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Bill C-69: Why retain the worst mistake of the 2012 Act?

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.” Read legal expert Andrew Roman’s hard-hitting and thoughtful presentation to the Standing Senate Committee on Energy, the Environment and Natural Resources conducting hearings on the Trudeau government’s Bill C-69, which proposes to fundamentally change the way resource projects are reviewed and approved.

Andrew Roman, April 7, 2019

For the original version of this posting, see here.

For more analysis by Andrew Roman, check out his blog here:
https://andrewromanviews.blog

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

 

INTRODUCTION

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.

  1. If anyone opposed to a pipeline asked me to represent them in stopping the pipeline I would advise that C-69 makes it easier than ever to do that. If the proposal somehow eventually gets Cabinet approval, opponents can overrule it in the court, or at least delay it for years until the proponent gives up. Like TransMountain did.
  2. If a prospective proponent asked me to represent them in obtaining project approval, I would advise that final approval will be even less likely under C-69 than it is under the 2012 Act. After several years of public hearings, even if the Cabinet approves the project, this will inevitably trigger years of litigation, with an uncertain outcome. Such litigation has already succeeded against both the TransMountain Pipeline Expansion (TMX) and Northern Gateway under the 2012 Act. That’s why the TMX pipeline investors bailed, and the government bought the pipeline. But the government can’t buy them all. And there will be another round of TMX litigation challenging both the NEB’s re-assessment of marine traffic and the Crown’s additional FN consultations. It will be interesting to see who wins that litigation.

The several litigation triggers under the 2012 Act enabled successful court challenges. C-69, with its numerous new litigation triggers, makes litigation success much easier.

SOME OF THE MANY KEY PROBLEMS WITH C-69

The 2012 Act transferred power from the NEB to the Cabinet. Moving the decision-making power from the hearing agency to the apex of the political hierarchy destroyed the integrity of the FNs consultation process. That is the main reason why two Federal Court of Appeal decisions have held the consultation process to be inadequate.

If the consultations are to be meaningful the people who consult must have the power to resolve the problems revealed by the consultations. The purpose of consultation is not to have a pleasant chat and take notes, but to respond to legitimate Indigenous concerns by accommodating and mitigating them wherever possible. However, the people sent to consult have no power to do anything but take notes, which then flow up the ladder and disappear into the black box of the Cabinet.

For practical reasons, the entire Cabinet cannot meet repeatedly with the 100+ FNs potentially affected by a long pipeline or electricity transmission line, or even consider their numerous individual issues. Yet only the Cabinet can decide what to do about them. This is a serious structural flaw created in 2012 and retained in C-69.

The Cabinet is not the final decision-maker, the court is. The numerous new litigation triggers in C-69 will ultimately transfer a lot of the power of the Cabinet to the courts. C-69 will encourage and facilitate successful court applications, both to try to stop the hearings in progress and to overturn any Cabinet approval.

C-69 simply requires too much work to be done in too little time. If we don’t want to have endless hearings we have to cut back the workload substantially. Statutory time limits cannot work. Public hearings cannot be shut down half way through just because the statutory time limit has expired. The hearings will take as long as they take. C-69 cannot control the number of parties choosing to appear at the hearing (there were 1,600 in TMX), the length of their presentations, court applications during the hearing, etc.. And C-69 requires hearing evidence on almost twice as many mandatory environmental, social and economic considerations as the 2012 Act, with an unlimited number of self-selected hearing participants. By the time these hearings get near their end, several years after beginning, many of the facts presented in the original proposal will have changed. The hearings will then have to examine the impact of the changed facts, further extending hearing time. The Minister will have to extend the statutory time limit, repeatedly, rendering the statutory time limit meaningless.

Making 20 factors mandatory considerations in every case, regardless of relevance, means having to collect evidence on each of these 20 factors. This is an extremely inefficient waste of time. All of them should be discretionary, not mandatory. Changing the word “must” in section 22 to “may” is the single most useful change you could make.

