Oil Tanker Moratorium Bill

Message from Commons--Motion for Concurrence in Commons Amendments--Debate Adjourned

June 19, 2019


Hon. Peter Harder (Government Representative in the Senate)
[15:23]

Moved:

That, in relation to Bill C-48, An Act respecting the regulation of vessels that transport crude oil or persistent oil to or from ports or marine installations located along British Columbia’s north coast, the Senate:

(a)agree to the amendment made by the House of Commons to its amendment 2; and

(b)agree to the amendment made by the House of Commons in consequence of Senate amendment 1; and

That a message be sent to the House of Commons to acquaint that house accordingly.

The Hon. the Speaker
[15:24]

It is moved by Senator Harder seconded by Honourable Senator Bellemare:

That in relation to Bill C-48, An Act respecting the regulation of vessels that transport crude oil or persistent oil to or from ports or marine installations located along British Columbia’s north coast —

May I dispense? Did I hear a no? Do you want me to read the whole thing, Senator Mercer?

That in relation to Bill C-48, An Act respecting the regulation of vessels that transport crude oil or persistent oil to or from ports or marine installations located along British Columbia’s north coast, the Senate

(a) agree to the amendment made by the House of Commons to its amendment 2; and

(b) —

The Hon. the Speaker
[15:24]

I have already heard a no on my request for dispense.

 — agree to the amendment made by the House of Commons in consequence of Senate amendment 1; and

That a message be sent to the House of Commons to acquaint that house accordingly.

On debate, Senator Harder.

Hon. Peter Harder (Government Representative in the Senate)
[15:25]

Honourable senators, I rise to speak to this motion that the Senate concur in the message received from the House of Commons in relation to Bill C-48, legislation to formalize the oil tanker moratorium on Canada’s North Pacific coast in the areas of Haida Gwaii and the Great Bear Rainforest.

I would, again, like to thank Senator Mobina Jaffer for her dedication as sponsor of this bill.

The government has carefully considered the Senate amendment to Bill C-48. At our third reading debate, Senator Sinclair outlined the rationale underlying the amendment. He said:

I too have concerns about the bill because it does constitute what appears to be an absolute ban on tanker traffic in an area, for good reason that might be applicable today, but I’m not so sure it will be applicable in the future. When it comes to how we can improve the bill, one of the options I want to talk to the chamber about is whether we might consider allowing for communities to change their minds at some point in the future and if they all agree that the ban should be lifted, then we would allow the bill to say so.

Senators, the government has now accepted this amendment in part, providing for a mandatory parliamentary review in five years. That review would take place at a committee of the House of Commons, the Senate or of both Houses of Parliament. The specified purpose of this parliamentary review will be to consider the impact of this legislation on the environment, social and economic conditions and on the Indigenous peoples of Canada.

In this past Parliament, the Senate has shown how fulsome and flexible our committee proceedings can be, including studies involving travel and multiple committees.

In considering the Senate amendment, the other place has decided not to initiate a regional economic environmental assessment within 180 days. On Monday, Mr. Terry Beech, the Parliamentary Secretary to the Minister of Transport, outlined the reasons for this decision in the other place. The main reason for the government’s chosen approach is to give some respite and peace of mind to the people of the North Pacific coast, particularly the section 35 constitutional rights holders, in relation to the environmental integrity of their territory and their fisheries.

In past decades, these communities have experienced an extended and repetitive series of expensive and sometimes divisive consultations over essentially the same question of whether to accept heavy oil shipments in their region.

A non-comprehensive list of these reviews includes the Senate Transportation Committee study of C-48, in 2019; Transport Canada’s consultations with committees and stakeholders, held in 2016 and 2017 prior to the introduction of Bill C-48; the Canadian Environmental Assessment Agency and the National Energy Board panel review of the Enbridge Northern Gateway Pipeline proposal, held between 2010 and 2012; the Natural Resources public review panel on the Government of Canada moratorium on the offshore oil and gas activities in the Queen Charlotte region of British Columbia, in 2004; the B.C. scientific review of the offshore oil and gas moratorium, in 2002; the joint Canada-B.C. West Coast Offshore Exploration Environmental Assessment Panel, in 1986; the federal West Coast Oil Imports Inquiry, in 1977 and the House of Commons special committee on environmental pollution, from 1970 to 1971.

