There is so much misinformation, narrowly biased coverage and raw emotion online that concern me about our society's ability to think critically about the important issues of the day. I want to provoke a deeper level of thought by offering an explanation of issues as I see them. You may agree or disagree, but hopefully you will at least think about the issues.
I am a retired litigation lawyer with over 40 years of experience in environmental, electricity, competition, and constitutional issues. I have appeared at all levels of court in every province of Canada, and in the Supreme Court of Canada, and have been invited as a guest lecturer at almost all of the law schools in this country. I am also the author of over 100 legal articles and a law book, and have been an adjunct faculty member at four Canadian law schools.
Governments have often made decisions based on impulse rather than reason. A classic example is the fallacy of “the last straw” – the straw that broke the camel’s back. Similar impulsive decisions are now being made in the assessment of a pipeline’s effects. Let’s think about that.
If a camel’s back can hold, let’s say, 1000 straws, and if one more straw will break its back, it is illogical to believe that it was only the last straw that broke its back. Each of the 1001 straws has weight. All of them together create load on the camel’s back. The first straw is no better than the last straw. They are all load. If you don’t believe me, just ask the camel!
THE LAST STRAW DIDN’T BREAK THE CAMEL’S BACK
If you remove one or more of the 1000 loaded straws, then adding that proverbial “last straw” will be harmless. The false assumption is that all of the old load is okay, but new load is not. This leads us to the wrong decision: to ban new load while preserving old load. The right question is not “Which load is good load?” but rather, “How should Canada decide who is allowed to add straws onto the camel’s back (up to the maximum load)?” The task is to allocate space rationally on the limited capacity of the camel’s back.
Canada is facing two pipeline-related issues similar to the camel’s back. The first of these is CO2 emissions, the second, underwater noise caused by increased tanker traffic.
Continue reading “The Last Straw and the Pipeline”
The Canadian Senate’s Committee on Energy, the Environment, and Natural Resources invited me to make a short presentation to it on April 2, 2019, on my proposed amendments to the Impact Assessment Act, C-69.
Below I have set out first, my written opening statement, and second, the transcript of my part of the oral presentation with questions from several Senators.
SENATE OF CANADA
STANDING COMMITTEE ON ENERGY, THE ENVIRONMENT AND NATURAL RESOURCES
OPENING STATEMENT OF ANDREW ROMAN
April 2, 2019
Madam Chair and Honourable Senators, thank you for inviting me. And a special thanks to Maxime Fortin for arranging my presentation.
I am here because I want Canada’s impact assessment process to work well, for the sake of my children and grandchildren, and for those of all Canadians. That will not be the case unless C-69 is significantly amended. Good ideas that are badly implemented don’t make good laws. Without major amendments it is unlikely that there will be any new pipeline or electricity transmission proposals under C-69.
I have had a 45 year legal career advising and representing clients across Canada. Clients have included some First Nations (FNs), environmental groups, domestic and international corporations and federal and provincial governments. I have taught and practiced environmental law and advocacy. The federal government retained me to draft the first environmental assessment rules for its impact assessments. I have appeared as legal counsel for both the federal government and NGOs in pipeline hearings and court applications arising from them. I have also worked on drafting different kinds of laws for Ottawa and several provinces.
MY WRITING ON C-69
I recently published two blog posts on C-69, receiving over 4,000 views, here:
Analysis of C-69
How to Amend C-69
The second of these has a table providing a detailed list of suggested amendments. I would encourage you to read these blogs.
WHO WILL BE THE WINNERS AND LOSERS UNDER C-69?
Those who want to keep Canada’s oil and gas in the ground will be the winners. Everyone else will be the losers. Continue reading “My Presentation to the Senate on Amendments to the Impact Assessment Act, C-69, April 2, 2019”
The Prime Minister‘s real message was: “You can either do what I want or you can do what you want. The decision is yours.”
The Prime Minister, while addressing the resignations of former Ministers Jody Wilson-Raybould (JWR) and Jane Philpott on television on March 7, said that different interpretations of the same events, and miscommunication had led to an erosion of trust. But that’s not what caused the resignations. Different interpretations of the same events are ethically neutral. The resignation letters showed a disagreement about ethics.
The Resignations Were About Ethics
The resignations were spurred by ethical disagreement with what the Prime Minister and his staff were attempting to achieve in their conversations with the former Attorney General about SNC-Lavalin’s criminal prosecution.
If what the PM was attempting to do was unethical, his motivation for doing so, and any ambiguities in the language used in the attempt, do not matter.
Continue reading “It’s Your Decision…”
Did the Prime Minister’s Office panic over SNC-Lavalin’s story of impeding doom? Or did they have real numbers showing the future effects of a criminal prosecution?
In the last few weeks the Canadian media have feasted daily on the political controversy over Prime Minister Justin Trudeau’s treatment of the former Attorney, General Jody Wilson-Raybould. This controversy arose over SNC-Lavalin’s repeated meetings with the Prime Minister’s Office, intended to persuade the PM to persuade the AG to intervene in a criminal prosecution of that company.
