e

From: Kaitlyn Mitchell [mailto:kaitlyn@cela.
ca]
Sent: Wednesday, November 19, 2008 8:12 PM
To: Darlington Review / Examen Darlington [CEAA]
Subject: Comments Re CEAR No 07-05-29525
Dear Sir or Madam,
Please find attached comments regarding the draft Environmental Impact Statement
Guidelines for the New Nuclear Power Plant Project by Ontario Power Generation
(Darlington) within the Municipality of Durham, Ontario (CEAR No 07-05-25738)
submitted on behalf of the Canadian Environmental Law Association ("CELA").
Also attached, please find comments regarding the draft Agreement to Establish a Joint
Review Panel for the same Project submitted on behalf of CELA, Greenpeace, and
Citizens for Renewable Energy. The third attachment is a cover letter to accompany
these joint comments regarding the draft Agreement.
Please note that the attached documents have also been sent via regular mail.
Yours truly,
Kaitlyn Mitchell
Counsel
Canadian Environmental Law Association
130 Spadina Ave., Suite 301
Toronto, ON. M5V 2L4
[email protected]
http://www.cela.ca
Phone: 416-960-2284 ext. 212
Fax: 416-960-9392
November 19, 2008
Sent Via Mail and Electronic Mail
Darlington New Nuclear Power Plant Project

Canadian Environmental Assessment Agency
160 Elgin Street, Ottawa, Ontario K1A 0H3
E-mail: [email protected]
Dear Sir or Madam:
Re: Draft Agreement to Establish a Joint Review Panel for the New Nuclear Power
Plant Project by Ontario Power Generation (Darlington) within the Municipality of
Durham, Ontario (CEAR Reference Number 07-05-29525)
Please find enclosed comments in regard to the draft Agreement to Establish a Joint
Review Panel for the New Nuclear Power Plant Project by Ontario Power Generation
(Darlington) within the Municipality of Durham, Ontario (CEAR reference number 07-
05-25738). These comments are submitted on behalf of the Canadian Environmental
Law Association, Greenpeace, and Citizens for Renewable Energy.
Yours truly,
<original signed by>

Theresa McClenaghan
Executive Director and Counsel, Canadian Environmental Law Association
<original signed by>
Shawn-Patrick Stensil
Energy Campaigner, Greenpeace Canada
“Ziggy Kleinau”
Citizens for Renewable Energy, Co-ordinator
November 19, 2008
Sent Via Mail and Electronic Mail
Darlington New Nuclear Power Plant Project

Canadian Environmental Assessment Agency
160 Elgin Street, Ottawa, Ontario K1A 0H3
E-mail: [email protected]
RE: Comments on the Draft Agreement to Establish a Joint Review Panel for the
New Nuclear Power Plant Project by Ontario Power Generation (Darlington) within
the Municipality of Durham, Ontario (CEAR Reference Number 07-05-29525)
I. INTRODUCTION
The draft Agreement to Establish a Joint Review Panel for the New Nuclear Power Plant
Project by Ontario Power Generation (Darlington) within the Municipality of Durham,
Ontario (“draft JRPA”) suffers from three main categories of problems: (1) panel
membership, (2) potentially inadequate procedural rights, and (3) inadequate terms of
reference.
To begin, we wish to be clear that due to our concerns about independence and public
perception of bias, we feel it is inappropriate for members of the Canadian Nuclear
Safety Commission (“CNSC”) to sit on the Joint Review Panel (“JRP”). Additionally,
the draft JRPA provides the President of the CNSC with almost complete control over the
appointment of members to the JRP. The Minister of the Environment should be given
more control in this respect, so as to ensure that the members of the Panel are
experienced and knowledgeable regarding the environmental impacts of nuclear
developments, and that they are unbiased and independent in their approach the Review
process. The Minister should, at a minimum, be granted the power to appoint the
Chairperson and at least one other member of the JRP without first having to get the
approval of the President of the CNSC.
Of fundamental importance to the effectiveness and legitimacy of the JRP Hearings is the
need for individuals and groups to be accorded sufficient procedural rights, so as to
ensure full, meaningful, and comprehensive public involvement in the Hearing process.
1
Because of the serious and direct impact the JRP’s Report will have on the interests of
those involved in the JRP Hearings, stringent procedural rights must be accorded. Means
by which procedural rights can be adequately provided for include: (a) requiring the JRP
to consult the public prior to finalizing its directions on procedure, rather than making
such consultation optional, (b) authorizing cross-examination of witnesses by parties,
participants, and/or intervenors, and (c) and abstaining from establishing time limits on
presentations to the JRP.
Our third main area of concern – the inadequacy of the draft Terms of Reference for the
Review (“draft TOR”) – encompasses what we see as a number of substantial problems.
First of all, as with the draft Environmental Impact Statement Guidelines (“draft EIS
Guidelines”), the draft JRPA contains a project description which lacks a significant
amount of information that is central to the full and precautionary assessment of the
environmental and health effects of the New Nuclear Power Plant Project by Ontario
Power Generation (Darlington) within the Municipality of Durham, Ontario (“the
Project”). The draft TOR should be re-written and released for public consultation once
it contains the information outlined below, which is presently lacking.
The flaws in the present project description render public consultation on scoping at this
point meaningless. Furthermore, the public consultation on the scope of the Project for
the purposes of the EA has to-date been inadequate, because insufficient time has been
provided and no public meetings have been held specifically on scoping.
We also have serious concerns about the proposed scope of the Environmental
Assessment (“EA”). Specifically, we believe it is necessary for Part IV of the draft TOR
to explicitly require Ontario Power Generation (“OPG”) to: describe the need for and
purpose of the project in terms of the public interest; examine non-electricity producing
alternatives to the project such as demand management; examine alternatives, even if
they may conflict with provincial energy policy; and assess alternatives, even if they are
outside of OPG’s control. These concerns are more fully discussed in the submissions of
Greenpeace in regard to the draft EIS Guidelines for the Project.
Underlying all of the above-noted problems are our concerns with regard to the failure of
the draft EIS Guidelines and the draft JRPA to comply with the applicable principles of
international environmental law. The Review process for the Project must be in
accordance with Canada’s international law duty to prevent transboundary environmental
harm. The approach taken must also (1) be in accordance with the precautionary
principle; (2) include a focus on the sustainability of the proposed development; (3)
demonstrate respect for the principle of intergenerational equity; and (4) include
consideration of the ecosystem approach. These international legal principles are
outlined in further detail in the submissions below.
II. PANEL MEMBERSHIP CONCERNS
Pursuant to the Canadian Environmental Assessment Act (“CEAA”), mediation or

assessment by Panel is the highest level of EA. The determination as to whether a
2
Review by a Panel is necessary is based upon considerations of the level of public
concern regarding the development, and whether or not a given project, taking into
account appropriate mitigation measures, may cause significant adverse environmental
effects.
For these projects, the CEAA sets out a process designed to ensure that Panel members
are unbiased and knowledgeable about the potential adverse environmental effects of the
project, and which is aimed at guaranteeing meaningful public consultation throughout
the Review process. In the present instance, the JRP membership should not include
members of the CNSC. At the very least, the Minister of the Environment should have
more control over the composition of the JRP than is presently provided for.
A. MEMBERSHIP
The draft JRPA is unacceptable. As written, it grants so much power and control to the
CNSC that it seems to amount to a delegation or fettering, or even an abdication of the
Minister's legal obligations under the CEAA. In order for a panel to engage in a far-
reaching environmental assessment process, the panel members must have a willingness
and a freedom to consider impacts and scenarios that go far beyond the licensing criteria
of a facility as laid down under CNSC regulations. It is therefore inappropriate for the
JRPA to be so composed of members of the CNSC and for the composition of the Panel
to be determined largely by the CNSC President.
Moreover, the independence of the Panel members from the proponent is an essential
requirement for a credible and a creditable EA. Over the years, members of the CNSC
have developed a close working relationship with OPG and other licensees, to the point
that it may be difficult or impossible for such individuals to have the objectivity and
freshness required for a full and complete EA of the Project. Even if this could be
accomplished, there would be a public perception that the Panel members are not
sufficiently independent from the nuclear industry in general, and from the proponent in
particular.
This public perception of bias on the part of the CNSC has recently been reinforced by
such events as: (1) the firing of the previous President of the CNSC for what many people
believe, rightly or wrongly, was her application of reactor safety standards of the CNSC
in too rigorous a fashion; (2) a recent internal report, commissioned by the CNSC, which
criticizes the CNSC for being closer and cozier with licensees than with the CNSC's true
clientele – namely, the representatives of the communities potentially affected by
licensed facilities.; and (3) a recent presentation by the CNSC President to the Canadian
Nuclear Society which incorporated the promotional concepts (such as "nuclear
renaissance") and the energy demand analyses espoused by nuclear proponents in order
to justify the rapid expansion of new nuclear facilities in the near future. People do not
expect this kind of presentation from a non-proponent, especially from the head of a
regulatory agency whose sole purpose under the Nuclear Safety and Control Act
(“NSCA”) is to safeguard the health and safety of Canadians and the environment, and to
see that Canada's international obligations in the nuclear field are being respected.
3
Upon reflection, we feel that it is inappropriate for any members of the JRP to be
members of the CNSC, because of the very real possibility of a conflict of
interest. During the Hearings of the Seaborn Environmental Assessment Panel (which
operated under the Environmental Assessment and Review Process Guidelines Order,
now superceded by the CEAA), the Atomic Energy Control Board – the precursor to the
CNSC – was one of the bodies that was summoned before the panel to testify. Important
questions were raised by panel members and by intervenors on the existence and/or
adequacy of regulations and expertise available to the regulator to deal with
environmental impact scenarios under investigation.
The EA process, as envisaged under the CEAA, is fundamentally different than that
involved in licensing a facility. The former requires a wide-ranging holistic approach,
envisaging many scenarios and contingencies that are not necessarily reflected in
licensing criteria. If the JRP attempts to do both at once – i.e. licensing and assessing –
the result could be quite unsatisfactory.
Recommendation #1: None of the members of the Joint Review Panel should be
members of the CNSC.
B. APPOINTMENT
1. Erosion of the Minister’s Powers
Independence and impartiality are fundamentally important qualities that an

