Here’s how make a Bill C-69 sausage

Dear Friend,

“No one should see how laws or sausages are made.”

Otto von Bismarck

A few weeks ago, David Staples of the Edmonton Journal kindly introduced us to Andrew Roman, a retired, Toronto-based litigation lawyer who has been writing extensively about Bill C-69.

Mr. Roman has more than 45 years of experience in environmental, electricity, constitutional and competition issues. He has appeared before all levels of court in Canada, including the Supreme Court. He has represented and advised federal, provincial and municipal governments, large and small corporations, environmental groups, First Nations and individuals.

In these past few weeks, it’s become clear to us at Suits and Boots, as well as to many serious policy analysts across Canada, that Mr. Roman’s views and opinions on Bill C-69 are thoughtful, considerate and right-on-the-money. They need to be heard everywhere, and especially in the Senate. That’s why we’ve lobbied the Senate to have him appear before the C-69 Committee hearings.

Over this past weekend, Mr. Roman has posted on his blog what we believe is the definitive response on “How to Amend C-69”. Here it is for your reading: https://andrewromanviews.blog/2019/02/08/how-to-amend-c-69/.

In this very easy-to-read, 21-page document, he has outlined how C-69 came about and why it cannot be allowed to pass as is. He offers 18 recommended changes, complete with proposed wording and the rationale for the amendment. If C-69 is to be amended, Mr. Roman has shown how it should be done. His work is clear, concise, and easy to follow.

This is the equivalent of an IKEA policy assembly diagram for Senators.

Let’s be clear on one thing: it is still our strong position at Suits and Boots that Bill C-69 should be Killed. Even more so after reading Mr. Roman’s recent blog post.

Our #KillBillC69 campaign launched last September 10th has been clear on that. This proposed law, and its predecessor, the 2012 Canadian Environmental Assessment Act, are flawed and hurtful for Canada’s resource sector. You’ll see why below. We need a major reset, a full and independent discussion about resource development across Canada conducted by an impartial Royal Commission, and recommendations that any government cannot ignore. That’s why we called for exactly that to happen in a news release last week.

But, as you see in the Bismarck quote above that Mr. Roman used as an intro to his comments, the politics of policy are often ugly. And what we have now in Ottawa is “sausage-making” at its best –  a majority government that is determined to see this bill pushed through the meat grinder of Parliament as a signature piece of legislation before our lawmakers break in June and we head into a federal election campaign over the summer.

We will continue to push to see Bill C-69 killed. When you read our ten highlights below, and Mr. Roman’s report, you will see why. This whole issue of resource assessment policy development reeks worse than a sausage factory. Mr. Roman as well calls for measures that would take a major re-write of legislation – but he doesn’t believe that will be done at this time. He’s a lawyer, a realist, and believes in doing what he thinks is possible to achieve. Thus, his proposed amendments.

So, if a sausage is indeed going to be made, if this Bill will not be killed, it has to be amended in the best way possible way. And it is absolutely crystal clear to us at Suits and Boots that Mr. Roman’s proposed solutions should carry the day in the Senate. We could hold our noses and live with an amended C-69 sausage if his recommendations are taken in their entirety. We place more faith in his work than in any lobbying efforts done by industry groups, environmentalists or any other special interest group. You’ll see why when you read his work.

So here’s what we’d like you to do:

1.  Click on this link to view the 14 Members of the Standing Senate Committee on Energy, the Environment and Natural Resources. These are the people who will hear from experts on Bill C-69 – their feedback and recommendations will go a long way to determining C-69’s fate in the Senate.

2.   Please place a phone call AND an email to each one of this Committee Members, and ask them to have Andrew Roman appear before the Committee.

3.   Also ask them to have your voice heard in the Committee hearings by inviting Suits and Boots to appear before the Committee as well.

Here are Ten Things Andrew Roman Says About Bill C-69 that he will tell the Senate Committee – consider this as highlights of the 21-page report above:

1.  On the politicization of assessment hearings: “Federal environmental assessment in Canada began in the mid-70’s, with legislation that has been amended by several successive governments, usually adding complexity and uncertainty. This has added considerably to the length and cost to the process, while reducing finality of result. The process has recently become less expert, less science-based, more populist, political and polarized, even while the distance has grown between those who hear the evidence and those who decide.”

2.  On CEAA’s fatal flaw: “The CEAA’s most important change was to remove the decision-making power of the National Energy Board, placing it exclusively in Cabinet. This reduced the NEB from being an independent regulatory agency to becoming internalized as just the public hearing arm of the government of the day….C-69 reduces even further the independence of the new assessment agency, widening the gulf between those who hear and those who decide. “

3.  On How C-69 will Socialize Pipeline Projects: “To the extent that C-69 moves us even further than CEAA in that direction, it becomes an even more effective deterrent to private sector proposals. It is difficult to imagine a Board of Directors of a business corporation submitting a pipeline proposal under C-69 without the kind of government guarantee or backstop sought by TMX. It may be an unintended effect, but C-69 is likely to socialize pipeline projects so that governments – in reality, taxpayers – will take on the cost and risk of proposing any kind of pipeline. And then, as now with TMX, the government will be seeking approval of its own pipeline project from itself.”

