NORTHEASTERN ONTARIO MUNICIPALITIES ACTION GROUP
TEMISKAMING FEDERATION OF AGRICULTURE
RESPONSIBLE ENVIRONMENTAL AND ECONOMIC PROSPERITY ASSOCIATION
CONTENTS
Tuesday 13 August 1996
Environmental Assessment and Consultation Improvement Act, 1996, Bill 76, Mrs Elliott / Loi de 1996 améliorant le processus d'évaluation environnementale et de consultation publique, projet de loi 76, Mme Elliott
Notre Development Corp
Dr Richard Denton
Temiskaming Greens
Northeastern Ontario Municipalities Action Group
Timiskaming Tomorrow
Northwatch
Rail Haul North Coalition
Temiskaming Federation of Agriculture
Responsible Environmental and Economic Prosperity Association
STANDING COMMITTEE ON SOCIAL DEVELOPMENT
Chair / Président: Mr Richard Patten (Ottawa Centre / -Centre L)
Vice-Chair / Vice-Président: Mr John Gerretsen (Kingston and The Islands / Kingston et Les Îles L)
*Mrs JanetEcker (Durham West / -Ouest PC)
Mr JohnGerretsen (Kingston and The Islands / Kingston et Les Îles L)
*Mr MichaelGravelle (Port Arthur L)
Mrs HelenJohns (Huron PC)
Mr LeoJordan (Lanark-Renfrew PC)
Mr GerardKennedy (York South / -Sud L)
Mr FloydLaughren (Nickel Belt ND)
*Mrs JuliaMunro (Durham-York PC)
Mr DanNewman (Scarborough Centre / -Centre PC)
*Mr RichardPatten (Ottawa Centre / -Centre L)
*Mr TrevorPettit (Hamilton Mountain PC)
Mr Peter L. Preston (Brant-Haldimand PC)
Mr BruceSmith (Middlesex PC)
Mr BudWildman (Algoma ND)
*In attendance /présents
Substitutions present /Membres remplaçants présents:
Mr DougGalt (Northumberland PC) for Mrs Johns
Mr JimBrown (Scarborough West / -Ouest) for Mr Jordan
Mr DaltonMcGuinty (Ottawa South / -Sud L) for Mr Kennedy
Mr R. GaryStewart (Peterborough PC) for Mr Newman
Mrs LillianRoss (Hamilton West / -Ouest PC) for Mr Preston
Mr EdDoyle (Wentworth East / -Est) for Mr Smith
Ms MarilynChurley (Riverdale ND) for Mr Wildman
Clerk / Greffière: Ms Lynn Mellor
Staff / Personnel: Mr Ted Glenn, research officer, Legislative Research Service
ENVIRONMENTAL ASSESSMENT AND CONSULTATION IMPROVEMENT ACT, 1996 / LOI DE 1996 AMÉLIORANT LE PROCESSUS D'ÉVALUATION ENVIRONNEMENTALE ET DE CONSULTATION PUBLIQUE
Consideration of Bill 76, An Act to improve environmental protection, increase accountability and enshrine public consultation in the Environmental Assessment Act / Projet de loi 76, Loi visant à améliorer la protection de l'environnement, à accroître l'obligation de rendre des comptes et à intégrer la consultation publique à la Loi sur les évaluations environnementales.
NOTRE DEVELOPMENT CORP
The Chair (Mr Richard Patten): Let me say on behalf of the committee, it's a delight to be here in North Bay. I've been here several times. For some of us it's our first visit, and it will be too short because we'll be leaving this afternoon at about 5 o'clock.
I call the Notre Development Corp, president, Mr Gordon McGuinty, who is Dalton McGuinty's son. Welcome to the hearings, Mr McGuinty. For the record, that was a joke.
Mr Gordon McGuinty: I think it's very important you cleared that up early, Mr Chairman. I am Gordon McGuinty and I'm the president of the Notre Development Corp.
Ms Elizabeth Fournier: My name is Elizabeth Fournier. I'm the vice-president of Notre Development. I've managed Notre's public consultation since the project was introduced in 1990.
Ms Marlo Johnson: My name is Marlo Johnson. I'm the environmental assessment coordinator for Notre Development. By way of background, in my former life I was the manager of the environmental assessment hearings for the Ontario Waste Management Corp. I have over 10 years of experience with that EA process and that hearings process.
Mr Gordon McGuinty: Notre Development Corp is the owner of the Adams mine. It's a decommissioned open pit located near Kirkland Lake. Since 1989, we've been working towards getting the necessary environmental approvals to develop the site for receipt of Ontario-generated municipal solid waste, specifically waste from the greater Toronto area. Our company is also a member of the Ontario Waste Management Association, which appeared before you last week in Toronto. In preparing this presentation we have reviewed a number of other submissions, including those by Metro Toronto, the Canadian Environmental Law Association, OWMA and the Ontario Municipal Association.
We believe our presentation today carries with it the force of a real-life situation and we urge you to give it the weight it deserves. The Ontario Waste Management Association was wrong when it stated to you that no private sector waste management company would entertain establishing a new landfill under the existing EA act or under this proposed Environmental Assessment and Consultation Improvement Act. Notre Development is in the final stages of preparing an environmental assessment, which we will submit to the minister in November 1996. We have a direct interest in the bill and it will have an immediate effect on our submission. And because we will no doubt be caught in the transition with the existing legislation, we believe our comments today should be considered by you carefully.
The bill is very complex, so we intend to focus on three areas only. We've chosen these because they are important to all concerned -- proponents, regulators and the public. We've also chosen them because our real-life experience with them and the unique nature of our project will provide an important perspective to the committee. Specifically, we will comment on the proposed terms of reference document and why it is important to include public consultation objectives in it. We'll comment on the opportunities afforded by mediation and, lastly, on the importance of the minister's control over the approval process.
In closing, we urge the committee to ensure that, whatever changes are made to the existing process, priority be given to ensuring that the legislation does what it was originally designed to do: protect the Ontario environment and its residents in a responsible, self-sufficient and sustainable manner.
You've heard a range of positions about this bill. On one hand, the Canadian Environmental Law Association and others state that the proposed amendments will open the floodgates for new landfill approvals without due regard to the public or the environment. On the other end, organizations such as OWMA say that if their proposed amendments are not included in the bill no private sector development will take place in Ontario.
Reality is somewhere in between. We believe the bill provides the basic framework for establishing an efficient means of ensuring the Ontario environment is protected -- if some important amendments are made. It will be up to the government and its staff to exercise their authority in a manner that does not force proponents into rigid and overly restrictive process requirements such as occurred in the past.
We'd like to deal with the public consultation aspect of the terms of reference document. First, we'd like to comment on the need to prescribe mandatory public consultation in the legislation, and specifically a commitment to public consultation in that document.
Some background: Our proposal -- rail-haul of municipal solid waste to a decommissioned open pit -- may be one of the largest waste management projects in Ontario and over the years has generated some controversy. Since 1990, public consultation in all its forms has been not only a priority of our company but an absolute necessity. Let me tell you what we've learned.
Effective and ongoing public consultation during the planning and approvals process is, and must be, the responsibility of the proponent regardless of whether that undertaking is public or private sector. Two words are key here: "effective" and "ongoing." It is not enough to give lip-service to the need to communicate your objectives or to the need to receive input from the public who might be affected or who have an interest. To be effective, there must be a plan in place at the outset.
Notre has always had clear objectives for the public to understand and comment on. That is what the terms of reference document can accomplish. It provides a tool to remind the proponent of its commitment to consult throughout the decision-making process and it provides the public with guidance on its opportunities to input. The terms of reference document will ensure that consultation is ongoing.
It's very important that terms of reference document allow the proponent to design a consultation plan that is appropriate to the situation or the undertaking because each one is unique. We believe the bill provides that flexibility. For example, in January of this year, after Metro Toronto had conducted 12 months of public consultation in the north and $3-million worth of technical studies, Notre decided to complete the EA process. Coupled with our own five years' presence in the local community, the foundation for our existing work was established. It helped us plan our additional technical work, but more important, it pointed to a public consultation program that gives priority to those likely to be affected. Because we are dealing with small populations and unorganized municipalities, these people were somewhat neglected in Metro's process.
We still, and will, encourage input from those who are concerned about the project but live many tens of kilometres away from it. Indeed, we've commissioned studies to ensure that we have technical data to alleviate all concerns. We're committed to open and forthright communication and the need to respond to all reasonable requests from the public. We believe our process is progressive and we believe it's working. We also believe it provides an example for what this bill, in the consultation aspect, might be trying to achieve.
It has been our experience that if a proponent is committed and ensures that ongoing and forthright communication occurs, and if a proponent is responsive to all reasonable requests from the public, credibility can be established. Fears and concerns can be alleviated and an atmosphere of mutual trust can be established. Opposition to a project will always remain, but constructive working relationships can be established.
I would add, though, that regardless of the commitment by the proponent to consultation, environmental issues have a way of being distorted by the media. Often, opponents to a project get quoted by the press, without any regard for the truthfulness of their statements.
Environmental issues are also attractive to those who have their own political agenda. Unfortunately, even after millions of dollars are spent to test the environmental suitability of a site, some politicians feel free to intentionally misstate the facts.
We therefore propose a small addition, an amendment, to section 6.1 on the terms of reference. The wording right now states, "When preparing an environmental assessment, the proponent shall consult about the undertaking with such persons as may be interested." We're proposing an amendment that would add, "and those persons shall be prepared to participate reasonably."
Our reasoning is simple. We live in a world that requires upfront disclosure of issues, particularly ones that affect the environment. We're committed to that requirement, hence our support of the terms of reference document and the need to include mandatory public consultation in it. But if the proponent is prepared to consult openly and honestly, it only seems fair that there be some onus on the part of the public with whom it is trying to communicate to do the same. Without this amendment, the proposed requirement for mandatory consultation could be unfair.
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The addition of these words will encourage fuller and more constructive dialogue at the outset of the planning process, while not hindering in any way the ability of all parties to raise issues of concern. The benefit for the minister and the other regulators is the comfort that all issues have been raised at the outset.
I turn to mediation -- we think this is a positive part of it -- and the proposal that the minister be provided powers to refer parties and issues to mediation. It's a responsible initiative and one that, if included in the legislation, will encourage parties to use alternative dispute resolution measures of their own volition. Coupled with the amendment we proposed earlier requiring parties to consult reasonably, we believe that many matters can be resolved without having to go through a hearing process. In fact, in our own process, we believe we have an opportunity to commence a form of mediation with one group which has some technical concerns about our project. We believe it's our responsibility as a proponent to make our experts available to work with this group, but then also, it's their responsibility to make their experts available to us. If that happens, such an approach is far preferable to the adversarial atmosphere at our past public hearings.
The obligations of the minister and the ministry: We have a couple of comments on that, first on the obligation of the minister, the ministry staff and the Environmental Assessment Board to be bound by the terms of reference document, and you've heard this before from other proponents. If the proponent and the public are bound by the terms of reference document, it is unreasonable to preserve for someone else the ability to change the scope partway through the process or, worse, at the end of the process, through argument at a hearing.
The proponent must know what the issues are. Very clearly, an example is in landfill issues. Everybody knows what those issues are going in. There isn't anything I can think about over the last 10 years that would not be put on the table up front. The proponent must know what they are and be given the opportunity to address them. The board must be bound by the terms of reference, otherwise there's no reason for the parties to consult with the proponent.
Notre has already heard from some members of the public that they will save their information for the "court case." I go back: This is not reasonable consultation. It's unacceptable to a proponent that is prepared to work diligently with the public in the first place to develop a terms of reference that satisfies all parties and the minister.
Providing the board with the latitude to hear argument on issues outside the terms of reference is counterproductive to the objectives of the bill, which we understand to be to streamline the process. Neither will it make the job of the ministry staff any easier if they cannot be sure of the parameters of their review responsibilities.
Along the same lines, the suggestion that a board's decision may stand regardless of whether parts of that decision are based on "matters not addressed in testimony at the hearing" is unacceptable. It undermines not only the public consultation process, but the hearing process itself. All parties must know the grounds upon which a board will make its decision. So we have some suggestions on those sections.
Second, we echo the comments of others who support the establishment of time restrictions and deadlines proposed in the bill. At a ministry briefing we attended, we were left with some uncertainty that the various ministries and agencies would in fact adhere to the suggested guidelines. It's of concern to Notre, for whom time is of the essence, that there's no mechanism to prompt or mandate decision-making. If the government truly intends to streamline the process, it's incumbent upon them to have competent staff within the ministries and to provide the staff with instructions not only to work with the proponent but have them have the authority to make decisions. It's been our experience that the staff are more than able to provide advice to the proponent. It's up to you to ensure that these staff resources are available and used to their best capacity.
Third, I will refer briefly to the need for harmonization of regulatory responsibilities. A proponent has a right to know early on in this planning process which legislation it must comply with and how the regulators plan to exercise their authority. You've heard others comment on the need for a private sector proponent to know the rules so it can make the business decisions. We urge you to work with your fellow provincial ministries and with the federal departments to arrive at a process that allows a proponent to proceed with some confidence.
This concludes my specific comments. Please consider that Notre is in the middle of a full environmental assessment. We are a private sector operation and the costs of this process have been factored into that business decision. We believe the bill provides a good structure for improving the legislation, but the amendments we have suggested specifically with levelling the playing field and consultation must be seriously considered.
The final thing we would like to comment on is other factors that relate to your deliberations: the potential impact of the proposed changes on the Ontario environment and the public whose interest the legislation is intended to protect.
We do agree with one point made by the Ontario Waste Management Association in its presentation to you. This bill and the proposed landfill standards currently being considered by the ministry cannot be considered separately. If the uncertainty in the approvals process is not removed and the landfill standards as proposed are applied -- I'm quoting what they said to this committee -- "the legacy of this government will be that it chose to export waste to the United States as its preferred method of waste disposal." This is neither good government nor responsible environmental government.
Even in its amended form, when coupled with the proposed landfill standards this bill places a higher burden on landfill development in Ontario for both municipalities and the private sector than accessing existing landfill capacity in the United States. Approval costs will still take longer and will cost more and the landfill standards in Ontario will be more stringent.
We believe you have an obligation not only to improve this act but to ensure that Ontario is self-sufficient in its waste management capacity. You have an obligation to ensure that Ontario businesses and municipalities have an opportunity to take advantage of potential revenues from waste management rather than exporting investment to the United States and destroying an Ontario solid waste management industry.
Notre is playing by Ontario rules and will continue to do so. We're committed to an in-Ontario waste management system; we have been since 1989. We're committed to this working in Ontario and we're committed to the rules that you establish for the environment of Ontario. But this government has to demonstrate the same type of commitment. You need policies that are in place to encourage landfilling of municipal solid waste in Ontario and you must exercise your authority to administer these policies in a manner that discourages export to the United States. You must create a level playing field for Ontario companies, municipalities, consultants and the high degree of technical ability that we have here in Ontario.
I thank you for the opportunity to speak. We'd be happy, all three of us, to answer any question.
The Chair: Thank you very much, Mr McGuinty. We will begin the questioning this morning with Mr McGuinty.
Mr Gordon McGuinty: That certainly seems reasonable.
The Chair: You have about four a half minutes, each caucus.
Mr Dalton McGuinty (Ottawa South): As you duly noted, the deputant and myself share the same name, but he has much beyond that to commend himself to this committee.
Gordon, first of all thank you for the presentation. I know you put a lot of work into it. There are a number of things I'd like to raise. You make a compelling argument to the effect that consultation is not an obstacle to be overcome really, it's an integral part of a process, and any proponent ought to engage in active and ongoing consultation. The argument that's been made time and time again by environmental groups in particular is that an important element in consultation is not required here, and that is with respect to the preparation of terms of reference themselves. I wonder if you might comment on that.
Mr Gordon McGuinty: Our understanding of this bill is this will make the pre-consultation aspect of the terms of reference mandatory, and we support that. We think, based on our experience, that would play a critical role. That places a lot of onus on a proponent that you have to spend a lot of time then, as we see it, on the upfront manner. But if you do that, we think the process will work better as you work your way through it. Marlo, you had an experience that may relate to that.
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Ms Johnson: Yes. I'd understood the question somewhat differently, but I'll take it from there. The prospect of a hearings process at the end of a consultation process casts a long shadow on what the proponent is trying to achieve. In an earlier hearing process I was involved in for some three and a half years, the proponent was trying to negotiate with the site community on a without-prejudice basis to determine what potential benefits that community could receive should the project go ahead, so in no way asking the site community to agree that the project was acceptable but trying to determine what kind of benefits they might be able to obtain for themselves.
The hearing board was interested in that too and eventually, three years into the hearings process, the chairman of the hearing panel directed the site community to go away and negotiate with the Ontario Waste Management Corp, so that the hearing panel knew what the net effects were of the project in the end.
Mr Dalton McGuinty: I'm not sure if I was clear in terms of my question. There's an obligation in the amendments here that's placed upon a proponent to consult with respect to the preparation of an environmental assessment, and that's something that's distinct from the terms of reference. There's no obligation placed on a proponent to consult with respect to the preparation of the terms of reference -- no obligation found in Bill 76. My question, Gordon, is, would you object to such an obligation being imposed upon a proponent?
Mr Gordon McGuinty: No, we wouldn't object to that obligation. We firmly believe, and I repeat myself, that it is the responsibility of the proponent to very clearly lay out as early as possible where they intend to go. I think our experience, although as you well know it's a day-to-day thing on the issues -- if you can maintain the clarity and you can establish what you're going to do very early, it actually is of big assistance to both our public consultation process and the ability for people who either may want to have input, may want to oppose -- as I have this terminology, at least we all get the rules straight, and the earlier we can get them straight and all become involved, the better the process is.
Mr Dalton McGuinty: There have been some significant cuts made to the ministry recently in terms of dollars and staff and I'm just wondering, based on your experience, Gord, or your colleagues', whether they might conclude that this might lead to problems. I see Bill 76 as imposing greater responsibilities on the environmental assessment branch. They're going to have some deadlines now they're going to have to meet. They're going to have to be able to respond to applications as they come in. Are they going to have some difficulties meeting those obligations now as a result of cutbacks?
Mr Gordon McGuinty: That question was brought up at this workshop that over 300 people attended. It's conceivable. I think my response to that, though, is what I've seen dealing with the ministries over the last few years is they have competent people there. There's been a lack of the ability to have perhaps clear guidelines for them to be able to make decisions, so as a result things keep getting dragged out. I think, from a proponent's point of view, we would much sooner have a decision than no decision or somebody deciding, "We'll get back to you in 90 days or 120 days." I think guidelines that are there and the time frames would be of benefit to the ministry staff to be able to make some decision. Your question may have some merit in terms of whether the staffing will be there, but if the guidelines are there in a pure business sense, somebody is telling them to make a decision and that will clear up a lot of the problems we have.
Ms Marilyn Churley (Riverdale): I'm glad to hear you've somewhat disassociated yourselves from the Ontario Waste Management Association. Even though you've had major beefs with our government, the NDP government, in the past, I take it that you're willing to answer my questions today. I thought I'd get that on.
Mr Gordon McGuinty: If I may say, I thought it was an inappropriate response to your question.
Ms Churley: I thought so too. However, I do have a question to ask, because of course we're not here to talk today about our waste management philosophies; we're here to talk about this new bill. I'm glad you support full public consultation at the terms of reference process. That's really good to hear and very important. Then on page 5 you talk about how these terms of reference should be binding.
I would like to ask you, therefore, if the terms of reference are negotiated with full public participation, and if your position is then those should be the terms of reference -- as you well know, these kinds of issues are very complex and things can crop up. I'm very concerned that, for instance, now a proponent can sit down and negotiate with the government and get alternatives to the site, get all of those things that are the heart, in my view, of an EA, off the table. It's arbitrary now to some extent. It's not necessarily going to be a full EA. Would you not say, therefore, that it'd be really important, particularly if you can't change the terms of reference later, that you look at everything at the beginning of the process so that later on you don't have a big shemozzle because somebody shows that something very, very important in terms of, say, environmental planning has been left out of that?
Mr Gordon McGuinty: As I read the intent of the terms of reference, it is to do some scoping on some of the issues that you have brought up in terms of alternatives to, and whatever. This is a critical thing to have happen. I'll use an example. Alternatives to: We made an environmental decision to buy a site at the Adams mine. We will very clearly show why we made that environmental decision. The alternatives to that site will be to let the pits fill up with water and do nothing, to reopen a mine, and we would be quite prepared to address those things. Siting an incinerator at the Adams mine and rail-hauling waste to it is not an alternative we should bother spending any time on because you could clearly, in the terms of reference discussion, rule that out on both cost factors and whatever. So I think the terms of reference can scope a lot of things.
To try to address your question about would things come up later that we would not have been aware of, in landfill siting, as I said earlier, I can't think of anything that people concerned about a project wouldn't put on the table up front. Now, obviously you move forward and you do your technical work, which is all part of an EPA approval. If something comes back that technically is no good, the system is there within the ministries and whatever to make sure that's addressed and handled anyway. I can't speak for other types of environmental projects, but certainly for landfill projects I can't think of anything that wouldn't get on the table early for discussion and be resolved in those terms of reference. I'm not discounting what you're saying, but I can't see it at the moment.