administrative decision-maker must possess, especially in circumstances such as the
present JRP Hearings, where the outcome of the proceedings will have a profound impact
on the rights of the public.
Part 4.2.1 of the Guidance document entitled Procedures for an Assessment by a Review
Panel states as follows with regard to the selection of review panel members under s.33
of the CEAA:
4.2.1 The Agency shall identify candidates for appointment to review panels in
consideration of the criteria stated in s. 33(1)(a) of the Act. Persons appointed will
normally be chosen from outside the public service, shall be unbiased, free from
any conflict of interest relative to the project and shall have knowledge or
experience relevant to the anticipated environmental effects of the project.
[s. 33(1)(a)(i)]
There is no reason to believe that these characteristics are any less important in the
context of JRPs than they are for review panels provided for under s.33 of the CEAA.
Indeed, part 1.2 of the Procedures for an Assessment by a Review Panel document states
that the Agency is to consider the procedures outlined in that document along with the
requirements of s.41 of the CEAA in the context of JRPs.
4
The requirement governing the appointment of JRP members under s.41 of the CEAA is
as follows:
(a) the Minister shall appoint or approve the appointment of the chairperson or
appoint a co-chairperson, and shall appoint at least one other member of the
panel…
Pursuant to the draft JRPA, the JRP will also constitute a Panel of the CNSC. That is, for
all intents and purposes, the JRP and the Responsible Authority (“RA”) for the Project
will be one and the same. Two of the Panel’s members are to be appointed by the CNSC
with the “approval” of the Minister of the Environment. The third member is to be
“proposed” by the Minister of the Environment to the President of the CNSC. Only if the
appointee meets the President’s satisfaction will he then approve this candidate,
recommending to the Minister of Natural Resources he or she be recommend to the
Governor General for appointment as a temporary member of the Commission.
The Minister of the Environment’s s.41(1)(a) powers have thus been eroded. The
Minister can only approve the CNSC’s appointment of two panel members and propose
one member of the Panel to the President of the CNSC. Ultimately, the President of the
CNSC retains control over the identity of all three JRP members.
Through the process set out in Part 3 of the draft JRPA, the appointment powers intended
by Parliament to be retained by the Minister of the Environment in order to ensure the
unbiased, independent character of the members of the JRP have been eroded so
extensively as to render them meaningless. The Minister’s power to ensure members
have experience regarding the environmental effects of the Project is important, and has
also been compromised by giving complete control to the CNSC.
Giving the RA the power not only to control the composition of the JRP, but to stack the
JRP with its own members – or temporary members, at best – is contrary to the intent
behind s.40 of the CEAA. The JRP is supposed to be a joint body established by the
Minister of the Environment and a “jurisdiction”. The present JRP is merely a panel of
the CNSC, and is thus indistinguishable from the Project’s RA.
Recommendation #2: The Minister of the Environment should be given more control
over the composition of the Joint Review Panel. At a minimum, the Minister should be
granted the power to appoint the Chairperson and at least one other member of the
JRP without first having to get the approval of the President of the CNSC.
2. Potential Bias and Conflict of Interest
Though the “unbiased and free of any conflict of interest” language from ss.41(b) of the
CEAA is contained in Part 3.5 of the draft JRPA, more must be done to ensure that this
substantive requirement is met. First and foremost, the members of the JRP should not
be members of the CNSC. Furthermore, the Minister of the Environment must retain the
control over appointment which Parliament envisioned in enacting s.41 of the CEAA, and
5
must appoint individuals who will not approach the Review with a pro-nuclear bias.
Given the concerns expressed above with regard to the JRP constituting a panel of the
CNSC, this requirement has been compromised.
As mentioned above, the Procedures for an Assessment by a Review Panel Guideline

issued in 1997 is to be considered by the CEA Agency, along with the requirements set
out in s.41 of the CEAA, in its discussions with non-federal jurisdictions in the case of
joint reviews. The vision expressed in Part 4.2.4 of this Guideline is of a panel, the
members of which are selected by the Minister of the Environment, following
consultation with the RA. The CEAA process for appointing panel members was never
intended to permit the RA to maintain complete control over panel composition and to
stack it with its own members.
We are also concerned that the Secretariat envisioned in Part 5 of the draft JRPA as a
provider of professional, scientific, and technical information necessary for the purposes
of the Review will also be largely composed of CNSC members, and will be run out of
the CNSC offices. Having a Panel composed of members of the CNSC make
recommendations to the CNSC based upon information provided by the CNSC’s own
staff creates a process in which the CNSC is endowed with an undue level of control over
the EA.
In addition to according the Minister of the Environment a higher degree of control over
the composition of the panel to ensure it is unbiased and knowledgeable regarding the
potential environmental and health effects of the Project, at the very least clause 10 of
Part II of the draft TOR should be amended such that independent expert technical and
scientific evidence is a mandatory component of the materials considered by the Panel.
Recommendation #3: The Minister of the Environment should ensure that the
members of the Panel are independent and unbiased, and that they do not approach
the Review process with a pro-nuclear bias.
Recommendation #4: Clause 10 of Part II of the draft Terms of Reference for the
Review should be amended, such that the Panel is required to consider independent
technical and scientific expert evidence.
III. POTENTIAL LACK OF PROCEDURAL FAIRNESS
Because of the significant impact the Report produced by the JRP will have on the
interests of the public and the environment at large, those participating in the JRP
Hearing process must be accorded a high level of procedural rights. To meet its
procedural fairness obligations, the JRP should adopt Directions on Procedure which are
akin to the rules of procedure of environmental administrative bodies such as the Ontario
Environmental Review Tribunal which, inter alia, hears applications under Ontario’s
Environmental Assessment Act.
6
The draft TOR and the Directions on Procedure that are to be issued by the JRP should, at
a minimum, contain the procedural rights outlined below. As mentioned above, it is
important that public consultation by the JRP on the draft Directions on Procedures be
mandatory.
Recommendation #5: The Panel should be required to consult the public prior to
finalizing its Directions on Procedures.
A. PRINCIPLES OF ADMINISTRATIVE LAW
1. General
Administrative law addresses the process by which government decisions are reached, as
well as the merits of those decisions. Basic principles of administrative law are designed
to ensure that administrative bodies that make decisions that affect the interests of
individuals and the public at large afford those persons minimum procedural protections.
Where the “threshold” is met for entitlement to a duty of fairness owed by an

administrative body, certain procedural rights will be owed. 1 Accordingly, for example,
a “refusal to permit cross-examination of witnesses may amount to procedural unfairness,
especially if a witness has testified orally and a party requests leave to confront and
cross-examine him.” 2 The seriousness of the potential environmental and human health
impacts of the Project warrants the imposition of stringent procedural requirements to
ensure that the duty of fairness is exercised in the present instance.
As is set out in further detail below, if the JRP’s Directions on Procedure set out
restrictions on status, time restrictions in making submissions, and/or restrictions on the
manner of direct public participation in the Hearing, they will serve to perpetuate
problems in both the CNSC Rules of Procedure (“CNSC Rules”) as written, and as
applied, that are inconsistent with sound principles of administrative law.
2. The Panel’s Report is Substantially Determinative
To begin, it is important to note that although, pursuant to s.37 of the CEAA, the JRP
Report is submitted to the RA who then decides what course of action to take based upon
the Report’s contents, the Report will unquestionably result in a decision being made by
the RA which has significant implications on the environment and health of members of
the public. Thus, the Report and recommendations of the JRP will not be merely
preliminary in nature, and are thus the type of recommendatory decisions which will
trigger the duty to act fairly.
1
Evans et al., Administrative Law: Cases, Text, and Materials (4th ed) at p37.
2
Lord Woolf, J. Jowell and A.P. Le Sueur, Principles of Judicial Review (Sweet and Maxwell, 1999) at
338-339.
7
In cases such as Re Abel and Director, Pentanguishene Mental Health Centre 3 , the
Courts have made it clear that where an administrative body makes a recommendation, a
duty of fairness may be owed even if the body receiving that recommendation is not
technically bound to act up it. Where, as is the case in the present instance, the
recommendation will unquestionably influence the determination of the rights at issue
and may in fact be decisive in this regard, the body making the recommendation will owe
a duty of fairness.
In the present instance, the JRP Report will be largely determinative of the RA’s decision
as to what course of action to take in respect of the Project. The potential harm to the
environment and the public is incalculable. Given these two considerations, although the
duty of fairness is distinguishable from the rules of natural justice, the duty in the present
instance involves the application of a number of those rules. Members of the public must
be accorded the procedural protections discussed below during the JRP Hearing process.
One final point which must be highlighted regarding the dispositive nature of the JRP
Report and recommendations is that the connection between the Report and the RA’s
decision in the present instance is even stronger than it generally would be in the context
of a JRP given that, for all intents and purposes, the JRP and the RA are one and the
same. The CNSC is the RA and the composition of the JRP will be determined almost
entirely by the CNSC. As a panel for the purposes of s.22 of the NSCA, the JRP’s acts
are deemed to be those of the CNSC (NSCA ss.22(2)). The CNSC is effectively
developing the JRP Report and then providing it to the CNSC who then determines what
course of action to take with regard to the Project. This further underscores the
connection between the JRP Report and the decision with regard to the appropriate
course of action to take respecting the Project. The Report will thus have a direct and
potentially devastating impact on the interests of those engaged in the JRP Hearing
process.
3. The Panel’s Decision Necessitates the Provision of Substantial