Internal inconsistency. Section 63 gives the Cabinet 5 “must consider” factors, while section 22 gives the Impact Assessment Agency (IAA) 20 “must consider” factors. There is no obvious reason why those who decide must consider only 5 factors while those who hear must consider 20. This inconsistency is puzzling because C-69 requires the Cabinet to base its decision on both its own 5 factors and on the IAA’s report, which must consider 20 factors. Logic would suggest that if only 5 considerations are essential to actual decision-making by the Cabinet then those should be the same 5 considerations essential for the Agency’s hearing. The easiest way to fix this is simply to repeat in section 22 the same 5 considerations as in section 63 (although some of the 5 factors are also badly worded and need re-drafting).

The judicial decisions governing the Crown’s duty of consultation of First Nations (FNs) are inconsistent and unpredictable. Cases are decided on a case-by-case basis, so the law is whatever the next court decision says it is. Unless the decision-making power is restored to the hearing agency, I can think of only one way to bring some much needed clarity to this area of law: a reference case. The government should draft a law setting out its proposed scope and limits of consultation and accommodation under various circumstances (such as a conflict among FNs supporting and opposing a proposed project). It should present this draft law to the Supreme Court of Canada (SCC) in a reference case. The SCC would then give its opinion on the validity of various parts of this proposed law. This would help both FNs and the Crown.

Although I have focused on pipelines, C-69 covers a lot more, such as interprovincial and international electricity transmission lines. These, too, always face strong opposition. Large scale non-emitting electricity generation (nuclear or wind) cannot be situated in urban areas, thus requiring new transmission lines to where the power will be used. As the scale of such generation increases and grid connection becomes more important, transmission lines will be longer. Some will be North-South to facilitate exports and imports. An assessment law biased against new projects can therefore retard the widespread use of non-emitting generation.

WHY RETAIN THE WORST MISTAKE OF THE 2012 ACT?

The main reason for C-69 was to fix what had been broken by the 2012 Act, so as to restore public confidence in the assessment process. But the worst mistake in that Act is preserved in C-69. That is to separate the hearing process from the decision-making process and to politicize the latter. If public trust in the assessment process is important, the more evidence-based and the less political it is the more trustworthy it is. Politics routinely involves extensive lobbying and secrecy; public hearings do not.

For decades the NEB heard and decided applications for approval. This politically independent decision was made outside the regular government department, at arm’s length from politics. The 2012 Act took decision-making power away from the NEB and put it into the Cabinet. The NEB became just the hearing arm of the Cabinet. This was wrong, for two reasons.

First, it politicized what should be an evidence-based, arm’s length decision. No one will believe that Cabinet members have either the time or the expertise to review thousands of pages of scientific, engineering, economic and sociological evidence from the hearing. Cabinet decisions on pipelines are political, opaque and unpersuasive. The decision may also depend on which political party is in power and the political pressures they face at the time.

The economic hardship that will eventually be caused by C-69, telling investors that Canada is no longer open for business, cannot be helpful to any government. If C-69 is to be useful Parliament will have to fix it. The Senate should help it to do so.

Second, the 2012 Act violated the age-old principle that whoever hears shall decide/whoever decides shall hear. Under both the 2012 Act and C-69, those who hear the evidence decide nothing, while those who hear nothing decide everything. (Unless the decision is overruled by the court.) Only in politics would this be considered rational.

Understandably, politicians will be reluctant to give up this political power. However, if the government wants the impact assessment process to regain the credibility it had before the 2012 Act, re-uniting hearing and decision-making will make a big difference.

If you push the decision-making up to the apex of the government hierarchy you can’t leave the consultation with FNs at the bottom. Parliament should not change the locus of decision-making without changing the locus of consultation.

The usual reason given for putting the decision-making power into the Cabinet is “we don’t want public servants making this decision”. But these are special public servants. They are experts working independently of normal political control. They have done the work: heard the witnesses, read the thousands of pages of written expert and other evidence and analyzed it carefully. If the Cabinet wants to make the decision it should do the necessary work.