The SNC-Lavalin story that the PM, the PMO and the Clerk of the Privy Council, Michael Wernick told was that unless the company was protected from criminal prosecution there would be catastrophic consequences, not just for the now-reformed company but also, collateral damage for other, innocent parties: the company’s employees, shareholders and pensioners. I have seen no public numbers to quantify the estimated extent of these damages, merely the assumption that they would be catastrophic and unjust. The PM seemed to have assumed that most, if not all of SNC-Lavalin’s 9,000 Canadian employees are likely to become unemployed. He has responded to his critics by saying that there is nothing wrong with his trying to protect these 9,000 Canadian jobs. But what if those jobs aren’t at risk, and don’t need his protection? Did the PM just risk his career and his government over an exaggeration?
Continue reading “Rumours of Death: The Panic Over SNC-Lavalin”
“Politics is the art of looking for trouble…” Groucho Marx
On February 7, the Globe and Mail reported:
“Prime Minister Justin Trudeau’s office attempted to press Jody Wilson-Raybould when she was justice minister to intervene in the corruption and fraud prosecution of Montreal engineering and construction giant SNC-Lavalin Group Inc., sources say, but she refused to ask federal prosecutors to make a deal with the company that could prevent a costly trial. ….
Sources say Ms. Wilson-Raybould, who was justice minister and attorney-general until she was shuffled to Veterans Affairs early this year, came under heavy pressure to persuade the Public Prosecution Service of Canada to change its mind.
Ms. Wilson-Raybould was unwilling to instruct the director of the public prosecution service, Kathleen Roussel, to negotiate a remediation agreement with SNC-Lavalin, according to sources who were granted anonymity to speak directly about what went on behind-the-scenes in the matter.” [emphasis added]
On Tuesday, February 12, 2019, Ms. Wilson-Raybould resigned from the Cabinet. And on February 13, the Globe and Mail reported:
“Mr. Trudeau repeated his assertion from Tuesday on Ms. Wilson-Raybould, saying that if she had a problem with how the government handled the criminal prosecution of SNC-Lavalin, she had a duty to speak up about it earlier.” [emphasis added]
The conversations mentioned in these news stories have become a serious problem for everyone: Mr. Trudeau, Ms. Wilson-Raybould and SNC-Lavalin. What may happen next?
Continue reading “The Prime Minister and the Attorney General.”
“No one should see how laws or sausages are made.” Otto von Bismarck
Note to my readers: This post is very long for a blog. I did not want to make it even longer, or to present additional posts on this subject. That is why I have posted here an abbreviated version of my ideas for C-69 amendment, providing only the recommendations that are easier to understand. Others, which may be more complex, have been omitted for the sake of brevity. However, if you find the table below too detailed, skip past it and just read the text. I’m happy to offer more detailed insight into my recommendations if you would like to contact me directly.
C-69 has had no shortage of critics, myself included. However, the government’s desire to modernize what had been criticized as antiquated and inadequate environmental assessment legislation is commendable. The government could have left things as they were, thereby avoiding criticism.
Several critics of C-69 have argued that the law is so seriously flawed that it should be repealed and the government should start again from scratch. I disagree. It has taken a long time, and thousands of person hours to create C-69. This law has been through Parliament and is currently before the Senate. The government should not throw all that work away now. Nor is it so bad as to be unfixable. It is not the function of the Senate – an unelected body – to repeal or refuse to pass laws legally enacted by the elected representatives in Parliament.
Unfortunately, what Parliament wanted the law to accomplish — greater transparency, greater inclusiveness, greater fairness and a shorter time for completion — is unlikely to be accomplished by this law because of the way it is written. I would strongly recommend that it be amended, as outlined below. Continue reading “How To Amend C-69: Assess the Project, Not the Planet”
Note: The original post was slightly edited on January 26 and 28, 2019, to add a few additional points that occurred to me upon re-reading it.
Is it possible under the current law for a private sector oil pipeline to be approved in Canada within a reasonable time and with finality? The short answer is “No!”. And the new assessment law, C-69 (now before the Senate) will make private sector pipeline approvals even less likely. The process of assessment cannot be infinitely long and complicated, with no reasonable likelihood of finality in the decision to approve or deny construction. Now, only the government can accept the cost and risk of attempting to build a pipeline to an ocean port. If that had been the government’s intention in enacting C-69, it would have succeeded; as that is not what was intended, the law must be amended.
Today, having purchased the TMX pipeline, the federal government is seeking approval of its pipeline, from itself. How credible will either decision be? If the Cabinet says “yes, we approve our own project” that self-approval looks like a decision biased by self-interest. If the Cabinet says “No, we don’t approve our own project” that just looks silly.
Continue reading “Pipelines, the Environment and the Economy: Canada’s New Impact Assessment Law, C-69”