Honourable senators, as you know, the House of Commons has rejected the heart of the Senate’s amendment to Bill C-48, the oil tanker ban bill. Let me remind you that this amendment was composed of three parts: a regional assessment as provided by the new impact assessment act, Bill C-69, to be launched six months after entry into force, the terms of which would have been negotiated by the federal government, the Governments of B.C., Alberta and Saskatchewan and the concerned First Nations; two, a five-year parliamentary review; and three, a non-derogation clause to affirm and protect Indigenous rights. The government has accepted the non-derogation clause and the parliamentary review but rejected the regional impact assessment.
Non-derogation clauses are significant but standard in federal legislation that affect Indigenous peoples. A lack of one in Bill C-48 appears to have been a glaring omission. As many of you know, parliamentary reviews have one major flaw: They may not be held at all, even if they are required by law. Five years is a long time, and parliamentarians may simply lose interest in a particular issue.
Furthermore, in the context of Bill C-48, a parliamentary review could not yield the scientific evidence and the extensive consultation provided by an impact assessment.
The regional assessment was the crucial part in the amendment moved by Senator Sinclair. Its appeal was due to the fact that it promised to fill a void noted by many witnesses in committee, that rigorous evidence is missing.
Why does the northern coast of B.C. warrant greater protection than other coasts in Canada? Is the area more susceptible to tanker disasters than other navigable waters? To what extent does modern technology reduce the risks of an oil spill? Are there other ways to protect the northern coast of B.C. besides an outright ban? These are some of the questions that a regional impact assessment would have provided solid answers to.
The tanker ban is a radical policy, an axe where a scalpel was required. It pits one region of the country against another, and in my view, ignores the national interest, which consists of protecting the environment, yes, but also of providing our natural resources and access to world markets. The national government’s challenge is to find a balance, not to put all its weight on one side of the equation.
Some would say that yesterday’s decision regarding the Trans Mountain pipeline resolves the matter. I disagree. Trans Mountain, if it is built in a timely manner, will obviously help, but it is neither a final nor a sufficient response to the problem of Canada’s landlocked natural resources.
Because a majority of senators believe that Bill C-48 was not a balanced piece of legislation and would be harmful for the country, we searched for compromises acceptable to senators from all regions, notably to Indigenous senators. Some proposed a corridor. The government said no. Some proposed a sunset clause. The government rejected that.
Finally, we proposed a regional impact assessment. This amendment should have appealed to the government. First, it allowed the ban to go forward. Second, regional assessment, as proposed by Senator Sinclair’s amendment, would help reconcile the concerned First Nations, federal government and provinces involved in the present dispute.
Finally, the concept of regional assessment originates in the government’s own Bill C-69.
Let’s be clear about what the situation was one week ago when Senator Sinclair came up with this amendment. If not for the amendment, it seemed very likely that Bill C-48 would be defeated in the Senate. The government wouldn’t have been able to pass its bill banning tankers on British Columbia’s north coast.
Honourable colleagues, in view of all this, I must say that I feel some frustration today, to put it mildly. However, the issue today is not about how we channel our collective disappointment. Our decisions must be based on reason rather than emotion. Should we insist on our amendment? What are the consequences of our decision in this matter?
The government has provided several reasons for its decision. Most are technical in nature and could have been easily overcome; political will can move mountains.
The government also says that the Coastal First Nations were consulted and that they suffer from review fatigue regarding the tanker ban, that they deserve a break and some peace of mind. I’m quoting.
With utmost respect, it is difficult to comprehend how our compromised proposal, which would have allowed the tanker ban to go ahead, would have disrupted First Nations’ peace of mind more, for instance, than the next election. The tanker ban, because it is a very controversial policy, will always be subject to a certain level of political uncertainty.
Many of us believe, and this is the government’s position, that the Senate should almost always defer to the House of Commons when legislation reflects a commitment made during an election campaign. This position is based on the Salisbury Convention with which you are familiar.
I would note two things. One, the modern applicability of the convention has been challenged in Canada but also in the United Kingdom. Things have changed considerably since The Salisbury-Addison Convention was concluded in the 1940s. For instance, the executive branch is much more powerful than it once was. Also, as Lord Strathclyde noted in 1999:
. . . the House [of Lords] of the Salisbury convention does not exist any more.
The same could certainly be said of the Senate of Canada.