Of course, the Ministers have neither the time nor the knowledge to do the work. They probably won’t even read the entirety of the hundreds of pages in the NEB’s or IAA’s report. A civil servant in the Privy Council Office will probably prepare a brief summary of the report, and a staff member in the PMO will probably prepare a political analysis, with polling information about the popularity of the proposed project in various parts of the country. The Cabinet will read and discuss these reports for a few hours, calculate where the votes will lie, and then make its collective decision. Another civil servant will draft the Cabinet’s reasons for decision for release to the public. Is that really a more trustworthy way to make the decision?

Both the 2012 Act and C-69 appear to have forgotten why governments created environmental regulators in the first place: to depoliticize environmental assessment decisions by placing them at arm’s length from politicians. Sooner or later that lesson will have to be relearned. Why not now?

If the Agency’s decision is wrong in policy the Cabinet can overrule it, without having to make the decision in the first place. A useful analogy is found in the CRTC’s decision-making process. An appeal from a CRTC decision lies to the Cabinet on a question of policy (not law). C-69 could also permit an appeal to the Cabinet on a question of policy. That would provide a degree of political oversight, without the currently routine, indispensable politicization. If, as in most cases, the regulator’s decision will be reasonable, the Cabinet will not have to do anything. Only in rare cases should it have to overrule. That system worked well for decades. The new, politicized system has not worked well since it was created in 2012.

CONCLUSION

There isn’t time today to go into the detailed analysis in the two blog posts I have hyperlinked above. However, I can provide some broad categories of desirable amendments to C-69.

Reunite the hearing process and the decision-making process (i) to restore the integrity of consultation with FNs and (ii) to restore transparency to the project assessment process. Assign the decision to whoever hears the evidence, subject to an appeal to the Cabinet on an issue of policy.

The scope of the assessment should be limited to the scope of reliable and necessary evidence that can be heard within a reasonable time. Fix the hearing bloat created by section 22’s requirement for 20 mandatory considerations.  Legislating a time limit doesn’t do this. C-69 can reasonably be interpreted as requiring assessment of the effects of the effects of the effects. Don’t compel anyone to hear speculative evidence about unpredictable future effects all over the planet. Cut the workload to make the hearing manageable.

Remove some of the obvious and unnecessary litigation triggers, to improve finality of decision-making. Many of these triggers are key terms that are likely to influence the outcome of the decision, but are undefined or given useless definitions. Writing into law key expressions without meaningful definitions is to enact the law of unintended consequences. If you can’t define a key term in a law you are writing, you don’t know what you mean. If you don’t know what you mean, why expect others to know what you mean? It amounts to saying “I don’t know what I want the law to mean, so let’s just toss it out there and see what happens.”

Remove legislated bias in requirements to consider negative effects only, rather than comparing negative and positive effects.

Remove an obvious litigation trigger and barrier to transparency in section 119, which permits Indigenous parties to present secret evidence, both in the hearing and to the Minister, both before and after the hearing. Amending this is necessary to improve confidence in the integrity of the impact assessment process.

Consider adding a new requirement that all licensed projects will comply with all applicable federal and provincial laws as a condition of licence. This would eliminating the need to hear and determine issues like gender-based analysis raised in section 22 (1) (n). GBA+ is rendered unnecessary in C-69 by other, well-settled laws (such as the prohibitions against: sexual assault, sexual harassment and discrimination on the basis of sex or gender identity).

The preamble and the purpose clause of C-69 both raise unrealistic expectations that cannot be met. Two obvious examples are reconciliation with FNs and greater transparency in decision-making. Either delete these professed purposes or amend C-69 to make it possible to achieve them.

ABOUT ME

BA in economics and political science, McGill University, 1964; LL.B./JD, 1971, Osgoode Hall Law School, called to the Ontario Bar, 1973. Practised law from 1973-2017

Special Assistant in a federal cabinet minister’s office, involved in drafting various laws being enacted or amended

General Counsel, Public Interest Advocacy Center, 1976-1989, represented consumer, environmental, civil liberties and First Nations groups in administrative tribunal and court proceedings across Canada, including several cases before the Supreme Court of Canada. Hearings included, e.g., electricity generation, transmission and distribution; mining in the Yukon and Labrador; oil pipelines; uranium mining in Saskatchewan; and nuclear energy. Acted as counsel to the federal government in its environmental reviews of the Beaufort Sea and the Voisey’s Bay impact assessments.

