50 CANADIAN LAW PROFESSORS URGE MINISTER MCKENNA TO REJECT AMENDMENTS TO #BILLC69 THAT UNDERMINE RULE OF LAW by Martin Olszynski, June 11, 2019, Journal of Environmental Law and Practice
The Honourable Catherine McKenna
Minister of Environment
Government of Canada
Ottawa, Ontario
Dear Minister McKenna,
The Senate has recommended an amendment to Bill C-69, proposed by the oil industry, that would impose a restrictive ‘privative clause’ and an onerous process for seeking legal redress under Canada’s most important environmental law. We are very concerned that this amendment would undermine access to justice and the rule of law, by impeding the ability of citizens and Indigenous Peoples to seek judicial review of assessments of major projects – ones that could significantly affect our health and environment. As Law Professors from across Canada, urge that this amendment be rejected.
Bill C-69 proposes to reform Canada’s approach to environmental assessment by “implementing an impact assessment and regulatory system that Canadians trust”. Access to justice is a critical component of public trust. Canadians must be assured that, when there has been a legal error in the exercise of public duties, they can bring their case to a court without undue expense, impediments and burden. The Senate’s (and oil industry’s) proposed amendment would create the following problems for access to justice:
- Requiring applicants to seek leave from the Federal Court of Appeal in order to proceed with a judicial review. Litigation is extremely expensive and becoming more so, particularly for citizens and community groups. Canada already ranks behind its peers in access to civil justice, according to the World Justice Project. Parliament should not erect additional barriers that make access to the courts more costly and difficult – especially when it involves environmental matters of public importance (major projects on public land) that are likely to affect many Canadians. When those decisions are not lawful, access to the courts should be facilitated instead of hindered.
- Mandating that determinations under the IAA are “final and binding”. This language reduces the long-standing ability of the courts to correct legal errors by suggesting that they must defer to the interpretations of administrative decision-makers (the Impact Assessment Agency or a review panel). At best the provision is redundant, since the Supreme Court has already confirmed that “expert” bodies are entitled to latitude in interpreting their “home” statutes. At worst, such “privative” language can make courts hesitant to step in [and Canadian courts are already cowardly enough], where appropriate, and correct unlawful decisions.
- Denying applicants oral hearings. The leave requirement is even more troubling because the amendment specifies that the determination would be made in a summary way and normally without personal appearance. This provision would deny citizens their “day in court” and invite decisions to be issued without proper reasons, which would diminish public confidence in the judicial process. [Who in the public has confidence in Canada’s legal system?]
- Imposing unworkable timelines for court procedures. A requirement to hold a hearing within 60 days is unworkable given the heavy caseload of the courts, and interferes with the Court’s ability to control its own process. This is particularly true of the Federal Court of Appeal, already one of the most overworked courts in Canada. Judicial independence is vital and extends to scheduling, which judges must determine taking into account all the circumstances of the case.
This draconian amendment is a solution in search of a problem. There have only been a handful of judicial review applications each year for environmental assessments across Canada, and only the most egregious errors have been overturned.
Access to justice is a cornerstone of our democracy. As Parliament considers important new environmental legislation aimed at restoring public trust, we urge that it not create further barriers for citizens seeking to ensure that legal rules and procedures are respected. Accordingly, the proposed “privative” amendment should be deleted. [Extra emphasis added]
Sincerely,
Amir Attaran Professor, Faculty of Law U of Ottawa
Me Sophie Lavallée Professeure titulaire Faculté de droit Université Laval
Stepan Wood Canada Research Chair in Law, Society and Sustainability Director, Centre for Law and the Environment
Peter A Allard School of Law University of British Columbia
Sophie Thériault Full Professor Civil Law Section Faculty of Law U of Ottawa
Sara L Seck Associate Professor and Associate Dean, Research Schulich School of Law, Dalhousie University
Shaun Fluker Associate Professor of law U of Calgary
Stewart Elgie Full Professor, Faculty of Law Director, Institute of the Environment, U of Ottawa
Chris Tollefson Professor of Law Faculty of Law U of Victoria
Constance Backhouse, C.M., O.Ont., F.R.S.C. Professor of Law & Distinguished University Professor U of Ottawa
Nathalie Chalifour Professeure agrégée|Associate Professor Section de Common Law|Common Law Section U of Ottawa
Dr. David R. Boyd, J.D., Ph.D. UN Special Rapporteur on Human Rights and Environment Associate Professor of Law, Policy, and Sustainability, Institute for Resources, Environment and Sustainability, School of Public Policy and Global Affairs U of British Columbia
Elizabeth Sheehy, LLB, LLM, LLD (hons), F.R.S.C. Professor Emerita of Law U of Ottawa
Daphne Gilbert Associate Professor and Vice Dean, Governance U of Ottawa, Faculty of Common Law
Patricia Hania, JD, Ph.D. Assistant Professor Law & Business Program, Ted Rogers School of Management, Ryerson University.