As Mr. Beech noted in his remarks, it is also important to consider that many of these reviews were led by regulators and officials, not politicians. These reviews were scientific and technical in nature and did not resolve the fundamental political disagreement over this issue.

In support of the motion before us, Chief Marilyn Slett, President of Coastal First Nations, has indicated that the people she represents are currently suffering from what she described as “consultation fatigue.” Chief Slett indicated her people desire the several years of calm and reflection afforded by this message. In addition, Chief Slett has expressed her gratitude to senators for the core idea in the amendment and the effort it represents to achieve greater consensus.

In five years, with parliamentary study required by the message before us, parliamentarians from both chambers will have the opportunity to hear again from experts, stakeholders and constitutional rights holders after a reasonable period of time in this context.

The House of Commons and Senate committees will then be able to make recommendations, including potentially proposing new legislation or regulatory changes based on that review.

On that point, I would also note that C-48 creates a government authority to amend the schedule of persistent oils through regulation. This could happen further to or outside of the proposed review schedule and would provide government with the flexibility to respond to any scientific and technological developments related to shipping, marine safety and spill response.

In addition, I would note on the government’s behalf that the message before us also contains a Senate policy contribution to Bill C-69.

In that bill, as senators know, in the incidental honour of Wayne Gretzky, the government has accepted or modified 99 amendments. One of those proposals has similarly been added to this bill to provide greater legal clarity. The purpose of this change to Bill C-48 is to provide added certainty that the statutory definition of “Indigenous peoples of Canada” has the same legal meaning as the definition of “Aboriginal peoples” in subsection 35(2) of the Constitution Act, 1982. This is another Senate improvement to the bill. In that vein, I would add to the record my view that many senators have done work of the absolute highest quality in discharging their role in relation to this government bill.

In passing Bill C-48, I hope we will be able to keep in mind this government’s policy is a piece of a bigger picture of the government’s energy and environmental framework. In the government’s view, economic development and environmental protection go hand in hand. Yesterday, the Prime Minister made a major announcement in relation to this economic and environmental policy. As you know, cabinet has now approved the Trans Mountain Expansion Project. This project will provide Canada’s regional and national economies with greater access to tidewater for Canadian energy products, including access to global markets for oil from Alberta and Saskatchewan.

This project will create middle-class jobs across Canada, and the company plans to have shovels in the ground this construction season. The Prime Minister also indicated that every dollar the federal government earns from this project will be invested in Canada’s clean energy transition.

As Canadians work to transition to renewable energy, it makes sense to transport Canadian oil by pipeline because it is safer and more efficient than rail. In addition to TMX, the government has supported two other pipeline projects for Alberta and Saskatchewan energy that will move Canada’s oil resources to foreign markets. That is Line 3 and the Keystone XL to the United States.

The government believes these new oil pipelines, in concert with its other policies, will grow and support our national and regional energy economies. Within this suite of policies, the government strongly supports LNG Canada’s now approved $40 billion liquefied natural gas pipeline to Kitimat in northern B.C. That project represents the largest private sector investment in Canadian history and will produce an economic boom for Canada’s resource and construction economy, including many inland Indigenous communities and businesses.

As Senator Cordy told the chamber at second reading, the LNG pipeline will give Canada the fastest route to Asia for North American gas. This will allow Canadian gas to reach Tokyo from Kitimat in eight days versus 20 days from the United States Gulf. These LNG production, pipeline and marine terminal facilities will create approximately 10,000 jobs at the peak of construction.

Again, as Senator Cordy told this chamber, the project will eventually generate billions of dollars in direct government revenues. This investment in the energy sector will include hundreds of millions of dollars in construction contracts for Indigenous businesses.

In addition, this project will have the lowest carbon intensity of any large-scale LNG facility globally.