Retained by federal and provincial governments to draft various laws and to train public servants and NGOs in environmental assessments. Wrote a manual for the Government of Ontario on how NGOs could present their case before the Environmental Assessment Board, which was translated into Cree and Ojibway.

Joined the Toronto environmental law group of a national law firm in 1989. Was appointed to the Ontario Government’s task forces that created the Environmental Bill of Rights and the Class Proceedings Act. Acted as counsel in a number of high profile environmental matters including: representing Walkerton in the $2 billion class-action seeking compensation for death, illness and property damage caused by contaminated water; assessment of Manitoba Hydro’s Conawapa generation/transmission project; appointed as legal advisor to Canada’s Nuclear Waste Management Organization when that organization was being created.

Adjunct faculty member at 4 law schools, taught environmental advocacy, and legal drafting; held the Chair in Natural Resources Law for one term at Calgary;

Author of Effective Advocacy Before Administrative Tribunals, and over 90 published articles on various law-related subjects.

Currently, author of a blog on law-related subjects.

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TRANSCRIPT OF ORAL PRESENTATION

THE STANDING SENATE COMMITTEE ON ENERGY, THE ENVIRONMENT AND NATURAL RESOURCES

EVIDENCE

OTTAWA, Tuesday, April 2, 2019

The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts, met this day at 5 p.m. to give consideration to the bill.

Senator Rosa Galvez (Chair) in the chair.

The Chair: Good evening and welcome to this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources. My name is Rosa Galvez, I’m a senator from Quebec and I’m the chair of this committee.

We have our next and last panel. For the third portion of this meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources, we now welcome Andrew Roman, Retired Lawyer.

Thank you for joining us this evening.

Andrew Roman, Retired Lawyer, as an individual: Madam Chair, and honourable senators, thank you for inviting me. I’m here representing no one but myself, and I have no political affiliations or any other affiliations.

I recently retired after some 45 years of practising law. My clients have included First Nations, environmental groups, corporations and governments. When I’m looking at these issues, I’m acting in my own mind as if I was representing one of these groups and thinking how would I advise them if they asked me about Bill C-69. That has been my approach to it.

I share some of the arguments that the environmentalists have presented earlier this evening, for example, that standing rules and privative clauses are mostly a waste of time and don’t accomplish very much.

I would also agree with some of the comments Mr. Elgie made about why you can’t solve all the world’s problems and all of the broader issues just through this kind of assessment. For example, in response to a question by Senator McCallum, I would say that if you want to protect the caribou why do it only when there is a pipeline application and why do it at the expense of the pipeline? Protect them properly and not just when there happens to be an application. You can’t solve all the world’s problems through an impact assessment.

Bill C-69 is seriously flawed for two reasons and one of them does affect First Nations very significantly. That is, it retains the worst problem in the 2012 Act, which is to separate those who hear from those who decide. That, I think, is a fatal flaw because if the cabinet makes the decision but hears none of the evidence and the people who hear the evidence make none of the decisions, you’re bound to have problems. I think that is a special reason why First Nations will have problems with it. I’ll go into more detail on that later.

Second, if you come on top of what happened with Trans Mountain in the 2012 Act, you might as well call Bill C-69 the “no more pipelines Act” because it does have a bias in it. That bias will deter pipeline applicants and then you won’t have more applications. You won’t find out how well the Act is working with the more difficult cases because there won’t be any.

One of the most important numbers that you will never understand and the government can’t give you is how many people have not applied because they were deterred from applying. Those applications you will not see and that’s where there will be a problem.

When the 2012 Act transferred decision-making power from the NEB to the cabinet, this destroyed the integrity of the consultation process with First Nations. I will explain why later. It also destroyed the transparency of the decision making process. Both of those are supposed to be purposes of this Act, which won’t be achieved any more than they were under the previous Act as long as that gulf between those who decide and those who hear continues.

I suggest that there is an obvious bias — and this is reflecting what Mr. Elgie said earlier — in the appearance that parts of proposed section 63 require the cabinet to consider adverse effects but not positive effects, and not to balance them. That language is a deterrent. I think they should consider both, which is the way you arrive at a balanced decision.