The Chair: Thank you, Ms Churley. Time is up. We have three members who would like to pose questions, so I will read them in order: Mr Pettit, Mrs Ecker and Mrs Munro. If you want to share your time, you have four and a half minutes.
Mr Trevor Pettit (Hamilton Mountain): Thank you, Mr McGuinty and ladies. You've obviously been very close to the EA process over the last little while, so I think both your laurels and your darts are well taken. As you undoubtedly --
Failure of sound system.
Mr Gordon McGuinty: -- environmental protection, because what we're looking at in Bill 76 is really part of a planning process. It goes hand in hand with the EPA, which is really delving into the technical issues that we have to satisfy anyway. I don't think, in terms of environmental credibility or a proponent having to site a landfill -- as I said, I have some serious problem with your landfill standards that you're proposing here. You've got a situation there where a proponent like us -- we've come back and our consultants say there is "the potential" for a 100-year contaminating lifespan on our site -- potential. It doesn't say it's there, but the potential. We have to negotiate with your government or your ministry long-term, perpetual care for 100 years, a formula to put that money in a trust fund to protect the environment and we have to back-charge that to our customer in Metro Toronto. The US has a 30-year period under EPA standards, so I don't think Bill 76 touches the ability or the need for environmental standards to be protected. I think you're addressing here a planning process as much as anything.
Mrs Janet Ecker (Durham West): Thank you very much, Mr McGuinty, for your excellent presentation. You've made some very good points that will be quite helpful and useful. The only thing that you didn't deal with was the issue of a transition, if you will. If this legislation goes through in this form or some similar form, what kinds of issues do you think should be addressed for the transition? Are there any particular specific requirements or time lines or anything of that type of advice that you could see from your current experience as a proponent?
Mr Gordon McGuinty: I think there's an important issue that the ministry's going to have to deal with. Our position is we entered into this environmental assessment process. We can satisfy the existing process if we have to. We intend to file our documentation in November and it'll be dealt with.
I do think, though, that this is something the ministry probably is going to have to deal with on a case by case basis. A municipality's application and where it is in the process is probably different than where we are in the process. It is my understanding that once these hearings are done and there's some resolution, the ministry intends to meet with proponents to discuss how they can move forward. That's very critical and I think there has to be some flexibility, because with all due respect to the previous government, we can't have draconian changes in philosophy that require people to start over again. That just can't happen.
Mrs Julia Munro (Durham-York): Thank you for the presentation. You have actually alluded to my question. I want to ask you about the question of environmental standards. We had a number of people appear before this committee who talked about how American situations were significantly further ahead than they are in Ontario in terms of environmental standards. I really was looking for a comment when you made reference in your presentation that the proposed landfill standards would in fact be more stringent. I wonder if you could comment on this whole comparison issue, because you also referred to the fact that Ontario should have its own waste management and not export to the US.
Mr Gordon McGuinty: The important thing to understand is that the federal government in the US changed the landfill standards a number of years ago, and although there have been some extensions, they have it pretty well standard across the country that if you meet this expectation, you're going to get a licence. In Ontario we have to recognize, and I certainly do recognize, that a community in northern Ontario cannot be asked to put in liners, leachate collection plants and do those types of things that a large landfill like we're proposing and moving forward would have to do, so we have to have flexibility in our standards. But in our situation, where we're looking at a landfill that would probably be the most progressive in the province of Ontario and you relate what we have to go through to get an approval, I have no question in saying that the standards we have to meet will be more onerous than US landfills you could access in Michigan or Ohio today.
To go back to the final thing, and I know our time's running out, I'm not advocating the closure of the border to the private sector or anything, but the reality is that if there is not some movement -- the issue is Metro Toronto talking about shipping its garbage to the US -- and if there is not some understanding by all parts of the government and the Legislature that you can put -- you can change this act and you can put big landfill standards in place, but what it then takes to have that environmental security put in the ground, either by a private sector or a municipality, is the tonnage flowing to the landfill. If it's not there, nobody will develop a landfill.
On municipal solid waste, the key thing right now is that 80% of the ICI is going across the border today anyway -- market flows. If we're in a situation where municipalities are allowed to opt out of the environmental assessment process and just take their waste across the border, all these hearings don't mean anything, your landfill standards don't mean anything, because nobody's ever going to develop one and we'll be totally reliant on cross-border shipping. I don't think that's a responsible thing for this government or anybody on this committee to look at. There needs to be some thought in your final bill on some of those areas.
The Chair: Time has gone on. I want to thank Ms Fournier and Ms Johnson, as well, for sharing your views with us. On behalf of the committee, thank you very much.
There is a technical difficulty. The technicians would like five minutes to have their equipment up and running, so we'll take a five-minute break to hopefully allow them to fix it. Your mikes aren't on, on this side, so they can't record.
The committee recessed from 1135 to 1141.
RICHARD DENTON
The Chair: Richard Denton, welcome to our hearings. You have 30 minutes, and whatever time is remaining from your presentation is distributed between the three parties for questions for you. Thank you for coming. Please begin.
Dr Richard Denton: Thank you very much for this opportunity. I come before you as a fellow politician. I'm a municipal councillor up in Kirkland Lake, having received the most votes at election time, but I'm not presenting on behalf of council but as a concerned colleague. I'm also a medical doctor and I'm concerned with protecting the health of my patients. By protecting the environment, I believe we can protect the health of Ontario citizens. That is why I'm here.
We all know that some of the people can be fooled all of the time, some of the people some of the time, but you can't fool all of the people all of the time. I believe this is what this Bill 76 purports to do. It is An Act to improve environmental protection, increase accountability and enshrine public consultation in the Environmental Assessment Act. Unfortunately, I feel it does not do this. I should now show you why it does not protect the environment.
Let's start with the explanatory notes, "Changes to the approval process." First, the proponent submits the "`terms of reference' that will govern the preparation of the environmental assessment." You and I, as elected officials, I believe should determine policy and monitor it. Our civil servants should draw up policy and monitor it. Business should work within those guidelines. Here, you are giving industry the power to write their own ticket and this does not make common sense. The minister, under the regulations laid down in the act I believe should determine the terms of reference. Therefore, this should be amended.
The terms of reference should meet the environmental assessment process, namely, looking into alternatives to and alternative methods to the proposal. The proponent must fit the environmental assessment, not the other way around, as this act will do. Again I quote, "If the minister approves the proposed terms of reference, the environmental assessment must comply with them." I believe this is all backwards. It is not common sense. The terms of reference must comply with the environmental assessment.
Let me illustrate this with an example. As you have just heard, Toronto is looking for a place to put its garbage and one such place is the Adams mine, a short distance from Kirkland Lake. The proponent, in his terms of reference, limited his reports to an approximately 5-kilometre radius. It was only with public consultation with area farmers who knew of the existence of an underground body of water called the Munro Esker -- the need to look further afield should be included in the terms of reference. Therefore, I certainly agree with Mr Dalton McGuinty that the public should be consulted about the terms of reference. I also agree with Ms Churley that everything should be looked at in the terms of reference.
Interested persons: Next, "The proponent will be required to consult with interested persons when preparing the environmental assessment." This sounds good, but what does it really mean? Again, let me give you an example that I'm well aware of. Last year, Metro held public liaison committee hearings into the Adams mine where all sides of the issue were raised. This year the proponent has selected "interested persons" who are all in favour of his proposal. This is not public consultation, and the public can see through this ploy. "Interested persons" needs to be replaced with the words "public consultation," reflecting all views.
Most Canadians believe in democracy. History has shown that when people are not listened to there are demonstrations, rebellions and revolutions. You folks certainly know that first hand with what happened at the opening of the throne speech. We have seen dynamite used to blast a hole in the road leading to the Adams mine up in our part of the country. You must allow public consultation.
Intervenor funding: Public intervenor funding is one way to allow this meaningful public consultation. An individual or even a group of, say, farmers does not have the resources of a proponent who is going to make millions from a project. It is the classic David and Goliath. The public needs access to the tools to create a level playing field. Intervenor funding up front makes this happen. This should therefore be put into the act, and the mechanism for it to occur.
Deadlines: I believe that these are a good idea but that they need to be realistic. I believe 28 days, the shortest month in the year, is not adequate for public input. Time lines, though, are great for civil servants. I would amend the times for public input to be at least two months each for a discussion of the terms of reference if the proponent makes it, but I suggest that the terms of reference would be better served if the minister followed the EA guidelines. Also, we certainly need at least two months for the final public comment period.
I quote from government documents. "The act would be amended to increase timeliness, decrease costs, and provide certainty for environmental assessment stakeholders in Ontario." Certainly this Bill 76 is doing that to the detriment of improving environmental protection, increasing accountability and enshrining public consultation. Deadlines are well and good but must be realistic to allow public consultation and not fast-tracking a proponent's plan to the detriment of the environment.
Ministerial powers: another concern that the environment is not being protected is in the sweeping powers that the minister is able to wield. In the context of landfills, the minister may approve EA documents that don't address alternatives such as the 3Rs of reduce, reuse and recycle or different landfill sites. The ability of the minister to grant exemptions from the act is to the detriment of the environment.
Canadians have a respect for the law but will throw out elected officials who are arrogant. I would argue that it was arrogance that brought down Trudeau, and provincially Peterson. We politicians need protection from ourselves at times. I think it was Pogo who said, "We has met the enemy, and it is us." Thus, do not give the minister these sweeping powers of exemption.
Mediation: Again for the public to be informed, mediation should be open to the public unless mediators decide otherwise. I think the wording just needs to be reversed there. Mediation should be available at every stage of the EA process, including EA hearings, terms of reference, class EAs etc. Participant funding should occur to enshrine public participation.
Changes affecting the Environmental Assessment Board: As I have said before, politicians should determine policy and civil servants should carry it out. Likewise, boards should be made up of disinterested people, I believe, and not civil servants. I think civil servants are there to advise but they are not to rule on decisions. Public servants have a long history of being neutral, of not taking sides. I can think of my own father, who was a civil servant, and he would never even put up a sign on his lawn at election time for just that reason. I don't believe we should be putting civil servants in that untenable situation.
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Likewise, the minister should not be able to specify or limit the board. The board needs free rein to do its job; this is, as above, not allowing the minister to become dictatorial but must follow due process for all cases before the board.
Other amendments: Certainly common sense would state that we don't need two sets of laws, federal and provincial, regulating the same thing. I think we're all in agreement with harmonization of these two levels of government. I believe they should be merged now in this act, specifying when to follow provincial rules and when to follow federal. Leaving in words like "equivalency" may be too broad for the minister to exempt the EA, and the environment may suffer. I believe the rules should be put in the act rather than leaving them to the discretion of the minister.
In summary, I applaud you and the government for trying to improve the act. I am in total agreement with improving environmental protection, increasing accountability and enshrining public consultation, but at present this act does that only in the title and not in the body. Rework the act to enshrine public consultation with the tools of intervenor funding; allow more time for the public to respond; stipulate many ways in which proposals are made public; limit the power of the minister, to prevent dictatorial powers; have the minister, as regulated by the act, define these terms of reference with public consultation; look at all the alternatives to choose what is best for the environment.
We have seen laws from the previous government overturned by the present government. This does not lead to certainty and predictability. I believe we should work to make this a fair and just bill that will last and truly protect the environment, increase accountability and enshrine public consultation. Thank you very much for this opportunity to address you.
Ms Churley: I appreciate your presentation. We're getting different views from proponents and community citizens and environmental groups, which to me is predictable, although there are some proponents who would like the bill to go even further in terms of, in my view, shutting out the public. You have done a very good job of identifying most of the problem areas. There are a few things like class EAs and other areas with some problems, but I think you've hit the major ones.
The reality is that if this bill goes through as it is, Mike Harris will have broken his promise to require a full EA for landfill. Would you agree with that?
Dr Denton: Correct, definitely.
Ms Churley: This is an opportunity to make the necessary amendments. The government can come back and say, "We can fix that," by making these amendments. I want to come back to that very important point because right now, under the terms of reference, looking at alternatives, need, alternatives to the site, all that can be negotiated off the table, which means that a landfill could go through without due process.
Would it make a big difference to you if there were public consultation, in your definition of that, up front during those negotiations around the terms of reference? And my second question is, what good is public consultation, especially in very complex situations, with no intervenor funding?
Dr Denton: I agree with you fully that you need the public consultation up front to determine those terms of reference. I think my case example pointed out that the common sense of citizens pointed out deficits in the terms of reference as proposed by the proponent. I think having that public consultation up front will eliminate problems down the road and give more predictability to the process and help with the time lines.
Public intervenor funding is very important. The public can use their common sense in terms of determining the points of reference, but when you get to a technical study you need the experts. I can use the example of last year. When Metro looked at this, they paid for experts from both sides of the point of view. They paid for experts chosen by the proponent and they paid for experts chosen by the opponent and many things came to light as a result of that process. I think you're very right that intervenor
funding up front is extremely important in levelling the playing field to allow the public to have their say.
Ms Churley: On the discretionary powers given to the minister, I'd like to hear your comments on the issue around certainty. The proponents who speak to us say they want certainty in the process. In this process it's so arbitrary. Do you think that's going to help speed up the system when it could be one set of rules for one proponent and a different set for another proponent on the same kind of issue?
Dr Denton: That is a very important point, because I think what you're saying, Ms Churley, is that there is unpredictability as a result of that. Therefore, I think the act should stipulate what the rules are right up front and not leave it to the discretion of the minister. That will create that predictability, that certainty, and then everybody knows by what rules they are playing. As I said in harmonization between federal and provincial, put those rules -- what is going to apply provincially, what is going to apply federally -- in the act, and when a proponent comes to make his case he knows what the rules are and that he's faced with one set of rules, not two.
Mr Doug Galt (Northumberland): Thank you, Dr Denton, for a very thoughtful presentation. Although it's not agreeing exactly with the design we're putting forward, I appreciate your thoughts. There's no question, listening to the various delegations, whether they're opposed to or some in favour of what we're doing, that they're telling us the system is broken. I expect you would agree with that, as you're nodding your head.
This is our design for full environmental assessment. I want to assure you that we are following up on that commitment and that there will be, with this bill, a full environmental assessment.
The areas where I was running into problems, and I think you'll agree, are the cost of where we're at with the broken system and with the time. We can talk about Wellington-Guelph, some $4 million; we can talk about Northumberland county, where I'm from, $2 million, no decision made. I can go along the list. We can talk about Kingston, 12 years in time, no decision made; Peterborough with 10 years, no decision made.
Having agreed that the system is broken, how would you have gone about designing a bill to get more certainty into it? What kind of things would you recommend that we should be doing?
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Dr Denton: I think many of the things I've just talked about would do that. I'm in agreement with many of the things that are in this bill. I'm in agreement with the time lines, but the public needs greater time to have input. Putting all the regulations in the act as opposed to leaving them up to the minister will create more certainty for the proponent. Allowing the public to have their say in determining the terms of reference will get much of the heat out of the way right at the start. Then things can move very quickly towards a settlement at the end. I think we can reduce the cost, reduce the unpredictability and speed up the process by those things.
Mr R. Gary Stewart (Peterborough): I want to go on a little bit on the time lines situation. As I read your proposal, it appears to me that you don't feel the public is having any input into Bill 76. I guess my concern is -- and I can talk of landfill -- the fact that the public didn't have any real input into the criteria under the previous bill. I think in this particular one we are giving them as much as possible.
When you're talking about extending time lines, that concerns me a lot, because you as a municipal politician know -- and I'm sure you've got very involved -- of environmental issues that seem to go on and on. Do you agree that we should have time lines, or are you suggesting that we should have them but they should be extended a little bit, or should there be an appeal process if somebody can't meet those guidelines?
Dr Denton: I think there should be time lines; I'm in agreement with that. When it involves the public, you need more leeway. The pendulum has swung from open-ended to basically being closed-ended and fast-tracked, and it needs to swing back into the middle. Increasing the time lines for public consultation will do that, strike that middle ground. I'm in agreement with the current time lines in terms of the civil servants, because that tends to be fairly technical and therefore can be done in an organized manner. I am in agreement with time lines, but I feel you have to allow the public a greater amount of time. It's hard, particularly up here in the north where you've got huge areas, for the public to get together, to organize and to get their cases and bring in the experts and all that sort of thing.
Mrs Ecker: I wasn't clear on your reference to the terms of reference. It sounded like you were saying that the terms of reference for each project should be laid out by regulation, which caused me some concern because my understanding is that terms of reference are to be designed for the particular project to reflect the local community problems etc.
Dr Denton: The guidelines for those terms of reference should be laid out in the act. They should cover all the various alternatives to the proposal. Alternative methods should be laid out in the act. The terms of reference should be discussed by the public and open for the public. I believe they should not be basically written by the proponent and then passed by the minister, which would limit any further discussion down the road.
Mr Dalton McGuinty: Thank you very much, Dr Denton, for your presentation and for the effort you made to appear before the committee today; I understand you had to travel some distance. I'm sure I speak on behalf of all committee members when I say we appreciate that effort.
You talked about the importance of public consultation, particularly with respect to the terms of reference. The minister is proposing that she fulfil that obligation or that purpose by posting the proposed terms of reference on the Environmental Bill of Rights registry. I'm just wondering, in practical terms, how helpful do you think that would be?
Dr Denton: It sounds great, but I would say that it's ahead of its time. Very few people have access to the Internet and electronic means. While it is now available in libraries, and people have been to our library for the municipal opening and we've had them speak at our municipal association about how it's going to be publicly accessible, I think you still need, in this day and age, to go back to newspapers and radio as opposed to just putting it on a registry. If I'm understanding your question correctly, putting it on an electronic bulletin board registry is not adequate. It's got to go to newspapers, it's got to be posted, being talked about on the radio, so that the public is aware of what's happening.
Mr Dalton McGuinty: Right. I agree entirely. I think it was a representative from the Canadian Environmental Law Association who told us that notice made by way of the Environmental Bill of Rights registry is considered to be kind of the absolute minimum. I read something the other day that said we've achieved our maximum penetration rate for the time being in terms of personal computers in Ontario households; only 30% have them. I'm not sure what percentage of those are on the Internet.
Dr Denton: Very few.
Mr Dalton McGuinty: I just don't believe it will be an acceptable or a real, genuine intent or effort to ensure there's public consultation.
Dr Denton: I couldn't agree with you more.
Mr Dalton McGuinty: A previous deputant, Gordon McGuinty, raised something that I think all of us ought to pay some attention to. We're trying to strike a balance here. I don't want, if it's at all possible, Ontario waste being shipped outside of our province. If we end up with the best possible environmental protective measures, but yet none of our waste is being treated and dealt with here, we might be able to look at ourselves in the mirror and say, "We've done a fine and outstanding job," but we're kidding ourselves if the waste we're now producing in this province is not going to be dealt with here by us. That's on the one hand. On the other hand, I don't want regulations to be so lax that we're not properly fulfilling our obligation to future generations in terms of the environment. I don't really have a question, but you may want to comment on that.
Dr Denton: Yes. I believe we should look after our own waste within our own province. I think the way you do that is by going to the 3Rs. By keeping it near the source, you keep people cognizant that they are responsible for their own waste. Therefore, waste disposal needs to be looked after locally, and by doing so you will implement the 3Rs for that process to reduce the waste. By having a good EA act, you can prevent degradation of the environment.
The Chair: Dr Denton, thank you kindly for joining us today and appearing before us and sharing your views. We appreciate it very much.
TEMISKAMING GREENS
The Chair: We have the Temiskaming Greens organization, Mr Doug Fraser, president. Mr Fraser, welcome to the hearings.
Mr Doug Fraser: Thank you very much. I'd like to first take the opportunity to thank the committee for having this opportunity to speak and for coming fairly close to home so we don't have a terribly long ways to travel. Two hours for us is seems pretty nearby compared to what we sometimes have to do.
We have a number of similar concerns that have been raised, I'm sure, many times about proposed Bill 76. I suppose our biggest concern, the real emphasis is the failure of the bill to guarantee a full examination of alternatives to the undertaking and alternative methods for an undertaking, such as a landfill. I guess the emphasis in North Bay among speakers will be undertakings such as large-scale landfills.
The bill fails to guarantee full examination of all impacts -- biophysical, social and cultural -- which result from the undertaking or alternatives. Again, that's because of this opportunity for exemptions and the discretion of the minister.
It fails to require and provide intervenor funding, which we feel is critical to public participation in a fair and thorough way.
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I'm a high school teacher and so everything I do is like a lab or a demonstration. It's very important when you consider an example such as a landfill to try and personalize it and realize exactly what we're talking about. I brought a little garbage bag here, something you might find under your kitchen counter. I didn't bring garbage; I brought -- well, no, I suppose in some ways it is garbage. It's waste paper. I'll just make this look like a garbage bag. I recycle all my paper, so you'd never find this in my garbage bag.
That's the kind of thing I pull out from my kitchen sink a couple of times a week. We're pretty good; we don't have very many of these that go out each week. That's how we relate to garbage, and when we relate to landfills we think about our little bag that we carry out and put at the end of the driveway. It was sitting under our sink. It seemed pretty safe. I mean, how bad can it be? We know there's a lot of people doing it, but we have this impression that it's not particularly hazardous stuff. How big of a problem can it be? Sure, nobody wants it in their backyard, but what's the big kerfuffle all about?