Geographically, the LNG pipeline will be located in the heart of the area affected by Bill C-48. People in the region largely support the LNG project and are excited that the project will help Asian markets get off coal and burn cleaner fuel, supporting international efforts to mitigate climate change.

Going forward, LNG will be a big part of the energy future of Canada.

As a final point on the government’s policy to develop and export Canada’s energy resources, I would reference what many witnesses at the Transport Committee, including the Government of British Columbia, saw as a compromise between energy interests in Alberta and the risk of a spill on the north Pacific coast; that is, that if lighter value-added petroleum projects can be refined in Canada, there is openness to opportunities in the Pacific north. North coast communities see refined products as a path forward.

While developing Canada’s national and regional energy economies, the government has also put in place the strongest environmental policies in Canadian history. At the heart of these policies is the carbon tax. This is a financial incentive that will change consumer behaviour for the better. In fact, 70 per cent of Canadians will get more money back than they pay through the carbon tax. This incentive will contribute to people buying more efficient vehicles and travelling in ways that are better for the environment. The carbon tax is central to our national credibility as Canada takes an international leadership role in fighting climate change and mitigating the acceleration and mass extinction of the planet’s animals and other life.

Bill C-69 is also a critically important piece of this overall goal, as Canada develops an environmental assessment process that respects economic and environmental interests.

The Senate has worked overtime in giving its thoughts to strike the right balance, again with the government having accepted or modified so many Senate amendments.

The government has taken other positive steps to protect the environment in this Parliament, including recently with Bill C-55 on marine protected areas and Bill C-68 with respect to the restoring of fish habitat and stocks. Again, that last bill was much improved by our work in the Senate.

Honourable senators, on behalf of the government, I thank you all for the excellent work that has been done to review Bill C-48. I ask you to support the motion before us to concur in the decision of the other place so that the policies in this suite can go forward together.

Hon. Douglas Black
[15:36]

Will Senator Harder take a question?

Senator Harder
[15:36]

Yes.

Senator D. Black
[15:36]

I noticed with interest, Senator Harder, that the government’s principal rationale, it would appear, for extending a five-year period — let’s say it could be reviewed in five years — of the tanker ban was that there was a concern for the “respite and peace of mind” of folks who live on the northern coast.

Senator Harder, what do you have to say and what does the government have to say in respect of the “respite and peace of mind” of the proponents of the Eagle Spirit Pipeline, which is now foreclosed, or Albertans who are seeking needed and additional access to Asian markets?

Senator Harder
[15:37]

Senator, I thank you for your question and your “persistent oil” on this subject.

Let me simply say that the existing moratorium is still in place. What we are doing is providing a legislative basis for that moratorium. The Government of Canada is continuing to support pipelines, as I indicated, with respect to both the United States and the TMX pipeline. We are seeking to achieve a balance that responds to the preoccupation of Canadians with respect to environmental integrity while at the same time ensuring the economic interests particularly of the natural resource sectors in Alberta and Saskatchewan can move forward. That is the balance the Senate is being asked to endorse, not just with this bill but with the other bills we have had and still have before us.

Senator D. Black
[15:37]

Thank you very much. I understand that is the balance the Government of Canada believes it can achieve through this, but, Senator Harder, it’s now well-known to senators that the markets that Canadian energy needs to access are the Asian and Indian markets. While we are hopeful that Line 3 and Trans Mountain will advance, there is no certainty of that. We also know that just brings products to the Southern U.S.; that does not solve the essential problem confronting Alberta. All the tanker ban does, as I think we can all agree, is ensure that the ability to get Canadian energy to Asian markets is simply postponed, if not eliminated.

Senator Harder
[15:38]

That would be the case, senator, except you would know that the LNG market is, in fact, an Asian market. Let’s not conflate the two. There is an openness, going forward with this major LNG investment, to achieve that.

Let’s also acknowledge that the global oil market is somewhat fungible in the sense of displacing higher-intense carbon-emitting energy with lower-intense carbon-emitting energy. This is a policy going forward that seeks the balance, and that balance of this government is a policy choice I, for one, endorse.

Hon. Richard Neufeld
[15:39]

Would Senator Harder take another question?