Jean Leclair Professeur titulaire Faculté de droit Université de Montréal
Errol Mendes Full Professor, Faculty of Law, Common Law Section U of Ottawa
Marina Pavlović Associate Professor Faculty of Law, Common Law Section U of Ottawa
Darren O’Toole Professeur agrégé/Associate Professor Faculté de droit/Faculty of Law Université d’Ottawa/U of Ottawa
François J Larocque, PhD Professeur titulaire | Full Professor Faculté de droit | Faculty of Law Université d’Ottawa | U of Ottawa
David Robitaille, Ph.D. Professeur titulaire | Full Professor Section de droit civil | Civil Law Section, uOttawa
Dr. Meinhard Doelle Professor of Law Dalhousie University
Teresa Scassa Canada Research Chair Section de Common Law|Common Law Section U of Ottawa
Angela Cameron Associate Professor and Shirley Greenberg Chair in Women and the Law U of Ottawa Faculty of Law
Lynda Collins Professeure agrégée|Associate Professor Section de Common Law|Common Law Section U Of Ottawa
Jane Bailey Professor University of Ottawa/Université d’Ottawa Faculty of Law/Faculté de Droit
Hervé Depow Sessional Professor Faculty of Law, Common Law Section U of Ottawa
Me Jean Baril, LL.D Professeur Département des sciences juridiques L’Université du Québec à Montréal
Penelope Simons, PhD Professeure agrégée / Associate Professor Université d’Ottawa / U of Ottawa Faculté de droit / Faculty of Law
Chidi Oguamanam, LL.B, LL.M, Ph.D. Professor | Professeur Faculty of Law | Faculté de droit U of Ottawa | Université d’Ottawa
Sharon Mascher Professor Faculty of Law U of Calgary
Joshua Ginsberg Part Time Professor U of Ottawa Faculty of Law
Kristin Bartenstein Professeure Faculté de droit Université Laval Neil Craik, LL. B, LL.M, SJD Associate Professor of Law School of Environment, Enterprise and Development (SEED) Balsillie School of International Affairs U of Waterloo
Martin Olszynski Associate Professor U of Calgary Faculty of Law
Jonnette Watson Hamilton Professor Faculty of Law, U of Calgary
Charis Kamphuis Assistant Professor, Faculty of Law Thompson Rivers University
Patricia Farnese Associate Professor College of Law – U of Saskatchewan
Oliver M Brandes BA, M.Econ, J.D. Adjunct Professor, Faculty of Law and School of Public Administration U of Victoria
Michael M’Gonigle Professor (Emeritus) U of Victoria Faculty of Law
Professor Martha Jackman, LSM, FRSC Faculty of Law, Common Law Section U of Ottawa
Naiomi Metallic Assistant Professor Schulich School of Law, Dalhousie U
Sébastien Jodoin Assistant Professor / Professeur adjoint McGill University, Faculty of Law Université McGill, Faculté de droit
Patricia Galvao-Ferreira Assistant Professor Faculty of Law, U of Windsor
David VanderZwaag Professor, Schulich School of Law Dalhousie U
Marie-Claude Desjardins Professeure agrégée Université de Sherbrooke
Dr. Beverly Jacobs, CM, LLB, LLM, PhD Assistant Professor, Faculty of Law, U of Windsor
Christophe Krolik Professeur de droit Université Laval
Hélène Trudeau Vice-doyenne Faculté de droit, Université de Montréal
Jasminka Kalajdzic Associate Professor Faculty of Law | U of Windsor
Arlene Kwasniak Professor Emerita, Faculty of Law U of Calgary
Christopher Waters Professor, Faculty of Law U of Windsor Co-Editor, Canadian Bar Review