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.

Blog 2 - Community Acceptance

Did the “Community” have all the facts? And, which “Communities”?

 

July 6, 2017. This is the second 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 this 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 the Minister’s 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: The Minister’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 justified by the totality of the major errors and legal breaches described in Blogs 2 to 7.

Today, I look at how the JRP handled the impact assessment function vis-à-vis a critical assessment issue, Community Acceptance, as required by the Canadian Environmental Assessment Act (CEAA), related Federal Guidelines and the JRP’s Terms of Reference.

On an impact assessment issue such as this, where the potential for conflicting views is obvious, the starting point is to remember that the JRP was a quasi-judicial administrative tribunal with a solemn duty to treat proponent and opponent equally, transparently and without any hint of bias or partiality.

On the JRP’s finding of Community Acceptance, consider the following:

1.   OPG created what they called the Community Consultation Advisory Group (CCAG) which was nothing more than a regular meeting of OPG, and the Mayors of the region.   OPG entered into a written agreement in 2004 with the Mayors whereby they agreed to pay the Municipalities $35M in return for testimony at the JRP supporting the DGR.  The JRP saw no negative taint in this evidence - no possible negative inference from the fact the evidence was bought.

2.   OPG had regular secret meetings with the Mayors to enforce this deal and to prepare and polish their testimony. The meetings were later found by an Investigator, appointed under the Municipal Act, to be unlawful meetings of Bruce County Council. The JRP saw no problem with the illegality or the extreme “wood-shedding”.

3.   At the September 30, 2009 meeting of this group, OPG invited the Dr. Michael Binder, President of the Canadian Nuclear Safety Commission (CNSC) (OPG’s primary regulator and principal architect of the JRP).  He attended with his senior administrative assistant. Notes taken by OPG tell us that Dr. Binder did some cheerleading for OPG, including warning them about objections from Michigan, and, on leaving, said ‘the next time I’ll see you will be at the ribbon-cutting ceremony’. SOS GREAT LAKES’s objection, with the Kincardine JRP, based on a reasonable apprehension of bias. It was summarily and angrily dismissed.

4.   In the early 2000s, OPG and the Kincardine Mayor (formerly an OPG employee) commissioned a report by the Ivey Business School on the economic effect of adding the OPG’s DGR to Kincardine’s nuclear energy infrastructure.  To their surprise, the report forecasted a negative stigma effect on the Region’s economy of $700M over the next 30 years.  They kept the report quiet by failing to disclose it to the public, the JRP, or even the full Kincardine Counc

After obtaining a Freedom of Information Order for production by Kincardine of the IVEY Report, a citizen brought it to the attention of the JRP. He did so in a written submission analyzing the JRP’s expert’s testimony on stigma. The citizen’s submission quoted at length from the Ivey Business School's assessment of stigma for the community. The JRP never made any reference to this startling fact. 

5.   OPG relied on two Polls paid for by OPG. Both involved misleading statements and questions and, on one, the results were manipulated to show more support than existed. Both were done in a company town while tax-paying seasonal residents were away. The JRP saw no problem in relying on the Polls.

6.   Neither the JRP, nor CEAA, nor CNSC nor OPG consulted with the other 40 million stakeholders in the “Community” of Canadians and Americans who get their drinking water from the Great Lakes, notwithstanding mandatory statutory requirements to do so.

7.   Opponents received no pre-hearing disclosure of OPG’s or CNSC’s testimony, which was not given under oath, and no questioning of OPG and CNSC witnesses was allowed, let alone cross-examination.

8.   CNSC also controlled the ambience of the hearing. Selected ordinary citizens, who had sought and received standing to present at the Hearing, received early morning visits at their homes by uniformed OPP officers warning them to behave. When those citizens stood to present at the Kincardine hearings, they looked straight at the Chair of the panel, in the centre of the dais.  Sitting next to the Chair, was the CNSC Administrative Assistant to Dr. Binder who had been with him at the September 30, 2009 unlawful meeting while he was doing the cheerleading for OPG.

A Hearing Panel modeled on the EP’s report would have both public and legal representatives, not just consultants and academics who regularly earn part of their living on panels such as this JRP. Such a panel would have had serious concerns about most, if not all, of what the JRP did and did not do on these Community Acceptance sub-issues. Such a panel would never have tolerated this much deception by OPG and its “chummy” regulator, CNSC.  Nor should the Minister.

The Minister’s first route to avoid turning this dilemma into a disaster is to 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 platforms and her recent EP report. Rejection of the Kincardine JRP Report should be an obvious decision.

Rod McLeod, Director, SOS GREAT LAKES

Blog 1 - MCKENNA'S GREAT LAKES NUCLEAR WASTE DUMP DILEMMA?

There are at least two ways to avoid her dilemma becoming disaster. Will she take one of them?

June 29 2017: This is the first in a series of Blogs by Rod McLeod, retired lawyer, former Ontario Deputy Minister, Environment (with the Liberals) and earlier, Public Safety (with the Conservatives) after a time as Chief Crown Prosecutor and, latterly, 25 years of environmental law practice, currently, Board member, 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 over hundreds of thousands of years. When the 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.

