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Andrew Roman

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 including the Supreme Court of Canada, and in every province of Canada. I 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.

How To Amend C-69: Assess the Project, Not the Planet

“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.

Introduction

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Several critics of C-69 have argued that the law is so seriously flawed that it should be repealed and the government should start again from scratch.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”

Pipelines, the Environment and the Economy: Canada’s New Impact Assessment Law, C-69

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.

Introduction:

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”

Trans Mountain Appeal Part 2:  The Crown’s Duty to Consult First Nations

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First Nations celebrate their court victory.

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The Title and Location of the Court Decision.

Introduction

You can read a much shorter version of this post, published on October 10, 2018 by the CD Howe Institute, here:

CD Howe Institute.

On August 30, 2018, the Federal Court of Appeal (FCA) set aside the federal Cabinet’s approval of the Trans Mountain Pipeline Expansion (TMX) project. One of its two reasons for doing so was its finding that the Crown’s consultation with several First Nations (FNs) about the proposed projects had been inadequate.  The court criticized the government officials doing the consulting for seeing their roles as largely note-taking and communicating FNs’ concerns to the Cabinet, rather than engaging in a responsive two-way dialogue to “grapple with” their concerns.  To approve TMX again, the Crown will have to comply with the court’s requirement for further consultation. With respect, I think the court was wrong.  

A number of FN chiefs have made public statements that the government needs their permission to proceed with the pipeline, which permission they will deny.  That is incorrect. The SCC has held that the Crown’s duty of consultation does not give FNs a veto over project approval. Yet this FCA decision (as well as a similar FCA decision in the earlier Northern Gateway Pipeline case) has given FNs an effective veto.  The two decisions have now created two bad precedents. Continue reading “Trans Mountain Appeal Part 2:  The Crown’s Duty to Consult First Nations”

Appealing the Trans Mountain Pipeline Decision Part 1: The National Energy Board Issues

I took the three photos below on a trip to Vancouver in 2016.

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Orcas travelling through the Vancouver harbour

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Bulk carrier moving slowly.

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Bulk carrier at anchor.

Background

Part 1 of this analysis discusses the issues around the National Energy Board recommendation to Cabinet, and Cabinet’s acceptance of it to approve the pipeline’s construction licensing. Part 2 will discuss the issues around the Crown’s consultation of several First Nations.

The CD Howe Institute recently published my brief (500 word limit) analysis of the Federal Court of Appeal’s (FCA’s) decision to overturn the Cabinet’s approval of the Trans Mountain Pipeline expansion.  I recommended that the federal government should appeal the decision to the Supreme Court of Canada (SCC). You can read that here, and continue to read my fuller analysis below.

Click here to read my short analysis on the CD Howe Institute website.

One of the reasons the Court gave for its ruling was that the Cabinet approved a  National Energy Board (NEB) environmental assessment (EA) report recommending approval.  The court held that the NEB report was so fatally flawed that the Cabinet could not reasonably have approved it.  The NEB had discussed, but not included in its formal EA, future increases in tanker traffic to and from the pipeline’s marine terminal in Burnaby, a Vancouver suburb.  That additional traffic might have harmful impacts on the Southern Resident Orcas, an endangered species. Continue reading “Appealing the Trans Mountain Pipeline Decision Part 1: The National Energy Board Issues”

Ontario’s Doomed Legal Challenge to Ottawa’s Carbon Tax

Introduction
The Ontario government recently announced that it will be challenging the federal government’s carbon tax in court.  Ontario will most probably lose.  To understand why, we need to consider four issues:
1.  The Ontario Court of Appeal cannot hear any of the political arguments the Ontario government has against the tax.  What can it hear?
2.   What taxes is Ottawa allowed to impose under our constitution?
3.   What does the so-called carbon tax actually tax, and who gets to keep the money it collects?
4.   Ontario (like Saskatchewan) has said the tax is unconstitutional because it treats different provinces unequally.  Is that true?

Continue reading “Ontario’s Doomed Legal Challenge to Ottawa’s Carbon Tax”

Hydro One Doesn’t Matter

HYDRO ONE DOESN’T MATTER.  WHY ARE POLITICAL PARTIES AND THE MEDIA TRYING TO FIX IT?

Consider a typical family ordering food for delivery to their home. Assume that the restaurant used to charge $40 five years ago but is now charging $80 for the same food. Assume the delivery service used to charge $10, but is now charging $11. Thus, in five years, the total cost of the delivered food has increased from $50 to $91. Would it make sense to blame the delivery service’s $1 fare increase for the entire price increase when the restaurant has doubled its prices? Of course not. Yet that is what the political parties and some media critics have been doing with Hydro One. The only reason I can think of for this mistake is that they are confusing Hydro One with the old Ontario Hydro, which used to generate and deliver electricity but was broken up years ago. 

For a typical Toronto Hydro customer’s 2018 electricity bill of $123 a month, Hydro One would represent no more than 8% of that total bill, around $10.31. Why is everyone obsessed with “fixing” the 8% while ignoring the remaining 92%, which is truly broken? Continue reading “Hydro One Doesn’t Matter”

Are Old Polluters Better Than New Polluters?

Carbon dioxide emissions will become a scarce and valuable commodity in Canada soon. Who will be permitted to emit how much CO2? The answer should not depend upon whether someone has been emitting for a long time or  is just starting a new facility.  I have covered this topic in a recent publication of the C.D. Howe Institute that you can read here:

https://www.cdhowe.org/intelligence-memos/andrew-roman-are-old-polluters-better-new-polluters