I think everyone would admit that they don't like leaving that festering under the kitchen sink for too long, and when they pull it out, if there's a little leak there and they look at the little dribbles in the bottom, their tendency is to want to wash that out and not touch it. There is a little bit of personal awareness.
But in scale -- I posed a few questions here; it's actually on the last page of the little thing I gave you -- how much garbage is being considered? If we look at the example of the Adams mine site, the question I really want you to ask yourselves is, is it even conceivable that a major landfill project could ever be worthy of being exempted from the most thorough examination of alternatives and environmental risks and that sort of thing?
If we use the Adams mine proposal as an example, how much waste is being considered? It's about a billion kilograms a year. Actually, in light of the government of the day, I've picked very conservative numbers in my estimates because -- I do this in my science class -- I certainly don't like to exaggerate. Reality is often scary enough. We're looking at a billion kilograms a year that would go into the Adams mine. A little garbage bag might weigh a kilogram, it might weigh two kilograms, but we're looking at tossing a billion of these little kitchen garbage bags into the same hole in the ground for 20 years or more, and certainly the length of the site -- I'm sure Notre would hope that it would last much more than 20 years at a billion kilograms a year.
How does that compare to your kitchen garbage? We take those garbage bags out and there are maybe 70 million garbage bags a year. If we look at bigger garbage bags, and if you put those into garbage cans, because we carry those little garbage cans out to the laneway, and if we took those garbage cans and we just piled them up to see how big a pile, it would take quite a while to pile them up and I'm sure they would fall over, but one year's worth of garbage would make a pile of garbage cans 100,000 kilometres high.
It's a lot of garbage. It's just this stuff, but we're talking about an amazing amount of it. We think of it as not very hazardous, and we know some of it is hazardous. I don't know what gets thrown in there. It's a very odd concoction. There might be an old acetate magic marker in there. There might be an old calculator with a mercury battery in there. There's hazardous waste that goes in there that won't be sorted, won't be taken to hazardous waste depots, and I suggest that perhaps it's half of one per cent. I think in recent years it's been higher than that. In the future, who knows, but I think one half of one per cent is a reasonable thing to go on.
I'll tell you that when we had our supposedly public discussions with Metro, one of the questions I asked early on and asked repeatedly was for them to tell us what the mix would be, what they expected we'd be getting in the garbage. They wouldn't tell us. So unfortunately I have to use my judgement and information from sources -- the Recycling Council of Ontario, that sort of thing -- about these estimates.
If it's only one half of one per cent hazardous, we would be dumping 14,000 kilograms of hazardous waste every day into the Adams mine pit. If there was a spill of 14,000 kilograms of hazardous waste into somebody's groundwater, on the surface, spewn into the air, dumped on the land, in the water, I would assume that would be a news story and certainly worthy of significant consideration by the MOEE. That's what we're talking about: 14,000 kilograms a day. That's five million kilograms a year being placed in one site. Certainly it's mixed up with all kinds of other stuff, but the bottom line is, that's the amount of hazardous waste we're talking about. So for the life of the site, a proposed 20-year life, that would be 100 million kilograms of hazardous material.
When it comes to other kinds of waste that the public is generally concerned about -- and I'm no expert -- human sewage, human faeces, this particular site would receive about a quarter of a million soiled, dirty diapers every day. Again, how serious is that? How serious is it in a pit, the majority of which is below the level of groundwater, that you throw a quarter of a million diapers with human faeces in there every day? It's a lot, and certainly to exempt any part of an assessment hearing that would examine carefully that kind of situation I think is not common sense. Coming from a government that presumably believes in and acts in a commonsense way, I think it would be inconceivable to consider any exemptions or omissions from a full EA when it came to that kind of proposal, and that's exactly what the proposal is, except slightly larger in scale maybe.
It's very important that we look at alternatives. One of the things that always hits me when I hear a presentation from Mr McGuinty or similar proponents about incinerators is the sort of state-of-the-art, cutting-edge technology kind of vision that they portray. They have cutting-edge audiovisual equipment and they put on nice displays and that sort of thing, but they're usually talking about either landfills or incinerators.
If we go back a few years kind of to Neandertal man, this is about all the garbage they had, these things, because they had a devil of a time eating them and you only needed so many to club your buddy over the head and you chucked the other ones. "Out of sight, out of mind" was popular back then, because you don't want to have too many of these cluttering up the cave door entrance. So you turfed them over a little hill. That wasn't so bad because these are non-toxic and there weren't that many people. They didn't catch too many mammoths -- the odd one got stepped on -- and so it wasn't a problem: Out of sight, out of mind. If you saw Quest for Fire, you know we discovered fire, found fire, and started to control fire. There's getting to be a bit of litter around, so we started just turfing these into the fire pit. So we started incinerating them. That predates 100,000 years, but let's say that's around that 100,000 years ago mark.
What's changed in our modern waste management technology? We have way more garbage and it's hazardous to our health. So the technology involves liners, leachate collection treatment systems, gas collection treatment systems, because it's dangerous. The whole idea of actually taking the waste and throwing it into a hole in the ground and covering it up, that's the same idea. We've gone nowhere. That's not waste management; that's just like waste movement and tucking away.
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Certainly there have got to be some alternatives with our society, and incineration's the same sort of thing. Now I suppose Mr McGuinty's suggesting we have to add the technology of transportation, because out of sight, out of mind has to be really far away to not upset the largest number of people.
I think we have to pursue real alternatives. The real alternatives should be sustainable alternatives. When we talk about a landfill, when the crunch comes, should it be in the United States or should it be in Ontario, and how do we feel about that, those aren't sustainable alternatives anyway. Those are failures of us to manage waste. If we admit failure, then I suppose one of those two things may happen, but we have to seek real alternatives, and that can be found in the 3Rs and in modern technology, much more creative technology.
Intervenor funding is extremely important. The environmental registry method -- you need people in communities to get together, what the Americans are doing now, I suppose, in these town hall meetings. That's the big buzz in the US. Neighbours want to get together and talk to neighbours and support each other and bounce ideas off each other. They don't want to go into a library and open a binder and see a copy of Bill 76, because they don't understand it, but they want to be involved. They want to be able to hire an expert of their choice. If you ask members who have sat on panels from environmental assessment hearings if the expert witnesses brought forth by the public have provided important peer review -- technical, scientific review -- and if they've been valuable, I think the answer will be an overwhelming yes. So there's a long history of evidence of that.
I know it costs money. If it's a level playing field and we believe in corporations sort of having a fair kick at the cat, then they should be able to fund a full assessment of their project and they should pay proponent funding. When we're cutting more and more money from government spending and government agencies, if you don't want the responsibility to be on the MOEE, why shouldn't it be on the companies? They're the ones that are putting forth the proposals, and they're all profitable proposals. We're talking about proposals involving billions of dollars. If the concern is that it costs $4 million for a hearing -- that's the scale of these particular things that we're talking about -- I don't think that's an unreasonable amount of money. Savings can be made. If we have fewer lawyers and more experts at these sort of quasi-judicial meetings, it might save some money, but I don't have expertise in that. I know the public needs the funding.
Those are the main points I wanted to make. There are far more expert people who can make detailed submissions about the wording of the bill. We support Northwatch's submissions, and the Canadian Environmental Law Association we believe has a very thorough group of proposals for actual amendments to the bill that would meet our desires.
Mr Galt: Thank you, Mr Fraser, for a thoughtful presentation and your demonstration on concentration of garbage. There's no question that's probably the number one problem, the volume coming into a spot and then the possibility or concern of leachate occurring in that particular area. Ideally, it would be great if we could recycle, reuse in some manner everything. That would be ideal and we wouldn't need landfill sites. Maybe some day we'll arrive at that, but we're not quite there yet.
I want to assure you with the process in Bill 76 that full environmental assessment will occur with the terms of reference being developed and the public consultation that will be occurring.
Moving to a question that I have for you, it has to do with your first page, after 1, 2 and 3. It says Bill 76 places too much discretionary power in the hands of the politicians. I gather you're referring to the minister and decision-making power that the minister, backed by cabinet, would have. There are really only two changes where the minister and/or cabinet would get involved, and that relates to the approving of the terms of reference and also looking at harmonization with the federal environmental assessment. Where would you take this out? How would you go about reducing the political powers and at what point would you do that in this process as it's in the present Environmental Assessment Act or in this bill?
Mr Fraser: For example, in the terms of reference, if you can cut out looking at alternatives, those kinds of things -- very early on, your terms of reference, that's what dictates the scope of the EA. So if I have the power to determine what the scope of the EA is, I don't know how you can tell me that the bill assures a full EA, because obviously each EA will vary depending on the decisions made by the minister. When we're looking at projects, there are certain things, in my mind, that can't be omitted, such as looking at alternatives. If the minister has the power to say, "I'm going to exempt this particular part of what would normally be in a hearing this time," then I think the public loses confidence that a fair and honest hearing has been had.
The business community is being sent mixed messages, because instead of having absolute regulations, we now have things that are discretionary, and then I don't know if we have a level playing field. In one environmental assessment, a certain part of the terms of reference can be altered or omitted, and then when I come with my terms of reference maybe I won't get the same deal.
I think that these hearings on these kinds of projects shouldn't be of a political nature. The decisions that are made and the things that need to be discussed in an environmental assessment hearing of a landfill, for example, are things which should not be controlled by political decisions. They should be controlled by engineering, scientific expertise and social need. So I think an exemption is --
Mr Galt: Do your comments today represent those of the board of education that you work for?
Mr Fraser: No.
Mr Pettit: Mr Fraser, you mentioned a level playing field when it comes to intervenor funding. It seems that the act as it is now encourages public participation more at the tail end than the front end. Would you agree that with the enshrinement of early mandatory public involvement, along with the terms of reference, that will help to alleviate the last-stage problems we see now that obviously add to the already significant costs of the process?
Mr Fraser: If having public input in the terms of reference is necessary because the terms of reference are up for debate, I don't see a need for that. I don't think the terms of reference should be up for debate. There may be specific things that need to be discussed, but the key elements of the hearing should not need to be debated. So certainly having more public input is better early on, but if that's because we're discussing what we're going to exempt, I have a problem with that.
Mr Michael Gravelle (Port Arthur): Thank you, Mr Fraser, for your presentation. I think the fact it was somewhat graphic too is helpful. I just wish there was a camera here to get some shots of you doing that.
Certainly there is no question that when you're looking at major projects of this type, to determine what the alternatives are is really crucial and important, and that should be in there, but I want to just focus for the short period of time we have on the concept of intervenor funding. I think there is a desire somehow here to find a balance and I think there's a feeling this particular bill is focusing on perhaps moving to basically speed up the process, streamline it or whatever it's called, and of course there is great concern by many people in the province, and obviously some of us on this side share this, that moving fast can be dangerous unless there are enough checks and balances in place. That's where intervenor funding becomes rather crucial.
No matter what happens, it seems to me that to talk about public consultation and the ability to even have it enshrined in this bill as a bill-related public consultation is somewhat farcical unless the public has an actual opportunity to participate. I want to get more of your thoughts on what it means if there isn't intervenor funding in terms of the public being able to be involved. How involved can they get and what kind of a playing field is that?
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Mr Fraser: Without intervenor funding, it makes it very difficult for community groups, especially in the north, perhaps spread out over a large area, to do very simple things like communicate effectively over the phone, be able to hire the expert witnesses, have counsel. These hearings are performed largely by lawyers, and for the public to be able to participate in a fair way, it seems that -- I suppose that if the proponents feel they need lawyers and the governments feel they need lawyers, then there must be some merit in having legal counsel. Certainly small communities and members of the public at large do not have the resources to provide those resources, so I think it's only fair that they have a level playing field when it comes to the actual hearings.
One of the concerns, one of the things we hear about over and over is time and time lines. I come at this not from a politician who has to have things done within my mandate, but as a teacher of environmental science and biology, and I look at time lines in a slightly different way. We're on this earth for an incredibly short time and we have real blinkers on when it comes to time lines.
When we get to high-level radioactive waste hearings in northern Ontario, when we get to landfill projects in northern Ontario, when we get to forest management in northern Ontario, we're talking about things that occur over many lifetimes. These are very long-term impacts. Our whole approach to environmental integrity tends to be focused over a couple of years. If we have an urgent need for a landfill site because we have not had the ability or the desire to look ahead and to recognize that we have to plan far into the future, then that's our own problem, but you can't rush a project with very long-term implications with the excuse, "Well, we only have two months before such-and-such an event occurs in our political spectrum."
You have to look at the time lines, the real environmental time lines, the real ecological time lines. Those are the ones that count. Whether or not there's going to be cod in the north Atlantic in 100 years: Those are the time lines, not whether or not there will be 10,000 cod fishermen out of work next month. That's a serious concern, but the bottom line is either you're going to have cod or you're not, so I think the political reality is very different from ecological reality and the time lines you need have to be realistic to the problem.
Ms Churley: Thank you very much for your presentation and I'm glad you got into some of the issues around what is garbage. Garbage is not garbage; it's also this whole issue around resource consumption and pollution and social values, all kinds of things, which of course is what an EA should be all about. It's not just about putting the right lining in the right hole. It's so much more encompassing.
I have to take issue with Dr Galt again on his statement that this bill is about full environmental assessment. We really need to get that clear, because it isn't. Let me explain again. I may not ask you a question because I really want to get this on the record and clear.
The terms of reference could be a useful tool, and this has been pointed out by some environmental lawyers, in terms of looking at the issues relevant to the undertaking and designing the specific process for the hearing. But what's happened here is that there are existing requirements, that's true, in this bill. Section 6.2 mandates the terms of reference will require an EA document to contain the elements found in subsection 6.2(2). Okay, that's good, that's there, and those are existing requirements, which include alternatives to the undertaking and need. That's there, but then it goes on to say that during terms of reference, in each and every case, those elements can be thrown out.
Therefore, you now have the ability to go ahead with siting of a landfill or an incinerator, for instance, without looking at the alternatives. I asked government officials this very question around, what if somebody wants to site an incinerator? Do they have to look at alternatives, because alternatives are important here, particularly in terms of the 3Rs, since it consumes the basic same things. I was told no, not unless that company is also in the business of doing 3Rs. That needs to be clarified, but it's very clear, Dr Galt, and the whole committee, that this could mean there will be no full environmental assessment.
If you mean what you say about a full environmental assessment, you will amend this section so that it is very clear what type of hearing and that kind of thing can be discussed under the terms of reference with full public participation, but that it is very clear that nobody can opt out, the minister can't give favours here and there. There's no certainty in that for the proponent. Think about the lobbying that's going to happen on each and every proposal. This is crazy. It doesn't make sense and it's not true to say there is a full environmental assessment guarantee. You're going to have to face that.
I just had to get that out of the way because it keeps coming up time and time again, also on public consultation. The big myth about that -- I keep saying look back to other EAs. De facto, there was public consultation from the very beginning. It's nice that it's enshrined now, but there always was and always would be in this thing. But with no intervenor funding and no guarantee that the public will be involved in the very important negotiation on the terms of reference, you've got a problem. It turns it into a sham. You have to face the fact that you've been sold a bill of goods here by your minister or the bureaucrats in this thing or whatever, because you're telling people something that it's been pointed out time and time again is not so.
Do I have any time left?
Mr Galt: Do I get to respond.
Ms Churley: No, this is my time.
The Chair: You have one minute left.
Ms Churley: I think you would you agree with that, from your reading of the bill.
Mr Fraser: I would, definitely.
Laughter.
Ms Churley: However, as we all laugh, for those of us -- as I too in my past have been involved in huge proposals coming forward from my community, we know how important it is. The fact remains that if these things aren't taken care of, there will be in many cases no full environmental assessments. I think that is your major concern, is it not? It came to me you have many, but I think you're asking the government to make sure that all aspects of EA --
Mr Fraser: I think everything needs to be looked at. If a massive landfill is put forth as supposedly the undertaking, the real garbage problem isn't at the edge of the pit, the garbage problem is in the shopping malls and the supermarkets. If we're not looking at what we are doing in shopping malls and supermarkets, then we're always going to be left at the end of the line with this pile of stuff that we perceive as being the real problem. That's not the real problem and that's never where you'll find the real solutions.
The Chair: Mr Fraser, thank you very much for your presentation and your props this morning. We appreciate the time you've taken and the effort you've made to be with us to share your views.
Mr Gravelle: Before we break for lunch, I just want to ask Dr Galt whether or not he has some response from yesterday. Yesterday a member of the Sierra Club provided some information to the committee related to the Ministry of Natural Resources seeking a possible exemption under the class environmental process. Dr Galt, I thought, said he would try and get a response back to us this morning. I'm curious, obviously, as to what --
Mr Galt: We'll have it for you this afternoon.
Mr Gravelle: Thank you.
Ms Churley: Last Friday, I requested --
Mr Galt: Yes. Coming.
Ms Churley: When is it coming?
Mr Galt: This afternoon.
Ms Churley: For the purposes of record-keeping, I asked for a list of existing communications communicating with the public, public consultation guidelines, which already exist in the ministry for existing EAs to be brought forward so it'll give us some guidelines for the --
Mr Galt: Right. You'll be well looked after.
The Chair: My understanding is it will come this afternoon.
The committee recessed from 1241 to 1331.
The Chair: Just before we start, we have an announcement by Dr Galt.
Mr Galt: We now have the answers to the two questions that were posed, one last week and one yesterday, if I can turn these over to the clerk for distribution purposes.
The Chair: Very good. Thank you very much, Dr Galt.
NORTHEASTERN ONTARIO MUNICIPALITIES ACTION GROUP
The Chair: We begin our hearings this afternoon with the mayor of Cochrane, I presume, and also some reference to the mayor's action group, which is a northeastern Ontario grouping of municipalities. Mr Mayor, welcome to our hearings.
Mr David Hughes: Thank you, sir. I appreciate the opportunity to appear before you today. While I appear alone, you can be certain that I represent all communities that are members in our association. Their support is with me as I make this presentation to you.
The Northeastern Ontario Municipalities Action Group is pleased to make this presentation to the standing committee on social development. We believe that our position will give the committee a northern Ontario perspective on what the Environmental Assessment Act and these changes under Bill 76 will mean to municipalities in northern Ontario, in northeastern Ontario specifically.
Our comments today will touch on three topics. First, I would like to describe our group and the mandate under which we operate. Second, I would like to give you some history from a northern perspective on why the current environmental assessment process is unfair to municipalities, particularly the smaller municipalities. Finally, I wish to express our views on why the current legislation and these proposed changes do nothing to help economic development in northern Ontario and in fact will hinder efforts to encourage industry and sustain our vital transportation system in the north.
The Northeastern Ontario Municipalities Action Group represents approximately 40 communities along the Highway 11 corridor of northeastern Ontario, between the city of North Bay and the town of Hearst, with a total population of over 250,000 people. I have attached a list of these communities to my presentation.
The action group was formed to address two key issues. Our mandate is to protect and improve the transportation system that links northern Ontario to southern Ontario, and as a commissioner on the board of the Ontario Northland Transportation Commission I can tell you that the transportation system is suffering financially and needs new opportunities. The second mandate of the action group is to collectively promote economic development of the member communities along Highway 11 north.
Past successes of the action group are testimony to the combined strength of the member communities. Collaboration on issues that affect northeastern Ontario has demonstrated to the rest of the province that communities in northeastern Ontario are determined to ensure the economic and environmental wellbeing of the citizens and the part of Ontario they represent. The action group will continue to support creative and environmentally responsible approaches to economic development in northeastern Ontario.
Members of the action group will agree that the present environmental assessment system is ineffective and inefficient. There is tremendous duplication in the process, particularly in the establishment and siting of landfills in the province. The process simply costs too much and takes too long, with no certainty whatsoever that any effort or financial commitment will have a positive result at the end of the day.
A case in point -- as I listened to some of the presentations earlier, I will say I think that we win the lottery in this one -- as the mayor of the town of Cochrane, a community with a population of 4,348, we have been trying to site and permit a 20-hectare landfill site for over 13 years, at a cost to date of over $360,000, and we are facing costs of an additional $300,000 over the next 12 months, yet there is still no certainty and there are nothing but question marks.
Business cannot operate that way, neither can municipalities, especially now, when funding is being cut and we are forced to do more with less. That is fine, and we can live with that, but as you cut funding you have a responsibility to provide a process which is clear, fair and timely, allowing us to develop projects to comply with all environmental regulations, standards and guidelines. It is impossible for municipalities to plan properly and finance their landfills under the current legislation.
We support the government's objective to restructure the environmental assessment process, which we all believe is in need of reform. The goals are accurate and achievable. We need greater certainty and timeliness, with reductions in costs and no limitations in environmental protection. We have no confidence in the current Environmental Assessment Act, and any revision must instil confidence that the process will work for municipalities as well as for the private sector.
There are strong advantages to adopting the flexibility of the Planning Act. This is a front-ended process which requires proponents to describe their process and provide information and detail up front. The process prescribed by the Planning Act is transparent. It requires public participation and allows for an investigation which is based on the advantages of a specific site for a specific use. It allows for very clear time frames for any municipal council decisions and permits an appeal.