Recently, her April 2017 Expert Panel (EP) has given her at least two ways out. My purpose, with this series of Blogs, is to show the reader how and why she should take at least one of those escape routes. Moreover, she may be able do so without wavering on her Government’s support for the popular vote-getting “green” nuclear energy production processes.

The Minister’s Expert Panel (EP) eloquently laid out a principled plan to correct the errors and abuses in the current administration and enforcement of the Harper Government’s Canadian Environment Assessment Act (CEAA) (2012). It governed the first step approval of the DGR by the Harper-appointed Joint Review Panel (JRP) at Kincardine. 

The EP’s mandate was to make recommendations to “restore public trust in EA (Environmental Assessment)” and “introduce new fair processes”.

The EP’s plan says technical, regulatory oversight of a proposal, such as a nuclear energy installation, requires one set of skills and considerations. It is quite a different set of skills and considerations that are required for the assessment and possible approval of the environmental, economic, social, cultural, community, political (including international) and public policy impacts of the proposal.

The Canadian Nuclear Safety Commission (CNSC), which dominated the Kincardine Joint Review Panel (JRP), tried to perform both functions, and, as I will try to point out in this series, did a very bad job at each, especially the impact assessment function.

SOS GREAT LAKES is a grass roots group of Canadians and Americans, first formed when the Government of Canada reversed the long-held belief that nuclear waste should be buried in granite in the Canadian Shield, and tried to put High Level Radioactive Nuclear Waste (fuel rods, designated as HLW) in Saugeen Shores in Bruce County on Lake Huron. We started as SOS, Save Our Saugeen Shores, and, with help from others, were successful in stopping the proposed HLW Deep Geological Repository (DGR) in 2012.

With the announcement of the Kincardine Joint Review Panel (JRP) to consider and OPG proposal for an Intermediate and Low Level (I&LLW) DGR within one kilometre of Lake Huron at Kincardine, we re-branded as SOS GREAT LAKES and expanded our base as our membership spread throughout Canada and the U.S. Our members are people from all walks of life, some with an historical, geographic connection to one of the GREAT LAKES, and others who share our view that OPG’s proposal is wrong for a multitude of reasons, which we explore in this Blog series. Hundreds of Canadian and American counties, cities, towns, and even the Michigan Legislature, have passed resolutions condemning the proposal.

We appeared several times at the 2013-4 hearings at Kincardine but were met with a heavily slanted pro OPG panel and were unsuccessful.

We have filed an Application for Judicial Review of the Kincardine Decision in the Federal Court. The next step in the process is the Minister’s decision (set for Fall 2017) to reject or accept the JRP Report.  If she rejects it, the Court Application becomes moot.  If not, our Federal Court Application becomes a review of her decision. Each legal issue has a mirror image public policy/political issue that demands action. These blogs are an attempt to start that action.

As a former Deputy Minister Environment and Public Safety, and private sector environmental lawyer representing regulated entities, I believe the Minister’s new EP report provides her with a combination of law, logic and intellectual integrity that precludes her letting the Kincardine Report stand. It is not only a disastrously embarrassing precedent for Canada but, is in such stark contrast with her EP, as to have knowledgeable observers shaking their heads.

Her first escape route starts by looking closely at the collectivity of procedural and evidentiary errors in obvious breach of the JRP’s governing documents. These are discussed in Blog 2 (Community Acceptance), Blog 3 (International Obligations), Blog 4 (Abandoning Science), Blog 5 (Human Health), Blog 6 (Sustainability and Precautionary Principles), and Blog 7 (Safety).

The totality of the refusals to follow the law, and other grievous errors in these 6 subjects makes the JRP Report a giant step backward in Environmental/Impact Assessment at a time when she wants to restore faith in EA and introduce new fair processes according to the mandate given to her EP.

Can she summon the courage say so by rejecting the JRP report even though the nuclear energy industry (OPG) will cry foul, as it inevitably does in response to anyone who dares to disagree?

I urge readers to get past the NIMBYs and the YIMBYs (Yes, I like the money), and the OPG sound bites, hard sells and manipulated stats, and take a close look at the detail in these Blogs. Concerned citizens, plus responsible legislators in Canada and the U.S., should be interested in, and willing to, look closely at the detail. Some have and continue to do so. Others should. Hopefully, we can help. Our website shows possible next steps for you to help.

In the coming weeks, I will try to provide the reader with short analyses, issue by issue, to show the sharp contrast between what the JRP did and did not do, and what the EP says about how it should be done.  I intend to demonstrate, issue by issue, how far the Kincardine JRP strayed from even the Harper Government’s minimal requirements (CEAA 2012), let alone from the historical principled approach the EP recommends restoring and improving. Her “blue ribbon” independent experts have given her the tools to do the job if she has the determination to do it.

But, what about the other side of her dilemma - not wanting to offend the ever should she do about the ever-popular vote-getting green nuclear energy industry? I hope my issue by issue analyses, culminating in Blog 8, will show her there is an alternative that need not offend the producers if they are prepared to open their minds to all the detail, including recent and current world-wide experience.

Rod McLeod, Director, SOS GREAT LAKES.