50 Canadian law profs urge Environment Minister to reject amendments proposed by oil industry to #BILLC69 that undermine rule of law


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:

  1. 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.
  2. 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.
  3. 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?]
  4. 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]


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

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