Senator Harder
[15:39]

Certainly.

Senator Neufeld
[15:39]

I listened carefully. I didn’t listen to all your speech, but Senator Black certainly covered the important parts about the moratorium.

Senator Harder, you referred quite a number of times to an LNG pipeline. Are you aware that it is not a pipeline? There are two parts to this. There is a pipeline that comes from northeastern British Columbia to the north coast, and then there is a plant that manufactures the LNG. What comes down in the pipeline is natural gas, not LNG. It’s a matter of how you put those words forward.

Are you aware that it’s not LNG that goes through the pipeline and it’s actually natural gas and gets manufactured on the coast?

Senator Harder
[15:40]

I am indeed and I’ve —

Senator Neufeld
[15:40]

Don’t wave your hands; he should be saying it right.

Senator Harder
[15:40]

I am indeed, senator. In fact, I have been party to corporate interests that have participated in the LNG market.

Hon. Yuen Pau Woo
[15:41]

Honourable senators, the last time I spoke on Bill C-48 was on the amendment of Senator Sinclair. I was pleased the amendment was passed in the Senate and that Bill C-48, as amended, was sent to the other place.

On Monday, we received the message from the other place, which accepted part of the amendment but not other aspects of it. I was disappointed that parts of the amendment we proposed were not accepted. I listened carefully and read carefully the explanations that were given by the government as to why they did not accept the amendment in its entire form.

I quote the Parliamentary Secretary to the Minister of Transport, Mr. Terry Beech. He says:

. . . there is consultation fatigue, particularly among communities living in northern B.C. and with coastal First Nations, after many years of reviews and studies. . . .

At the end of the day, many of the scientific questions about whether or not it is safe or advisable to move crude oil in tankers off this particular coast are endlessly debatable. There is no reason to believe that yet another lengthy and expensive study would bridge these differences of opinion, especially one starting so soon after the coming into force of Bill C-48. . . .

At some point, a decision needs to be taken based on the best evidence available and using the best judgment of parliamentarians about what is fair and reasonable, taking into account the wider Government of Canada approach on energy and the environment and on reconciliation with First Nations.

Honourable colleagues, this is not a statement about more evidence to support the position the government has taken. It is not a statement about more evidence to refute the position that our amendment sought to put forward. It is a policy statement. It is a policy choice of the government, and policy choices, colleagues, are normative.

It is, of course, the right of the Senate and our duty to come up with alternate policy choices when we are given a bill from the government or any other source, and if we see an alternate policy choice to be preferable, to put that forward, as we have done in the amendment that we sent to the other place.

It is quite right for us, on policy choices, to voice our different opinion, but it is not clear to me that on differing policy choices we should insist on our choice if the government has given a different position.

This is especially true when we have an election coming up. The policy choice that the Liberals have made will inevitably become a platform choice. Indeed, it has already become a platform choice for the election to come. And so close to an election, I do not believe it is our job to interfere with what is essentially a policy and a platform choice of the government that will surely be contested vigorously by other parties.

This is why, colleagues, I am inclined to not insist on our amendment. I am inclined to support the motion of Senator Harder that we accept the message, we send the bill to Royal Assent and we let the government stand on this bill and its chances in the election to come.

Thank you.

Hon. David Tkachuk
[15:44]

I have a question.

The Hon. the Speaker pro tempore
[15:45]

Would you accept a question, Senator Woo?

Senator Woo
[15:45]

Yes, I will.

Senator Tkachuk
[15:45]

Senator Woo, I mentioned this in my speech, but did you not support the Northern Gateway pipeline project which went through the Port of Kitimat?

Senator Woo
[15:45]

I have supported the access to tidewater for many years in order for our stranded assets to be able to find markets, other than in North America, so that they can capture greater premiums which they are not currently capturing by exporting only to the United States.

Senator Tkachuk
[15:45]

When you were appointed to the Senate, there was some controversy about the fact that Nathan Cullen, who was a member of Parliament at that time, was critical of your support for Northern Gateway. Were you not a supporter of the Northern Gateway pipeline before you were appointed to the Senate and especially before this particular bill? Yes or no?

