Speech to the Council of Canadian Administrative Tribunals
6th International Conference and 29th Annual Conference
Sunday, May 26, 2013, Toronto, Ontario
Hi Everyone. My name is Joanna Bull. I’m In-House Counsel for a grassroots charity called Lake Ontario Waterkeeper.
I’ve been with Waterkeeper since 2008. Prior to that - as a student - I was a caseworker at Parkdale Community Legal Services. I’ve had the privilege of appearing before a number of Tribunals represented here today, including the Canadian Nuclear Safety Commission, the Environmental Review Tribunal, the Ontario Municipal Board, the Ontario Energy Board, the Social Benefits Tribunal, and the Criminal Injuries Compensation Board.
I feel quite honoured to be able to speak with you all - the people charged with making law accessible and meaningful for regular people - and who care enough about making good decisions that you’re here on a Sunday. Given the impressive roster of speakers the organizers brought here for you, I am going to be careful not to take up too much of your time.
I’m going to tell you why I do the work I do, why I find myself before Boards, Commissions, and Tribunals on a regular basis. I’m going to share what - in my experience - is working in administrative law, and - maybe more interestingly - what isn’t working.
But before we get to what’s working and what isn’t, I want to talk about the WHY. In the non-profit world, we talk about the WHY a lot. The WHY is what everything comes down to - it’s what makes us do the work, it’s what rallies the public to support us.
.... For Lake Ontario Waterkeeper, the WHY is right outside this building.
Lake Ontario is the 14th largest lake in the world. It’s a deep lake, second in average depth only to Lake Superior. The Niagara River flows into the lake to the southwest of us, and the St. Lawrence River drains it to the east, out to the Atlantic Ocean. Nine million people draw their drinking water from the lake. It’s an important shipping corridor. It provides valuable and diverse habitat for all kinds of fish and creatures like otters and mink. Millions of people use it for recreational swimming and boating and days at the beach.
If you’re not from Toronto, I encourage you to go outside, during a break today or tomorrow, and stand by the edge of the lake. If you are from Toronto, I encourage you even more strongly to go out and stand by the lake.
I grew up here, but it still wows me to actually stare out at the water, to see that expanse of blue disappearing into the distance, to imagine the thousands of boats that have come into this port. The smugglers during prohibition making midnight runs to the American side in low, fast boats in total darkness. The fisherman pulling in nets full of whitefish, trout, and pike. The throngs of people who flocked to swim in the lake every summer because they knew those beaches belonged to them.
It’s everyone’s right to freely swim, drink and fish Lake Ontario... but the lake is in trouble. Industrial pollution, nuclear waste, raw and partially treated sewage, invasive species, lake filling - these threats and others have tried to take this immense, amazing resource away from the public.
What’s made this the new reality?
It comes down to decisions that were made without thorough science, without public consultation, without precaution and respect for the water.
These decisions are exactly why Lake Ontario Waterkeeper participates in administrative legal processes. We believe that the Lake can recover. It can become swimmable, drinkable, and fishable again. But that can only happen if decisions that affect the lake are made on the basis of procedural fairness and natural justice, the cornerstones of administrative law.
These are the same reasons that Community Legal Clinics are so important. When it comes to social change, to protecting democracy and individual and community rights, there is a place for politics and for activism - and there is a place for using legal tools and processes, for enforcing the law and making enforcement something everyone can access.
As my boss, Waterkeeper Mark Mattson, often says:
You can have all the high sounding laws and policies you want, but without a public that cares and believes that those laws can and should have meaning and force, they don’t matter - they’re just words growing dusty on a shelf.
The public looks to your tribunals to make those laws real.
With all the differences between individual tribunals, it always comes back to that ultimately goal: Make the law relevant and accessible to the public. In my opinion, that’s what makes administrative law amazing. At their best, tribunal processes:
Are non-political, independent, and impartial
They are evidence-based
They provide a forum for the opinions of everyone affected to be weighed seriously - not just those with the money or the power.
When things are working they way they should, you - as decision-makers - have one simple job: Search for the truth.
Searching for the truth will always lead to better decisions.
Bad ideas just can’t stand up under those conditions.
A good example is the Lafarge Alternative Fuels case that Waterkeeper was part of from 2006 to 2009. Lafarge is a big multinational cement company. They operate a cement kiln in Bath, near Kingston. Instead of normal fuels, Lafarge wanted to burn things in the kiln like old tires, dead animals, plastics, and domestic garbage pellets. The Ministry of the Environment gave them a permit to go ahead.
Waterkeeper, the Loyalist Environmental Coalition, Clean Air Bath, and members of The Tragically Hip appealed the licences to the Environmental Review Tribunal, with CELA and Ecojustice as our counsel.
We were granted leave to appeal. Lafarge and the Ministry sought judicial review of that leave decision - but they lost at Divisional Court, and the Court of Appeal refused to hear the case. When it became clear that Lafarge and the Ministry would actually have to go through a hearing - a transparent process with evidence that could be tested by an independent decision maker on the basis of science - they pulled the whole project. They knew a bad project just wouldn’t stand up to that kind of scrutiny.
Now, most of the time - we don’t stop the project from going ahead. We participate, but we usually don’t win. Most of the time, the thing gets built or dug or refurbished.
But... we consider it a success when the facts make the project better. Every time we’ve got to a real hearing - a hearing with testimony under oath, expert evidence, and an impartial decision-maker - that project ends up better because of it. Changes to the design or plans are made based on the evidence; terms and conditions are placed on the proponent to protect people and the environment. Only good plans hold up to the scrutiny that a good administrative process brings.