Procedural Rights
The SCC held in Board of Education of the Indian Head School Division No. 19 of
Saskatchewan v. Knight 4 that consideration of three factors determines the existence of a
general right to procedural fairness: (1) the nature of the decision to be made, (2) the
relationship between the body and the individual, and (3) the effect of the decision on the
individual’s rights. All three of these factors point in the present instance to a duty of
fairness being owed by the JRP.
First, the decision to be made in the present instance is administrative and specific, and is
therefore not of a merely legislative and general nature. The Report will be largely
determinative of the course of action taken in regard to the Project. Therefore, it does not
constitute a merely preliminary or interlocutory decision. With regard to the third
3
(1979), 97 D.L.R. (3d) 304 (Ont. Div. Ct.), aff’d. (1981), 119 D.L.R. (3d) 101 (Ont. C.A.)
4
[1990] 1 S.C.R. 653.
8
consideration, the decision is significant and will have an important impact on the
individuals involved in the JRP Hearing process and the environment at large.
The “threshold” is met in the present instance, such that the JRP owes a duty of fairness.
The next step in the analysis is then to determine specifically which kinds of procedural
rights should be accorded and which procedures are appropriate.
In the present instance, it is fundamentally important that the JRP Hearings allow for full,
meaningful, and comprehensive public involvement. The Hearings must provide for the
exchange of scientific and technical information, and allow opportunity for detailed
questioning and cross-examination of witnesses. The JRP must ensure that all persons
and groups interested in the outcome of the review are given an opportunity to
meaningfully participate.
4. Existing Procedural Inadequacies
It is important that the Directions on Procedure which are developed go beyond the
requirements of the NSCA and the CNSC Rules. According to the proposed procedure:
(1) hearings shall be public unless the joint review panel is satisfied after
representations made by a witness based on criteria identified in the procedure
that
(a) harm may be caused to the witness, the environment, or to national or

nuclear security,
(b) the information is confidential based on criteria identified in the
procedure, or
(c) disclosure may endanger life, liberty, or security of a person;
(2) timelines for presentations to the JRP will be established;
(3) questions will be directed through the JRP Chair who may allow a participant
to put questions directly to a presenter; and
(4) the JRP Chair is given significant discretion to limit or exclude questions and
discussions.
Rule 1(1) of the CNSC Rules defines a “party” as an applicant for a licence, a person
already holding a licence, or a person who may be named in, or subject to, a CNSC order.
Rule 1(1) defines an “intervenor” as a person permitted to intervene in a public hearing
under Rule 19 of the CNSC Rules. This Rule also defines a “participant” as either a party
or an intervenor.
Rule 3 authorizes the CNSC to “vary or supplement” the CNSC Rules “in order to ensure
that a proceeding” is “dealt with as informally and expeditiously as the circumstances and
the considerations of fairness permit.”
9
With regard to timing, Rule 17 requires the CNSC to give “at least” 60-day notice to the
public before the start of a public hearing. Rule 18 requires CNSC staff to file
documentary information and written submissions that it will present at the hearing “at
least” 30 days before the start of the hearing.
Rule 19 sets out the requirements for intervention at a hearing. These include (1) the tests
for who may intervene, 5 and (2) the manner of intervention. 6 Rule 19 also notes the
CNSC’s practice for two-day public hearings in which intervenors may only make
written submissions and oral presentations at the second hearing day.
Rule 21(1) authorizes the CNSC to permit each participant to present information and
submissions on the subject-matter orally or in writing. This Rule also allows the CNSC to
permit participants to question one another and any witnesses, and to respond to any
submissions, in any manner and sequence that will enable the CNSC to determine the
matter before it in a fair, informal, and expeditious manner.
In our respectful submission, and as noted more fully below, it is important that the JRP’s
Directions on Procedure go beyond the CNSC Rules and the modifications to those rules
included in the draft TOR, so as to ensure that full public opportunities to properly
scrutinize adequacy of the Project as proposed are provided. On their face, and as
applied, the CNSC Rules leave much to be desired as mechanisms for ensuring that there
are full and fair public hearings with respect to matters that come before the CNSC.
a. Need for a Broad Definition of ‘Party’
Concerns about the CNSC Rules as drafted have previously been brought to the attention
of the CNSC. 7 The 2007 Institute on Governance’s report to the CNSC emphasized that
“for the CNSC to be effective in its work, it must be considered legitimate by those it
serves and those who have an interest in its work. For this reason, protecting the
legitimacy of the CNSC…is key to its success.” Part of the process of protecting the
CNSC’s legitimacy is to ensure that an appropriate voice is accorded “to those whose
interests are affected by its decisions.” 8
As written, the CNSC Rules authorize inadequate procedural due process for CNSC
public hearings. The narrow definition of “party” under Rule 1(1), which is restricted to
licence holders or applicants, generates uncertainty as to whether members of the public
who may wish to intervene in a proceeding will be constrained in their entitlement to
make a full case before the CNSC because they are not a “party.” This contrasts with the
5
Rule 19(a) [person must have an interest in the matter being heard], or 19(b) [person must have expertise
in the matter or information that may be useful to the CNSC in coming to a decision].
6
Rule 19 (persons may participate as intervenors in the manner and to the extent that the CNSC considers
will enable it to determine the matter before it in a fair, informal, and expeditious manner).
7
Correspondence from EcoJustice Canada and Lake Ontario Waterkeeper to the CNSC Respecting
Revision of the CNSC Rules of Procedure, dated August 31, 2007.
8
Institute of Governance, Regulatory Independence: Law, Practice and Perception (IOG, 2007) at 5 and
16.
10
rules of procedure for other administrative bodies such as the Environmental Review
Tribunal, which broadly define a party, the tests for obtaining party status, and the rights
attendant on that status. 9
Indeed, the CNSC Rules only permit intervenors to question witnesses and parties with
leave of the CNSC as set out in Rule 21(1). By contrast, the Ontario Energy Board sets
out clear entitlements for intervenors (who are granted the same status as “parties” under
Rule 3.01 of that Board’s rules) to cross-examine witnesses in such proceedings. 10
Recommendation #6: When they are developed, the Directions on Procedure should
provide a broader definition of a ‘Party’ to the Joint Review Panel proceedings than
that which is set out in the CNSC Rules, such that members of the public are not
unduly constrained in their entitlement to make a full case before the Panel.
b. Need to Prevent Undue Variance of the Rules
It is not just the CNSC Rules as written that are a cause for concern. It is also the manner
in which the Rules have been applied that raises problems. In our experience, the CNSC
Rules, under the authority of Rule 3 which gives the Commission broad discretion to vary
requirements, have been varied significantly to: (1) shorten minimum periods in the rules
between a notice of hearing and a hearing itself to the detriment of members of the public
seeking to intervene in an application; (2) shorten minimum periods in the rules between
the date of hearing and the date for CNSC staff to file documentary information and
written submissions to the detriment of members of the public seeking to intervene in an
application; and (3) restrict who may speak at a public hearing and permit only the
licensee and CNSC staff to make submissions at such hearings. 11
Concerns about the CNSC Rules as applied and variances thereto have previously been
brought to the attention of the CNSC. 12
Given the widespread and significant public interest in the Project, it is imperative that
there be a level of certainty and predictability for those involved in the JRP Hearing. Not
only must the procedural rights accorded be appropriate for this type of decision-making
process, as discussed below, but those rights must be definite and prescribed with
9
Environmental Review Tribunal, Rules of Practice and Practice Directions (November 15, 2007), Rules
53 (parties include persons specified by statute, otherwise entitled by law, or those who request such
status), 54 (tests for naming a person as a party include if interests directly and substantially affected by the
hearing or its result, having a genuine interest in the subject matter, or likely to make a relevant
contribution to the Tribunal’s understanding of the issues in the proceeding), 55 (party to a proceeding may
bring motions, be a witness, be questioned by the Tribunal and the parties, call witnesses at the hearing,
cross-examine witnesses, make submissions to the Tribunal, including final argument, receive copies of all
documents exchanged or filed by the parties, attend site visits, claim costs or be liable to pay costs when
permitted by law).
10
Ontario Energy Board, Rules of Practice and Procedure, Rule 23.02.
11
Correspondence from the Canadian Environmental Law Association to the CNSC Respecting the
Application by SRB Technologies (Canada) Inc. for an Amendment to its Nuclear Substance Processing
Facility Possession Licence No. NSPFPL – 13.00/2008, dated March 29, 2007.
12
Ibid.
11
certainty, such that the public can be confident that its participatory rights will be
respected.
Recommendation #7: The Panel’s Directions on Procedures should provide a high

