up a point of concern: the Ministry of Energy and Infrastructure was not a prescribed Government of Ontario Ministry to the Environmental Bill of Rights (Table 2). Thus, green energy projects under the GEA would not be bound by “Part II—Public Participation in Government Decision Making” of the Environmental Bill of Rights (Table 2). Overall, the approval process of green energy projects under the GEA in Ontario was streamlined by removing legislative and public oversight.
Due Process Concerns as Informed by Legislative Assembly of Ontario deliberations and Green Energy Act Standing Committee hearings on Bill 150 (Green Energy and Green Economy Act, 2009)
DISCUSSION
Summarily, the definition of green energy within the GEA is lacking; although it is defined within the GEA's official site, it is not present in any official documentation used by Ontario's Legislature. However, for the sake of argument, we will consider the definition presented on the, now-defunct, website to be a valid definition put forth by the GEA for supplementary purposes. To evaluate this, Canada has a convenient neighbor they can measure up against; in the United States of America, green energy, or green power, is defined as “Green power is a subset of renewable energy and represents those renewable energy resources and technologies that provide the highest environmental benefit.” 51 This is a concise definition that is coherent with the reasoning for the difference in naming conventions and the close relationship with renewable energy; however, there is no equivalence between the terms. If there was equivalence, it likely would have been stated within the GEA; even outside the act, the website only has a vague definition that is further defined by three components that do little to emphasize the purpose of green energy—“the highest environmental benefit.” 52 With this, it is shown that the definition is absent from the GEA, and the source that does state the definition is worded in such a loose manner that it serves only a fraction of the purpose in comparison with others who have defined it.
Given the warnings of the other parties within Ontario's Parliament, it can also be inferred that the ambiguity of the definition was intentional, for one reason or another. The fact of the matter is that suggestions and critiques were ignored by the governing Liberal Party of Ontario. The fact that these suggestions were ignored is evident of a greater concern that involves the Government of Ontario's fiduciary duty to its peoples.
Fiduciary duty exists as both a concept in ethics and as a legal concept that is especially applicable to indigenous peoples under 35 of the Constitution Act of 1982; in short, “one party has an obligation to act for the benefit of another” in instances where the former party is entrusted with power over the latter to make decisions in their best interest. 53 There are those that may remain unconvinced of the need for judicial involvement on the matter; however, Dianne Saxe, who represents “the 18,000 lawyers of the Ontario Bar Association” 54 at the time stated that “[the GEA does not] deal with aboriginal rights in a coherent way.” 55 This is indicative of problems at a legal level from experts on the topic.
One of the possible avenues that provide difficulty is the “duty to consult” 56 ; and the Constitutional obligation of duty to consult was explicitly mentioned in the GEA, and by Brad Duguid, Minister of Aboriginal Affairs, with the added caveat of going beyond that obligation (Table 3). Although an indigenous group was represented in the steering committee, it is still unknown what role the committee played in the GEA, if at all; nor is it known about the inclusivity of the group. However, indigenous representation during the GEA Standing Committee hearings can be evaluated, because we have access to the Hansard verbatim-transcripts.
An Indigenous Perspective of the Government of Ontario's Consultative Process from Bill 173 (Mining Act Amendment) and Bill 191 (Far North Act) Joint Standing Committee Hearings in 2009
Although there was First Nation representation at the GEA Standing Committee hearings, none of the 10 representatives were elected or traditionally recognized First Nation representatives, and only one was a designate of an elected chief. Thus, not one elected or traditionally recognized First Nation Chief or Councilor was part of the GEA Standing Committee hearings (Table 4). The issue is that only elected or traditional leadership, such as Chiefs and Councils, which are informed by their communities can make decisions with respect to Aboriginal and/or treaty rights (Table 3). First Nation leadership did not attend the GEA Standing Committee hearings; however, leadership did attend Standing Committee hearings for Bill 173 (Mining Act Amendment) and Bill 191 (Far North Act) that were held during 2009, the same year as the GEA Standing Committee hearings. From the Hansard transcripts, although directly related to Bills 173 and 191, it is still possible to gain some understanding of First Nations' leadership with respect to Aboriginal and treaty rights; consultation with the Government of Ontario; and development in general, especially hydroelectric power generation.
Nonelected First Nation “Representation” Who Presented at the Green Energy Act Standing Committee Hearings
In brief, from a First Nations' perspective, consultation must be at the community level with the people who hold Aboriginal and/or treaty rights, and with the First Nation leadership who can make decisions on issues that impacts Aboriginal and/or treaty rights (Table 3). Of particular importance, with respect to the GEA, are the cautionary tales about the devastating impacts of development; this is especially true of the hydroelectric power generation development on First Nations' homelands in Ontario (Table 3). Given these statements, one should question why elected and traditional leadership were absent from the GEA Standing Committee hearings. A possibility that should be considered is in the naming convention of the GEA with respect to the concept of green energy. The argument that is presented extends beyond the scope of this article, but it is something that should be considered.
Finally, there were many shortcomings with the GEA that involved numerous complaints from various groups of people. Even if the GEA forcefully passed the legal requisites for Fiduciary Duty, it is evident that they did not perform their ethical, yet informal, duty to remaining stakeholders in this dialogue. As with research involving people; it is the duty of the initiating party to ensure that information is communicated clearly in a way that is understandable to the other parties. It cannot be conclusively said whether this was the root of the problem or not; regardless of that fact, it stands as another pivotal point for improvement.
Before the closing, it should also be acknowledged that these topics and discussions also fall under the domain of energy justice, a subsection of environmental justice that deals with the ethical considerations with respect to energy. Much of the topic of energy justice deals with the production and distribution aspects of energy and topics of equity, equality, ethics, and fairness 57 ; intuitively, the NIMBYism aspect of this discussion falls under this category due to the indigenous communities and consultations factors. 58 However, an argument can also be made for the critique of the policy itself, and its misleading rhetoric that was used to elicit a specific response to the GEA. Although these are all topics that are deserving of attention, they are all complex issues that have strong prescriptive components due to the ethical nature of these topics 59 ; they require much more depth than what can be given in this article. I would like to encourage those who reads this to expand and discuss these topics at more length in further research.
CONCLUSION
Consequently, determining the points of improvement is a simple matter given how the problematic points have been outlined. The act failed to incorporate meaningful critique during its stages as a bill—the act did not provide a sufficient definition of the central term of green energy—and there was a failure in executing the fiduciary duty. Given these shortcomings, it is suggested that relevant terms must be clearly defined in bills; and relevant parties should be involved in the discussion in meaningful ways to prevent instances of a haphazard consultation process. All of these suggestions should occur at the earliest point possible for the bill and should be ongoing to encourage sustainability and dynamic evolution of policies and laws in meaningful ways.
Footnotes
ACKNOWLEDGMENTS
I thank the Social Sciences and Humanities Research Council of Canada for funding support, and anonymous reviewers for comments that improved the article.
AUTHOR DISCLOSURE STATEMENT
No competing financial interests exist.
FUNDING INFORMATION
Social Sciences and Humanities Research Council. Funding number: 435-2016-135.