Blog 3 - International Obligations

Multiple Breaches by Ottawa and Queens Park could Turn McKenna’s Dilemma into McKenna’s Canada/U. S. Relations Major Embarrassment.


July 13, 2017.  This is the third in a series of Blogs by Rod McLeod, retired lawyer, former Ontario Deputy Minister Environment (with the Liberals) and, earlier, Deputy Minister Public Safety (with the Conservatives) after a time as Chief Crown Prosecutor and, latterly, 25 years of Environmental law practice, and currently a Board member of SOS GREAT LAKES.


Background: Premier Wynne’s government owns Ontario Power Generation Inc. (OPG).  Kathleen Wynne, as head of the government, has allowed OPG to continue to plan to build a nuclear waste dump on the shore of Lake Huron, the central of the five Great Lakes that provide drinking water to 40 million people in Canada and the U.S. This Deep Geologic Repository (DGR) would hold 400,000 cubic metres of Intermediate and Low Level Waste (I&LLW). ILW can include reactor parts and other decommissioning waste that will remain dangerously radioactive for hundreds of thousands of years. When that material leaks, as every other Deep Geologic Repository (DGR) in the world has, the rogue emissions will enter the Great Lakes, potentially causing unimaginable damage to the largest supply of fresh water in the world.


McKenna’s Dilemma:  allowing this dump on the shore of Lake Huron is a dangerous and unnecessary gamble with our drinking water and would be in stark contrast to many very important environmental protection principles and initiatives, on which the Trudeau Government was elected in 2015. At the same time she may be reluctant to be seen to be opposing the ever-popular vote-getting ‘’green” nuclear energy industry led by OPG.


Please click here for Blog 1 where I tell you a little about SOS GREAT LAKES and explain the significance of an April 2017 Report from her Expert Panel (EP). The EP proposes major changes in Canadian Environmental Assessment to restore faith in Environmental Assessment (EA) with new fairer processes. It can and should help her with her upcoming decision to reject or accept the conditional first step approval for OPG’s plan granted by the Harper-appointed Joint Review Panel (JRP) at Kincardine. (Her decision is currently scheduled for fall 2017.)

In Blog 1, I stated my thesis: Minister McKenna's independent EP’s April 2017 Report provides her at least two ways out of this dilemma. Both require courage but with the help of her EP she may even be able to escape while continuing full support of nuclear energy, at least its green production cycle.

Her first way out is the totality of the major errors and legal breaches described in Blogs 2 to 7.

Today, I look at the failures of the former Harper  Minister of Environment (Leona Aglukkaq), her Staff, the CNSC, the JRP and OPG to consult and cooperate with the U.S. and Border States.

International Comity

This internationally accepted principle replicates the golden rule, - do unto others as you would have them do unto you.

In 1986, the Right Honourable Joe Clark (then the Minister of External Affairs) complained to the U.S about U.S. Government plans to site nuclear waste disposal facilities at three locations near the Canada/US transboundary waters.  The U.S changed their plans.

Here, a Michigan State Senator asked the JRP to follow the 1986 precedent set by then Minister Clark. The request was ignored.

Furthermore, the JRP misinterpreted Michigan State law on which the Senator also relied and denied the Senator status.

The Canadian Environmental Assessment Act (CEAA 2012), Section 5

This created an affirmative duty on the Harper Environment Minister to consult and cooperate with the U.S., adjacent Provinces, Border States and U.S federally recognized Tribal Governments in the Great Lakes Basin on any aspect of the proposal that could cause a change to the environment outside Canada. There was no such consultation or cooperation.

Boundary Waters Treaty and the International Joint Commission (IJC) who Administer the Treaty

The IJC’s jurisdiction includes investigating transboundary issues and recommending solutions. Article IV says waters flowing across boundaries shall not be polluted on either side to the injury to health or property of the other.

Article 7 of the Great Lakes Water Quality Agreement, enacted under the Boundary Waters Treaty of 1909, provides:

“1. The Parties ( Canada and the United States) agree that, pursuant to Article IX of the Boundary Waters Treaty, the Commission shall have the following responsibilities:

   (g) consulting on a regular basis with the public about issues related to the quality of the Waters of the Great Lakes, and about options for restoring and protecting those waters, while providing the Public with the opportunity to raise concerns, and tender advice and recommendations to the Commission and the Parties.”

The Kincardine DGR was certainly an “issue related to the quality of the Waters of the Great Lakes”.  To our knowledge, the IJC has taken no action about it under this provision.

Great Lakes Water Quality Agreement (GLWQA)

Article 6(c) required Canada to notify the U.S., through the Great Lakes Executive Committee, of the Kincardine DGR at least 6 months before the JRP deadline for Applications for standing to present to the JRP.

The Great Lakes Executive Committee’s bi-annual meeting took place June 16-18, 2013. Records disclose no official mention of the Kincardine DGR. On June 21, the Canadian Co-Chair provided verbal notice of the DGR to the U.S. Co-Chair. The deadline for Applications for Standing to Present to the JRP was July 5, 2013.

These are but four examples. There are several more. By missing or by-passing virtually every requirement relating to possible transboundary environmental effects, OPG, the JRP and its creators, Environment Canada and CNSC, showed a troubling and unacceptable ignorance and/or disregard of Canada’s International Obligations to the U. S. and border States.

The Minister’s first route to avoid turning this dilemma into a disaster is look at the totality of the major errors and legal breaches in Blogs 2 to 7. When she does she will see a picture that is wildly out of sync with her Government’s 2015 election platform and her recent EP report. Rejection of the Kincardine JRP should be an obvious decision.

Why should we thumb our nose at our best friend?

Rod McLeod, Director, SOS GREAT LAKES

PS We have now looked at lack of true Community Acceptance and Failure/Refusal to respect International Obligations. But, there are 4 more sets of errors and legal breaches to come in Blogs 4 to 7.