Third — and I think this is important; I will give you some numbers on this later — Bill C-69 requires too much work to be done in too little time. A lot of that is of questionable value and requires a lot of speculation about things that serious evidence can’t be presented on.

Legislating time limits is useless. The experience over the last 25 years has demonstrated that. The hearings will take as long as they take. You can’t shut them down halfway because you’ve reached the statutory deadline. The minister will have to extend the time repeatedly. If you want to reduce the length of the process, cut the workload.

I recommend that all of you should read the report that came toacross my attention after I prepared my written paper, and this is in the Energy Regulation Quarterly of September 2018. It’s entitled Federal Energy Project Reviews: Timelines in Practice.

It showed, to my surprise, that Canadian federal impact assessments can take two to three times as long as assessments in the U.S. under the existing law, which has only 12 mandatory requirements, and there will be 20 under the new one, almost double.

For example, the Northern Gateway pipeline took eight years, Mackenzie Valley pipeline six years, the Jackpine Extension was another six years, Darlington was five and a half. By the time you get to the end of these hearings, all the facts have changed and you have to start again.

This kind of timing cannot go on, and is not likely to work. You have to cut the workload.

The fourth is that the Crown’s duty of consultation with First Nations is problematic and will continue to be problematic because the Supreme Court of Canada and the federal courts have said different things in different cases under different circumstances. I don’t think anyone knows how to do it right. If I were asked to consult, I wouldn’t know how to do it right or how to advise anyone to do it right, despite everyone’s best intentions.

There’s a lot of uncertainty that can only be corrected, I would suggest, because this is not part of our written Constitution, by means of a stated case. I’ve described how that should work in my paper.

I also think that you can correct the problem that the First Nations are having by putting the decision back where it belongs, with those who hear the evidence. Then those who are doing the consulting with First Nations can do more than take notes and send learned memos up the line where it disappears into the black box of the cabinet.

Fifth, and I think this is of interest for electricity as well as for pipelines, is that renewable generation, if it is going to be massively expanded, will require new transmission lines. Some of those will be north-south, some of those will be inter-provincial. These will require assessment. If the assessment process is as contentious and long as it is now, you’re not going to be able to deploy renewables as quickly as you would like them to be under circumstances where you are concerned about climate change and reducing dependency on fossil fuels because transmission lines are also hotly contentious. Everyone is very upset when they want them “not near me, thank you”. So there will be serious opposition there.

That concludes my opening remarks.

Senator MacDonald: Mr. Roman, thank you for being here this evening. There is so much stuff that we can’t ask you. I have a couple of questions here.

All the companies in the oil and gas and natural resources sector have raised a lot of concerns about the possibility of litigation following any project approval under Bill C-69. I’m wondering what your assessment is of the potential for increased litigation under this legislation.

Mr. Roman: In my assessment, there’s a substantial potential for extensive litigation, as we’ve seen with Trans Mountain, under the old law. The new law expands that, partly because any new law has new terms but partly also because a lot of important terms are undefined or badly drafted.

Sustainability, for example, which was mentioned earlier — if you look at the definition of it, it doesn’t make sense from a statutory standpoint. Something that is a good policy is good when described in policy terms. When you take that policy language and shove it into a statute, you start to get problems.

I can see extensive litigation over lots of those conditions. I can see this being the most wonderful thing that’s ever happened to the legal profession in Canada, on all sides of the question. I’m sorry I’m retired now or I’d be a lot richer.

Senator MacDonald: The cost for proponents to get a major pipeline project up and running through the assessment process, could you give us a ballpark figure of a normal cost of getting a pipeline through? Do you think that proponents are prepared to risk the same amounts of money in the future with this legislation?

Mr. Roman: There can be three to five years of preparation before an application is even filed. Then there’s the hearings and everything that goes after. The numbers I’ve seen are in the range of 700 million to a billion. With that kind of money at risk, you really have to be careful about whether you’re going to get your money back, whether there’s a high likelihood of approval or whether you’re just going to give up because your shareholders and your board of directors are going to shut it down.