Senator Woo
[15:46]

I have always supported access to tidewater, but as we all know, colleagues, the feasibility of any one pipeline is a function of a number of other pipelines going to the coast and also a function of overall supply of oil to the global market.

The oil market is changing very rapidly. Barely 10 years ago, I remember the debate in energy among energy economists. It was whether we were reaching peak oil supply. Today we are debating whether we have approached peak oil demand. I do not know if, in fact, peak oil demand has arrived. However, I do know that any proponent of a second pipeline to the West Coast will have to look seriously at the feasibility of that project now that it appears TMX will go ahead.

Senator D. Black
[15:47]

Would Senator Woo take a question?

Senator Woo
[15:47]

Yes, of course.

Senator D. Black
[15:47]

I suppose we could have debates around what we heard at the Transport Committee. I think it is a conclusion, as indicated by the Associate Deputy Minister of Transport, that to support this tanker ban, there is scientific evidence. And there is no comparative tanker ban in the world, and certainly not in Placentia Bay, the Bay of Fundy or any other place in Canada.

I assume from your comments, Senator Woo, that the best available evidence you are relying upon is “consultation fatigue.”

Senator Woo
[15:47]

I’m afraid, Senator Black, you misunderstood my comments. I support the amendment that would have allowed for a regional assessment to look at the environmental, economic and social impacts of tanker traffic and related activities off the coast of the northern B.C. That would have been my preferred approach.

I said in my remarks a little while ago that the message from the other place does not present fresh evidence that a tanker ban is justified. It does not provide fresh evidence that we should lift the tanker ban. It simply states a policy preference.

The government has said, “We have so much information out there, our constituents are tired of information and this is the decision we are going to take.” We can disagree with the decision, but it is the policy choice of the government.

There is an election coming in a few months. This has already become a burning election issue. Let them stand on it. We should not stand in the way of a policy choice that the government has made because they are the elected government.

Senator D. Black
[15:49]

That’s an interesting philosophic conversation you have launched. I would simply say to that: Even if the policy is wrong, Senator Woo?

Senator Woo
[15:49]

That’s where we can have an interesting discussion and debate because there is some evidence, as was highlighted by Senator Harder’s speech. There have been a number of studies going back, I believe, to the 1970s, to suggest that an oil tanker spill could be devastating for the region.

You will recall from my own speech on the amendment to Bill C-48 barely two weeks ago that I described the risk of a catastrophic oil spill as equally hypothetical to the risk of stranding assets from northern Alberta because both were imaginary at this stage.

I still hold that position. The government has decided that they think the risk of an oil tanker spill is real. They want the moratorium to be in place. This is a policy choice that they have made. This is their right. I wish we had more evidence. I wish the government would take the time and effort to collect more evidence before putting in place a permanent ban, but this choice they made is for them to be responsible for, and we should not stand in their way.

Hon. Scott Tannas
[15:50]

Senator Woo, one last question. Given what you have said — and I find it has reason; the election is coming, and nothing will happen between now and the end of an election — would it be reasonable for us to expect, then, assuming there is a change of government and we have a government that is also proposing to repeal it, that you would stand in your place and support that?

Senator Woo
[15:50]

Senator Tannas, I said in my speech that it is the job of the Senate to consider alternate policy choices, to debate those policy choices, and sometimes to put forward those alternate policy choices to any government bill that comes before us.

If a new government were to have in its platform that it wants to repeal this bill, they are entitled to do so. When the bill comes here, it is still our job to challenge that bill, as we have challenged Bill C-48. But if we get to the stage after third reading, after amendments, and the government of the day says, “This is my preference” and it doesn’t violate the Constitution, it does not violate minority rights and it is not egregious in its treatment of minorities and other constituencies, we should yield to the view of the government.

Hon. Dennis Glen Patterson
[15:51]

I would like to ask Senator Woo a question. May I?

Senator Woo
[15:52]

Of course.

