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:
- 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, 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.
- 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