You may notice that in the Trans Mountain case, the company did not wait for the Federal Court decision. They pulled the plug before that. Then the federal government purchased it.

I can see that if you create excessive deterrence you’re going to have problems.

Senator Cordy: Thank you very much. Thank you to both witnesses for being here today.

Mr. Roman, before Christmas, I was receiving hundreds of emails every day from Suits and Boots asking that you appear as a witness. So it’s nice to meet you.

Mr. Roman: It’s nice of them, but I’m not their witness.

Senator Cordy: Nonetheless, they were sending hundreds every day.

Mr. Roman: We all appreciate having fans.

Senator Cordy: True. One of your conclusions is that, in order to make the proper decisions, we should be looking at not just the negative effects, but also the positive effects of projects. It’s only sentence. I wonder if you could expand on that a little bit and on the importance of that so that we don’t have the bias.

Mr. Roman: Even within the sustainability criteria you’re supposed to look at both. But if you look at what is in section 63, and I put a table in my blog setting out all the proposed amendments, so if you want to look at my blog you’ll see there’s an extensive, long table that goes section by section about what I would submit should be amended, among other things, to get rid of that bias.

Section 63, which talks about negative impacts and effects, should add the word “positive.” I think that’s what Dr. Elgie said earlier today, and I agree with him. If there’s not a lot of positive, you don’t want to do it. If there’s a lot of negative, you don’t want to do it. But you want to look at all of it.

Senator Woo: Mr. Roman, do you recommend that any of the section 22 factors be excised from the act and which ones?

Mr. Roman: I think there are far too many of them.

Senator Woo: Which ones do you want to get rid of?

Mr. Roman: I would change the word “must” to “may” and make it all discretionary because, in half the cases, many of those factors will be irrelevant. In other cases, they will all be relevant.

Senator Woo: It’s not sufficient for you that they can be scoped out in the so-called tailored guidelines?

Mr. Roman: No, it’s not, because that’s what created the problem in Trans Mountain. As soon as you scope it, you are saying, “I’m not going to consider evidence on this”. Then a person who wants to submit evidence on that can’t, and they will take you to court.

Senator Woo: Even though the agency is obliged to cover all the factors?

Mr. Roman: Once the agency is obliged to cover all of the factors, as it is now, they have to have evidence on all those factors. Some of the ones that I mentioned on my blog are hypothetical.

For example, if you use the environmental principle that you should think globally and act locally, when you’re looking at CO2 emissions and environmental questions, you should say, “How much more CO2 is going to come out at our end and how much less at the other end?” The problem is we don’t know what the Chinese will do when they buy the oil. Are they going to use it to run cars or replace coal? If they use it to replace coal, the amount of CO2 emissions they save may well exceed the amount we have here, but we don’t know what they’re going to do.

Senator Woo: If that is the question they ask.

Mr. Roman: That is one of the issues they’re supposed to look at.

The Chair: Mr. Roman, after listening to your presentation, I feel like you don’t see the need for an environmental impact assessment. How does society take into consideration climate change, cumulative effects, reconciliation with Indigenous people? Who should do these and where, in which type of legislation?

Mr. Roman: You misunderstand my position if you think I’m against environmental or impact assessments. I am in favour of it, but like Mr. Elgie said, you can’t overextend it to solve problems you can’t solve through a hearing that will be finished in a short time.

The Chair: Do you have specific amendments?

Mr. Roman: I have a long list of them. It would take hours to give them to you tonight, but I have written them all down, they’re in my blog, and you have a link to it in the written opening statement I submitted for circulation. I would stand by those, and as the Senate is not the House of Commons, I’ve been frugal in what I have suggested that you could amend given your proper role and their proper role.

If you took those amendments and sent them back to the House, or included them in your report, they would say, “This doesn’t go too far, and I think it solves some problems.”

Senator Wetston: Mr. Roman, do you have any comments on that [secret evidence]?

Mr. Roman: There is a problem with secret evidence at any time. That is a litigation trigger, and it’s also condescending to First Nations — because I’ve seen them, and they are very good witnesses — to suggest that they have to present their evidence in secret. It’s almost like saying you’re not as good as everybody else because you can’t present your evidence in public. Unless there is some special reason that no one has been able to mention, I don’t see any reason for it.