Ontario is a diverse province, as we know, and different municipalities have different issues to address. However, economic weaknesses are inherent in northern Ontario due to its smaller population base, the distance from the south to the north and the markets and product sources therein.
In terms of waste disposal, the unbalance is very obvious. There are no large volumes of municipal waste in the north to justify the development of state-of-the-art regional landfills. There is far too much geography to enable municipalities to take advantage of joint agreements and cost-sharing. Southern Ontario communities, however, are able to join together, combining volumes of waste for economies of scale and developing joint agreements for the use of land and regional facilities. Even more critical is the potential ability of southern Ontario municipalities to contract out their waste disposal services to the private sector. Metro and other GTA regions are large producers of waste and they are situated close to the US border, making the private sector anxious to garner their contracts. What may be developing in Metro Toronto is a case where it allows its waste to be shipped across the border to sites in the United States.
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In comparison, northern Ontario has no such options. We are faced with complying with cumbersome EA legislation to site local municipal landfills because we do not have sufficient volumes of waste necessary to attract the private sector and we are not located close to a US border. As it currently stands, southern Ontario communities can simply circumvent and opt out of the EA process entirely by contracting out their waste disposal services to the private sector. Abdication of environmental responsibility demonstrated by exporting Ontario waste, particularly the volumes in question, is unacceptable to us. To be fair, northern Ontario should be allowed an equivalent way out of the EA act, as is available in southern Ontario communities. The process should apply equally to all communities across the province.
Although parts of Bill 76 represent a direction to achieving the government's objective of streamlining and revamping the environmental process, it simply does not go far enough and does nothing to prevent the shipment of municipal solid waste to United States sites across the border.
The proposed changes under Bill 76 do not make compliance easier for Ontario municipalities or private sector proponents. We see nothing in this bill that changes the high cost and uncertainty of entering into an Ontario environmental assessment. Therefore, because of the costs of establishing and siting a landfill in Ontario, US options are emerging as the only affordable disposal sites for any municipality with large volumes of waste located close to the US border.
The comment made to this committee by the Ontario Waste Management Association last week that, and I quote, "The ultimate environmental legacy of this government will be that it chose waste export to the United States as its preferred method of waste disposal," is very disturbing to the action group. We see waste management as a possible economic opportunity for northern Ontario and have been supportive of the Adams mine rail-haul project since its inception. The importance of this project to the Ontario Northland Railway and this railway's importance to all communities in northeastern Ontario make it mandatory that we be involved.
The Adams mine rail-haul project solves two problems for northern Ontario and serves to enhance both our mandates: economic development, and improvements to the transportation system. In addition, it improves the north's ability to provide superior landfill capacity.
Southern Ontario has the waste quantities and sufficient volumes to be a strong industry and it has a need for cost-effective, environmentally secure disposal capacity. Northern Ontario has an efficient rail system and an environmentally secure disposal site, as well as a labour force ready, willing and able to work. All will be lost to the United States unless Bill 76 implements changes to give northern Ontario a level playing field.
The Adams mine rail-haul project is the only in-Ontario solution being considered by Metro Toronto for disposal of municipal solid waste, yet it is seriously considering signing a short-term contract with a US company. This is the first example of how an Ontario opportunity can be killed by easy access to US disposal sites. Job creation, tax revenues, capital investment, freight revenues to the ONTC, host community benefits and education programs are just a few examples of what will be shipped out of the province with waste contracts.
I'll just interject, I apologize for the bulk of our document, but a lot of what I'm speaking of is referenced in the amended materials that you can peruse at your leisure with regard to previous submissions we've made in this regard.
The government must not allow US interests to take control of the waste management industry in Ontario, denying the north and indeed the province of Ontario any chance to develop projects such as Rail Cycle North.
In-Ontario solutions to solving environmental issues are consistent with provincial and federal policies; US solutions are not. The Honourable Brenda Elliott, Ontario Minister of Environment and Energy, has said, and I quote, "We want to see made-in-Ontario solutions working for Ontario." This will not happen unless the options to contract out waste disposal to the US are reviewed by the EA process or unless in-Ontario disposal sites are allowed clear, fair and timely approvals that are not hindered by the bureaucratic legislation that exists today.
We agree that Ontario should be self-sufficient in the management of its waste. In order to achieve that objective, the process must fit with keeping the waste in Ontario and providing municipalities and the private sector with an approvals process that is streamlined, ensures -- I highlight "ensures" -- environmental protection and is applied equally to all communities in Ontario.
Mr Dalton McGuinty: Thank you very much, Mayor Hughes, for your presentation. Reference is made here to the Planning Act. I can't recall who it was now, but I believe we saw another group on our first day of committee hearings that spoke of some attractive features of the Planning Act and essentially made a recommendation that we ought to look at folding the environmental assessment process -- not the Environmental Protection Act, but the environmental assessment process -- into the Planning Act process somehow. Is that something you advocate?
Mr Hughes: All I'm suggesting, sir, in an analogy is that when somebody appears before your local planning board or any planning authority, the proponent has the responsibility to document his plans in their entirety and put them in front of you. At that point they are put out for public review, everything being equal. It's all there: The intent is there; the opportunity for input is there. Once that has been achieved, the viability of that project is determined and it's allowed to go forward. There's no appeal at the end that can change that process. The work is done up front in a collaborative manner so that the viability of the project can or cannot be determined. I think that's our point in this regard.
Mr Dalton McGuinty: I really appreciated your comments about some of the difficulties that are peculiar to dealing with waste in the north. You know, I like to say that if you hang around Queen's Park too much, suddenly you think you've got all the answers.
Mr Hughes: Sir, we are absolutely aware that you don't.
Mrs Ecker: You walked into that one.
Mr Dalton McGuinty: Yes, that was a setup.
Travelling like this gives us an opportunity to get in the communities and find out on a firsthand basis some of the particular challenges you face. What kind of changes are you recommending be made to Bill 76 then?
Mr Hughes: From the municipal perspective -- and I allude again to my particular experience where we've been 13 years in the process. We are now at a point where a candidate site has been identified. We have followed religiously all the criteria expected of us in determining where that site is going to be. We have the consultants, we have the government on board and we've had all the public meetings and all the public input. Yet at the end of the day, when we are now doing all the scientific research necessary to either prove or disprove the viability of that site, those who have not been part and parcel of the process all the way through and have no understanding of what brought us to that point are allowed to present themselves before us to further retard the process. Yet the opportunities have been there for them, as they have been for everybody else, all along.
That's why I'm saying we don't want to jeopardize the environmental integrity in the process but we want the information up front, everything that's there, to determine how you're going to proceed. Once you proceed, you do it in partnership. You do it in whatever partnership is necessary to alleviate the concerns of all parties. You're never going to satisfy everybody -- I honestly believe that -- but if everybody knows the data up front and what you're going for, then the end result will be clearly defined for everyone when you achieve it.
Mr Dalton McGuinty: You're not arguing then, as I understand this -- you let me know if I'm putting words in your mouth -- that we have anything less than a full environmental assessment hearing.
Mr Hughes: No, I'm not arguing against environmental assessment hearings.
Mr Dalton McGuinty: But I think what you are arguing is that at some point we should have closure.
Mr Hughes: At some point there has to be closure. Absolutely. It can't be permitted to go on forever. You're going to apply all of your resources and every bit of scientific technology available to you to determine to the best of your ability what it is that you're seeking in environmental integrity. Once that is done, you can't get beyond that point. I just say there has to be closure at some point. It's not affordable to carry it beyond that.
Ms Churley: Your presentation was quite interesting in terms of the frustrations you've experienced here. The stage where most of the delays occur with EA is through the government review. I don't know the details of yours, but it's overall. Anybody I have talked to, from all sides of this issue, has said there need to be clearer rules. I'm sure that's what you were saying as well. You think you're going along the right track; this is what you've been told to do, so you go out and dutifully do it, and you come back and you're told, "Oops, the rules have changed; now we want X and Y done," and this keeps happening. Is that generally a correct statement?
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Mr Hughes: That's very true. I'm not arguing that at all. All I'm saying is that as the process proceeds, the process has to be defined, all the proponents to that process have to be involved at the same time, heading in the same direction. Whether they agree or not, the process has to be clear.
Ms Churley: Whether or not you agree with all the time frames as they're outlined here, throughout that process you would say they would go a long way in terms of speeding up the process and making it more concrete in terms of where you're going?
Mr Hughes: Yes.
Ms Churley: Therefore, what I'd like to come back to is the public consultation at the beginning of the process. If time frames are built in, which is part of this bill, then would you agree that public participation at the very front end, around the terms of reference, should be inclusive including the community and the municipality so that everything is on the table from the very beginning and not later on in the process? Do you think that would go some way to defining the issue so you can get on more quickly with it?
Mr Hughes: Without question.
Ms Churley: Okay. That's an issue that keeps coming up time and time again, and we'd like to see that enshrined in the legislation.
Mr Hughes: The process should be in place from the beginning.
Ms Churley: You mentioned the Adams mine, and we're all aware that that's been controversial on a number of fronts. When you talk about public participation and being fair to everybody, how do you see that working when you have a group of people, especially the people, as I understand it, who live very close to it, who are fundamentally opposed, for a variety of reasons? Do you think it's fair that they should be given intervenor funding so they can be involved in a positive way, or at what point do you feel they should be shut out, if you think they should be, to get on with it?
Mr Hughes: The question of intervenor funding is a tough one, I will admit, and I've given it some consideration, because yes, people have to be able to participate. Public opinion is what we all, I would hope, build our decisions upon. But I don't think intervenor funding is useful if it's used solely to fund opponents to any proposal travelling to whatever jurisdictions are necessary to speak out against it. Intervenor funding is useful if it's used to accumulate data relevant to the project, that can prove or disprove the project. That's important, and I have no problem with that. But if intervenor funding is used simply to transport people from point A to point B to oppose a situation, and if that isn't based in fact, just in fear, I don't think that's what we intend intervenor funding for.
Ms Churley: So you support it but with specific guidelines so it's not abused?
Mr Hughes: I think it would have to be clearly earmarked.
The Chair: I have four interested Conservative members. I don't know how many of you are going to make it on the list, but I have Dr Galt, then I have Ed Doyle, Mrs Ross and Mr Stewart. Your colleagues will determine your fate.
Mr Galt: I'll try to be quick. Thank you very much for your presentation. I don't think you want to be congratulated on the lottery whereby you've come out with the longest, as has been mentioned here today.
It's unfortunate that the system's broken. We're trying to fix it and make it work better. To be fair, though, there have been significant administrative reductions in the Ministry of Environment and Energy over the last several years to get it from the neighbourhood of 16- or 18-month review periods down to more like five or six. That still may not be satisfactory in our eyes. However, I just wanted to acknowledge that there have been tremendous improvements compared to what it was. An awful lot of our problems relate to the, you might say, almost out-of-control hearing process and going back to zero with many of the issues.
What I wanted to ask you a question on relates to export to the States, because the border is open, we have to acknowledge that. I gather from your presentation that an EA process would be satisfactory. I'm wondering, from an environmental concern, the kind of landfill site it goes into. The last presenter was telling us how far ahead we were with handling of our solid waste. Yesterday we were told by a presenter -- they went to a conference in the US -- how terrible it was back here in Canada; they weren't impressed at all. We're getting very conflicting stories. Would you be comfortable if it had to go to a landfill site with standards at least equal to those in Ontario, if that came out of an EA process?
Mr Hughes: I would not be comfortable with that, sir, if it could be proven exclusively that we could handle it in an environmentally secure fashion in our own province. I would not be comfortable with that at all. If I might just refer you to the second-last page in my document, it clearly outlines the benefits of that not just in northern Ontario. When you're talking $80 million in tax revenues to the province of Ontario and so on that could come from that, no, I wouldn't be comfortable.
Mr Galt: What kind of things would you do to change it when we have an open border for trade purposes?
Mr Hughes: I don't want to fly in the face of competition, but I am a northerner, and I'll say that with all candour, and our opportunities in the north to provide economic opportunities are not presenting themselves every day. When we're looking at issues such as this, if indeed the opportunity is to do it with equal care and caution in our region or indeed the province, I'm sorry, I just think that's -- we get accused all the time of being at the trough too often, but when we try to present ourselves in an aggressive fashion to look for economic opportunities, we too often get turned away. I would just suggest this is one of those times when we want you to look seriously at what it means not only to our region of the province but to the province as a whole.
Mr Ed Doyle (Wentworth East): I'll try to be brief too. No matter where a landfill is proposed, there's always controversy. I'm wondering, if it's been very controversial here, just how much it's divided the community. Has there been much of that? As an elected official, how would you feel about that? Has it been understated, has it been overstated?
Mr Hughes: No, controversy cannot ever be understated, and I think it's important that it always be noted. I would never suggest otherwise. As elected officials at whatever level of government, we know that we face controversy all the time and we have to make decisions in the face of that controversy. We make those decisions on the basis of what we consider to be the best interests of our constituents. That's our responsibility. I'm here today to say to you that the elected representatives in the majority of the councils that I represent favour the Ontario solution. That's my response.
Mrs Lillian Ross (Hamilton West): Mr Mayor, thank you very much for coming here today. Do you feel that the new environmental act we're trying to bring forward is going in the right direction? With terms of reference at the beginning, public consultation throughout the whole process, mediation and a mechanism for that, do you feel that's a step in the right direction?
Mr Hughes: I think I make that remark in our presentation. Yes, it's a step in the right direction, but I don't think it goes far enough. I think the process has to be more clearly defined, and I think that can be achieved.
As my colleague just mentioned in answer to a question, we talk about things like intervenor funding, yet I make reference to the Planning Act. Well, the Planning Act provides for all kinds of input but there's no intervenor funding when it comes to dealing with planning issues. Again I have to say, at what point is it necessary and at what point does it achieve the end? If everybody is working from the beginning together on a clearly defined set of objectives, perhaps that might eliminate that need. I don't know. And I don't know if I answered your question either, I'm sorry.
The Chair: Sorry, time has expired, Mr Stewart.
Mayor Hughes, thank you kindly for preparing and being with us today and sharing your views. We appreciate it very much.
TIMISKAMING TOMORROW
The Chair: We next have Mr Ambrose Raftis. Welcome. You probably have heard the instructions because I note you've been here most of the day. Whatever time you leave after your presentation is divided equally among the three parties. Welcome, and I look forward to your presentation.
Mr Ambrose Raftis: Thank you for this opportunity. I might apologize if my tone seems a little blunt. I spend time with business people and they usually don't have time to talk over issues for a long period of time.
Timiskaming Tomorrow is a group established to promote environmentally and socially acceptable ventures in northern Ontario. Our historical areas of interest are hydro-electric, ethanol, and now agricultural fibre production. For the first month after I heard the proposal by Metro to build a recycling landfill site at the Adams mine site, I thought it was a good idea. This was until I had conversation with a groundwater scientist who, when I described the project to him, scratched his head and said, "Why would you ever want to do that?" He went on to explain how traditional landfill sites work and detailed the non-existence of any science to manage leachate flow in fractured rock sites.
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We have over five years of investigations into the feasibility of the site and are now in preliminary consultation for an environmental assessment. I guess I'd like to rephrase that at this point. It's not really an environmental assessment; it's a site review with Notre of North Bay. I have been involved for the past six years in learning the sciences of waste management and hydrogeology and, over the past 18 months, learning how environmental assessments for waste sites really work. I think it might be advantageous, because when you make legislation it's pretty important to see how it's actually carried out, and I've got some fairly specific examples.
In a preliminary investigation at the Adams mine site bore hole 13, water flow was recorded to be over 100 gallons per minute. The engineering company calculated the flow for the whole pit, which is half a mile long and 350 feet deep, would be less than 50 gallons per minute, or about six garden hoses was the example they used at the meeting. When it was pointed out that two six-inch lines were needed to empty the pit during the operation, and on a few occasions, when the pump system failed, 20 feet of water filled the bottom of the pit, the engineering company said they were looking into operation records.
It was also pointed out that if a small hole could produce this much water it proved two things: that the method of analysing the water flow was incorrect and that the main method of water flow was not through solid rock like the engineers were using as their analytical method, but was through fractures, and that this would make the site a poor candidate for any waste storage. The response by the engineering company was to eliminate all bore hole data water flows, including the critical hole 13, in all subsequent reports. The reports sent to the MOEE are incomplete because any evidence that is contrary to the development of the project has been eliminated.
When consultants are hired to investigate the feasibility of a proposal, they are paid by the promoter to represent the interests of the promoter. In my experience, some engineering consultants only present information that is supportive of their interests and the perceived interest of their client. Preliminary studies for Metro were in the $3.5-million range. If these preliminary studies showed that the site was not feasible, the engineering companies would not be in line for the $18 million to $30 million in additional work that would arise if the site proceeded. We have found that consultants know where their bread is buttered and are quite willing to eliminate evidence, misinterpret data and make unsubstantiated comments, all of which are directed towards creating the impression that the project looks positive and that further studies are required.
When professional engineers design and build a bridge or a car and it malfunctions, the company that employs the engineer is responsible for the product and the product impact. In waste management, consultants are free to make unsubstantiated claims about the effectiveness of their design because they assume no liability for design failures. In fact, when sites fail, their expertise is required to attempt remedial measures. In reality, in the waste business in Ontario nobody is held accountable except, in the end, the taxpayer of the province.
I'll just offer a little bit about the public consultation process because we've been spending a significant amount of time on it here and I think it's flawed just in its basic concept.
The public consultation process is used by promoters and their consultants to determine what the areas of concern are so that controversial evidence can be skirted or removed from reports before submissions to the MOEE. Concerns that threaten the fundamental viability of the project, such as flow in unsaturated rock, effects of bioaccumulation or design rationale, are brushed off and not studied effectively.
I'd like to give you some examples of this. In the presentation I have some diagrams, and you might want to refer to the one entitled "Regional Subsurface Water Flow System." It's the first diagram. This diagram shows an aquifer intake or charge area located to the north of Kirkland Lake. The farming area of Timiskaming is south of that pit and is 300 feet lower in altitude than the top of the pit. Connecting these areas is a fault system known as the Lincoln-Nipissing fault.
It was pointed out by the public at public meetings that flowing wells existed in the townships south of the pit and it seemed only logical that the water from the aquifer may travel south in the lower regions of the fault under the pit. It was also pointed out that the direction of groundwater would be north to south, putting the Adams mine between them. The response by the consultants was to eliminate the aquifer intake, the fracture and the farm land on regional cross-sections in the future. All future map cross-sections were tightly cropped, which eliminated the aquifer and the clay belt elevation. By a few strokes of their delete key, the problem disappeared so MOEE would not be confronted with conflicting information.
Another example: In the first stages of drilling, some holes showed areas of loose gravel. Although this is noteworthy in a site described in the reports as "impervious rock," no further investigations were done. It took investigations by the Timiskaming Federation of Agriculture on existing government maps to discover that the pits are intersected by a major gravel moraine. This moraine travels north and south and could act as a major conduit for leachate into the farm area water table. The gravel moraine, to our knowledge, is not included in consultants' reports even today.
Refer to the next drawing, titled "Non Saturated Rock Fractures." These allow leachate to escape hydraulic confinement. The pit is located in a piece of rock that is 300 feet above the farm land to the south. The drawing shows some of the many ways that it can allow leachate to get into the water table.
Both the EPA in the US and the institute for groundwater studies in Canada recommend against burial of waste in fractured rock. Why? Simply, there is no scientific method in existence anywhere that can effectively predict water flow or leachate flow in unsaturated fractured rock. The Adams mine is a heavily fractured, elevated site with major faults travelling into and around the pits. The consultants used a model designed for homogeneous materials like clay and sand to predict both direction and volume of water flow in a fractured site, and there's a reference at the back of the document that supports that. They extrapolated these data into evidence that the pit could be operated without a liner. The conclusions they came to are based on a pit that does not exist.
The next drawing refers to the "Timiskaming Water Supply Profile." Water flow in and around the pit cannot be calculated because the size, location and direction of flow and exit points of these fractures are not understood. When leaks occur, untreated leachate will flow into the surface water table or directly into the aquifer. In fractured rock, water flows millions of times faster than in clay and therefore contamination potential is greatly increased. Leaks in early operations at the West Marin sanitary landfill site in California, and there's a reference there, occurred through a subsurface fracture that carried leachate over a mile from the site. There is no effective method of finding the path of the leachate leaks, so there is no way of stopping the leachate flow in fractured rock except by emptying the pit. When a leak occurs in fractured rock, it continues indefinitely. The fact remains that even after $3.5 million worth of studies at the Adams mine site, no investigations were done to locate fractures or measure flow in them.
There's a diagram that says "No Science Exists to Manage Landfills in Fractured Sites." I don't have the quotes in front of me, but you can read them through. Basically there are some prominent North American scientists who shy away from the concept of rock storage because there's no way of putting a monitoring well in it. You can put a monitoring well down here, you can have a fracture that travels two inches from it and that leachate will travel past it, so you have no way of knowing where that leachate is going. If you have no way of knowing where it's going, then you have no way of stopping it or halting it and what you have is a runaway site with unlimited levels of liability on it. You can refer to those in your spare time, if you have any.