degree of certainty that the public’s procedural rights will be respected.
c. Procedural Rights which Must be Included
In our respectful submission, given the magnitude of, and the environmental, health,
safety, and security implications with respect to, the Project, it is incumbent on the JRP to
afford maximum, not minimum, public scrutiny to the project in the forthcoming public
Hearings.
Given the stringent requirements of the JRP’s duty of fairness in conducting the Hearings
in the present instance, we recommend that the JRP’s Directions on Procedure, when
issued, provide for a number of procedural rights including, but not limited to, those set
out below.
First, as discussed above, the definition of who is a “party” must be broad. Secondly,
cross-examination of witnesses by parties (or intervenors if our first recommendation is
not adopted) must be authorized. Another recommendation is that time and other
restrictions on oral presentations made, including by intervenors, at the JRP Hearing be
eliminated. A right to counsel should also be embedded in the Directions on Procedures,
and evidence should be given under oath or affirmation.
As occurs before administrative bodies such as the National Energy Board, the public
should have an opportunity, prior to the JRP Hearings, to submit information requests to
the proponent and the JRP, based on the EIS that is filed. These requests should be
answered in a detailed, responsive, and complete manner a reasonable period in advance
of the commencement of the Hearings. As is also provided for by bodies such as the
National Energy Board, the Directions on Procedures should explicitly provide an
opportunity for members of the public who are unable, or do not wish, to participate in
the proceedings before the JRP, to submit a letter of comment explaining their position
on the Project.
The public should first be given an opportunity to comment on the draft JRPA and then
once this process is complete, it should be consulted regarding the draft EIS Guidelines.
This recommendation is consistent with, inter alia, part 4.8.6 of the Procedures for an
Assessment by a Review Panel Guidance document, which states:
4.8.6 The Agency shall submit a copy of the draft guidelines to the review panel
upon its appointment. Shortly after its appointment, the review panel will receive
written comments from interested parties on the draft guidelines. The review
panel may convene scoping meetings to receive comments on the guidelines.
[emphasis added]
12
Another procedural right which should be included in the Directions on Procedures is the
right to site visits or inspections to better understand the information contained in the EIS
prepared by the proponent. The JRP should make the site visit in the presence of any
Parties or intervenors, or their representatives, interested in attending.
Because many members of the public who wish to participate in the JRP Hearing process
will likely have employment obligations during the day, the JRP must hold one or more
evening sessions during the Hearing, so as to reasonably accommodate such individuals.
The Directions on Procedures should contain authorization for meetings between any
experts retained by parties, participants, or intervenors in the JRP Hearing, and those
experts retained by the proponent in the preparation of the EIS. This is an important step
if the public is to have the opportunity to meaningfully contribute to the discussion
surrounding the EIS and its adequacy.
Finally, it must be noted explicitly in the Directions on Procedures and/or the TOR that
the fact that information is exempted under the Access to Information Act does not
necessarily mean that its disclosure will be denied in proceedings – such as the JRP
Hearing – to which the rules of procedural fairness apply (see s.2(2)). The Access to
Information Act does not replace existing entitlements to access, and does not take away
from the common law of procedural fairness.
In addition to the need for all of the above-mentioned procedural rights to be enshrined in
the TOR and Directions on Procedures, it is also fundamentally necessary that the
Hearings held also include informal sessions designed to allow and encourage residents
of various communities to present their views about the environmental effects of the
Project. For example, such a requirement was contained in the Operational Procedures
for the review panel for the Red Hill Creek Expressway Project. This is particularly
important, given the wide range of potentially significant adverse effects from the
proposed Project on a wide range of communities. It is also important, given that many
members of the public do not have the means by which to adequately engage in formal
hearings.
Recommendation #8: Cross-examination of witnesses by parties (or intervenors if our

Recommendation #6 is not adopted) must be authorized by the Directions on
Procedures.
Recommendation #9: There should not be time restrictions on oral presentations made
at the Hearings.
Recommendation #10: A right to counsel must be embedded in the draft Terms of

Reference for the Review and/or the Panel’s Directions on Procedure.
Recommendation #11: Evidence at the Joint Review Panel Hearings should be given
under oath or affirmation.
13
Recommendation #12: The public should have an opportunity, prior to the Joint
Review Panel Hearings, to submit information requests to the proponent and the
Panel, based on the Environmental Impact Statement that is filed.
Recommendation #13: Members of the public who are unable, or do not wish, to
participate in the proceedings before the Joint Review Panel, should be permitted to
submit a letter of comment explaining their position on the Project.
Recommendation #14: The public should first be given an opportunity to comment on

the draft Joint Review Panel Agreement, and once this process is complete it should be
consulted regarding the draft Environmental Impact Statement Guidelines.
Recommendation #15: The Directions on Procedure should include a right to site visits
or inspections.
Recommendation #16: The JRP should hold one or more evening sessions during the
Hearing.
Recommendation #17: The Directions on Procedure should provide for meetings of

experts.
Recommendation #18: The draft Terms of Reference for the Review and/or the
Directions on Procedure should contain acknowledgement that the fact that
information is exempted under the Access to Information Act does not necessarily
mean that its disclosure will be denied in proceedings before the Panel.
Recommendation #19: Provision must also be made for informal sessions to be held,
which are designed to allow and encourage residents of various communities to present
their views about the environmental effects of the Project.
B. THE CANADIAN ENVIRONMENTAL ASSESSMENT ACT
1. Information Lacking
Pursuant to s.41(1)(e) of the CEAA, the public is to have an opportunity to participate in

an assessment conducted by a JRP. The draft JRPA contains a number of provisions
regarding the Public Registry and public availability of information generally (6.1, 6.2,
6.3). However, further detail is needed with regard to the manner in which Hearings will
be conducted, so as to demonstrate adequately that the public will have an opportunity to
meaningfully participate in the assessment. Though part 4.1 of the Draft Agreement
states that the review will be conducted in accordance with, inter alia, the requirements
set out in the CEAA, there is not sufficient information provided as to the substantial and
procedural requirements that will be observed by the Panel in carrying out the review.
The procedural guarantees outlined above must be enshrined in the TOR for the Review
and the Directions on Procedures which will be issued.
14
Part 7 of the draft JRPA addresses the contents of the report, but this part does not
explicitly address how comments received from the public will be summarized and taken
into account by the Panel. This must be explicitly set out in the Directions on Procedures
when they are issued.
In previous Panel Reviews, such as that involved the Red Hill Creek Expressway Project,
all information received by the Panel, from the Proponent and from other interested
parties, was required to be made public through the Public Registry, and the Panel would
not accept any confidential or restricted information. The broad language of clause 4 of
Part III of the draft TOR for the Review is unacceptable. Simply put, the JRP Hearings
must be public. The public has a right to access information regarding the Project and the
issues raised by it, including the production and management of nuclear waste.
Recommendation #20: Further information should be included in the Joint Review

Panel Agreement with regard to the manner in which hearings will be conducted.
Recommendation #21: The Joint Review Panel Agreement, or at a minimum, the

Directions on Procedure, should set out how public comments will be summarized and
taken into account by the Panel in its Report.
Recommendation #22: Clause 4 of Part III of the draft Terms of Reference for the
Review should be removed, so as to guarantee that all information received by the
Panel will be publicly accessible.
2. Exercise of Statutory Powers
Though part 4.2 of the Agreement states that the JRP will have all the powers and duties
set out under s.35 of the CEAA, no further information is provided as to how the JRP will
exercise these powers. It is important that further information in this regard be provided
in the Directions on Procedure when they are issued by the Panel.
Recommendation #23: Further information should be provided as to how the Joint

Review Panel will exercise the powers set out under s.35 of the Canadian
3. Public Access to Report
In addition to the above-noted informational deficiencies in terms of public participation

in the environmental assessment itself, the draft JRPA is also silent on the issue of how
the report will be made available to the public by the Minister, and how the public will be
advised of the report’s availability. Part 7.2 of the Draft Agreement merely states that the
Minister of the Environment will “publish the report”. This language is prima facie
consistent with that of s.41(g) of the CEAA, but it is ultimately inadequate to protect the
public’s procedural rights. It is important that further detail be provided in the Directions
15
on Procedures regarding how the JRP Report will be made available to the public and
how the public will be advised of its availability.
Recommendation #24: Further information should be provided as to how the Panel’s