Senator Wetston: I’d like to explore this notion, let’s say in a review panel situation, and you described that all the heavy lifting is done by the review panel and then it goes to cabinet and/or the minister and cabinet and a decision is made on public interest criteria, that engages important levels of uncertainty, not just for proponents but also for Indigenous groups and environmentalists because it’s hard to know which way that decision will go.

In that context, how do you deal with changes in government policy? Clearly, that could occur; we’ve seen it already. How do you deal with that issue from a legal and predictability perspective for those that are participating in this process?

Mr. Roman: This is very difficult, but once it gets into the cabinet, you can’t achieve the objective of transparency. What we’re doing is putting the decision to the people who are the least qualified to make it, if I can put it that way.

They have not seen the evidence. They don’t have the expertise of the panel. They are not going to spend months reading 10,000 pages of reports.

What they will get is a summary of something prepared by the Privy Council Office. They will get a summary of something prepared by someone from the PMO who looks at where the votes lie. And out will come a decision from this black box.

If there’s a change in government policy about environmental assessment or impact assessment, it shouldn’t be such a radical change that they can’t change the law. They don’t need to change the decision in the back room where the parties can’t ever see what happened.

Senator Neufeld: Mr. Roman, you responded to Senator Weston about First Nations. There are some First Nations here who can explain this a lot better than I can. This is my experience: I went to First Nations where I live in northeast B.C. and asked them to identify their areas of concern over the province putting up lands for sale and allowing the oil and gas industry or the mining industry to go in and search for oil and gas or minerals. They said, no, they did not want that information out in the public. They would rather deal with it after the land is sold. Then if someone wants to come in and do some drilling, during all the processes that happen there, then they will divulge which areas concern them. Otherwise, the areas would be wide open for anyone to go in and look and find something that is special to them.

It’s not about secrecy so much; it’s about trying to protect the things that they find sacred.

Mr. Roman: I don’t find that protection difficult, but it can be done, as Senator Wetston mentioned, through the established mechanism of the in camera proceeding. Everyone who does this kind of law knows how to do that. It means the process is still done behind closed doors, but the other parties may be there. An in camera transcript is kept so that the evidence presented doesn’t suddenly disappear.

The other thing concern over secret evidence is that it can be presented to the minister before or after the hearing. The minister has the power in section 17 to prevent any application from going to a hearing. After the end of the hearing the minister can then talk to the cabinet and say, “I know we’ve had this hearing but I was just given this secret evidence last week, so let’s not do it.” In that case, the proponent will never find out what happened. No one will find out what happened and that’s not a good way to proceed.

Senator MacDonald: Mr. Roman, the supporters of Bill C-69 claim that the bill will reduce legislated timelines, at least in certain parts of the assessment process. Do you think it likely these timelines will be met? If not, what are the significant opportunities for delay?

Mr. Roman: I see two opportunities for delay. One is that the cabinet really is not the final decision-maker in these matters; the court is. The more litigation triggers you put into your law, the more you will be in court. That adds more uncertainty and that will add two or three or five years to the process.

Now you have the government in the awkward position in Trans Mountain that it’s seeking approval of its own project where it is the proponent, the owner and the judge of the process. If that is not to happen again, then you will have to change this Act.

The other thing — and I mentioned this in response to an earlier question from Senator Woo — is the 20 mandatory considerations. It’s interesting that there are 20 for the assessors but 5 for the cabinet. If 5 are enough for the people who decide, why do you need 20 for the people who hear? I don’t see the logic of that. The Canadian Bar Association made a submission on that years ago and for some reason it never got changed. They’re not the oil industry. They’re not the environmental industry. They’re the lawyer industry, so they represent everybody and nobody. Yet that was their submission. It’s still not fixed.

Senator MacDonald: Thank you.

The Chair: Mr. Roman, thank you very much for your presence.

(The committee adjourned.)


Andrew Roman sits on the board of the umbrella organization Probe International belongs to (see Energy Probe Research Foundation).

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