The Sierra Club of Canada is a registered non-profit corporation registered under the Canada Corporations Act. It is a national membership-based environmental organization with approximately 10,000 members and supporters and offices in six cities across Canada. The SCC national office in Ottawa as well as the Cape Breton Group and Atlantic Canada Chapter have been actively engaged in the question of oil and gas development along coastal Cape Breton. The national organization first contacted the provincial and federal governments in the summer of 1999 to protest the issuance of permits in the absence of environmental assessment or consultation. SCC has been a founding member of the Save our Seas and Shores Coalition.

We applaud the joint announcement of Ministers Ralph Goodale, federal Minister of Natural Resources, and Gordon Balser, his provincial counterpart, establishing a Public Review into the proposed exploration activities in the in-shore (i.e. coastal regions) of the western and eastern shores of Cape Breton Island. We appreciate the opportunity to respond to the draft Terms of Reference (TOR). We find them deficient in the following respects:

1) The Public Review falls far short of established process for public engagement, particularly by comparison with the Canadian Environmental Assessment Act. The public review could, if accepted with the current draft TOR, not in any way be considered an environmental assessment;

2) The process is unnecessarily rushed. The requirement for the commissioner to file her report within 250 days from the publication of the final TOR is unacceptable and unduly constrains the Commissioner's discretion. Particular aspects of the hearings also create undue haste. A time limitation of 15 minutes per presenter and a requirement that any organization can only present one time per public meeting is inappropriate to a technical and scientific review of the risks inherent in the proposed exploration activities;
3) The playing field is not level. The failure to provide intervenor funding to environmental, First Nations, fisheries, tourism and other affected interests reduces their ability to provide the best evidence to the Commissioner;

4) The TORs appear designed to allow agitated members of the public to express "views and opinions." This bias in the TOR mitigates against the adducing of complex, technical and scientific evidence to assist the Commissioner in assessing the risks to existing industries and to the
marine ecosystem; and,

5) The TOR are unnecessarily restrictive. By excluding from consideration issues of energy policy, the impacts of full scale development, should seismic proceed, legislative issues surrounding the functioning of the CNSOPB itself, issues of climate change and other related impacts, the Commissioner is being restrained to an unrealistic narrow set of issues.

Each of these concerns will be reviewed in detail below.

1) The Public Review falls far short of proper environmental assessment, particularly under the Canadian Environmental; Assessment Act (CEAA): The CNSOPB has now been designated as a "responsible authority" under CEAA. Although we understand that a further regulatory step is required before the CNSOPB is required to follow CEAA in the matter of exploration licences, nevertheless there was an expectation at the time of the Joint Announcement, that the Public Review was to be "CEAA-like." Hence, fishermen's organizations obtained assurance from Industry Minister Brian Tobin that the process should be pursuant to CEAA, including the appointment of a panel to review the information, as opposed to a Commissioner sitting alone. The CEAA process is one that the CNSOPB will soon have to embrace by law. It is a lost opportunity of large proportion for a public review to be so far removed from CEAA process. This Public Review could be an excellent learning opportunity for the CNSOPB in learning how CEAA operates -- without the obligation to run a full-fledged CEAA review. A CEAA-like hearing process would differ from the proposed TOR in the following respects:

a) it would rely on an appointed panel;

b) it would require the proponent to present an environmental impact statement forming
the subject matter for review;

c) it would provide intervenor funding to allow the non-governmental stakeholders to r etain expert advise and testimony;

d) it would not be time limited.

It is unacceptable for a federally funded public review to be so deficient in the basic elements of a proper environmental assessment.

2) The process is unnecessarily rushed.

As noted above, it is not common practice for a public review to be time limited to 250 days. In fact, our research could find no precedent for a time limit of 250 days from the completion of the final TOR until the Commissioner's report is filed.

There has never been a review under CEAA with a deadline hanging over the Panel's deliberations. Under the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation (NS) Act, under which the George's Bank Review Panel was established, contains a statutory limit of 18 months for the review process, but in fact the Review Panel on George's Bank commenced its work in 1996 and completed three years later. It is patently unreasonable to expect a single commissioner to tackle an issue which is arguably more complex in less than one quarter the time spent by the three-person expert panel convened to review George's Bank.