Report will be made available to the public.
IV. INADEQUATE DRAFT TERMS OF REFERENCE
A. DEFICIENT PROJECT DESCRIPTION
A very basic tenet of the CEAA is that a “project” in relation to a physical work is “any
proposed construction, operation, modification, decommissioning, abandonment or other
undertaking in relation to that physical work” (s.2). Thus, a project description submitted
by a proponent must, at a minimum, contain adequate information pertaining to these
aspects of the proposed development.
The project description contained in the draft TOR is fundamentally inadequate for the
reasons outlined below. As such, for the Minister of the Environment to approve the
TOR as drafted would be patently unreasonable. The draft project description is lacking
in five main respects:
(1) The precise generation capacity of the Project must be provided.
(2) It is impossible to do an EA of a proposed nuclear power plant project when

the proponent has not even decided on a reactor design. The Minister of the
Environment cannot reasonably approve draft TORs containing a project
description which does not identify the specific technology that will be used to
undertake the Project.
(3) The proponent has not even committed to the number of new nuclear power
reactors which it purports to build. A project description which does not identify
the number of facilities involved cannot possibly form the basis of an EA.
(4) Unless and until the proponent is certain as to how it will manage and dispose
of the radioactive waste produced from the present Project, any assessment of the
environmental and social viability of the present Project is premature. OPG
should be required to explicitly and fully describe the long term potential adverse
environmental effects of creating this nuclear waste.
(5) Further detail is required regarding ancillary works which will be undertaken
as part of the Project.
The Operational Policy Statement entitled “Preparing Project Descriptions under the
Canadian Environmental Assessment Act” (Updated November 2007) states as follows
with regard to the requisite level of detail involved in the preparation of project
descriptions under the CEAA:
16
Project Description Information Requirements
Level of detail
The level of detail in a project description should be appropriate for the scale and
complexity of the project and to the sensitivity of its location. For example,
greater detail will be required for large, complex projects, such as those on the
Comprehensive Study List Regulations.
A project description based on this operational policy statement does not,

however, preclude a federal authority from requesting clarification or additional
information from a proponent to determine if an environmental assessment will be
required.
Table 1 serves as a general guide for proponents and federal authorities about the
type of information to include in a thorough project description. Proponents are
encouraged to contact potential responsible authorities (federal authorities with
decision-making responsibilities under the Act) to identify any additional
information requirements.
Table 1: Sample Outline of a Detailed Project Description
I. GENERAL INFORMATION
General
The name and nature of the project.

The proposed location of the project.
A copy of the distribution list of the parties who received the project
description.
Information on consultations already held on the project with federal
authorities, provincial or municipal governments, Aboriginal peoples, the
public, etc.
Information on other environmental assessment regimes to which the
project has been or could be subjected (i.e., provincial, territorial, land
claim environmental assessment processes, etc.)
Contacts
The name of the proponent.

The name of any co-proponent, such as a federal government department
or agency.
The name and coordinates (address, telephone, fax, e-mail) of two
17
contact(s) from whom federal authorities can obtain more information.
Federal Involvement
Information identifying any federal government department or agency

that is, or may be, providing financial support to the project.
Ownership of the land to be used or required by the project, and in
particular, whether any federal land is involved.
Authorizations Required
information relating to federal permits, licences and authorizations that

the proponent believes must be obtained for the project to proceed
information on applicable provincial and municipal permits
II. PROJECT INFORMATION

Project Components/Structures
the main components of the project, including any permanent and

temporary structures, associated infrastructure, associated construction
and type of equipment used
production capacity and the size (e.g., length of road, acreage used) of the
main components of the project
Project Activities
the construction, operation and decommissioning phases, and the timing

and scheduling of each phase
schedule (e.g., time of year, frequency and duration)
site plans or sketches with project location, features, project activities
described on a map
engineering design details (e.g., temporary diversion works, dam)
identification of requirements for off-site land use
Resource/Material Requirements
the production process(es) to be used in the project

the project’s raw materials, energy and water requirements and sources,
and associated infrastructure (e.g., access roads, pipelines)
excavation requirements and quantity of fill to be added or removed
identification of any toxic or hazardous materials to be used or by-
products to be generated by the project
Waste Disposal
18
the nature of any solid, liquid or gaseous wastes likely to be generated by
the project, and of plans to manage these wastes
disposal procedures for any toxic or hazardous materials to be used or any
by-products to be generated by the project
III. PROJECT SITE INFORMATION

Project Location
the location of the project, including a legal land description or

geographical coordinates (latitude/longitude or the Universal Transverse
Mercator system)
a map indicating the location of the project including the project site, the
site layout of the main components of the project, and the environmental
features that could be affected by the project
Environmental Features
a summary of the physical and biological components in the area likely to

be affected by the project (e.g., terrain, water, air, vegetation, fish and
wildlife including migratory birds and species listed under the Species at
Risk Act)
information on whether the project may affect fish or fish habitat, and
navigable waters (see section 4) or any unique or special resources not
already identified
Land Use
current and past land use(s) (e.g., agricultural, recreational, industrial) at

the project site and in the adjacent area
potential contamination of the site from past land use
proximity of the project to Indian reserves and lands used currently or
traditionally by Aboriginal peoples
proximity to important or designated environmental or cultural sites, (e.g.,
national parks, heritage sites and other protected areas)
proximity to residential and other urban areas
IV. REQUIREMENTS RELATED TO FISH, FISH HABITAT AND

NAVIGABLE WATERS
The following information should also be provided for components of the project
to be undertaken or activities that will occur in a water body or within 30 metres
of a water body.
Environmental Features
19
description of freshwater or marine environmental features in the area
(e.g., water bodies including the name of the watercourse, coastal areas,
etc.)
proximity to water bodies (both freshwater and marine)
physical characteristics of the waterway (e.g., length, width, depth,
seasonal flow and fluctuations)
information on freshwater and marine fish and fish habitat (e.g., fish
presence and species)
qualitative and quantitative description of the fish habitat
information on natural site features and characteristics (e.g., wetlands)
photos or video(s) of the site
Use of Waterway
existing use of the waterway (e.g., kind, size and frequency of vessels,
description of existing obstructions in the waterway)
information on commercial, recreational or Aboriginal/subsistence
fisheries
For more information related to fish and fish habitat for the purposes of
developing project description, please contact the Department of Fisheries and
Oceans (www.dfo-mpo.gc.ca). For more information about navigable waters,
please contact Transport Canada (www.tc.gc.ca).
[emphasis added]
Given the large, complex, and demonstrably contentious nature of the Project, the level of
detail which must be contained in the project description is high. A significant amount of
detail must be provided regarding factors such as the technology/type of equipment to be
used, the number of nuclear power reactors involved, the precise capacity of those
reactors, the nature of the radioactive waste that will be produced by the project, and the
methods which will be employed to manage and dispose of that waste.
It is an affront to the purposes of the CEAA – which is meant to ensure that projects are
considered in careful and precautionary manner, and that they are undertaken in a manner
that does not cause significant adverse environmental effects – to accept from a
proponent a project description which is as woefully deficient as the present project
description is. Furthermore, it is an affront to common sense to suggest that the
environmental effects of the Project can be fully and accurately assessed in a
precautionary manner when the proponent has not identified the type of reactor
technology to be used, the number of reactors involved, the actual generation capacity of
those reactors, or the actual manner in which radioactive waste produced will be
managed. These factors must be identified in the project description, as they will
inevitably play a central roll in the assessment of the environmental and social impact of
the Project.
20
For these reasons, the Minister of the Environment should not approve the draft TOR at
this time. Rather, the Minister must request clarification and additional information with
regard to the above-noted issues. Once the project description is complete, meaningful
public participation can begin with regard to the draft EIS Guidelines and the draft JRPA.
Recommendation #25: The Minister of the Environment should not approve the draft
Terms of Reference for the Review unless and until further and adequate information
is provided by the proponent with regard to:
(1) the Project’s generation capacity;
(2) specific reactor technology to be utilized;
(3) the number of new nuclear power reactors which will be built;
(4) how radioactive waste produced by the Project will be managed over the
long-term; and
(5) ancillary works which will be undertaken as part of the Project.
B. INADEQUATE PUBLIC CONSULTATION ON SCOPING
One of the main purposes of the CEAA is to ensure timely and meaningful public
participation in decision-making during the EA process. The importance of this objective
was underscored by the 2003 amendments to the Act, which clarified that where a project
is described on the Comprehensive Study List (“CSL”) – as the present Project is – the
public must be consulted prior to decisions being made with regard to, inter alia, (1) the
scope of the Project, (2) the factors to be considered in the EA, and (3) the scope of those
proposed factors. For the reasons outlined below, the public must be given further and
more meaningful opportunity to comment on the proposed scope of the present Project.
Section 21(1) of the CEAA states as follows:
21. (1) Where a project is described in the comprehensive study list, the
responsible authority shall ensure public consultation with respect to the proposed
scope of the project for the purposes of the environmental assessment, the factors
proposed to be considered in its assessment, the proposed scope of those factors
and the ability of the comprehensive study to address issues relating to the project.
The purpose of public consultation on scoping is to “ensure that the issues to be studied
in the review represent fairly the concerns of the interested parties. Scoping is also
intended to ensure that all issues considered in the review warrant study and presentation
in the EIS.” (Procedures for an Assessment by a Review Panel, part 4.8.1)
Because project descriptions form the basis of decisions on scoping, the omissions in the
project description contained in the draft TOR – as discussed above – are such as to
render any public consultation on scoping meaningless and premature. We wish to be
clear that prior to any meaningful consultation on the draft JRPA and draft EIS
21
Guidelines, the Minister must request further information from the proponent, as outlined
above, in order to comply with the provisions of the CEAA.
The procedures followed to-date have stripped the public of their right to meaningful
consultation on the proposed scope of the Project. This is so for three main reasons:
(1) the time period allotted for public comment on scoping is insufficient;
(2) the opportunity for public comment on scoping has been buried amongst the
multiplicity of issues raised by the draft EIS Guidelines and the draft JRPA which
are being consulted on simultaneously; and
(3) there have been no public scoping meetings.
1. Inadequate Time Provided
The proposed scope of the Project is contained in the draft EIS Guidelines. The public
has just over two months to provide comments on the proposed scope of the Project and
on all other issues raised in the draft EIS Guidelines, and on those raised by the draft
JRPA. Given the contentious and complex nature of the Project, the substantial number
of citizens and NGOs that have expressed an interest in it, and the fact that concerned
members of the public must take time apart from their daily work and family schedules to
review and comment on the draft documents, the time for consultation on the various
documents must be extended.
Furthermore, as stated above, the public should have been consulted on the draft JRPA
prior to and separate from being consulted on the draft EIS Guidelines. This view is
reflected in the Guideline entitled Procedures for an Assessment by a Review Panel,
which provides that:
4.8.6 The Agency shall submit a copy of the draft guidelines to the review panel
upon its appointment. Shortly after its appointment, the review panel will receive
written comments from interested parties on the draft guidelines. The review
panel may convene scoping meetings to receive comments on the guidelines.
[emphasis added]
Recommendation #26: The period for public comment on the draft Joint Review Panel
Agreement should be extended.
2. Lack of Scoping Meetings
To date, there have been no scoping meetings held or scheduled with regard to the
proposed scope of the Project. Given the fundamental importance of public consultation
– as evidenced in the CEAA as a whole and s.21 in particular – the public must be given
the opportunity to discuss with the JRP the issue of scoping, separate and apart from the
broader issues raised. Thus, once the JRPA has been finalized, and before any decision is
made by the Minister of the Environment with regard to the scope of the Project for the
purposes of the EA, public scoping meetings must be held.
22
With regard to public participation in EAs conducted by review panels, the website of the
CEA Agency states as follows:
How can I get involved in a review panel?
In assessments by review panels, members of the public may participate in

