Remarks to the Standing Committee on Environment and Sustainable Development

Mr. Chairman,

I would like to thank the Committee for providing Sierra Club Canada with an opportunity to put some of our views on the Canadian Environmental Assessment Act (CEAA) on the table. I had hoped to present with our volunteer president (who is also an environmental lawyer) but she is in court today and sends her apologies.

I would like to address three issues in my remarks today.  There is an unacceptable campaign to marginalize and silence the voices of the environment in Canada. Giving responsibility for environmental assessment of energy projects to the National Energy Board and the Canadian Nuclear Safety Commission was just wrong.  And finally, I want to talk about the perceived bias in the system.

Sierra Club Canada believes these issues are linked.  There are forces afoot committed to laying waste to Canada’s natural resources without thought or consideration to future generations. Today’s profit is the only consideration and our only protection against it is a strong independent environmental assessment process.  I fear we are headed in precisely the wrong direction. I hope this committee will be allowed to make the appropriate changes to the act and remove the mistakes of the last few years.

Government and industry have no need to fear good sound environmental policy and assessment. Doing things right creates job just as well doing things badly  - but does not have the environmental, health and social impacts of doing things badly (or in haste).

Sierra Club Canada is part of the oldest and largest conservation organization in North America. We have been involved in conservation issues in Canada since 1963. A major part of that involvement has been participation in environmental assessment processes across the country including participating in hearings on oil sands, pipelines, mega dams, nuclear plants, as well as smaller local issues.

In 2009 Sierra Club Canada challenged the legality of changing the CEAA through regulation. In 2010 the government apparently agreed with our interpretation and used the budget bill to redo the changes. In 2011 the government paid our court costs. This is an example of haste making waste. Please don’t make any more hasty decisions concerning environmental assessment.

The Committee will be hearing from numerous lawyers in these hearings - including my predecessor who is an expert on the act.  Therefore, my comments will be more philosophical and experiential in nature.

I’m sure you will hear from industry that the process of environmental assessment is a great burden and needs “streamlining”.  In my 30 years’ experience “streamlining” is code for weakening.

The Act should be strengthened and the scope of assessment broadened. Canada has signed binding treaties to reduce greenhouse gas emissions and protect biodiversity. Environmental assessment is critical to living up to our international commitments.  

Marginalize and Silence

Sierra Club Canada sees the announced intention to 'cut red tape' and the other changes buried in budget bills as a plan to fundamentally alter how environmental assessment is conducted. This is part of a wider anti-democratic campaign to marginalize and eventually silence the voices for the environment in Canada. This is one voice that won’t be silenced.

The built-in review of CEAA, the purpose of this session, is the democratic way to revise the Act. There was no documented need to alter the act prior to the review. The only reasonable explanation for using budget bills to change environmental protection in Canada is fear of public scrutiny.

Previous reviews included consultation with stakeholders by Environment Canada.

For 29 years the federal government worked with the Canadian Environmental Network -- a body formed solely to assist the federal government in gathering advice and insight from 600 environmental organizations across Canada. Most are small local groups of volunteers working to preserve our natural environment.  These are the real life volunteers who participate in environmental assessment hearings and have far more to offer than I do. The CEN has made a tremendous contribution. There has not been consultation with stakeholders this time.

The decision to stop consulting with environmental organizations and withdraw support for the CEN at precisely the time CEAA is being reviewed clearly is no coincidence. It sends a clear signal.

The federal government has a complex environmental mandate and a relatively limited ability to gather input from all stakeholders. It does not make any sense to cut off a vital source of advice.

National Energy Board and CNSC

The decision to give authority for energy projects to National Energy Board (NEB) and the Canadian Nuclear Safety Commission (CNSC) was wrong. The fox has no business in the hen house. These bodies, along with the offshore oil boards, are too close to industry to provide government with sound unbiased advice. There is an inherent conflict of interest.

I'd like to have this document entered into the record. Is it the 2009 -10 Annual Report of Bruce Power? No it’s from the Canadian Nuclear Safety Commission, but you'd wouldn't know - you will see it is a propaganda piece for nuclear power. Fact: Nuclear in Canada is Safe -- as long as there isn’t an earthquake or other accident.

Isn’t it the responsibility of the industry to promote itself not the regulator?  

On seeing this isn’t it reasonable to conclude the CNSC is biased.  