Although the science community does not support this type of proposal, current and proposed legislation could allow it to proceed by the proponents supplying the right volume of data or through political intervention. Despite the intent of the current and past legislation, waste dump sites will be developed that will fail. Some will have minor impacts; others may have catastrophic consequences.
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There's another drawing, "Risk Comparison for Site Types," and this refers a little bit to the example we talked about earlier: the American site and the Canadian site, and we should have put in the Canadian site because it's Canadian. The major difference between the two sites is that one has scientific support. The site I'm familiar with in Utah gets eight inches of rain per year and there's more evaporation than that, so there is not a leachate problem, plus that's a double-liner site. It's probably one of the tightest sites in North America. In Kirkland Lake they're proposing a site that's in fractured rock that has no science behind it. They're proposing a gravel liner and a backup system that doesn't exist. Once leachate gets through that liner and into a fracture, there's nothing they can do about it. It's a runaway site.
If we're comparing these two sites on purely environmental concerns, there is absolutely no comparison. The Canadian site I guess may be getting some bad press in the States, because when people look at it they shake their heads, but there is no comparison. This site has no science behind it.
This diagram represents the risk factors that are involved in a site. The diagram is a visual analysis of risk management in both clay liner sites that have a proven record of design and fractured rock. Clay sites with liners could eventually leak, but there is an effective method of monitoring for and halting leaks that occur. Because leachate travels slowly in clay, potential for widespread damage is minimal and the owner of the site can cover the potential liabilities.
In fractured sites there are many non-detectable methods of leaking in fractures that could travel as much as a kilometre a day. Because it is undetectable it may not be noticed until large-scale aquifer contamination has occurred. Even when contamination is observed there is no method of determining the path by which it got there, so no method of halting the flow. The only solution to a leaking site is to remove the waste and redispose of it in a safe site. The owner would have trouble covering this level of liability and the taxpayers would be on the line. The result is a project where liability costs would exceed the potential income of the site.
We have used the adversarial method to develop quality evidence in previous EAs and in the court system. Without the threat of public exposure, the quality of work by consultants has no measuring stick and very quickly deteriorates into engineering editorials of self-interest. The dropping of funding for scientific intervenors will be the primary cause of inappropriate decisions, resulting in significant environmental damage. It is not that we do not have the scientific knowledge to prevent these consequences. The knowledge does exist, but the system you are responsible for does not ensure that this information is available.
In light of my six years of experience at the Adams mine project, I have the following recommendations that would, in my view, reduce the failure rate of future sites:
All sites not qualifying for generic liner designs have to go to a full EA hearing before a panel, with intervenor funding established at 35% of the promoter EA budget.
To protect politicians and MOEE employees from long-term liability claims against them, no declarations or exemptions would be allowed on non-standard designs for landfills.
Consultants who propose designs will be required to assume financial responsibility through bonding insurance for designs and the consequences of their failure.
Public consultation processes should be directed by the public through structures established at public meetings. The public consultation committees should control the budget of the intervenors and the peer review consultants.
In communities where any waste is imported, the public consultation committee should have the authority to establish more stringent levels of design and operation to ensure the protection of their communities in a way that they see fit, as long as these standards do not fall below the current MOEE standards. In import sites, the option of an area-wide referendum would be available to the public consultation committee.
In privately owned sites, operators must have adequate financial resources in place to cover liabilities arising from design failures and long-term operating costs before getting approval, without relying on projected site income. The rationale behind that is, if you put a site in that is poorly designed, it won't achieve site income and there won't be any funds available to do remedial work. Liabilities should extend to personal assets of the site owners, including shareholders' personal assets, upon catastrophic failure before taxpayer involvement. If communities have their personal assets, family homes and lifestyles on the line, let's level the playing field and put the personal assets of the owners of the site on the line too.
The entrepreneurial spirit is a wonderful thing. It allows us to take on projects that we would never take on if we fully understood the ramifications of them. This spirit is also what causes the failure rate of businesses to be around 80%. We cannot afford this level of failure with projects that can have critical impacts on the environment.
Your legislation allows protection of communities from themselves. What it does not provide, in my interpretation, is any protection for a community against the damage caused by private developers whose potential for financial gain blinds them to the catastrophic impacts they can have on others.
Proceeding without full EA, including panel hearings and intervenor funding, on major sites will not bring forward critical information and thus does not show due diligence. Declarations and exemptions from full EAs will leave MOEE ministers and their staff open to personal liability suits long after their term as government is complete. The potential catastrophic consequences with large-scale contamination of aquifers, as occurred in the US at Plates River, where 18 square miles of farmland were permanently contaminated, is a major liability. If you allow the removal of parts of a system designed to protect the environment, future governments backed by angry citizens could decide to make all those responsible for the decision accountable.
You are the government of the day. You are responsible for the impacts of the decisions not just for today or the term of government, but in this case for the next 500 years. It would be prudent to offer the environment and yourselves as much protection as possible.
Ms Churley: Sadly, we have heard similar stories in other locations from citizens who have had bad experiences with proponents. It's interesting that the mayor, who spoke before you, and you have different positions.
Mr Raftis: I've never seen him at any of our meetings. That's why we have different positions.
Ms Churley: I'm not here to discuss that aspect of it, but I think it puts into sharp focus one of the difficulties with a complex issue like this, which can have far-reaching results, many benefits for the community, jobs and economic renewal and all of that. But you're showing the other side, the kind of environmental damage that can be done.
I'm interested to know in terms of intervenor funding how you were able to get the information you have. Did you get intervenor funding? Where did this information come from?
Mr Raftis: No, actually we didn't get any intervenor funding. Metro, when they were there, had peer reviews, and I think people should be really clear about the difference between intervenor funding and peer reviews.
Peer review people can only ask questions. They actually generate no evidence of their own. What they do is review the reports that are done by the consultants and punch holes in them. They say, "You're missing this and this in this data." What we did was we looked through the data they were missing and then we went and found it in other examples of stuff, and it's a fairly extensive activity. If you look through, for example, the modelling method they used, the modelling method they used doesn't apply in this particular system at all, but the peer review people couldn't say that because they didn't have the evidence. They weren't up there digging up evidence. They could only look at the evidence that was presented. Had we had intervenor funding, an intervenor could have come in and said: "Here's the problem with this thing. We've done research and found the real solution for it, so if you can find it works with the real model, then go back to work."
But what happens is we have an open-ended research project. A bunch of work gets done and it never gets corrected, because there is no real intervenor funding. A lot of it is a shot in the dark, but where we got a lot of our information is from other sites that have had similar problems. We've talked to people there. In fact, the place in California we've spoken with said they were told exactly the same thing: Water doesn't go down through these sites; it always goes into the hole in the ground. Yet a number of years after the site was going in, the thing's leaking.
Ms Churley: I just want to follow up before my time is up, because this is really interesting information. My question is, what happens to it now, given that this is just peer review? You are in a transition, and you're saying the existing EA was problematic in that area as well. I'd like to know what happens now. You have this information. Can it be used? Will it be used? Will you be able to have expert witnesses bring these issues to the table at a hearing so that that's part of the issues the board will have to examine?
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Mr Raftis: I guess that's not our decision. That's the board's decision to decide whether there will be further intervenor funding. We've been doing this out of our pocket. We've been doing it for the last five years. It's been very costly and very taxing. We don't really have the capacity to go out and do any original research. We have to rely on other scientists and lean on scientists who have sympathy with the bizarre nature of this particular study to give us comments and to help us out along the way.
So in many senses, unless the committee decides there's going to be intervenor funding and a full hearing, and I don't mean what we're doing now but a full hearing so that the other side gets heard, they'll never hear the other side. In fact, the other side has a very substantial scientific case and there's lots of evidence out there, but it has to be collected.
Ms Churley: The intervenor funding act has now come to an end and it has not been renewed, so I'm concerned that if you don't have credible scientists and witnesses at a hearing, this information won't do you any good, because of course the proponent has money to hire any consultants, specialists, he wants.
Mr Raftis: It sounds very much like a hearing case where you're going to get one side and the other side's not going to be there at all.
Mrs Ross: Thank you very much for your presentation. I am learning a lot about the environment and the Environmental Assessment Act through these hearings.
I want to ask you a question that pertains to a comment you made on page 2, where you said, "We have found that consultants `know where their bread is buttered' and are quite willing to eliminate evidence, misinterpret data and make unsubstantiated comments all of which are directed towards creating the impression that the project looks positive and further studies are required." That comment was made with respect to the consultants who are hired by the proponents.
Mr Raftis: Right.
Mrs Ross: Just so that I can understand this, if intervenor funding has been provided in the past, wouldn't you say that those consultants who are hired through intervenor funding would be covered by the same comments?
Mr Raftis: No, not at all, because what happens is, when consultants are doing a report, they're assessing who's going to review that data. If you know you're going to have some credible scientist reviewing it, what's going to happen is you're going to put credible information forward. If you know nobody's really going to be reviewing it, then you can put anything you want forward because it's going to look legitimate.
What you need is a pair of matched technical skills, much like a court case, so that both sides can be presented. What that does is it controls the quality of the information. Right now what we've got as far as information from this EA is technical filler; that's what we call it. You take it to some of the scientists and they laugh at it. It's laughable technically. The consultants know, because they're expecting this not to go to hearing, that they can get away with that level of quality of information. The MOEE gets this third- or fourth-rate information because of the system they're supplying. So it's not the consultants' problem; it's really your problem. You're the ones who are establishing the method that establishes the quality of information.
Without peer review and without intervenor funding, that quality of information is very poor and it won't stand up scientifically, the problem being that if that case ever goes to court, that evidence will look very poor. In the event of a liability case, real information will come up and will show that you made decisions based on very ineffective information. In many senses, it's the MOEE people and the people who make those decisions who are at the peril of this low-quality information.
Mrs Ross: Can I ask you if you think that in the new act, because we're allowing for public consultation right from the beginning and through the process, far greater public consultation than was ever in the past, because it always happened at the end of the process but now it's happening at the beginning of the process, and there's a mechanism in there for mediation as well where the two opposing sides will be brought together to discuss their differences and the issues that are outstanding -- don't you think that's a better way of looking at things so that you can solve the issues up front?
Mr Raftis: I wish that would work. It doesn't seem to work with promoters.
Mrs Ross: You don't think that public consultation right at the beginning --
Mr Raftis: You use the term "public consultation." What that means is, and I'll boil this down fairly quickly, you ask somebody's opinion and you take their opinion and then you adjust your information so that opinion is invalid. Basically, you remove information so that opinion is not a concern any more. That's my understanding after 18 months in the public consultation process. It doesn't work the way you wish it would.
The only way you can make it actually work is you give the public consultation group the responsibility to run their own show. If some promoter's running it, controlling all the information, controlling the budget, controlling everything, he gets what he wants out of it, because that's what the project is set up for. He hires the scientists, the highest scientists are paid by them, and unless you have independent budget control by the public consultation process, it's really nothing more than a sham and a frustration for the public.
I think you'll create additional aggravation downstream, and that's where you get all the problems, because the real issues that we had at the beginning of this particular problem are still on the table and still not being solved despite the fact that we've been through all this public consultation. So it's not how long it's done; it's who controls the public consultation process. There's no question in my mind it has to be the public. It can't be promoters.
Mr Dalton McGuinty: Mr Raftis, I want to pursue this subject of intervenor funding a bit further with you if I might. I'm very much attracted to the concept of intervenor funding in that it allows people to be on more of an equal footing in terms of preparing to deal with an issue that's of great importance to them, but there's got to be some downsides to intervenor funding and we've heard about some of those too. I'm wondering if you might have any suggestions for us.
One of the criticisms, and I say this as a lawyer, is that we have spawned an industry, to some extent, of consultants and legal counsel who are more than anxious to ferret out any potential claims or sources of income with intervenor funding. That's a criticism that has been made before the committee before. I'm wondering if you're aware of any other criticisms, and if we were to reintroduce intervenor funding in the province, what we might do to circumscribe it. Is that possible, to circumscribe it?
Mr Raftis: I think there are certainly ways of improving it. The suggestion of having a fixed amount of the environmental assessment budget allotted to intervenor funding and that's the end of it -- you spend your money; it's a percentage of how much gets spent on the budget -- reduces the game of it. This idea came up earlier. I think we need fewer lawyers and more scientists in the review process. In the scientific community, we've run into a number of them in this particular situation.
The Chair: It's the same for government, by the way.
Mr Raftis: They've got lots of evidence out there that in this particular case, and I'm using this case because it's the one I'm fully familiar with, had this gone to the scientific community, we could have saved a lot of money because they would have said, "What the hell are you doing putting a site in a place like this for?" There's no scientific rationale for it. There's lots of economic rationale. Sure, it's going to be okay for the railwayers, some town up north that doesn't have it in their yard. There's economic rationale, but let's look at the environmental perspective first. If it doesn't fit some basic rules, don't even bother reviewing it. Stop wasting people's time dragging them through processes that in the end should never be passed.
I guess the point I bring up is that the reason a lot of these sites are dragged on is because they should never been brought to the table in the first place. There should be some way of reviewing them in a preliminary process, saying: "No, this does not quality for a basic EA. Get out of our face because we've got business to do with real people."
Mr Dalton McGuinty: Do you have confidence that at the end of a full environmental assessment hearing the Adams mine site will be rejected?
Mr Raftis: Yes. It barely would pass even with one side. Even if you had the other side of evidence not there, it still looks very flimsy as far as evidence goes. What we found is there is very little evidence. All the evidence we've run into supports the concept that it is a bizarre idea to put waste in a fractured site, because you can't control it. But if you take that information and interpret it differently or exclude large volumes of it, you just build this low-quality case, then it looks palatable but not really very convincing. So I don't think it would ever pass. In fact, there are too many sites that have passed of this type, with better conditions, that are failing now, so this one doesn't have a chance at all, I wouldn't expect.
The Chair: Mr Raftis, thank you very much for your presentation and your effort this afternoon. We appreciate it.
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NORTHWATCH
The Chair: The next witness is from Northwatch, Ms Brennain Lloyd. Ms Lloyd, welcome. Thank you for taking the time to be with us.
Ms Brennain Lloyd: Thank you for the time to be here. As you said, my name is Brennain Lloyd. I work with Northwatch. We're a coalition of community-based environmental groups across northeastern Ontario. We were founded in 1988 to address regional issues. Those are largely issues related to energy conservation, transmission and generation, waste management, water quality, mining, forest management and other land use and resource concerns.
We have gained considerable experience over the last nine years. Somewhat at times to our regret, we've gained considerable experience in various environmental assessment processes or other tribunal processes.
We were a party with our intervention partners, the North Shore Tribal Council and the Union of Ontario Indians, in the class environmental assessment of timber management on crown lands in Ontario, the longest-named and I think the longest-running hearing ever.
We were also party to the demand-supply plan environmental assessment and were very active in the on-the-ground review and discussion of eight different concurrent Ontario Hydro site-specific projects which were unfortunately under review at the same time as the demand-supply plan. We participated in those reviews without any funding and with great difficulty given that the projects were overlapping and cross-cutting with each other as well as with the demand-supply plan.
We also participated with one of our local member groups here in North Bay in terms and conditions negotiations under the Environmental Assessment Act, which resulted in the approval of the landfill here in North Bay. We managed to avoid a hearing, which was the stated interest of the city of North Bay, Northwatch and Nipissing Environmental Watch.
We've also been part of the discussions which could sometimes be described as part of the environmental assessment process, but that might be questionable, with respect to the Adams mine site near Kirkland Lake in Boston township. We were part of those discussions through SWEAP, through SWISC and through whatever acronym Mr McGuinty may generate. We continue to be concerned and active in that discussion.
We've also been party in Ontario Energy Board reviews for the last three years of Ontario Hydro's rate proposals and part of federal reviews for uranium mine tailing decommissioning and a proposal to dispose of high-level radioactive waste here in the Canadian Shield in northern Ontario. So we do have some experience and have both gained some insight and developed concerns over the years.
I hope that we would have agreement with members of this committee on what's needed in environmental legislation. Those areas that we would identify as necessary in a process respect are: It must be clear, it must be predictable, it must be a transparent process that ensures that proponents know what is required, the public has clear rights to be involved and to affect the process and the responsible agency, in this case the environmental assessment branch, knows and meets its obligations and responsibilities.
The second thing I hope we would all agree on is that we want protection of the environment, we want an avoidance of environmental harm and we want the most appropriate methods to be used and social and economic benefits to be achieved in conjunction with environmental care.
Certainly the third area I hope we would have agreement on is with respect to the public and the public role and the need for public confidence in the environmental assessment process and the results of that process, as well as each stage of the process that we would be engaged in. I would expect that the public would be engaged in every stage of the process.
Since 1988 the Environmental Assessment Act in Ontario has been open. It's been subject to review, to lengthy discussion. We had identified four important areas for improvement; four important changes were needed.
We needed greater certainty with respect to pre-hearing consultation, including pre-document consultation. We needed a greater level of certainty and a higher level of direction to the proponent in terms of how the public was to be engaged -- not simply notified but engaged. That included the need to provide participant funding, to at least a limited degree, in the very early stages.
We also needed increased accountability from the environmental assessment branch. That has been a recurring problem through the years. I could offer you examples of that, particularly with respect to some of Ontario Hydro's projects, but I'll leave it at that for now and just say there has been a lack of accountability and due diligence from the environmental assessment branch.
We needed increased access for citizens and an emphasis on the public role in hearings. I suggest what we need is to flip those roles. We have to have lawyers, we have to have technical and expert assistance when we are participating in hearings or pre-hearing stages as citizens, as members of the public, but their role should be to assist us. Too often in environmental assessment hearings, and I think largely because of the way the procedural rules are written and even the way the Intervenor Funding Project Act was written, the emphasis and the power and control go to the lawyers and consultants, and the citizens are left chasing after the people who are to be working for them. We needed to find some ways to flip that.
We also needed the provision of intervenor funding for the full process, and that needed to be entrenched in the act.
Those are the four changes we needed. We look at Bill 76 and we look for those changes, and they are all absent. We see none of those changes have been achieved through this bill. That gives us some concern.
We have additional concerns with Bill 76. Our key concern is the introduction of extremely escalated levels of discretion for the minister and ministry staff. We have increased uncertainty and reduced predictability with the process. The act, as it's now presented in Bill 76, could be used to provide an environmental assessment process which was adequate, comparable to the level of assessment that we get with the current act. Again, on the other hand, it could be used to reduce access, to reduce accountability and ultimately then to reduce environmental protection. That is largely because of the discretionary nature of the act.
Bill 76 appears to be part of a regrettable trend we see right now in the last eight months or a year in legislation affecting the environment. I'll give some examples of that.
Bill 26 saw the Mining Act changed to have closure plans no longer requiring government review and approval. Financial assurance is no longer required as part of each mine operation beginning. Bill 26 also removed 80% of the requirement for land use and work permits on crown lands.
Bill 57 introduces a permit by rule. I know that act has not yet come to committee, but at first review it appears to introduce a permit by rule similar to that which would have been provided by the federal regulatory efficiency legislation, which provides inconsistency and discontinuity and some disadvantages for certain proponents.
We also see the changes in landfill standards, which at a technical level may be sound, but again it's the number of exemptions and the discretionary nature of the landfill standards that are problematic.
We look at Bill 76 in the context of these overall environmental changes, and overall the picture is fairly bleak.
I want to make comments on only five areas. Certainly there are more that warrant comment, but in the interests of keeping some time for questions, I'm going to try and limit that.
The first area I want to comment on is the level of discretion, which I've already referred to. There are numerous examples of this increased level of discretion on the part of minister and ministry staff: sections 3, 6, 6(4), 8, 11.2, 11.3, 14(3), 15(1). Perhaps you can get the transcripts and look for more detail on that.
I'm going to comment on only two of those at this point. One is 3.2(1), the matter of a declaration, where the minister may fully negate all the provisions of the act, by our reading, through the declaratory powers provided in section 3.2. I would just note that the Ministry of Natural Resources, by our understanding on the basis of discussions with the Minister of Natural Resources, is awaiting this change to the Environmental Assessment Act in order to seek an exemption from the class environmental assessment and its terms and conditions on timber management. We find that very problematic. That was 12 years of hard work and a lot of public dollars and a lot of public participation, as well as the part of the government, and that's extremely problematic.
The other example I'll give you of discretionary powers which are just absolutely unacceptable is 6.2(3), and 6.2(3) states, "The approved terms of reference may provide that the environmental assessment consist of information other than that required by subsection (2)." Subsection 6.2(2), as I'm sure you're all aware, is the section which replaces subsection 5(3) in the last act. This is the heart and soul of the Environmental Assessment Act. There's a discretionary power built in here, in section 6.2(3), that allows that heart and soul to be fully negated. We have a number of other concerns, and some of those will come up in our discussion of terms of reference, but I would say that the deleting of section 6.2(3) would go a considerable distance towards retiring some of those concerns.
The second area I want to comment on is with respect to the terms of reference. We're not in principle at odds with this. What we trust the section is trying to achieve could make a positive contribution to the process, and in fact there are some similarities to practices that have already been in use. The scoping process, which happens at the beginning of every hearing, in the Megisan Lake environmental assessment process, as an example, provided a draft plan of the environmental assessment document before they went to full writing of the document. We think that's what the terms of reference are trying to achieve: greater front-end clarification, process efficiency and an earlier identification of the issues. We think that's positive.