scoping meetings to identify issues that need to be addressed. There are also
opportunities later in the process to appear before the review panel in public
hearings to present evidence, concerns and recommendations. Find out more
about funding to assist the public in participating in an assessment by a review
panel. Consult the Canadian Environmental Assessment Registry or read more at
Review Panels. [emphasis added]
The need to consult on scoping early in the CEAA process is also confirmed by the
Guidance document entitled Procedures for an Assessment by a Review Panel, which
states as follows with regard scoping as part of review panel EAs under the CEAA:
4.8.2 Scoping should commence as early as practicable in an environmental

assessment. Scoping consists of the following stages:
a) agency prepares draft project-specific guidelines, circulates them to identified

interested parties and announces their availability for public comment;
b) review panel receives written comments and may conduct scoping meetings;
and
c) review panel prepares final project-specific guidelines. [emphasis added]
In the context of projects such as the Red Hill Creek Expressway and the Whites Point
Ferry and Marine Terminal Project, the Panels appointed have held scoping meetings
during the public comment period on the draft EIS Guidelines, after the panel agreement
has been finalized. The lack of public scoping meetings in regard to the present Project
relates back to the problems with timing identified above. Before the draft EIS
Guidelines were released for public comment, the public should have been consulted on
the draft JRPA, and then the JRPA should have been finalized and the Panel members
appointed. Once the Panel members are appointed, they can hold scoping meetings
during the public comment period on the draft EIS Guidelines. 13
To be clear, it is our position that public comment on the proposed scope of the Project
has been rendered meaningless and devoid of any legitimacy, due to the absence of
fundamentally important information in the project description contained in the draft
13
Examples of other EAs where this order has been followed include the following: Encana Shallow Gas
Infill Development Project in the Suffield National Wildlife Area, the Enbridge Gateway Pipeline and
Marine Infrastructure Project, Glacier Power Ltd.’s Dunvegan Hydroelectric Project, the Joslyn North Mine
Project,and the Kemess North Gold-Copper Mine.
23
TOR and the draft EIS Guidelines. Furthermore, public comment on scoping is a
fundamentally important step in the EA process for projects on the CSL under the CEAA.
In the present instance, the proposed scope of the project is but one of a plethora of issues
upon which the public is expected to provide comment in a short period of time.
Consultation on the scope of the project has been rendered meaningless by the RA’s
approach of burying the issue amongst an overabundance of other matters, thereby
overwhelming members of the public who do not have the ability to devote a sufficient
amount of time to considering the multiplicity of significant issues raised by the draft
JRPA and draft EIS Guidelines within the short period of time given for public comment
on these documents.
It is of note that pursuant to s.15(3) of the CEAA, the scope of the project must include
“every construction, operation, modification, decommissioning, abandonment or other
undertaking in relation to that physical work that is proposed by the proponent” or that
the Minister considers likely to be carried out in relation to the physical work. Given this
statutory requirement, if is fundamentally important that in the present instance the
Minister does not make a narrow scoping decision. The Province has at this time denied
any jurisdiction over the EA process, so it is up to the federal government to ensure that
every undertaking in relation to the Project is subject to a careful, considered, and
comprehensive EA under the CEAA.
Recommendation #27: Once the Panel is appointed, it should hold public scoping
meetings during the comment period for the draft Environmental Impact Statement
Guidelines.
C. INADEQUATE LIST OF FACTORS TO BE CONSIDERED
As mentioned above, and as described more fully in the submissions of Greenpeace in

regard to the draft EIS Guidelines for the Project, Part IV of the draft TOR should be
amended to explicitly require that OPG: describe the need for and purpose of the project
in terms of the public interest; examine non-electricity producing alternatives to the
project such as demand management; examine alternatives, even if they may conflict
with provincial energy policy; and assess alternatives even if they are outside of OPG’s
control.
Recommendation #28: Part IV of the draft Terms of Reference should explicitly

require that OPG: describe the need for and purpose of the project in terms of the
public interest; examine non-electricity producing alternatives to the project such as
demand management; examine alternatives, even if they may conflict with provincial
energy policy; and assess alternatives even if they are outside of OPG’s control.
V. INTERNATIONAL OBLIGATIONS
The Review of the Project must be conducted in accordance with Canada’s international
legal duties. Specifically, the RA’s decision as to how to proceed in respect to the
authorization of the Project must be based on an assessment of the possible
24
transboundary harm caused by it. This decision must also be made in accordance with
the precautionary principle, and the international requirements of sustainable
development, intergenerational equity, and the ecosystem approach.
A. DUTY TO PREVENT TRANSBOUNDARY ENVIRONMENTAL HARM
Canada is a Party to the Espoo Convention on Environmental Impact Assessment in a

Transboundary Context (“Espoo Convention”). The List of Activities to which the Espoo
Convention applies includes the following:
3. Installations solely designed for the production or enrichment of nuclear fuels, for
the reprocessing of irradiated nuclear fuels or for the storage, disposal and processing
of radioactive waste.
As a Party to the Espoo Convention, Canada is legally bound by Articles 2(1) and 2(6) of
that Treaty, which state as follows:
1. The Parties shall, either individually or jointly, take all appropriate and
effective measures to prevent, reduce and control significant adverse
transboundary environmental impact from proposed activities.
6. The Party of origin shall provide, in accordance with the provisions of this
Convention, an opportunity to the public in the areas likely to be affected to
participate in relevant environmental impact assessment procedures regarding
proposed activities and shall ensure that the opportunity provided to the public of
the affected Party is equivalent to that provided to the public of the Party of
origin.
While recognizing that the United States has not yet ratified the Espoo Convention, the
fact remains that, separate and apart from the provisions of this treaty, Canada has an
unquestionable international law duty to prevent transboundary environmental harm.
That is, Canada cannot allow OPG, or any other proponent, to use its territory so as to
cause any transboundary environmental interference, or a significant risk thereof which
causes substantial harm—i.e. harm which is not minor or insignificant. 14
Given the proximity of the Darlington site to Lake Ontario, the Project has the potential
to cause serious adverse tranboundary effects. Indeed, the Preamble to the Convention
14
See, e.g. International Law Commission’s Prevention of Transboundary Harm from Hazardous
Activities (2001); Report of the World Commission on Environment and Development Our Common
Future, Annexe 1: Summary of Proposed Legal Principles for Environmental Protection and Sustainable
Development Adopted by the World Commission on Environment and Development Experts Group on
Environmental Law, Article 10; Trail Smelter Arbitration (1931-1941), 3 R.I.A.A. 1905; Declaration of the
United Nations Conference on the Environment, Principle 21; Rio Declaration on Environment and
Development, Principle 2; General Assembly resolution 2995 (XXVII) of 15 December 1972, UNEP,
Environmental Law: Guidelines and Principles on Shared Natural Resources (Nairobi, 1978), Principle 3.
25
on Nuclear Safety recognizes that, regardless of proximity to national boarders and
international bodies of water, “accidents at nuclear installations have the potential for
transboundary impacts.”
The need to prevent transboundary environmental harm is enshrined in the Purposes

section of the CEAA. In this regard, section 4(1)(c) of the Act states as follows:
4. (1) The purposes of this Act are…