Lord Rippon of Hexham stated:
The doctrine . . . [the Salisbury doctrine] . . . should apply only where . . . a party has made its policy perfectly clear at a General Election.
This is at issue here. The tanker ban was not mentioned in the Liberal’s national platform. The commitment was made in British Columbia but was rarely mentioned in other parts of the country. Therefore, it cannot be said that Canadians as a whole voted in favour of a tanker ban on the northern coast of B.C. This election commitment is not equal to cannabis legalization or infrastructure spending. The government’s mandate on this matter is unclear and weak.
A year ago, we were in a very similar situation during the debate on Bill C-45, the cannabis legalization bill. The Senate proposed a number of amendments, including one about home cultivation that many of us felt was particularly important. The government rejected the amendment, and we found ourselves facing the same dilemma: Should we insist on the amendment or not? I’d like to quote what I said back then:
. . . we should examine everything we do with the lens of the Senate’s reputation and credibility. The Senate’s credibility is fragile, as you know. The serious work done on Bill C-45 . . .
— and the same certainly applies to Bill C-48 and Bill C-69 —
. . . has contributed to its enhancement, but any faux pas at this stage could risk the modest gains that we have made. Insisting should be reserved for relatively rare cases where the issue is of special importance related to our constitutional role, where we are prepared to lead a serious fight and see its completion, when a significant part of public opinion is or could be on our side, although there could be exceptions, and where there are realistic prospects of convincing or forcing the government to change its mind.
Honourable senators, I humbly submit these are four criteria which may guide us in such a situation. Let us apply these criteria to the present case.
One: Is this issue of special importance related to our constitutional role? To this, I answer “yes” without hesitation. The proposal for a tanker ban has become a national unity issue. Two regions of the country are at loggerheads. The Senate can and should take action. In addition to the interests of regions, national unity and the protection of our Constitution is unequivocally part of our mandate.
Two: Are we prepared to lead a serious fight and see its completion? In my mind, insisting once and folding the second time around is a waste of time and energy. When we decide to insist on an amendment, we should be ready and willing for a long fight with the House of Commons. Although I do sense that many are disappointed by the government’s intractability, I have not heard many yet say we should resort to heavy artillery.
Three: Could a significant part of public opinion be on our side during a confrontation with the other place? This is crucial because it determines (a) whether we can win such a tug of war, and (b) whether the legislative impasse will help or hurt the Senate’s reputation. In the present case, frankly, I doubt that a majority of Canadians would follow us. Most would see in a clash between the Senate and the House of Commons another example of the unelected upper house’s abuse of power. The only effect of that would be to damage the Senate’s reputation.
Four: If we don’t have public opinion on our side, we will not convince cabinet to change its mindset. We have tried to convince the government with reason and have appealed to compromise. The exercise has proven fruitless.
Only the prospect of a fall in the polls could persuade them to take a different road. I believe this will not happen with Bill C-48. It is the Senate that will lose points in the polls.
Although it pains me to arrive at this conclusion, the tanker ban bill fails on three of the four criteria I set out last year.
Honourable senators, the temptation to thump our fists on the table is strong. But when we vote on such a serious issue, we should put our emotions aside and follow the voice of reason.
In French, there are two different words for compromise. The first, “compromis,” is honourable and essential. The second, “compromission,” means an arrangement made out of cowardice or pure self-interest. “Compromission” means compromising your principles.
Having already agreed to make several compromises on Bill C-48, are we now at the point of compromising our principles? Of accepting the unacceptable? I don’t think so.
Don’t forget that in five years, we will be undertaking a parliamentary study of the oil tanker ban on B.C.’s north coast.
Furthermore, thanks to the efforts of the Senate, Indigenous rights are clearly asserted and protected in this bill. These may be modest gains, but they exist, and that in itself is significant.
I am not in agreement with Senator Harder’s amendment. It is an amendment which takes out the heart of the Senate’s amendment — its most important part. However, I am also convinced that although I do not like this conclusion, I believe it is unassailable that the Senate should not insist on the main amendment that it put forward. As I outlined earlier, I’m firmly convinced that the Senate would not prevail in such a confrontation with the other place.
I was appointed to the Senate to defend my region while taking into account the national interests — to protect minorities, to promote and guard national unity, of course — but I was also appointed to the Senate to participate in Senate reform. When the Prime Minister called me three years ago to discuss my appointment to the Senate, I only asked him one question: “Will the new senators be independent?” He answered, “Yes, absolutely.”