Regulation and Democracy

The Trans Mountain pipeline expansion is a vital strategic interest to Canada. It will be built … We are a vast, varied cooperative federation, built on centuries of compromise. But we are, above all, one country governed by our Constitution and by the rule of law.

– Prime Minister Justin Trudeau, April 15, 2018

The Kinder Morgan Trans Mountain Pipeline expansion approval exposes how the scope and complexity of both the regulatory processes and project execution have increased over the past several years. This particular case shows that years of regulatory review under different governments and an ultimately successful, yet highly conditional, approval have been insufficient to provide enough certainty to execute the project.

Context and circumstance is everything, and there are new, critical issues that didn’t exist or resonate as much in the past. They include protectionism, populism, data and IP security, new geopolitical rivalries, inequality, the technology arms race, domestic political gridlock and, of course, social media. How these issues play out in regulatory approvals may be democratic, but as lawyers, regardless of whether we are promoting or challenging an approval, we can agree on the need for certainty in the process.

The regulatory review process has come a long way in the past 25 years. For example, foreign investment reviews under the Investment Canada Act now require corporate undertakings in each and every case; there are rules governing investments by state-owned enterprises, and full-blown national security reviews. This in contrast to when I first started to practice law, where the most important skill for a regulatory lawyer was getting the spelling right on forms.

A deep knowledge of the rules and regimes are no longer enough. Being humble enough to be open to considering much broader stakeholder interests – such as the environmental lobby or local advocacy groups -- and the impact of increasing global competition is the starting point. Getting a ‘no’ on a proposal is a problem if it happens because you’re a slave to how things used to work and you weren’t poised for the unexpected.

The question is, of course, how to prepare for the unexpected. This may include once-silent interest groups, a relentless social media campaign, or a deal leak that goes viral and stops everything in its tracks. The first step is to take a 360-degree view of the potential stakeholders. Assess whether their perspective or potential concerns could resonate today. Consulting a broad range of experts and assessing new stakeholder groups is now required, and entails recalibrating client expectations before embarking on a worthwhile deal or initiative to, among other things, ensuring it will justify deploying the necessary resources and brand capital to get to the finish line.

The next step is to stay focused on the war itself and not get distracted by the skirmishes and noise. From the very start, have a clear and consistent message on the substantive win-win aspects of your initiative; this is still the best anchor for your winning strategy.

Avoid thinking of any group as an enemy, but rather as a potential opportunity to test and answer concerns that must be addressed. Tough questions or contrary positions cannot be wished away, and engaging with stakeholders has never been more important.

Whether we like it or not, the legal and regulatory playing field has changed. The luxury of compartmentalizing and isolating legal problems from broader political questions (which, granted, were always there but more in the background) are gone. Our role as regulatory lawyers is both more challenging and more valuable.

Also, we quirky lawyers that the M&A teams would use to simply fill out forms are now often centre stage. No one saw that coming, either!

This article first appeared in the June 2018 publication of Lexpert.