(c) to ensure that projects that are to be carried out in Canada or on federal lands
do not cause significant adverse environmental effects outside the jurisdictions in
which the projects are carried out
The ILC’s draft Articles on the Prevention of Transboundary Harm From Hazardous
Activities (“ILC Articles”), which apply to “activities not prohibited by international law
which involve a risk of causing significant transboundary harm through their physical
consequences” (Article 1) are particularly pertinent to the Project. Importantly, “risk of
causing significant transboundary harm” is defined as follows at Article 2 of the ILC
Articles as:
…risks taking the form of a high probability of causing significant transboundary

harm and a low probability of causing disastrous transboundary harm.
Given this definition, the proposed location of the Project, and the potentially disastrous
consequences of an accident involving the proposed nuclear facilities at issue, the Project
is precisely of the type envisioned by the ILC Articles. In addition to preventing
significant transboundary harm and minimizing the risk thereof, Canada should base any
decision in respect to the authorization of the Project “on an assessment of the possible
transboundary harm caused by that activity, including any environmental impact
assessment.” (Article 7) Therefore, as stated above, Part IV of the draft Terms of
Reference for the Review should be amended so as to include this as a mandatory factor
to be considered during the Review.
If the assessment of the possible transboundary harm caused by the Project results in the
conclusion that there is a risk of causing significant transboundary harm, Canada should
act in accordance with the other provisions of the ILC Articles. For instance, Canada
should provide the United States “with timely notification of the risk and the assessment
and…transmit to it the available technical and all other relevant information on which the
assessment is based.” (Article 8) If there is a risk of causing significant transboundary
harm, Canada should not make “any decision on authorization of the activity pending the
receipt, within a period not exceeding six months, of the response” from the United States
(Article 8).
Furthermore, pursuant to Article 13 of the ILC Articles, Canada should provide the
public – including American citizens – who are likely to be affected by the Project with
relevant information relating to the nature of the Project, the risk involved, and the harm
which might result and ascertain their views. To our knowledge, the American public
26
potentially impacted by the Project have not been provided such information. Before any
decision is made with regard to the draft JRPA or the draft EIS Guidelines, this
international legal requirement must first be met.
Recommendation #29: The American public potentially impacted by the Project should
be provided with relevant information relating to the Project, the risks involved, and
the harm which may result, and should be consulted with regard to these factors.
B. INTERNATIONAL ENVIRONMENTAL LAW
1. The Precautionary Principle
The operation of new nuclear reactors at the Darlington site, and the radioactive waste
that these reactors will produce, have the potential to cause irreversible harm to the
environment and human health for thousands of years into the future. Because of the
grave risks associated with the Project, decision-making with respect to it must be
precautionary in nature.
The precautionary principle is defined as follows at paragraph 7 of the Bergen Ministerial

Declaration on Sustainable Development (1990):
In order to achieve sustainable development, policies must be based on the

precautionary principle. Environmental measures must anticipate, prevent and
attack the causes of environmental degradation. Where there are threats of serious
or irreversible damage, lack of full scientific certainty should not be used as a
reason for postponing measures to prevent environmental degradation.
The precautionary principle is a central concept in environmental law and policy. The
principle has been articulated in several international treaties, and most environmental
laws in Canada require that it be used when decisions are being made on issues that could
adversely affect the environment. Furthermore, Canadian courts, including the Supreme
Court of Canada, have adopted and applied the precautionary principle.15
We believe there are eight basic and interrelated elements that form the foundation of the
principle and explain how it must be implemented: 16
(1) The need for pro-action: For many years environmental decision-making was
mainly reactive, in that it waited for damage to be done and then reacted to it. The
precautionary principle emphasizes the need for environmental decision-making to
make decisions based on early warnings of possible hazards.
15
See, e.g. 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Ville), 2001 SCC 40.
16
This is paraphrased from CELA, Implementing Precaution: An NGO Response to the Government of
Canada’s Discussion Document “A Canadian Approach to the Precautionary Approach/Principle”, April
2002, at pp.3-4.
27
(2) Considering alternatives: When deciding how to react to a potential
environmental hazard, the decision-maker must consider the effectiveness (including
cost-effectiveness) of various alternatives to the mitigation approaches and to the
project itself – including taking no action.
(3) Provision for ecological margins of error: Part of the precautionary principle
requires that we recognize that we do not know all that we should about ecosystems
and thus a wider margin of error should be built into the process in order to try to
avoid unexpected and/or cumulative harm.
(4) Intrinsic value of non-human entities: Precautionary decision-making requires

recognition of the intrinsic value of entities other than humans
(5) A shift in the burden of proof: The person or group of people proposing the
development that will potentially damage the environment should be required to
prove that environmental damage is acceptable.
(6) A concern for future generations: The precautionary principle requires

considering what the environmental impacts of the decision being made will be on
future generations. Because nuclear waste will be problematic for thousands of years,
this is a very important consideration in the present instance.
(7) Payment for ecological debts through strict/absolute liability regimes: This
means that the approach also requires that someone will be forced to pay for
environmental damage done because of the decision. This is also very important in
the context of nuclear power because Canada’s laws limit the amount of money that
the nuclear industry has to pay in the event of an accident to a mere $75 million when
the actual costs would be several billion dollars. 17
(8) Openness and transparency: Decision-makers must be open and transparent in

determining policy direction and in making decisions, thus allowing more meaningful
discussion of public values and perspectives and clearer acknowledgement of the
trade-offs inherent in such decisions.
The approach taken to date during the Project’s EA process has been inconsistent with
the precautionary principle. This is so for a variety of reasons, including: the
underinclusive nature of the proposed scope of the Project, as discussed above; the lack
of openness and sufficient information thus far in the EA process to ensure that the EA is
a democratic process involving an examination of the full range of alternatives to the
Project, including no action 18 ; and the compromised effectiveness of the shift in the
burden of proof in the present context due to the proponent being permitted to undertake
the EIS without knowing, inter alia, which reactor technology it intends to use and how
many reactors it intends to build.
17
Ibid.
18
Ibid at p6.
28
2. Other Principles of International Law
In addition to the precautionary principle of international law, the government actors

involved in the EA process for the Project are bound by a number of other applicable
international requirements, including those concerning intergenerational equity,
sustainable development, and the ecosystem approach.
“Sustainable development” was defined by the 1987 World Commission on Environment

and Development (Brundtland Commission) as development that “meets the needs of the
present without compromising the ability of future generations to meet their own needs.”
The importance of sustainable development is underscored by the fact that the opening
lines of the Preamble to the CEAA state as follows:
WHEREAS the Government of Canada seeks to achieve sustainable development by
conserving and enhancing environmental quality and by encouraging and promoting
economic development that conserves and enhances environmental quality;
WHEREAS environmental assessment provides an effective means of integrating
environmental factors into planning and decision-making processes in a manner that
promotes sustainable development
Furthermore, encouraging sustainable development is one of the fundamental purposes of
the CEAA as a whole (s.4(1)(b)).
As noted above, intergenerational equity is of particular importance in the context of
proposed developments involving the generation of nuclear energy and nuclear waste,
given the extremely long timeframes within which the adverse environmental and health
impacts of such developments may be felt.
The key aspects of intergenerational equity are that our development activities must be
undertaken in a manner that ensures that the developmental, environmental, and social
needs of future generations can be equitably met. 19 That is, current generations of
Canadians hold the natural environment in trust for future generations, and may only use
and enjoy its resources on the condition that they deliver the environment to the next
generations in as good, or better, condition than that in which it was received.
Finally, the ecosystem approach is aimed at achieving the three objectives of the
Convention on Biological Diversity, as set out in Article 1:
…the conservation of biological diversity, the sustainable use of its components

and the fair and equitable sharing of the benefits arising out of the utilization of
genetic resources, including by appropriate access to genetic resources and by
appropriate transfer of relevant technologies, taking into account all rights over
those resources and to technologies, and by appropriate funding.
19
See, e.g. Rio Declaration on Environment and Development, Principle 4; United Nations Framework
Convention on Climate Change, Article 3.1; Declaration of the United Nations Conference on the Human
Environment, Principle 1; World Charter for Nature (1982), Preamble
29
Using the ecosystem approach to the management of land, water, and living resources,
appropriate scientific methodologies must be applied which incorporate the functions,
processes, and interactions among all organisms in a given ecosystem and their
environment.
Taking into account the principles of sustainable development and intergenerational

equity, and the ecosystem approach in the present instance, what is required of the
government actors involved is to:
(1) Ensure that the Project constitutes a sustainable use of land and resources and
that the interests of the United States in avoiding significant adverse
environmental and health effects are seriously taken into consideration. However,
without knowing precisely how radioactive waste will be managed in the long-
term, and without knowing the number of reactors to be built, the technology to
be used, and the capacity of the Project, it is impossible to make any
determinations as to its sustainability.
(2) Ensure that the Project supports the goal of passing the environment to the
next generations in as good, or better, condition than that in which we received it.
Unfortunately, due to the above-noted uncertainty regarding the nature of the
Project, we cannot in fact know what legacy we will be passing on to future
generations in regard to the Project and its potential adverse effects. Rather than
leaving it to future generations to deal with unknown and poorly assessed adverse
effects, we must ensure that all necessary information is on the table, and that the
Project’s environmental viability is assessed based upon consideration of all
necessary factors discussed above.
(3) Once all of the necessary information regarding the proposed Project is
available, the RA must scientifically asses what its potential impacts will be not
only on the environment at large, but on the functions, processes, and interactions
among all organisms and between these organisms and their environment.
Without a specific reactor design, and without certainty as to the generation
capacity of the Project, it is impossible to accurately assess its impact on the
ecosystem. As discussed above, the present project description is inadequate in
light of ss.2 and 15(3) of the CEAA, and the Operational Policy Statement
entitled “Preparing Project Descriptions under the Canadian Environmental
Assessment Act”.
Recommendation #30: All activities undertaken by government actors in regard to the