Of course, the process is different for every tribunal - and should be, tailored to your subject matter. Regulating nuclear reactors is different from regulating oil pipelines and different from disability adjudications or landlord and tenant disputes.
But in every case - the process is working if hearing results in a fair decision.
I clearly have a lot of respect for administrative law, for its goals and ideals... but I routinely find myself in processes where procedural fairness has lost serious ground. Those are the processes that just aren’t working. And where good process leads to good decisions, bad process leads to bad decisions.
The tribunal I find myself before most often is the Canadian Nuclear Safety Commission - the CNSC. The CNSC decides things like whether radioactive waste can be shipped on the Great Lakes, whether leaking nuclear waste dumps can continue to discharge pollution into drinking water, and whether nuclear power plants can kill millions of fish... or not.
These decisions affect all nine million people in Lake Ontario’s watershed and beyond - they affect whether our drinking water will be safe, whether we can take our kids swimming at the neighbourhood beach, and whether we can throw in a line and pull out a fish to feed our families. In short, decisions that affect people directly and in a very real way.
You might think that, with these kinds of decisions to make, the CNSC would be a leader in fairness and due process.
But that’s not the case. Instead, the process has become so broken that it is starting to seem futile for groups representing the public to put time and money into participating in CNSC hearings. The Commission offers the lowest level of procedural fairness - Notice and Comment. And usually it’s pretty clear to those who do try to participate - they are part of a check-box: Did you notify the public and give them the chance to speak? Check.
Testimony isn’t under oath.
Everyone who speaks is subject to a 10 minute time limit.
Experts aren’t qualified.
People routinely give evidence in fields outside their own expertise.
There is no cross-examination. In fact, the proponent is allowed to discuss their answers off the record before answering a question.
At the Joint Review Panel hearing into whether to build new nuclear reactors on the lake at Darlington, which drew many of its procedural rules from the CNSC, Waterkeeper received over $70,000 in funding from the federal government to hire expert scientists. Yet, no distinction between opinion and expert evidence. The government paid for us to fly a cooling water expert in from England. He spoke for two minutes. No one asked him a question.
These kinds of hearings are held more to “educate” the public about the merits of the project than to find ways to improve the plans or consider alternatives. At a different CNSC hearing in 2008, Waterkeeper asked the Commission to consider having testimony under oath and allowing cross-examination. The Chair, Michael Binder, explained: “Only lawyers like those legalistic processes. Some of the professional people actually do not like them.”
Animosity to the law doesn't serve anyone except those with power - those who don’t need the guarantees that fairness promises.
So... how can you, as tribunal members, avoid or improve these kinds of problems? I definitely don’t have all the answers, but there is one thing that would make a huge difference from Waterkeeper’s perspective - and it’s this:
Hear from the public. Hear from experts. Just don’t conflate the two.
You as tribunal members are not supposed to have the answers - that isn't what being a specialized decision-maker means. No, the process exists to help you identify the right questions.
Inevitably, the person in the room without all the answers - the person who is looking for them, with an open mind and an eye to science - they are the smartest person in the room. And our laws, and our processes, they encourage this – they need this.
Process lets you hear from people with expertise on the specific issue you’re considering; people who are independent, with no economic or political ties to the outcome. Experts that you qualify before hearing from them, who give their testimony under oath, and whose evidence stands up to vigorous cross-examination.
But... if you applied those standards to everyone who had relevant information, you would miss a lot; valuable opinion and experience-based evidence. You need a way to distinguish between expert evidence and opinion evidence. Not to discount opinion. Just to ensure that people with opinion evidence can be heard, while those with expert evidence meet strenuous tests.
The National Energy Board is an example of a tribunal getting procedural fairness right, for the most part. I haven’t appeared before the Board, but Waterkeeper just received permission on Thursday to comment on the controversial Line 9 oil pipeline reversal.
The new process the NEB put in place for that hearing has been getting a lot of criticism in the media. The process for groups planning to intervene and hire experts was the same as for members of the public expressing general concern. That was a stumbling block, one I’m sure the Board is going to look carefully at, but the larger point is actually a sign of good process.
The Board has two streams - Commenters and Intervenors. As the hearing moves forward, Commenters won’t be subject to the same stringent rules or obligations as Intervenors, and they won’t have as many participation rights.
The best processes seem to work this way. They ensure that members of the public with relevant opinion evidence can participate with few hurdles to jump, but they create a separate process for qualified expert evidence. The recent Cohen Commission into the disappearing Fraser River salmon, the Berger Commission into the Mackenzie Valley Pipeline, the Walkerton Inquiry into tainted drinking water in an Ontario town - all of these hearings were split into two parts: one for open public consultation, and one judicial style, subject to the more formal rules of procedural fairness and evidence.
You, in this room, hold the key to making administrative hearings work. You are the few with the power to ask the questions that ensure good decisions are made - about people’s jobs, their homes, their support benefits. That lake outside belongs to us all. But you are the ones with the means to make sure that’s a reality... for everyone who wants to swim, drink, or fish in it. And it’s good process that will bring us those good decisions.
As Kennedy said: “We will not make or interpret laws. We shall enforce them – vigorously, without regional bias or political slant. ... But all the high rhetoric about the noble mansions of the law, all the high-sounding speeches about liberty and justice, are meaningless unless people – you and I – breathe force and meaning into it.”
By Kennedy, I mean Robert Kennedy Sr. He spoke these words as a young Attorney General confronting segregation in the south. It’s this faith and this spirit that motivates Waterkeepers. And I hope it is a spirit that will help you look for the questions first - always with an eye on fairness - in your next hearing.