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”
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”
First Nations celebrate their court victory.
The Title and Location of the Court Decision.
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”
I took the three photos below on a trip to Vancouver in 2016.
Orcas travelling through the Vancouver harbour
Bulk carrier moving slowly.
Bulk carrier at anchor.
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”