The NEB and the CNSC primary function is to set standards for everything from pipeline valves to the amount radiation a member of the public can be exposed too. In order to accomplish this kind of regulation these agencies must work closely with industry and expertise becomes quite mobile. It is not unusual for individuals and consultants employed by these agencies to have spent much of their careers in the industry (and many look forward to returning). This is particularly true of the CNSC.  

The role of the environmental assessment is much larger, requiring greater scope and enough separation from project proponents to be unbiased adjudicators. Panels require a wider expertise than understanding the technical issues surrounding proposed projects.

The environmental impacts beyond the project’s fence, economic and social impacts for the local community and whether or not there is a better alternative to a project should have equal weight.

Often during a hearing the conclusions of the regulator are called into question by public submissions and it is the regulator that makes the ruling. This is clearly an inherent conflict of interest and creates an impression of bias.

For example, last year the CNSC granted permission to Bruce Power to export 1600 tonnes of nuclear waste to Sweden for recycling.  Only after a vocal campaign by Sierra Club Canada, dozens of municipalities and aboriginal organizations did the CNSC decide to allow public submissions.

The Bruce Power’s plan to refurbish the Bruce generating station had undergone an environmental assessment in 2005. At the time Bruce Power specifically stated that the 16 steam generators were to be kept at the Ontario Power Generation waste facility.  It is the view of Sierra Club Canada that fundamental changes from an approved project should trigger a revisiting of the environmental assessment and that decision should be made by a body independent of the regulator.

When I raised this issue before the CNSC, the President asked me if I was anti-nuclear then asked his staff if they were wrong not to recommend a revisiting of the environmental assessment.  You can imagine what they said.

CNSC focused only on the issues surrounding the transport of the waste and rightly so as the regulator of the nuclear industry, but ignored the wider issues that would have been the concern of an environmental assessment.  Things like how this project fits into Canada’s longstanding policy of storing waste at reactor sites and not allowing contaminated materials to circulate in the environment.  Effectively, the CNSC allowed Bruce Power, a private company to change Canada’s nuclear policy and ducked its responsibility to properly assess all the issues.

This would not have happened if the role of regulator and assessor were separate as they should be.

And we would not be before the courts.

I would also like to raise the issue of bias in the choosing of panel members for hearings.  Who is qualified and how should panelist be chosen? There is no public input. A panel is announced and a few months later a list of individuals is released.

There is no consultation on nominating panelists yet the decision they make can have implications for Canadian law and society no less significant than judges.

Let me just say how it felt to appear before the Darlington Panel last spring.

I don’t wish to impinge the reputations of the members of the panel. I’m sure they are all admirable individuals.

However, the panel consisted of a former New Brunswick Natural Resources Minister who has on numerous occasions stated his support for nuclear power, a nuclear engineer who worked for both AECL and the CNSC, and a public relations professional.

I accept that as a committed anti-nuclear activist I would not be an appropriate candidate to sit on a panel reviewing a proposal to build a nuclear power plant, but if that’s case how can a committed pro-nuclear politician or engineer be appropriate?

The deck looked kind of stacked to me. It sent a clear message to the public that the hearing was a formality. Guess what, the project was approved.

I would prefer to have neutral panels coming from areas outside of the issue being assessed. Technical expertise can be gathered through the hearings. It is not necessary to rely on individuals closely associated with, or advocates of, the industry.

Our recommendation is to alter the Act to ensure panel members are not drawn from the industry being assessed. Better still, might it not be better to professionalize panel members like judges who are appointed for their ability to reason rather than their connection with an industry. Thomas Berger was a lawyer - not an expert in pipelines or oil.

In conclusion, the scope of the Act should be broadened to ensure all impacts of a project are considered - including things beyond the perimeter like climate change and biodiversity. This is not 'red tape' - it is vital to the integrity of the process.

The roles or regulator, promoter and assessor are separate and distinct. The agencies responsible for regulating and promoting an industry should not be responsible for environmental assessment. The environmental assessment agency should stand alone and apart from industry, government and public much like the courts. This is the only way Canadians can be assured of a fair hearing.

Panelists for hearings should be chosen in a transparent well-understood fashion and should not have close associations with the industry being assessed. Choosing and training a cadre of professional environmental assessors should be considered.  

The campaign to marginalize and silence the voices of the environment should stop. We are not political enemies - just citizens committed to ensuring we will have a legacy of stewardship to pass on to our children and grandchildren.

Thank you.

John Bennett, Executive Director
Sierra Club Canada
Cell 613 291 6888
jb@sierraclub.ca