Project and its environmental assessment must be in accordance with the
precautionary principle and the international requirements of sustainable
VI. SUMMARY OF RECOMMENDATIONS
30
In conclusion, we respectfully request that the following recommendations be thoroughly
considered and implemented:
Recommendation #1: None of the members of the Joint Review Panel should be
members of the CNSC.
Recommendation #2: The Minister of the Environment should be given more

control over the composition of the Joint Review Panel. At a minimum, the
Minister should be granted the power to appoint a Chairperson and one other
member of the Panel, without first having to get the approval of the president of
the CNSC.
Recommendation #3: The Minister of the Environment should ensure that the
members of the Panel are independent and unbiased, and that they do not
approach the Review process with a pro-nuclear bias.
Recommendation #4: Clause 10 of Part II of the draft Terms of Reference for the
Review should be amended such that the Panel is required to consider
independent technical and scientific expert evidence.
Recommendation #5: The Panel should be required to consult the public prior to
finalizing its Directions on Procedures.
Recommendation #6: When they are developed, the Directions on Procedures

should provide a broader definition of a ‘Party’ to the Joint Review Panel
proceedings than that which is set out in the CNSC Rules, such that members of
the public are not unduly constrained in their entitlement to make a full case
before the Panel.
Recommendation #7: The Panel’s Directions on Procedures should provide a high

degree of certainty that the public’s procedural rights will be respected.
Recommendation #8: Cross-examination of witnesses by parties (or intervenors if

our Recommendation #6 is not adopted) must be authorized by the Directions on
Procedures.
Recommendation #9: There should not be time restrictions on oral presentations

made at the Hearings.
Recommendation #10: A right to counsel must be embedded in the draft Terms of

Reference for the Review and/or the Panel’s Directions on Procedure.
Recommendation #11: Evidence at the Joint Review Panel Hearings should be

given under oath or affirmation.
31
Recommendation #12: The public should have an opportunity, prior to the Joint
Review Panel Hearings, to submit information requests to the proponent and the
Panel, based on the Environmental Impact Statement that is filed.
Recommendation #13: Members of the public who are unable, or do not wish, to
participate in the proceedings before the Joint Review Panel, should be permitted
to submit a letter of comment explaining their position on the Project.
Recommendation #14: The public should first be given an opportunity to

comment on the draft Joint Review Panel Agreement, and once this process is
complete it should be consulted regarding the draft Environmental Impact
Statement Guidelines.
Recommendation #15: The Directions on Procedure should include a right to site

visits or inspections.
Recommendation #16: The JRP should hold one or more evening sessions during
the Hearing.
Recommendation #17: The Directions on Procedure should provide for meetings

of experts.
Recommendation #18: The draft Terms of Reference for the Review and/or the
Directions on Procedure should contain acknowledgement that the fact that
information is exempted under the Access to Information Act does not necessarily
mean that its disclosure will be denied in proceedings before the Panel.
Recommendation #19: Provision must also be made for informal sessions to be

held, which are designed to allow and encourage residents of various communities
to present their views about the environmental effects of the Project.
Recommendation #20: Further information should be included in the Joint

Review Panel Agreement with regard to the manner in which hearings will be
conducted.
Recommendation #21: The Joint Review Panel Agreement, or at a minimum, the

Directions on Procedure, should set out how public comments will be summarized
and taken into account by the Panel in its Report.
Recommendation #22: Clause 4 of Part III of the draft Terms of Reference for the
Review should be removed, so as to guarantee that all information received by the
Panel will be publicly accessible.
Recommendation #23: Further information should be provided as to how the Joint

Review Panel will exercise the powers set out under s.35 of the Canadian
32
Recommendation #24: Further information should be provided as to how the
Panel’s Report will be made available to the public.
Recommendation #25: The Minister of the Environment should not approve the
draft Terms of Reference for the Review unless and until further and adequate
information is provided by the proponent with regard to:
(1) the Project’s generation capacity;
(2) the specific reactor technology to be utilized;
(3) the number of new nuclear power reactors which will be built;
(4) how radioactive waste produced by the Project will be managed over
the long-term; and
(5) ancillary works which will be undertaken as part of the Project.
Recommendation #26: The period for public comment on the draft Joint Review
Panel Agreement should be extended.
Recommendation #27: Once the Panel is appointed, it should hold public scoping
meetings during the comment period for the draft Environmental Impact
Statement Guidelines.
Recommendation #28: Part IV of the draft Terms of Reference should explicitly

require that OPG: describe the need for and purpose of the project in terms of the
public interest; examine non-electricity producing alternatives to the project such
as demand management; examine alternatives, even if they may conflict with
provincial energy policy; and assess alternatives, even if they are outside of
OPG’s control.
Recommendation #29: The American public potentially impacted by the Project

should be provided with relevant information relating to the Project, the risks
involved, and the harm which may result, and should be consulted with regard to
these factors.
Recommendation #30: All activities undertaken by government actors in regard to

the Project and its environmental assessment must be in accordance with the
precautionary principle and the international requirements of sustainable
33

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From: Kaitlyn Mitchell [mailto:kaitlyn@cela.

Dear Sir or Madam,

Sent Via Mail and Electronic Mail

Darlington New Nuclear Power Plant Project

Dear Sir or Madam:

<original signed by>

<original signed by>

Sent Via Mail and Electronic Mail

Darlington New Nuclear Power Plant Project

II. PANEL MEMBERSHIP CONCERNS

Pursuant to the Canadian Environmental Assessment Act (“CEAA”), mediation or

1. Erosion of the Minister’s Powers

Independence and impartiality are fundamentally important qualities that an

2. Potential Bias and Conflict of Interest

As mentioned above, the Procedures for an Assessment by a Review Panel Guideline

III. POTENTIAL LACK OF PROCEDURAL FAIRNESS

A. PRINCIPLES OF ADMINISTRATIVE LAW

Where the “threshold” is met for entitlement to a duty of fairness owed by an

2. The Panel’s Report is Substantially Determinative

3. The Panel’s Decision Necessitates the Provision of Substantial

4. Existing Procedural Inadequacies

(a) harm may be caused to the witness, the environment, or to national or

(2) timelines for presentations to the JRP will be established;

a. Need for a Broad Definition of ‘Party’

b. Need to Prevent Undue Variance of the Rules

Recommendation #7: The Panel’s Directions on Procedures should provide a high

c. Procedural Rights which Must be Included

Recommendation #8: Cross-examination of witnesses by parties (or intervenors if our

Recommendation #10: A right to counsel must be embedded in the draft Terms of

Recommendation #14: The public should first be given an opportunity to comment on

Recommendation #17: The Directions on Procedure should provide for meetings of

B. THE CANADIAN ENVIRONMENTAL ASSESSMENT ACT

Pursuant to s.41(1)(e) of the CEAA, the public is to have an opportunity to participate in

Recommendation #20: Further information should be included in the Joint Review

Recommendation #21: The Joint Review Panel Agreement, or at a minimum, the

2. Exercise of Statutory Powers

Recommendation #23: Further information should be provided as to how the Joint

3. Public Access to Report

In addition to the above-noted informational deficiencies in terms of public participation

Recommendation #24: Further information should be provided as to how the Panel’s

IV. INADEQUATE DRAFT TERMS OF REFERENCE

A. DEFICIENT PROJECT DESCRIPTION

(1) The precise generation capacity of the Project must be provided.

(2) It is impossible to do an EA of a proposed nuclear power plant project when

A project description based on this operational policy statement does not,

Table 1: Sample Outline of a Detailed Project Description

 The name and nature of the project.

 The name of the proponent.

 Information identifying any federal government department or agency

 information relating to federal permits, licences and authorizations that

II. PROJECT INFORMATION

 the main components of the project, including any permanent and

 the construction, operation and decommissioning phases, and the timing

 the production process(es) to be used in the project

III. PROJECT SITE INFORMATION

 the location of the project, including a legal land description or

 a summary of the physical and biological components in the area likely to

 current and past land use(s) (e.g., agricultural, recreational, industrial) at

The name and nature of the project.

The name of the proponent.

Information identifying any federal government department or agency

information relating to federal permits, licences and authorizations that

the main components of the project, including any permanent and

the construction, operation and decommissioning phases, and the timing

the production process(es) to be used in the project

the location of the project, including a legal land description or

a summary of the physical and biological components in the area likely to

current and past land use(s) (e.g., agricultural, recreational, industrial) at