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But there are some significant problems with the terms of reference as they are constituted or proposed in Bill 76. The first is that there's no public involvement at the front end. The minister claims that this act is going to give us greater public involvement at all stages of the environmental assessment process. That's simply not true, and it's certainly not true in the terms of reference. The public are absent until after the fact. The public are only afforded any opportunity, as I read Bill 76, by a 28-day notification on the Environmental Bill of Rights registry. That's simply inadequate. There's no public involvement at the front end, the EBR notice is inadequate and the terms of reference establish paramountcy over subsection 6.2(2), which I've already mentioned. That's perhaps the most serious problem in this bill.
The third area I want to comment on is the public role. As I've already said, there's an absence from the front end of the terms of reference. Section 6.1 is the first opportunity I see that there should be a definition. One of the absences is of a definition of who the interested public or the involved public should be. I would offer to you the definition from the Ministry of Environment policy manual 030501, which said that affected parties are "any members of the public or public interest groups with an interest in the undertaking or the long-term solution as well as government reviewers and the EA adviser." I would really ask that you insert a clear definition of "the public" and "the public interest" in order to ensure an appropriate window into this process for the public.
Subsection 6.3(2) is the amendment or withdrawal. Another failure here is that subsection 6.3(2) clarifies that there can be withdrawal and resubmission or amendment of an environmental assessment document of the undertaking, but what's lacking there is a statement that after that has taken place there will then be public consultation on the amended version.
Another correction that I would urge upon you is in the discussion of mediation, subsection 8(5). There is a statement that mediation sessions will be closed. While the logic of that is not lost on me -- I understand that sometimes mediation and negotiations fare better behind closed doors -- given the absence of a clear provision of a public role and public access to the process, having that closed-door statement at that point in the act is very problematic. That could be remedied by establishing that there is a public role in the mediation or the alternative dispute resolution process, which might be a preferable avenue for you to take rather than mediation. But there needs to be, again, that public role established.
Another area that's absent is intervenor funding. It does note that the mediators will be provided with funding, but there is no mention in the act of intervenor funding being provided for the public. I would suggest to you that this public funding needs to come from the proponent. A variety of mechanisms are available to establish that fund, but clearly there has to be intervenor funding available for the public at all stages of the environmental assessment process.
The last area I'll comment on in terms of the public role is section 37, where it discusses the notice requirements. What's very absent from this section is any notice to first nations, the need to give them notice. We have municipalities, we have townships, we have counties, but there is no mention of first nations and the requirement to provide them with adequate notice.
In general, this section needs to be strengthened. The goal here is to go to the public and to engage the public. It's not simply to get off the hook of the notice requirements of the act; it's to engage the public, involve the public, have the best process, the best decision and the least conflict at the end of the day as is possible. We have to look for ways to establish in the act that the public is going to be engaged.
I think an improved notice system would be an important contribution to that, and that has to include going to where the public is. It's putting notices in post offices, community centres, weekly papers, residential papers, publications and so on. It's going to where the public is, it's engaging them; it's not simply providing minimal notice.
The fourth area I want to comment on is harmonization. This is a crucial discussion which I think has been somewhat hurried in this act. The harmonization section fails to establish that the process, once harmonized, will meet the standards of the Ontario act. There is a question there of whether we're going to the floor or whether we're going to the ceiling. At present, under the current Environmental Assessment Act, Ontario has, I believe, the best environmental assessment process in the country. The federal process is considerably weaker on a number of counts. The federal process simply doesn't meet the Ontario standards. We're right now engaged in the high-level waste review, which is a joint program; it was intended to meet the standards of the act and it doesn't.
One of the areas where there are significant differences is around the right to test evidence. Under the federal process we don't have any rights of cross-examination; there's not an interrogatory process where you can file questions and the proponent is required to answer you. There are no procedures established for the distribution of documents, information. No procedural safeguards are in place. It's very much a catch-as-catch-can process at the federal level. I think we would be losing too much if we were not to insert in this act that any joint processes must meet the standards of the Ontario act and safeguard our Ontario legislation.
In closing, I want to emphasize the paramountcy of subsection 6.2(2) of the Environmental Assessment Act, where it is required to establish the need, the rationale, examine the alternatives, alternative methods of carrying out the undertaking, examine environmental impacts, mitigative measures and so on. The paramountcy of that section of the Environmental Assessment Act must be maintained. That requires a deleting of 6.3(3) here and it also requires amendment of the terms of reference discussion and perhaps some other minor amendments throughout the act. That is the heart and the soul of the act and it must be retained, and only in retaining that section in its entirety can the Environmental Assessment Act be said to provide a full environmental assessment, as we expect and have been promised in Ontario by not only the government but the opposition parties and the last three governments in power.
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Mrs Munro: Thank you for your presentation. I wonder if you'd comment on an area that really has received a lot of attention in the hearings. We've heard from many people, those representing both sides of the fence, so to speak, on this issue, about the need for establishing a level playing field, the need to have public input, the question of the focus of experts, the question of who has experts, who brings them to the table and the views they appear to be justifying. I just wondered if you would comment, because you did refer to the need for public input and the concern over the terms of reference, on whether you think that agreement could be reached at the level of the terms of reference regarding the technical support for a project.
Ms Lloyd: I think what we need in the environmental assessment process is an ability to test the evidence, an ability to test the proposal being made, not to test it for a result of negativity or from a perspective of negativity, but with the objective of certainty. We need to be able to test what the proponent is proposing, the basis for their statements, the basis for their conclusions, and that has to be done with some independent and third-party review.
There are different approaches that can be taken. For example, in the Ontario Energy Board process the board staff play a much larger role than do the staff in the environmental assessment process. That's a possibility that could be looked at; I think it's too late in the day for looking at it for this revision of the act. But what we need is publicly driven, citizen-directed review and critique of the proposals being put forward, and that can really only be done with the expert assistance, for which we need intervenor funding.
Mrs Munro: So you don't believe there is a place to find a group that can provide this at the beginning of the process?
Ms Lloyd: I think there's potential to agree on some common witnesses or common experts to the process. There is potential for that, but I think we have to have third-party, independent review in addition to that. It might be helpful, though, particularly at the very early stages of the process, to have some independent review which both the proponent and the public interest parties agree to. That might be helpful.
Mrs Munro: Which is my question.
Ms Lloyd: Sure, that might be helpful -- not to the exclusion of independent testing of the evidence at later stages, though.
Mr Gravelle: Thank you, Ms Lloyd, for a very thorough presentation. There's a number of areas we can get into, but I want to focus on a point you made that was almost a side point in reference to the Ministry of Natural Resources. That was a reference to section 3.2 in the new bill that would allow the MNR to be exempt from class environmental assessment. This came up yesterday, by the way -- the Sierra Club made reference to this -- and we've asked the government for more information on this. First, where did you hear it? I'm curious about where you got the information yourself. Second, what repercussions of that do you see if indeed they went for that exemption, and what exactly does it mean for those people who aren't familiar with what its implications would be?
Ms Lloyd: I heard it from the Ministry of Natural Resources. They called, seeking a meeting with Northwatch to discuss the terms and conditions and implementation of the terms and conditions or lack thereof. There were two calls. The first call was seeking a meeting time in August; the second time was suggesting that we defer the meeting until September. They made some references to Bill 76 as if that would change the picture. I asked why they thought Bill 76 would change the picture and the response was, "There would be new abilities to make declarations under the revised Environmental Assessment Act." I said, "You're seeking an exemption then under the new language of Bill 76," and they said yes. That's why I have that impression; I think for fairly good reason.
Mr Gravelle: A ministry official told you that?
Ms Lloyd: That's right. I think the ramifications of that are that we will lose the benefits of the longest-running environmental assessment in Ontario. I think we all learned a lot from that process. I don't believe we ever have to have an environmental assessment that goes on at that length again, but now, since we've gone through that, we have terms and conditions, which weren't as strong as we had hoped but were certainly stronger than the ministry's planning procedures prior to the class EA hearing. We would lose those, so we would lose all of the forward motion in the Ministry of Natural Resources that came as a result of those 12 years of preparation and five years of hearings.
The areas of particular concern to us are around condition 77 in allocation of resources to first nation communities; and around the requirement to implement wildlife protective measures; roadless areas policies; complete and implement the revised Forest Management Planning Manual, and so on. The losses are going to be significant. So what we'll lose are 12 years of work.
Ms Churley: Thank you for your presentation. You're very knowledgeable about the process. You've obviously been through a few things.
I was going to follow up on that as well. Mr Gravelle actually put forward a question about that and the answer back was, "No, the Ministry of Environment and Energy has not received a formal request from the Ministry of Natural Resources to exempt them from following their approved class environmental assessment parent documents." Their answer at this point is that they haven't formally requested anything. But it's true that you're the second one, and I had heard it myself as well.
Mr Gravelle: "Formally" is the important word I hear.
Ms Churley: Yes, "formally" is the important word there, as Mr Gravelle points out. It's something that we clearly need to keep an eye on and try to prevent that from happening.
I agree with your points, and I've made them myself. I wanted to get perhaps to a more philosophical question rather than going into the details, because I think by now -- we're hearing the same thing from most community groups and environmental groups, environmental lawyers, and on the different approaches from proponents and often municipalities. From my own experience in the environmental movement before -- I was called by a government member today "one of those tree-huggers," and I suppose it's true. I got involved in politics through my environmental citizen activities.
My question is around this adversarial situation we have. There always seems to be a feeling that citizens are just a pain in the ass: "We have to include them, but they often get in the way." In some cases, although some proponents and some government agencies are better than others, it's, "Let's do the minimum and see how much we can get away with here." You often hear that intervenor funding is often misused and wasted. Of course, we've had situations pointed out to us where, if it weren't for citizens and intervenor funding, crucial information would have been lacking.
I would like to know if you have any ideas about what we need to do or what the communities need to do to prove, to show that they should have equal rights and that you have equal interest to make sure the environment is protected, that it's not just economic interests we're looking at. It's just a frustrating problem that seems to continue.
Ms Lloyd: I wouldn't expect at this point that we have to prove that the public has rights or should have access. When you look at the Honourable Brenda Elliott's comments in the House and the releases issued by the minister, certainly they speak in loud volumes. They claim that the act will provide that public access, public involvement. The difficulty isn't in proving that there should be a public role; the minister at least would like us to believe that she believes that too. I don't think that's a problem. The problem is making the process predictable, consistent, accountable, transparent, open, and all of those things.
I don't think it's inherent in the process that it has to be adversarial, aside from the legal terminology of adversarial versus inquisitorial, where I would favour an adversarial process, which is what we have in Ontario, versus the federal process where you can't actually ask a question directly of anyone.
Certainly in North Bay I would say the process we went through to arrive at an agreement around the landfill and its approval was not an adversarial process. As I recall, there was one meeting that had an adversarial element in it, and that was when both the local environmental group and the local government had outside lawyers, and they came in and they were prepared to escalate. We didn't want that, I know the city didn't want it, and we were able to avoid that.
I think that's evidence that the process can work, that is has worked, that it is not inherently adversarial, but you have to have a proponent who is accountable and who is fully cognizant that if they do not behave in a responsible and respectful way through the environmental assessment process, they will end up at a hearing and that does have the potential to cost them more and be more adversarial and so on. The opportunity is there.
The Chair: Ms Lloyd, I'm sorry, our time has expired. Thank you very much for joining us this afternoon and sharing your experience and your views with us.
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RAIL HAUL NORTH COALITION
The Chair: Next we have the Rail Haul North Coalition. Mr Glenn King is a member of that coalition. Welcome this afternoon.
Mr Glenn King: Good afternoon, Mr Patten and committee members. My name is Glenn King. I am the secretary of the Ontario legislative board for the United Transportation Union. Our office represents over 3,000 rail conductors, train men and bus operators in the province of Ontario. Today I am here speaking on behalf of all the workers, under all of the railway union locals, for Ontario Northland. I will also speak for the entire labour force employed by the Ontario Northland Transportation Commission.
Rail Haul North is a unique group of organizations that came together in 1992 to examine the environmental and economic aspects that surrounded the movement of solid waste to northern Ontario by rail, specifically to the former Adams mine site near Kirkland Lake. This coalition was initiated by the unions representing the workers at the ONR and is composed of a broad-based community membership led by the mayor and council of the city of North Bay in concert with 16 union locals and the North Bay and District Chamber of Commerce.
You will hear, through the Northeastern Ontario Municipalities Action Group, the opinions of our municipal partners on this bill and its potential impacts on the province, specifically the north. It is important that this committee, having come to North Bay, understand the history and background to our presentation.
I will deal today with aspects of your proposed bill from a labour perspective. Based on the immediate need for new economic opportunities in this province, it is time to stop the ongoing political debate and continual delays in approving environmentally sound projects that may benefit the economy of the north and the province of Ontario. That seems to be the intent of your changes, but will they actually happen?
This committee must understand that, for our unions, appearing before this committee is a repeat performance on the issue of approving landfills in Ontario. In 1989 our company, the Ontario Northland Transportation Commission, identified the movement of waste to the north as an economic opportunity if environmentally sound sites could be found. In 1990, the Liberal government and the greater Toronto area municipalities issued a request for proposals for solutions to handle waste disposal for the long term. The company worked with Canadian National and Notre Development Corp on a proposal to move waste to the north by rail, to the Adams mine near Kirkland Lake. The proposal emerged from the 1990 process as the only serious contender.
What happened to this environmentally sound and economic opportunity for the province and the north? We had a change of government, we had a change of policy on waste management, we had public hearings like this one, on a bill called Bill 143 instead of Bill 76, and we had changes to the Environmental Assessment Act. Those changes ruled out a viable option that over 90% of the people who deputed before a committee similar to this felt should be looked at. That government move probably cost our company over 100 jobs. Those jobs may have been saved if the rail-haul of solid waste to the north had been allowed to proceed in 1990.
Our unions submitted briefs to those hearings, much as we are doing today. I think it extremely important for this committee to know that we are consistent in our approach to the environment and the issues surrounding any amendments to the EA act. We support the disposal of waste in the north, but only to environmentally sound sites.
We are pleased that the work completed in 1995 by Metro Toronto and the ongoing approval process being undertaken by Notre Development, Ontario Northland and CN continue to show that the site can be developed in an environmentally sound manner, and we look forward to the final EA approvals.
I would like to make this committee aware of the consistency of our position. These were some of our key statements made to the government in 1992:
"Let us not forget that sustainable development, an important catchphrase for the 1990s, contains two elements. Economic development that is environmentally sustainable should not be constrained without good reason. Ontario's north is severely depressed and in need of economic revitalization. The GTA is experiencing a serious waste disposal issue. If an environmentally acceptable project can be found that will assist both of these constituencies then the Ontario government is surely obligated to give it careful consideration."
This was a summary statement of a position paper completed in 1992 by Mr Peter Davidson for the Brotherhood of Maintenance of Way Employees from their national office in Ottawa.
Mr Craig Kemp, representing the rail division of the Canadian Auto Workers, Local 103, and an employee of Ontario Northland, stated:
"The concept of waste long-haul by rail has already been proven at Seattle, Washington. That is why we cannot sit back and hope good sense will eventually break through the crust of stale philosophy being fed us in the name of mother earth. Environmental concerns affect us all and are no longer the domain of self-proclaimed crusaders. The issue of municipal waste demands responsible action from responsible parties. Part of the solution is before us today. For that we can be thankful that intelligence is being used to develop a better answer."
Members of the committee, that was 1992. This is now 1996. Our concern and frustration is that here we are four years later and these same statements are as true today as they were in 1992. We are before another standing committee looking at the same issue. That issue is the need to develop an effective approval process for landfills in the province of Ontario that is, first, environmentally safe, and second, one that can be economically effective.
The credibility of our proposals and comments to you today comes from the sustainability of our group and our position on these issues that represents municipalities, labour and business. We present a united front. We have not changed our position. The facts since 1992 have only become clearer to support these positions we bring to you for consideration.
Our review of Bill 76 is based on the need for effective decision-making and streamlining of a process to approve the environmental assessment process but not negate the input of all interested parties that have valid positions. It must allow solutions that are sustainable to become operational as soon as possible, so our economy can move forward. Therefore, we make the following comments:
From a labour perspective and a social point of view, we believe that mandatory public consultation is an important aspect to include in the legislation, and we support its inclusion.
We have a concern that the ongoing emphasis on a proponent having to spend extensive time and resources to review all alternatives remains a costly and unnecessary exercise. For example, in the case of rail versus truck, all the information is available. On long hauls, rail is clearly the best environmental option, so why should such a proponent have to produce new data when the information is already available?
Similarly, from a rail perspective, we believe that any proponent that wants to use rail systems for the movement of solid waste should not have to undergo an EA process on the use of our rail system. Our railways are licensed to carry many commodities far more dangerous than non-hazardous solid waste, and this type of requirement, if included in a proponent's responsibilities to gain approval, are unnecessary and redundant. Other customers of our rail services are not required to conduct such an analysis, so why should a solid waste customer?
Based on our earlier comments on environmental activism and political interference as a result of government changes, we believe the terms of reference should be binding on all parties once they have been accepted by the minister. This would include a board hearing and ministry staff. If the government changes in the middle of the approval process, why should a good project be relegated to the back burner as was the rail-haul option in 1990?
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Our unions and our coalition of business and municipalities believe that "Ontario first" solutions for waste management must be a priority in any approval process. This is not mentioned anywhere in the bill.
Our unions have deputed to Metro Toronto on many occasions since 1990. We are extremely concerned that this approval process does not require Metro, as the generator of the largest volume of municipal waste in Ontario, to conduct an environmental assessment of the impacts of shipping its waste to the United States. We find it completely unacceptable that this government would, in its proposed reforms to the environmental assessment process, not make a provision that would require a municipality like Metro Toronto or other greater Toronto area regions to conduct a review of the Ontario alternatives before they are allowed to ship waste to the United States.
This government has made a strong statement about the creation of jobs in Ontario being a priority. I understand that even the Ontario Waste Management Association, representing the private sector landfill operators in Ontario, says that there is nothing in this bill that will prevent the solid waste from Ontario to continue to move to the United States.
Our unions, on behalf of the rail employees at Ontario Northland and Canadian National, are calling for the government to develop and include an amendment to this bill that would require Metro Toronto to conduct a full economic and environmental analysis on in-Ontario solutions versus cross-border shipping of municipal solid waste before signing any municipal waste export contract.
We believe that this amendment should form part of section 6.2, where proponents are required to provide a rationale for their undertaking. Metro Toronto, or any other large generator of waste, is the real proponent if it decides to ship its waste to the United States. They should not be allowed to contract out movement of this waste to the United States without providing the Environmental Assessment Board the opportunity to rule on its impact to the taxpayers, the workers and the environmental security of Ontario.
We are making clear that we are not attempting to interfere with a situation where there may not be acceptable options in Ontario. We are not advocating closure of the border. However, if there are alternatives in Ontario, and we believe there are, this government has a responsibility to the environment and the workers of this province to ensure a landfill industry, economic investment and job creation are developed and remain in Ontario.
Our company and our employees are being downsized by this government's austerity programs. We are a crown corporation and, in effect, each member of this committee has a say in what happens to our company, specifically the ones on the government side. The government has eliminated our air service in the north and our management has laid off over 300 workers at Ontario Northland.
The government is asking Ontario Northland to operate like a business. The government must then allow us to compete on a level playing field for the largest single contract available to us: the movement of Metro Toronto's solid waste to the north.
If you fail to ensure this bill provides for an evaluation of the potential negative impacts of shipping waste to the United States before it happens, you will not be providing the opportunity for our company and others to invest in this province. You will not allow us to develop environmental solutions and economic opportunities in Ontario, specifically the north. As important, you will be contributing to the financial instability of a company which the taxpayers of Ontario own, all because you will be condoning the shipment of municipal waste to the United States when we can do the job here in Ontario.
Thank you for the opportunity to appear before your committee today.
Mr Dalton McGuinty: Thank you very much, Mr King, for a very interesting presentation. You described for us some of the frustrations and difficulties that you have encountered to date and I guess on a broader scale some of the challenges facing the north in terms of economic diversification and trying to exploit opportunities that are viable.
Your proposal that there be an amendment to Bill 76 to effectively require that, as part of the environmental assessment, consideration be given to the economic impact and the environmental impact of shipping garbage or waste outside of the province, on the face of it, I've got to tell you I'm very much attracted to that; it's very easy. Anybody who understands anything about the environment understands that emissions and noxious substances don't respect jurisdictional boundaries. We may ship it to the States and end up breathing it some months later.
I'm not sure what I have in terms of a question for you, but in terms of this particular proposal, first of all, do you have confidence -- this is a question I asked someone earlier -- in the environmental assessment process in existing legislation; in other words, that they will give full consideration to this proposal?
Mr King: Yes, I do. I feel your staff is very competent on the ministry level.
Mr Dalton McGuinty: Their staff.
Mr King: I have full support for those people. I've talked to them on various occasions. I think they're between a rock and a hard place sometimes.
