50 Canadian Law Professors Urge Minister McKenna to Reject Amendments to #BillC69 that Undermine Rule of Law

June 11, 2019

 

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, we 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, 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.
  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.

Sincerely,

[signed by]

 

Amir Attaran

Professor, Faculty of Law

University 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

University of Ottawa

 

Sara L Seck

Associate Professor and Associate Dean, Research

Schulich School of Law, Dalhousie University

 

Shaun Fluker

Associate Professor of law

University of Calgary

 

Stewart Elgie

Full Professor, Faculty of Law

Director, Institute of the Environment

University of Ottawa

 

Chris Tollefson

Professor of Law

Faculty of Law

University of Victoria

 

Constance Backhouse, C.M., O.Ont., F.R.S.C.

Professor of Law & Distinguished University Professor

University of Ottawa

 

Nathalie Chalifour

Professeure agrégée|Associate Professor

Section de Common Law|Common Law Section

University 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

University of British Columbia

 

Elizabeth Sheehy, LLB, LLM, LLD (hons), F.R.S.C.

Professor Emerita of Law

University of Ottawa

 

Daphne Gilbert

Associate Professor and Vice Dean, Governance

University 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

University of Ottawa

 

Marina Pavlović

Associate Professor

Faculty of Law, Common Law Section

University of Ottawa

 

Darren O’Toole

Professeur agrégé/Associate Professor

Faculté de droit/Faculty of Law

Université d’Ottawa/University of Ottawa

 

François J Larocque, PhD

Professeur titulaire | Full Professor

Faculté de droit | Faculty of Law

Université d’Ottawa | University 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

University of Ottawa

 

Angela Cameron

Associate Professor and Shirley Greenberg Chair in Women and the Law

University of Ottawa Faculty of Law

 

Lynda Collins

Professeure agrégée|Associate Professor

Section de Common Law|Common Law Section

University 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

University 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 / University of Ottawa

Faculté de droit / Faculty of Law

 

Chidi Oguamanam, LL.B, LL.M, Ph.D.

Professor | Professeur

Faculty of Law | Faculté de droit

University of Ottawa | Université d’Ottawa

 

Sharon Mascher

Professor

Faculty of Law

University of Calgary

 

Joshua Ginsberg

Part Time Professor

University 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

University of Waterloo

 

Martin Olszynski

Associate Professor

University of Calgary Faculty of Law

 

Jonnette Watson Hamilton

Professor

Faculty of Law, University of Calgary

 

Charis Kamphuis

Assistant Professor, Faculty of Law

Thompson Rivers University

 

Patricia Farnese

Associate Professor

College of Law – University of Saskatchewan

 

Oliver M Brandes BA, M.Econ, J.D.

Co-Director POLIS Project on Ecological Governance

Associate Director Centre for Global Studies

University of Victoria

 

Michael M’Gonigle

Professor (Emeritus)

University of Victoria Faculty of Law

 

Professor Martha Jackman, LSM, FRSC

Faculty of Law, Common Law Section

University of Ottawa

 

Naiomi Metallic

Assistant Professor

Schulich School of Law, Dalhousie University

 

Sébastien Jodoin

Assistant Professor / Professeur adjoint

McGill University, Faculty of Law

Université McGill, Faculté de droit

 

Patricia Galvao-Ferreira

Assistant Professor

Faculty of Law, University of Windsor

 

David VanderZwaag

Professor, Schulich School of Law

Dalhousie University

 

Marie-Claude Desjardins

Professeure agrégée

Université de Sherbrooke

 

Dr. Beverly Jacobs, CM, LLB, LLM, PhD

Assistant Professor, Faculty of Law,

University 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 | University of Windsor

 

Arlene Kwasniak

Professor Emerita, Faculty of Law

University of Calgary

 

CHRISTOPHER WATERS

Professor, Faculty of Law

University of Windsor

Co-Editor, Canadian Bar Review