But the rushing of process does not end there. Requiring oral presenters to be limited to fifteen minutes each is anti-democratic and contrary to every principle of public participation, which, according to point 5 of the draft TOR, the Commissioner is supposed to "promote and facilitate." The fifteen minute time limit seems designed to allow people to "blow off steam," and then get sharply out of the way. It is not appropriate for the provision of expert testimony. The fishermen of both the southern Gulf of St. Lawrence and Sydney Bight are experts in the traditional knowledge of their fishing grounds. It is an insult to them to expect that in a fifteen minute presentation, they could adequately share their expertise with the Commissioner. It is also an unreasonable constraint on potential experts in seismic testing, the behaviour of aquatic species after seismic and exploratory activity, the economics of oil and gas development and the economic prospects of oil and gas as opposed to existing industries (i.e. the socio-economic impacts), or any number of technical and professional areas that will be brought to the Public Review from experts travelling many thousands of miles, to limit their testimony to fifteen minutes.

Similarly, it is an undue hardship on an organization such as ours to be limited to one presentation per hearing. If members share drives to be there, come to hear the expert evidence and wish to testify at the same meeting, or any other number of circumstances, it seems completely unreasonable to restrict their ability to testify to one representative per meeting. If the concern is that one group is dominating a hearing, then it should be left to the Commissioner's discretion to restrict the number of speakers. (As a further factual note, the George's Bank process often had several witnesses from one organization on the same day -- such as the Department of Fisheries and Oceans, Environment Canada and the Ecology Action Centre. On average, the George's Bank Review Panel heard from 8-9 witnesses per hearing day.)

Similarly, it should be at the Commissioner's discretion as to the length of time any presenter can speak. The provision of experts is done for the purpose of assisting the Commissioner. Restricting her access to a presenter to 15 minutes, plus however long questions are allowed, is counter-productive in the extreme.

Also, unlike the George's Bank Review, there is no provision for groups and individuals being allowed to provide written closing statements. The ability to reflect on evidence adduced by others is essential, should prove helpful to the Commissioner, and to increase fairness in the hearing process.

3) The playing field is not level.

The proponents in this matter have substantial financial resources and a vested interest in the outcome. All of their expenses are tax-deductible business expenses. Those in the communities and organizations concerned with the environment, fisheries, tourism and the church, have no such resources and will not be able to present the best possible case. In other environmental assessments, such as under CEAA, this is the rationale for intervenor funding. The draft TORs are silent on the issue of intervenor funding, but CNSOPB personnel (conversation between James Dickie and Elizabeth May, January 18, 2001 in CNSOPB offices) has stated that intervenor funding is not to be provided.

4) The draft TORs seem designed to allow agitated members of the public to express "views and opinions."

The stated objective of point 5 is once again antithetical to the over-all direction of the draft TOR which, while allowing public participation, appear designed to prevent that participation from being meaningful and effective.

The Commissioner, while interested in views and opinions, should primarily be concerned with facts and with the adequacy of the data base. A drastic departure from traditional coastal activities is being proposed. The public have the right to expect that those advancing such a radical departure, the oil and gas industry, have the burden of proof that their proposed activities will not be detrimental to existing industries and ecosystem health. The Commissioner must demand facts and have a firm base in evidence, identifying what is known about such activities, what is unknown (i.e. data gaps) and have an opportunity to have expert witnesses respond to questions and clarify their views. The process is not designed to facilitate this fact-finding process. More than anything else, it appears to be designed to allow opponents of the development, particularly in Cape Breton, to express their views, blow off steam, and allow the exploration activities to proceed.

5) The draft TORs are unnecessarily restrictive.

The exclusion of many issues relevant to the oil and gas review is unacceptable. Issues relating to energy policy, legislation, climate change and additional concerns should be part of this review. The narrowing of issues is further unwarranted as the decision to proceed with exploration is likely to inevitably lead to whole scale development. I t is disingenuous to imagine that one can examine the impacts only of seismic and exploratory drilling and ignore the reality that it may lead to oil spills and more widespread negative consequences of development.


We urge the CNSOPB to revise the draft TORs to increase meaningful and effective public participation and to revise the focus of the Public Review from a quick process to assess "views and opinions" to a process designed to allow public views but also to allow the presentation of technical, scientific and environmental evidence relevant to the proposed exploration permits.

Respectfully submitted,

Elizabeth E. May
Executive Director