Mr Dalton McGuinty: We've come up here to discuss Bill 76, but obviously an issue that's of interest to many people here is this Adams mine site proposal. But I'm not sure anybody's telling me that at the end of the day, if this was submitted to a full environmental assessment, a complete hearing, it seems to me that everybody has confidence that the right decision's going to be made.
Mr King: I'll put it to you in this perspective. When we started on this initiative back in about 1991 -- and this was a very contentious issue for our membership, the movement of solid waste, pollution, all the environmental concerns -- we agreed at the time that when all the studying was done, if this site was not environmentally sound, we were not in favour of it, and we have always maintained that.
We are not here to say that we want solid waste dumped anywhere that is not a suitable site. I'm not an environmentalist. I'm a railroader, I'm a rail conductor at Ontario Northland, with due regard for the environment. But when a proponent goes out and spends the millions of dollars that they are to hire a reputable consultant and he comes back and says, "Yes, these are the signals that point to a suitable site," I think we should be listening to it. There are numerous suitable consultants being used in this province, and for somebody to fly out of the woodwork and say, "No, that guy's not reputable," without even having to substantiate themselves, and that's what I get out of the limited involvement I've had in this process, it bothers me.
Mr Dalton McGuinty: If the net result of a full hearing, a full environmental assessment, was that this was not a suitable site, you would accept that?
Mr King: And so be it. I'll take my engine and go home.
Ms Churley: I wonder how familiar you are with the bill that we're looking at today. I don't want to ask you questions about parts of it if you're --
Mr King: I'm not a fluent lawyer on this bill, Ms Churley, no. I've been through it and there are questions that I have and I've asked them.
Ms Churley: I ask that simply because you focused your presentation on the frustrations to date, and I just wasn't sure; I wanted to clarify first. So you're aware of some of the aspects of the new bill and how it would impact perhaps on a hearing, should there be one.
Mr King: Yes.
Ms Churley: We had some folks earlier today, and I'm sure you know some of them, Mr Raftis and others, who talked about some possible adverse environmental impacts that they feel need to be very carefully looked at during an environmental assessment hearing. I guess my question is, and you've partially answered it, that if indeed it turns out to be a bad environmental site, then you would, as you put it, pick up your train and go home.
Mr King: That's right.
Ms Churley: I guess what I'm asking you is that there are concerns by citizens' groups who have different opinions, and that's fair, who feel that under this bill as it is now, for instance, they won't be involved, or won't necessarily be involved, because it's not in the bill, in the very beginning of the process. That's the terms of reference, the negotiation around what goes into the hearing. Do you feel that people, even yourselves, would be better served if everybody who has concerns about this site be involved in the early stage?
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Mr King: I feel so, yes. You have to involve the public and the affected parties. I fully support that, but what bothers me out of this whole EA process is that the longer it goes on, we start reverting to what I call terrorism. In the public consultation committee meetings that are held in the host communities, it's very frustrating for me to see my fellow workers and people of their community intimidated to come out and speak in support of an issue like this because people might not go to their business or they have other interests within the communities. This is very frustrating. I don't think people should be intimidated by a process like that and I don't think that people from southern Ontario should be coming up here on a bus and trying to run things. That's what causes the problems in northern Ontario and that's where we have concerns about the intervenor funding and how it's being used.
Ms Churley: So you would support intervenor funding but you would want some guidelines around it so that the community can use that money for expert witnesses and lawyers.
Mr King: Yes.
Ms Churley: I'm not quite sure what you mean by people coming up.
Mr King: They import them here, Ms Churley. If there's an issue that comes to light, like Temagami --
Ms Churley: But intervenor funding doesn't cover that.
Mr King: No.
Ms Churley: That's what I wanted to clarify.
Mr King: This is what causes the problem in the process. The process has to be streamlined with your terms of reference, and keep it on track. It gets blown way out of proportion here.
Ms Churley: But to be clear, intervenor funding -- that's what I'm trying to clarify -- did not fund people to come up --
Mr King: No. Well, I don't know if it did or not.
Ms Churley: I don't think so.
Mr King: I can only say I would not hope so, as a taxpayer.
Ms Churley: Exactly. It was meant to fund expert witnesses, lawyers. So you would support legitimate costs of intervenor funding so citizens' groups, no matter which side they're on, have equal access.
Mr King: Yes. You have to have that. We have some very good people in our communities in northern Ontario who are intimidated right now and afraid to become involved in this project for the ramifications. So be it. But if they had an opportunity to come out on a level playing field, I think we'd see a much different picture.
Mrs Ross: Good afternoon, Mr King. I see by your business card that you're from Hamilton.
Mr King: No, I live in North Bay. I'm a provincial union representative.
Mrs Ross: Okay. Hamilton's my home town.
Mr King: Is that right? I'm down there quite often, about two weeks a month.
Mrs Ross: Unlike some people, I'm new to this Environmental Assessment Act and learning a lot through these hearings, and that's the whole purpose of this hearing, so that the government can take the input we're receiving and try to form a piece of legislation that's balanced for both sides.
I'm particularly interested in the comment you made about proponents bringing forward experts. You said something to the effect that when a proponent spends a substantial amount of money to bring forward experts, you believe people really should listen to those experts. We've heard from a lot of proponents and very reputable firms across this province, and indeed the country, who have said they believe public consultation at the very beginning stages is critical to the success of their projects.
Mr King: Most definitely.
Mrs Ross: So I just really want to talk to you about that and get your feeling. We hear from the other side that proponents will hire consultants basically to say what they want them to say. I'd just like to get some comments from you.
Mr King: I don't really think that's a credible statement. If I was a consultant, I'd have a great deal of concern if somebody was sitting here and saying that. I think that's pretty slanderous. When you have a business that deals in those issues, they're regulated and they're under scrutiny. I don't think they're looking to put themselves behind the eight ball.
Mrs Ross: I think your point was very well made, and certainly other members have commented on the same thing, that it's in the proponent's best interests to ensure they have the best public consultation they can get and the best experts they can get. I think one of the presenters earlier this afternoon made the comment that otherwise it's going to cost them a great deal of money at the end of the process and they want to avoid that as best they can.
Mr King: Exactly.
Mrs Ross: I just want to thank you very much for your presentation.
Mr Galt: I might just for a quick second put on the record the fact, from the previous speaker in connection with high-level waste or radioactive waste being a provincial-federal issue, that this is purely a federal issue, not a joint issue.
It's interesting, your presentation, being from a union, and your comments and looking at it from the direction you are. Congratulations for doing that.
Given your experience with the Environmental Assessment Act process and where you are now, if Bill 76 was in place, do you think you would have accomplished and would have established whether it's environmentally safe? The fact that this has gone on for so long -- you still don't know whether it's environmentally safe. It's just been going through an exercise of process and paperwork, which is what we're trying to get away from. Do you think you would have arrived at that point now if Bill 76 had gone into place back in the early 1990s?
Mr King: I think we would have, because every time we turn around we're reinventing the wheel here. We're still spinning our wheels on this issue five or six years later. I think, like I said before, clear terms of reference: That's your guidelines. Once they're entrenched, it should move forward.
Mr Galt: It's obvious from being up here, seeing that this issue is divisive -- it's not surprising. Do you think this would be less confrontational if you were working with Bill 76 as part of the act?
Mr King: I think it would have been, because to my way of thinking there would have been a much more efficient consultation process instead of just throwing millions of dollars out in the community and letting it fly.
Mr Galt: Your comments about them coming up from southern Ontario to assist with this divisiveness and confrontationalism: Do you think there would be less of that if Bill 76 was in place, or would that make any difference? Would they come up anyway?
Mr King: Sir, I live and work here; I live in North Bay. I only commute down there at various times. But I've worked a lot up north, I've worked in all the communities over my 18 years, and all the guys I work with are my friends. I'll tell you, today they still do not know, some of them, the whole ins and outs of what's going on here. They come to me and say: "Look, is this really going to work? Can we do this environmentally? Look at what we're reading in the paper." I say, "Look, when you see the facts from the environmental assessment, that speaks for itself."
Mr Galt: The sizzle sells better than the steak.
Mr King: Exactly.
The Chair: Thank you, Mr King, for your presentation. We appreciate your being with us today and sharing your views.
TEMISKAMING FEDERATION OF AGRICULTURE
The Chair: The next group is the Temiskaming Federation of Agriculture, Mr Vanthof and Mr Struthers. Welcome. We have distributed your document to all the members here, and please proceed.
Mr Gary Struthers: Thank you very much, Mr Chairman. First of all, my congratulations to you for running such an efficient show here. You're ahead of schedule. They used to rely on train service and it didn't have quite the same record, so you're impressing me.
My name is Gary Struthers. I'm the secretary-treasurer of the Temiskaming Federation of Agriculture. Our second vice-president, John Vanthof, who worked a great deal of time last year in the public liaison committee process dealing with the Adams mine, would have liked to be here, but he had to go to Toronto yesterday to pick up his daughter, who was returning from Holland. He's spending a few days in southern Ontario, so I'm here speaking sort of on his behalf.
The TFA has close to 300 farmer members in Timiskaming and is an affiliate of the Ontario Federation of Agriculture, the province's largest general farm organization, with more than 35,000 members. We welcome this opportunity to present the views and opinions of our farming community in Timiskaming on such an important topic as the environment and its protection.
Until last spring, 1995, the farmers of Timiskaming would probably not have taken such a keen interest in the province's Environmental Assessment Act. It was at that time that proponents of the former Adams mine as a waste disposal site near Kirkland Lake became active and the potential dangers of such an undertaking became increasingly obvious to the officials of the TFA and the farming community in Timiskaming.
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Throughout the balance of 1995, the TFA played an active role on the public liaison committee established by Metro Toronto. I'll just move away from the text here and mention to you that Mr Vanthof has four young children in his family, ages 3 to 8. His young children grew to hate me, I think, because it was always me who came to pick John up to take him to meetings, so I was the guy who kept taking their father away on them. We spent a lot of time at PLC meetings and related meetings last year.
Initially, there wasn't a seat at the PLC table for the TFA or any representative of the large agricultural community in Timiskaming. We produce gross annual sales of some $30 million a year from the farms in Timiskaming and we rely to a great extent on the clean source of water that we currently have from our wells. Metro Toronto later realized the oversight and invited the TFA to participate on the PLC. As the review of the proposal on the related data proceeded, more and more questions were raised by the TFA about the overall safety of the project and the impact an operational failure could have on the underground supply for the district's farmers and indeed all who depend on groundwater for their supply of drinking water.
While some attempts were made to answer the TFA's questions, many still remain unanswered and doors appear to be closing on opportunities to repose those questions and get meaningful answers from the current proponent. With reference to a statement by the Honourable Brenda Elliott, Minister of Environment and Energy, to the Ontario Legislature on June 13, 1996, the TFA is pleased to see that, "The public's right to a say early on in the process will be enshrined in the legislation." We're happy to see that. As we see the route being taken by Notre Development Corp and its partners, current proponents of the Adams mine site as a waste disposal area, under the name of public consultation, we would recommend that the term "right to a say" be more clearly defined in the act.
Metro Toronto, as proponent, did its best to provide an opportunity for the public to participate. Now, however, there is a process under way whereby the proponent has decided who the participants will be in the consultation process and the boundaries of likely impact from the proposed project. Public participation has been restricted to selected people within an arbitrary boundary.
We are encouraged to see that under the proposed amendments there will be a guarantee of public consultation for all affected parties. Again, however, we would feel more comfortable if there was an opportunity for public input into the determination of "all affected parties," not simply a unilateral decision by a proponent. It would also make a certain amount of sense, in the opinion of the TFA, that there be public input into the establishment of terms of reference for any undertaking, not simply terms that satisfy the proponent and the minister.
Metro Toronto found itself in some difficulty when it attempted to impose its view of terms of reference on the public during its process surrounding the Adams mine proposal. The TFA believes that for a project as massive as the Adams mine proposal, with upwards of 40 million tonnes of garbage to be placed into a fractured rock pit with very limited evidence to support the hydraulic containment theory in such an application, the public should have an opportunity for input at all stages. The public, in such cases, should not be defined by the proponent, but by the potential boundaries of impact, be it direct or indirect.
We support the statement contained in the news release of June 13 from the minister regarding the proposed changes to the act. "Early public access will be guaranteed to ensure proponents consult all affected parties from the earliest stages of the process."
It is encouraging to know that the ministry is preparing to outline new and clarified rules for an environmental assessment. As a participant in the first PLC process for the Adams mine site, the TFA, probably because of its size and affiliation, was given the honour of responses to most of its questions and concerns.
However, we saw countless individuals virtually ignored by the process, advised to document their concerns and bring them to the ministry for later resolution. Most of these individuals were common folk with a home, a family, a job and a mortgage, and after having the door slammed in their faces a few times, simply threw up their arms in frustration and walked away from the process.
Whatever changes are made to the EA act should ensure that individuals, as well as groups and organizations, have their questions and concerns fully explored through the process and at the cost of the proponent.
The TFA also supports such changes as those proposed under "Terms of Reference," 6.2, specifically clause (d), "an evaluation of the advantages and disadvantages to the environment of the undertaking, the alternative methods of carrying out the undertaking and the alternatives to the undertaking."
With regard to changes affecting the Environmental Assessment Board, the TFA is concerned with the proposal that the board would be allowed to hear testimony in respect only of matters specified by the minister. We can understand the benefits to proponents, be they private or municipal, of shortening the time frame in this manner, but we would submit that the value of a clean and safe environment should be much greater than any such savings achieved through this proposed change.
With reference to the June 17, 1996, statement by the Honourable Brenda Elliott to the Ontario Legislature regarding new landfill standards, TFA would like to recommend that abandoned, fractured-rock, open pit mining sites such as the Adams mine near Kirkland Lake be included in the hazardous lands listing, along with floodplains or areas prone to excessive erosion.
The document contains sketches of generic design approaches to landfill design, construction and leachate collection systems. With reference to the proposal at the former Adams mine site, the TFA believes these generic designs cannot be applied.
This site, at its highest point, is well above the altitude of much of the surrounding area of Timiskaming, and at its lowest, the bottom of a 600-foot-deep pit, is equal to about the altitude of the surface of Lake Timiskaming.
In the document Backgrounder, Proposed Regulatory Standards for New Landfilling Sites Accepting Non-Hazardous Waste, under the heading "Design Criteria for Groundwater Protection," the statement is made, "Preventing groundwater contamination is particularly important because of the difficulty and cost of restoration."
The TFA is in full agreement with this statement and for that reason has spent considerable time and resources to show that the proximity of the Munro Esker, within two kilometres of the east side of the Adams mine site, poses an unnecessary risk to the groundwater supply for all Timiskaming residents south of the Adams mine site.
Considering the amount of evidence available that sets the Adams mine site apart from just about any other that has been considered for a landfill area, the TFA would like to urge this committee to develop some way of providing intervenor funding for volunteer groups like the TFA, that would allow for adequate study and the development of scientific evidence regarding such unique sites and their potentials.
It hardly seems appropriate that studies commissioned by proponents should be the sole source of information about such sites, but because of the vastness of the proposed development and all its ramifications, volunteer groups like the TFA and concerned individuals have no way of commissioning all the necessary data to allow for a well-rounded review or assessment of the proposed undertaking.
With scientific data from third-party groups completely separate from the proponent or governments, a much more realistic assessment of any proposed undertaking should be possible.
The TFA believes this standing committee should seriously consider adding an amendment to the act that would recognize the democratic rights of citizens. In Timiskaming, the farming community voted 100% in opposition to the Adams mine proposal and a number of municipal councils conducted votes in their towns and townships that indicated between 90% and 95% opposition to the proposal.
As well, the Timiskaming Municipal Association, with 26 member municipalities, has voted against using the former Adams mine as a landfill site.
When proponents ignore such public expression and push on with a proposal, it makes average citizens question the value of living in a democratic society.
The TFA feels this standing committee has an opportunity to restore some public faith in democracy by requiring proponents of undertakings such as the Adams mine landfill development to honour the wishes of the majority of citizens of an area targeted to receive garbage from outside the geographic boundaries of that area.
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I have an additional document that I will file with the committee. It was one that was presented to Metro Toronto on December 13 outlining the various referendums and votes and whatever that took place in the municipalities in Timiskaming.
In summary, I'll just list the ones that we have here: Chamberlain township was 92% opposed; Dack township, 93.75%; Evanturel township, 95% opposed; Dymond township, 93%; Ingram township, 96%; Boston Creek-Round Lake, which is the area immediately surrounding the Adams mine site, was 95%; Englehart didn't take a vote per se, but 407 people in the town signed a letter opposed to the council's willing-host position; Larder Lake had 410 signing a petition opposed to the proposal; as I said, the federation of agriculture and the farmers in Timiskaming were 100% opposed; Kirkland Lake, 59.54%; and one late poll was taken in Hilliard township, and of 149 people polled, 39 didn't respond, 110 responded, with four or 3.64% saying yes, they favoured it, and 106 or 96.36% stating they were opposed to this proposal.
That document more or less states in itself why we make the final recommendation in our presentation that the wishes of the citizens in an area such as Timiskaming, or any area that's targeted to receive waste from outside that area, should be recognized at least by the proponents.
The Chair: We'll pick that up from you and that will be circulated and given to our researchers for consideration as the committee deliberates. Is that the end of your presentation?
Mr Struthers: Yes, it is.
The Chair: We have just a little bit over five minutes for each caucus.
Ms Churley: Thank you, Mr Struthers. I missed the very first part of your presentation, but I read it. I thank you very much for your presentation. You represent a community-based group, in your case farmers who are concerned about the threat to their livelihood and to future generations. I presume what you would like to see in this bill is an absolute guarantee that from the outset it's established that there will be -- I'm getting so tired I'm having trouble finding the words, being the lone New Democrat here -- a full environmental assessment, including looking at the alternatives to the site, all those things. Some of that may be easily applied by now, because some work has been done, but I assume you would like this bill to guarantee that those things can't be negotiated off the table.
Mr Struthers: Most definitely, yes.
Ms Churley: The other thing that comes out of this is the David and Goliath syndrome that if there is no intervenor funding for people like you -- certainly today we've heard different opinions on the possible environmental impacts. I think there are different scientific reports out there and different viewpoints from the proponent and some of the citizens, so there obviously are differences of opinion. I presume as well that you're saying that if you do not, as a citizens' organization, have intervenor funding, then you don't stand a chance in an EA to prove your point or at least attempt to prove your side and what you have found to be environmentally unsound in the structure.
Mr Struthers: That's correct. As an example, we, on a temporary basis, secured the services of a professional for one day. I guess he spent more time than one day reviewing the documentation, but it was in the area of $3,500 that that service cost us. As a volunteer organization, we don't have access to that sort of funding, so what it meant was we had to go to other agricultural commodity organizations in Timiskaming and to individuals and ask them for donations to help cover the cost of this type of thing. You can't do that very often.
Ms Churley: Do you think this proponent, who presented this morning and seemed to be fairly reasonable in his presentation about public participation -- because there's no intervenor funding act any more. We're pressuring the government to bring in something, but I don't know if they'll agree to that or not. Do you think this particular proponent would be willing, if you asked, to give your citizen's group intervenor funding so you can participate on an even keel?
Mr Struthers: I would really doubt it, because the way the process has started off, as I explained in the document, individuals have been selected for public consultation. The rest of the public has been ruled out of the whole process. So I can't see funding coming from the proponent to any outside organization, outside of what that proponent sees as the affected parties. I can't see any funding coming to that organization to get involved in any way at all. So without legislated intervenor funding, we're lost.
Mr Stewart: A couple of questions, very quick ones: You mentioned a number of the municipalities that were against the proposal, yet as you quoted some of those, I'm looking at the presentation from the Northeastern Ontario Municipalities Action Group, and in some of those communities, their members or the political officials are supportive. Can you tell me why? Has this developed into a bit of a political issue sort of thing?
Mr Struthers: It's a mystery to a lot of us up there to see the vast majority of people within some of those municipalities speaking out in opposition to the proposal while at the same time the politicians they have elected are supporting the proposal. At the time of the elections, the issue wasn't there, so the politicians weren't expected to make any statements as to where they stood on the issue, but then after -- the last election was in the fall of 1994 for municipalities. It was in the beginning of 1995 before this really resurfaced again.
Mr Stewart: But this has been going, though, since 1990, I understand, or earlier than that. Nobody wants to get involved.
Mr Struthers: Everyone thought, I guess, that the issue had died and was not to be heard from again. Then all of a sudden it came to the surface once again. The people had elected politicians, and they didn't know where they stood or had failed to ask where they stood on the issue before they elected them.
Mr Stewart: We heard this morning a great speech that we must have -- and you were just asked the question -- a full environmental hearing on all landfills, yet you have one here in North Bay that didn't go through a full hearing. Do you want to comment on that? I just don't understand how this bill that we're putting through gives flexibility to the possibility of not having one, yet I'm hearing over here that North Bay did not have one a couple of years ago. That's sucking and blowing at the same time. I guess that's my concern.
Mr Struthers: The great concern with this bill, I think, is the fact that exemptions can be granted.
Interjection.
Mr Struthers: Well, whatever, exemptions shouldn't be granted as far as the farming community of Timiskaming is concerned, everyone should be playing at the same level on the field.