Senator Patterson
[15:52]

Senator Woo, it’s interesting that you should talk about minority rights and infringing on those rights because when you and I debated Bill C-48 some weeks ago, I think there was a respectful difference of opinion about my amendment and my attempt to protect the rights of the Indigenous rights holders, the Nisga’a Nation. I suggested that Senator Sinclair’s proposed amendment was not acceptable to the Nisga’a, and I believe you expressed some doubts about that.

Are you aware of a letter sent June 13 to Senator Sinclair from President Clayton of the Nisga’a Nation rejecting the amendment, saying it does not address any of the critical issues the Nisga’a Nation has continued to raise? She rejected the non‑derogation clause and went on to also ask that proposed section 3.2 of Senator Sinclair’s amendment be removed entirely, as it reflects unconstitutional infringement of Indigenous rights.

Senator Woo
[15:53]

I have not seen that letter. What I am aware of is that there is some disagreement about whether the treaty rights of Nisga’a would in fact be violated by this ban insofar as they deal with activities that some have argued are outside of the scope of the treaty.

I am happy to defer to the experts who have articulated this view. I know that if the Nisga’a feel strongly that their rights are in fact being violated, they will pursue legal action on this matter. I believe they have said they would do so. We should watch that case very closely to make sure that, in fact, their rights are not violated.

Hon. André Pratte
[15:54]

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.”

[16:07]

“As long as they vote my way.”

Senator Pratte
[16:07]

I understood this to mean that I could and I should vote my conscience.

Today, both my conscience and my convictions regarding Senate reform lead me to the same conclusion, even though I am still convinced that the government wasted an extraordinary opportunity when they rejected the “Sinclair compromise.” I am also certain that the Senate reform project, to which we are all participating, could be weakened, if not at risk, by an ill-advised and prolonged confrontation with the other place.

A day will come, honourable senators, when this Senate will take the extraordinary step of seriously engaging in a clash with the other place. A day will come when one particular issue will appear so important in the eyes of the house of sober second thought that we will be determined to wage such a historic battle. A day will come; I’m convinced of this. However, honourable senators, this is not the day. Thank you.

Hon. Percy E. Downe
[16:09]

Honourable senators, when there are contentious bills like this one before the Senate, there is often a view afoot that if the Senate exercised the powers it was given at Confederation in 1867 to defeat government legislation, it would either be a major crisis or certainly an affront to democracy.

It has been repeated over and over that it is not the role of the appointed upper chamber to block legislation passed by the elected House of Commons, especially when it is legislation for which a government has an explicit election mandate.

This would be important if it were historically true, but in the Senate, between 1867 and 2015, 129 common bills were defeated, 50 of which were government bills. Many more government bills during that period were held up in committee or died on the Order Paper and were never allowed to advance to a vote.

Notwithstanding the Senate’s refusal to pass government bills, the country has not had a constitutional crisis or collapse of our parliamentary system. Bills have been defeated in the Senate even when the government had an explicit election mandate.

For example, in the 1993 federal election, then Opposition Leader Jean Chrétien said that, if elected, he would cancel the planned changes made by the previous government regarding Toronto Pearson Airport. Mr. Chrétien promised during the 1993 election an independent review of the Pearson redevelopment project. He said during the campaign:

I’m warning everyone if we become the Government, it will be reviewed and if legislation to overturn the deal is introduced, we will pass the legislation.

What happened? Mr. Chrétien won the 1993 election and became Prime Minister; he reviewed the deal; it was decided that legislation was needed; legislation was introduced in the House of Commons and passed but was defeated in the Senate of Canada — notwithstanding the clear election promise and the mandate Prime Minister Jean Chrétien received from the Canadian public by winning the 1993 election. That was as clear an election promise as you can make, and still the Senate defeated the legislation.

Maybe the words of Canada’s first Prime Minister were top of mind for the senators who defeated that legislation. As we all know, Sir John A. Macdonald said:

There would be no use of an Upper House, if it did not exercise, when it thought proper, the right of opposing or amending or postponing the legislation of the Lower House. It would be of no value whatsoever were it a mere chamber for registering the decrees of the Lower House.

What happened after the Pearson Airport agreement, Bill C-28, was defeated? The government was upset and annoyed, but Canada did not fall into chaos.