4.  Why today’s system is the worst of both worlds: “Sooner or later this gulf between who hears and who decides will have to be removed, to restore the legitimacy provided by transparency in decision making. There are two ways to do this. The first is to eliminate the pseudo-independent hearing process, close down the assessment agency and make a political decision based on the advice from various government departments and lobbyists representing various interests. The other way is to return to the previous law under which the assessment agency is treated as the body with the relevant expertise and trustworthiness both to hear and decide the project assessment issues. The system we have now is the worst of both possible worlds.”

5.  On Consultation with First Nations: “The Supreme Court of Canada (SCC) and other courts have said different things about what kind of consultation is adequate and how accommodation works in practice. This area of constitutional law is therefore highly uncertain and unpredictable. Cases are decided on a case-by-case basis without consistency or useful guidance for future cases. This situation cries out for reform….If the government wishes to bring some measure of consistency and clarity to this area of law, (it should) draft a law setting out the scope and limits of consultation and accommodation under various circumstances and to present this draft law to the SCC in a reference case. The court would then give its legal opinion on the validity of various parts of this proposed law. This would encourage the SCC to review and direct the future of consultation and accommodation in a more predictable manner.”

6.  On ‘Indigenous Knowledge’: “Indigenous knowledge has been valued as adding an air of reality to, or even successfully contradicting, scientific knowledge that is fragmentary, biased or just plan wrong. C-69 makes it mandatory of the assessment agency to take Indigenous knowledge into account in preparing its report for cabinet. But what is indigenous knowledge?…Without going down the endless rabbit hole of the philosophical meanings of knowledge going back to Socrates, some distinctions between what is and what is not knowledge may be useful…Indigenous knowledge should be limited to what is genuinely and uniquely indigenous and what is truly evidence of knowledge rather than anything presented by or on behalf of any Indigenous group participating in the hearing on any subject.”

7.  On ‘Secret Evidence’: “Section 119 (of C-69) provides for what can only be described as the statutory permission to provide secret evidence of undefined and unlimited indigenous knowledge. This is unnecessary, anomalous and an obvious litigation trigger. It should be removed from C-69 as quickly as possible.”

  • “Under section 17, the Minister can prohibit a proposal from ever getting to a hearing, based on nothing more than the Minister’s opinion. Although the Minister has to provide some basis for doing so, in writing, the decision could be based on Indigenous knowledge presented in secret that cannot be disclosed. Providing the “basis” for the Minister’s opinion does not require disclosing all of the sources of information that the minister used in forming an opinion.”
  • “If a proposed pipeline goes through a multi-year hearing that results in the Assessment Agency recommending approval, Indigenous knowledge criticizing the Agency’s recommendation can be presented to the Minister after the Agency’s Report, attacking it in confidence. The Minister can then recommend that Cabinet reject the pipeline proposal despite the Agency’s recommendation. The proponent may never know what happened.”

8.   On Gender Based Analysis: “There is a federal government policy to make increasing use of such analysis  within the government itself. Why this is relevant to a proposed pipeline is not self-evident….This policy does not require the assumption that there is a gender issue, but rather, to conduct an analysis to determine whether there is such a potential issue within the proposed ‘program, initiative or service’. This is a policy, not a law, and as such, can only apply to a Government of Canada program, initiative or service, not to a private sector program, initiative or service.”

9.  On the “Draconian Power” Given to the Minister of Environment and Climate Change: “ The CEAA give the Minister…the procedural power to grant any number of extensions of time for the assessment. That procedural power is normally given to the agency conducting the assessment, not to a political actor who is not discussing it. It (also) permits the Minister to prohibit an project…from proceeding with an assessment, without any or other specified procedural safeguard, simply on the basis of the Minister’s opinion. All that is required is for the Minister to form an opinion that the proposed project would cause ‘unacceptable’ environmental effects… Canada’s assessment process has survived perfectly well since the mid-1970’s without Ministers exercising such draconian power.”

10.  The Final Word on his Recommendations: “Don’t try to use the adversarial pipeline project assessment process to correct Canada’s and the planet’s environmental, social and political problems that bear little relationship to the proposed project.”

There you go. You can see why Bill C-69 as it stands today would inflict more damage to the resource economy than the National Energy Program in 1980.This is an ugly bill. If it can’t be killed, it has to be made into something that we can digest.

Help us fight back. Pick up the phone. Write an email. And consider making a donation to our cause here: https://suitsandboots.ca/donate-now/ .

Thanks for all your support.

Rick Peterson, Founder