Mr Stewart: Should there not be some flexibility, though, do you not feel, in certain instances, that could speed it up and get it done? You look at what you've been talking about here, five, six or seven years; we heard one this morning, 13 years; another one 10. We've got to do something about this to get it done, to protect the environment and get it done in a hurry. Not in a hurry, but --
Mr Struthers: As was stated earlier today, perhaps general terms of reference can be established and more specific terms of reference for specific sites. Such things as what took place in North Bay could be dealt with in the terms of reference for the North Bay situation, but I'd hate to see that situation applied to other areas.
Mr Stewart: That's right, but just have some flexibility in it, which we feel is in Bill 76.
Mr Struthers: I think the terms of reference could determine that, but I think the public should have an opportunity to provide input into the development of those terms of reference.
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Mr Stewart: I agree with you 100%, sir.
Mrs Munro: One more question: You mentioned the Munro Esker, and I just wondered whether or not in your studies you were able to find out the age of the water there.
Mr Struthers: Someone from the University of Waterloo has done that and he's to be in our area at the end of this month to make a presentation to a meeting of farmers, and we hope to find out at that time. But at this point I can't; I'd be guessing. I've heard figures, but I'd be guessing --
Mrs Munro: Okay, I just wondered.
Mr Struthers: Sorry.
Mr Gravelle: Good afternoon, Mr Struthers. Nice to see you again.
Mr Struthers: I was trying all day to remember where I'd seen you last. It was up in the northwest somewhere.
Mr Gravelle: That's right and I recognize you. It's great to see you and I'll look for a talk with you later. I hope we get a chance.
It's just been really interesting for my case for the last couple of days sitting on the committee too, because it comes down to the same sort of issues continually. Mr Stewart made reference to the amount of time it takes, you know, 13 years. And that's used in a manner that suggests that's just too long and I think one can understand why generally that seems like it's too long, except you balance the other side with the reality of what you're dealing with; you're dealing with something that's going to have an extraordinary impact on people's lives for an extraordinary amount of time.
Mr Struthers: We were told 1,000 years.
Mr Gravelle: That's right. So you've got to say, "Gee, is 13 years too long?" And we're being told it's costing too much to do this and everything else. But, again, I find myself trying to always be reasonable and recognize: "Okay, is there a balance? We can find it." It seems to me the one thing that's becoming absolutely clear, and you make very strong reference to it, is that in order for the process to be fair it's incredibly important that there be intervenor funding. What seems equally clear is if you don't have the option of intervenor funding, obviously it means that you are just by definition limiting the amount and the level of public participation in the process.
I don't want to just ramble on because I want to give you a chance, but it seems to me there's also been reference to the fact that, "Gee, that needs to be changed or there needs to be a different way of setting it up so it doesn't become just a process where consultants and everybody else get involved." We probably agree on that too, clearly the need for intervenor funding, that I would think the government would want as well and would recognize its value. It's been made very clear by a number of people, proponents as well, that the intervenor funding has brought out all kinds of information.
I'm obviously supporting that. Have you been operating without intervenor funding or did you have intervenor -- that was what I thought; you'd been operating without it.
Mr Struthers: Yes, we went out, cap in hand, and got what we could.
Mr Gravelle: Right, and even the aspect of who qualifies -- I mean, that's tricky; it has to be determined and who's involved in the process because one can argue that everybody's involved. Anyway, I want to give you a chance to emphasize the need for it and perhaps what a difference it would make if you had that option, being people who are obviously very directly affected by a major project.
Mr Struthers: I can see intervenor funding making any process much more credible, because if you have a balance of information coming from both sides that both sides are comfortable with, then the dispute is more or less gone from the whole process. If you can come up with professionals for proponents and for the, to use an old term, opponents -- we don't like to say we're opponents to something, but if both sides have access to intervenor funding which will allow them to hire the necessary professionals to look at the information, to develop the information, to go out and look at the site and do the necessary work out there to ensure the information they're giving us is the most accurate information possible, then we've got to be comfortable with it.
Mr Gravelle: Yes, because the point has certainly been made, and it's true -- it's as true for me as I think it is for the general public -- about how complicated legislation is and how complicated the bills are. The environmental assessment area is further complicated, or more complicated perhaps. So I think it does seem only fair that for something as important as this, that has the kind of impact it has, there should be this kind of assistance. I think your point's been made very strongly.
The Chair: Thank you very much for your presentation, Mr Struthers.
RESPONSIBLE ENVIRONMENTAL AND ECONOMIC PROSPERITY ASSOCIATION
The Chair: We will now proceed with Martha McSherry. Ms McSherry, welcome this afternoon. We've distributed your document to all of the members.
Ms Martha McSherry: The Responsible Environmental and Economic Prosperity Association, the acronym being REEPA, is a citizens' coalition founded in 1990 for the purpose of advocating responsible and sustainable environmental development, along with responsible economic development in the district of Timiskaming. REEPA has been actively involved in the preconsultation phase of the environmental assessment process at the Adams mine site near Kirkland Lake. REEPA members presented to the standing committee on social development regarding the Waste Management Act, 1991, held in Kirkland Lake. REEPA continues to be active in public education and community organization.
REEPA supports the environmental assessment legislation as an essential process for ensuring environmental sustainability. The EA act is designed to anticipate and prevent environmental problems before they arise. Currently, projects that are subject to the EA act are required to undergo a full, rigorous and public review of the biophysical, socioeconomic and cultural impacts of the proposed project, the alternatives to the proposed project and the alternative methods of carrying out the proposed project.
Throughout the EA process, proponents of a project are to ensure meaningful public involvement and rigorous agency review. The rigours of the full EA, especially the requirement to evaluate alternatives, helps proponents develop environmentally preferable solutions to problems or opportunities. As an example, the EA process in waste management has fostered greater attention to the 3Rs rather than merely encouraging better landfill design. The EA process has helped ensure positive steps towards sustainability, rather than simply justifying the worst environmental excesses of business as usual.
It is our understanding that over the 20 years since the Environmental Assessment Act was enacted by the Progressive Conservatives in 1975, a number of issues have arisen on a consistent basis. We are told that the primary problems with the current process, particularly as it applies to the individual EAs for projects like waste disposal sites, are that it can take too long, it can cost too much, and the results can be unpredictable. As a result, proposed reforms in Bill 76, such as the mediation, the review deadlines and the public consultation, are useful and long overdue.
REEPA felt it was important to present to the standing committee on social development regarding the Environmental Assessment and Consultation Improvement Act, 1996, or Bill 76, because we are very concerned that Bill 76 does not guarantee a full EA will be required for undertakings such as landfills, incinerators or any other environmentally significant undertaking. We have chosen to point out where we have difficulty with the amendments to the EA act. In addition, REEPA has provided recommendations on how we'd like to see Bill 76 improved.
Areas of Bill 76 that are of concern to REEPA and that we do not support, as drafted, are the following:
Clause 6(2)(c) and subsection 6.2(3), which permit the Minister of Environment and Energy to approve EA terms of reference which do not include or address essential EA requirements; for example, alternatives to and alternative methods that are currently mandatory under subsection 5(3) of the existing Environmental Assessment Act.
In the landfill context, this means that private waste management companies or municipalities could seek and receive EA approval without examining alternatives to landfilling; for example, the 3Rs, alternative methods; for example, different landfill designs or different sites that may be environmentally superior to the site preferred by the proponent, or the full range of biophysical, socioeconomic or cultural impacts caused directly or indirectly by landfills. In addition, Bill 76 gives the minister other broad powers to vary or dispense with requirements of the EA act and to grant wholesale exemptions from the act. See subsection 3.1(3) and section 3.2.
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A second area of concern to REEPA is that Bill 76 does not guarantee early or effective public participation in the EA process. In an information flyer dated June 1996, published by the Ministry of Environment and Energy and titled "Amendments to Ontario's Environmental Assessment Act," it says that among the improvements, the amendments would guarantee public consultation from the earliest stage in the process, provide early and clear direction to the kind of information proponents must submit, and place tight time lines up front for all key steps in the decision-making process.
Despite those assurances, Bill 76 does not require upfront public consultation during the development of the critically important EA terms of reference; it does not define what constitutes consultation or define who is an interested person for the purposes of consultation; it does not expressly require upfront public consultation on proposed exemption declarations, harmonization orders or EA policy guidelines or regulations; and finally, it does not require proponents to provide participant funding or intervenor funding to facilitate public participation under the EA act.
A third area of concern is that Bill 76 does not reduce uncertainty or unpredictability within the EA process. Bill 76 will likely increase uncertainty and unpredictability by overpoliticizing the EA process through excessive ministerial and bureaucratic discretion. Bill 76 gives the minister and the director of the EA branch over 30 different discretionary powers, which are frequently unaccompanied by detailed criteria or public notice requirements, to help structure the exercise of such discretion. Bill 76 empowers the minister to deny reasonable EA hearing requests, to scope or narrow the matters to be considered in EA hearings, and to dictate the length of EA hearings. This bill also gives the minister broad powers to delegate his or her powers to various persons, including non-ministry personnel, and to refer EA matters to an entity for a decision.
Considering our above concerns, REEPA supports the following amendments to Bill 76 as it exists which relate to the exemption declarations, the terms of reference and the public consultation.
The exemption declarations: Bill 76, section 3.2, empowers the Minister of Environment to allow sweeping exemptions from the EA act to any proponent or undertaking without adequately detailed exemption criteria. The bill does not quickly impose public notice and comment requirements respecting proposed exemption declarations. The bill does not impose a duty on the minister to monitor and report upon compliance with terms and conditions attached to the exemption declarations. REEPA recommends the following:
-- That section 3.2 of Bill 76 have amendments that outline specific statutory exemption criteria that are focused on environmental significance.
-- That there be public consultation on proposed exemption requests through the Environmental Bill of Rights registry and other appropriate means.
-- That a duty be directed on the minister to monitor and report upon compliance with terms and conditions attached to exemption orders.
-- That the minister be empowered to issue enforceable compliance orders against proponents that contravene terms and conditions attached to exemption orders.
Terms of reference: Essential EA requirements that are currently mandatory under the existing EA act -- "alternatives to" and "alternative methods" -- are optional or negotiable rather than required in every case. Bill 76 does not require proponents to pay participant funding to eligible parties in order to facilitate public participation in the development of the terms of reference. In addition, Bill 76 does not ensure that there is meaningful, upfront public participation in the development of the terms of reference. That sounds like a repeat. REEPA recommends the following:
-- That sections 6 and 6.1 and subsection 6.2(2) of Bill 76 be deleted and replaced with amendments that stipulate public consultation requirements during the establishment of the terms of reference before it is submitted to the minister.
-- That the minister only approve terms of reference that will constitute a full EA; for example, the existing subsection 5(3) of the current Environmental Assessment Act.
-- That participant funding be required to facilitate public review and comment on the proposed terms of reference.
Public consultation: The Bill 76 duty to consult occurs when the proponent is preparing the EA document, not at the terms of reference stage or post-EA submission stage. The bill does not define "consultation" or "interested person" for the purposes of consultation. In order to facilitate meaningful public participation in the EA process, Bill 76 does not require proponents to pay participant funding or intervenor funding to suitable parties.
REEPA recommends that the section 6.1 be deleted and replaced with these amendments: require and define meaningful public consultation from the earliest stages of the EA planning and throughout the entire EA process; that the public be notified throughout the process of significant time lines; and that mandatory participant funding and intervenor funding be required.
I just want to make a note about the intervenor funding. I submitted a letter to the Minister of Environment requesting that intervenor funding stay in place and I got a letter back from the MOEE suggesting that participant funding at a hearing before the EA board would be awarded at the end of a hearing. As a citizens' group, where does our group get the money to participate in the process? We can't. I don't have that kind of funds. I'm just a run-of-the-mill mother and working in my community with a small family. Where do you get the money? So that's really not going to work.
I thank you for the opportunity to present at this hearing and I trust that you will give REEPA's recommendations full consideration. Our citizens' coalition wants to work with the MOEE and the government to protect and conserve Ontario's environment and ensure its wise management in the interest of the citizens of Ontario. We believe that meaningful public involvement throughout the EA process can foster businesses to be competitive and innovative, striving for alternatives that promote sustainable economic development.
The Chair: Mrs McSherry, thank you very much. I'm sure you're better than a run-of-the-mill mother. We begin with the government side. We have a little over five minutes per party.
Mr Stewart: Thank you for your presentation, Ms McSherry. Just a couple of small questions. One is the concern of interested people and eligible parties. How extensive do you think that should be?
Ms McSherry: That's a very good question, because right now in our area during the pre-consultation phase of the environmental assessment process on the Adams mine site it was very broad. The Temiskaming Federation of Agriculture was involved. They had to work to get involved, but they got in. We were a coalition of concerned citizens. We had a fair seat and a number of other parties within the community or within the district had that chance and they had to submit letters to Metro to justify them having a seat.
I thought that the process was running quite fairly. Since Metro pulled out, we have a private situation now where Notre Development is taking on a preparation for an EA and they very selectively picked who they wanted to sit on their advisory committee. They've excluded us and we've been involved since 1990 in this project. I think we're quite a legitimate group. We have always tried to be very reasonable in terms of presenting our facts and substantiating them so that we don't get slapped with a lawsuit. I feel that when you talk about who are interested parties, that has to be clarified.
Mr Stewart: I think that's one of the reasons that they put "interested" in so that there was good flexibility for it rather than just saying, "It's got to be 10 miles or 10 kilometres or whatever around the site."
Ms McSherry: I don't think you can put the geographics on it.
Mr Stewart: Yes. I think that was the reason for the terminology they used.
The other one I wanted to ask, was that we've heard a fair bit today and have for the last week and a half about there being nothing in it regarding alternatives, that you have to look at all alternatives. Under the present legislation we were not allowed to look at incineration and various other forms, energy from waste, fuel additives etc. Do you really believe that the municipalities will ever stop looking at all these alternatives? They have to because of the cost factor. They cannot not do the 3Rs because of the amount of money they've invested in it over the years, the vehicles they have etc. So I think that responsible municipalities -- and we seem these days not to give them very much credit -- will look at those alternatives if they are to look at a true waste management program, because that's what waste management means, when you have to look at all the aspects.
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Your thoughts: Do you really feel that they won't, that all of a sudden a landfill will be open and everything's going to go to landfill? I just don't. I think public opinion will not allow it to happen.
Ms McSherry: I again reflect back to the situation I'm currently in. You've sat here and practically gone through a process that we've encountered in our area. You're hearing all sides and they've all got very good points of view and they're very strong and passionate about their points of view. For you to have to sit here and conclude on that is very tough business. If you're living in an area like we are where economically we're suffering -- that's very obvious; you've heard about that today -- and someone comes in and offers us a very good package, as a municipal councillor I might put my blinders on and think that jobs are more important than maybe some of those environmental concerns that I know are important but, my goodness, jobs are important too. That's what it boils down to.
Looking at the alternatives gets real tricky, depending on the community that you're working in. Rural northern Ontario is I think very vulnerable to getting themselves into a situation where they would get bought off. It's just a feeling I have, a gut feeling.
Mr McGuinty: Thank you, Ms McSherry, for your presentation. In the case of your experience, how do you think people who might be interested in this particular proposal have been given notice?
Ms McSherry: Every medium means that you can think of -- the paper. If you know there's a legitimate group in that community, you send them notice. Put it on the e-mail or the registry for those people who have that route. You put flyers out. You do the gamut. In small rural communities the local newspaper has a very high rate of readership.
Mr McGuinty: Clearly then the minister's proposal that she would require that terms of reference as proposed by the ministry officials be put on the Environmental Bill of Rights registry, that would hardly be sufficient or adequate.
Ms McSherry: No, on its own it certainly wouldn't be.
Mr McGuinty: One of the things that we haven't talked about much during the course of these hearings is this concept of the unwilling host, and much was made by the Premier when he was leader of the third party that he would never want to force a landfill site on an unwilling host community. When I first received my copy of Bill 76 I was looking to see if that kind of a provision was found within there, and it's not. If that's an amendment that we want to put forward, one of the things that we'd have to define is "unwilling host." How could we define that? What's the test?
Ms McSherry: Yes, what's the test? I'd go to the people; I really would. I'd have a referendum and all the interested parties would have to agree on the question, so there's not just a very selected question. You go to the people and you give a time period where the people can be informed. If they want to get access to information it's available, and that there be public presentations. There's a wisdom in the people. I think there is.
Mr McGuinty: Right. I'm going to push this a little bit further. I can tell you that if somebody proposed that they put a landfill site near my backyard, for instance, I've got my own personal interest -- I have four children -- and I wouldn't be inclined to have it there. I think I have a good inkling as to how I would vote in my referendum. It might be that every community in this province would decide it didn't want to assume responsibility for anybody's waste. What's your advice in that regard?
Ms McSherry: Then I say that we have to stop and look at the problems we're having with landfills. Why doesn't everybody in the province want them? Because they contaminate our groundwater, and once you do that, it's irreversible damage. So we've got to look at serious alternatives.
We've all talked about the three Rs. We could be much more vigorous. Metro Toronto has done an in-depth waste management study in association with the pre-consultation review. You could probably get 80% reduction of garbage in a place like Toronto. They've got studies. They've done it, spent a significant amount of money on it. Then we're talking about what you do with the residual. Talk to any hydro-geologist and they'll tell you the optimal site has 30 feet of clay and you want to rely on natural attenuation. You want to have a site where if it does leak, you're not going to have it getting into groundwater sources. So you look for those optimal sites.
It's a major area of concern. I've certainly given it a lot of thought. I think only if citizens stand up and speak up and say, "I don't want it in my backyard," are politicians going to hear that the current waste management practices are unacceptable.
Ms Churley: I just want to congratulate you and thank you for your submission. The same themes keep coming up over and over again, and I think we've all heard it loud and clear. I think that your answer to the last question was also a more detailed answer to Mr Stewart's question around alternatives and why it's so important that with the difficulty in siting incinerators and landfills over the years, citizens' groups from the ground up have forced municipalities and politicians to look at new and innovative ways of dealing with our garbage.
There's concern that if we don't keep looking at those, the out-of-sight, out-of-mind kind of mentality, particularly with the defunding that's going on by this government now in terms of the blue box and perhaps revoking the waste-in-packaging audit and work plan regulations and who knows, more to come; that if we don't keep vigilant and don't keep pressuring to be more and more innovative -- I think your answer to that question was useful to all of us to understand why it's so important to keep that on the agenda.
I don't really have a question. I just think that you posed some really important questions for us to think about today as we make amendments to this legislation.
The Chair: Thank you very much, Ms McSherry, for coming here this afternoon to share your views. We appreciate it very much.
Committee, this was our last witness. Is there any other business?
Mr Gravelle: Very quickly, I appreciate that I received a response from Dr Galt related to my question, but particularly in light of what we further heard today, that another official of the ministry obviously made reference to the same expectation that MNR might be applying for an exemption, particularly once this bill goes through -- and I must admit I tried to frame it that way yesterday -- what I'm curious about is, if I may ask formally, if there has been any informal request as well. You very clearly say he has not received a formal request from the Ministry of Natural Resources. What I'm interested in is, has there been any informal request or, even more specifically, any discussions between ministry officials as to the future plans of the Ministry of Natural Resources to seek such an exemption?
Mr Galt: I'm wondering, Mr Chair, if maybe the question shouldn't be addressed to the Minister of Natural Resources, since that's the ministry it originated from, and see if from the source there's a problem or something is happening rather than going through the committee to the Ministry of Environment and Energy. I strikes me that it's a natural resource issue that's being requested. I'm not so sure, asking about discussion, that we're really going to get to the heart of the matter that you're concerned about.
I'm not objecting to it. I don't mind doing that for you, but I don't know that it's going to get you the answer you're looking for. I think I'd go right to the origin of the concern, maybe to the deputy minister.
Mr Gravelle: I certainly fully intend to pursue it with the minister and minister's office, but if indeed you are able to find out for us whether or not there have been any informal discussions in relation to this issue, in that we've sort of started the process, I would certainly be grateful and I think the entire committee would be grateful, because as I say, we now have a second presenter telling us they spoke to a specific MNR official who discussed this issue. So this seems slightly -- perhaps not surprising in terms of a formal request, but there has obviously been some discussion on this.
Mr Galt: So you'd like it run through the system again and ask to put an "in" in the front.
Mr Gravelle: If you could, I'd appreciate it.
Ms Churley: To add to that, I think some of these questions are fundamental for us to have answers to before we start attempting to make amendments, and perhaps the government would like to make amendments based on information we get around areas like that and the impact it might have with the changes to this particular bill.
Cuts in various waste programs: Are there any more coming? I will be submitting some questions about that, but I think we need to have more awareness. This came out of the blue. Some of us started hearing about it a little while ago. I think we need to look at the big picture before we finalize and recommend to the full Legislature the changes that are proposed here because these things do have an impact overall. I'd like you to work really hard to get that information because it is extremely relevant to this bill.
Mr Galt: You're referring to Mr Gravelle's request?
Ms Churley: Yes.
Mr Galt: We'll plug it back in and see what we can do for you.
Ms Churley: Thank you.
The Chair: We reconvene tomorrow, room 151 I believe it is, at 10 am. Thank you very much, ladies and gentlemen.
The committee adjourned at 1621.