It has also been repeated that senators can’t — and should not — vote down any government bill they dislike simply because of differences of ideology or politics, because it is not the job of the Senate to block the democratic will of the voters.

Well, colleagues, tell that to the women of Canada when restrictive abortion legislation was defeated in 1991 by the Senate of Canada after passing in the House of Commons. The government of Prime Minister Brian Mulroney had the legislation passed in the House of Commons, but it was defeated in the Senate.

It is also worth noting that the Conservative women senators who voted against the legislation were all appointed to the Senate by Prime Minister Mulroney — the Prime Minister who was trying to get the legislation passed. The Senate said “no” to the House of Commons, and some members of a partisan political party caucus stood their ground and voted the way they believed was correct. That, colleagues, is what a real independent Senate looks like.

Senator Downe
[16:13]

What about other examples in the history of Canada and of the Senate when the Senate could have voted differently but chose not to? One example, among many, that comes to mind is the War Measures Act during the FLQ crisis.

Did the Senate make the correct decision at the time or just the popular one, and did the Senate fail to exercise its responsibilities?

Faced with intense public pressure, I understand why senators voted as they did; however, senators, like judges, who have tenure until the age of 75, have job security for a reason: to vote without fear or favour.

Colleagues, notwithstanding the public pressure, we have to ask ourselves the question: Is the Canadian Senate here to go along to get along, or is it here to have votes and decisions to stand the test of time?

During difficult moments in the life of our nation, how important is it for the Senate to stand its ground in the face of successive governments urging quick passage of their legislation? Governments always want their legislation passed, and passed quickly. Promises are made to address problems at a later date, but I always wonder why we would pass up the opportunity to fix problems now.

In addition to defeating government bills, the Senate over the years has simply delayed bills and not allowed any votes to occur. Some bills would not be sent to committee; some bills in committee would never come out; and some bills were never allowed to have a final vote.

Before the rules were changed in recent years, this was much easier to do. For example, when Allan J. MacEachen was the Senate Liberal leader in the 1980s and 1990s, bills were held up on a variety of topics, including merging the Canadian Council and the Science and Humanities Research Council, and the redistribution of Commons seats for the 1997 election. These bills were abandoned by the government due to opposition in the Senate.

Also, a major bill on unemployment insurance died in the Senate, and a new transportation act never advanced because of opposition in the Senate — again, no vote.

Added to this list of bills that were held up are laws on drug patents, refugees, copyrights and energy initiatives; the list goes on and on. The most famous of these is when the Senate refused to proceed with the vote on the Canada-U.S. Free Trade Agreement until after the federal election. When it became an issue in the federal election, the government won and the Senate immediately passed it.

After the clear election mandate, the Senate passed the bill. Given that we are currently less than 100 days to the call of the next election, it could be argued that we should ask the government to receive a mandate from Canadians for Bills C-48, C-69 and others.

Senator Downe
[16:16]

Colleagues, it’s the easiest populist statement to make in Canada to be critical of the appointed Senate. The question is asked: How dare they? And fill in the blank.

However, some day Canadians may elect a Prime Minister with the same character and traits as the current U.S. President Donald Trump, at which point Canadians may look for the counterbalance that the Fathers of Confederation wanted the Senate to perform, and wonder why the Senate has been neutered by the recent precedent of not defeating government bills, and has become nothing more than a rubber stamp.

I mentioned earlier a quote from John A. Macdonald:

There would be no use of an Upper House, if it did not exercise, when it thought proper, the right of opposing or amending or postponing the legislation of the Lower House. . . .

The key words for me are “when it thought proper.” That is a decision that each individual senator has to determine on every vote and every bill. I wanted to add historical context to that discussion with these remarks. Thank you, colleagues.

Hon. Leo Housakos (Acting Deputy Leader of the Opposition)
[16:18]

Honourable senators, I’m pleased I didn’t take the adjournment at the time and that Senator Downe got to speak. We’re not often on the same page on votes, but we are on the same page in terms of the role of this institution. Now I would like to take adjournment of the debate.