Waterkeeper is currently preparing a submission to intervene in the Darlington nuclear refurbishment hearing in November 2015. Because there are many facets to the case, we asked Mark to define and explain the significance behind experts to help illustrate why this case continues to be so challenging.
Q: What's an expert?
MM: In every case, the court aims to ascertain the truth by looking at the best possible evidence. And there are two kinds of evidence: fact and opinion. Now facts are (usually) indisputable. But anyone can have an opinion. And to give opinion evidence you have to be what the court considers an expert.
An expert is recognized by the court as someone who has specialized knowledge, experience, and expertise to provide opinion evidence.
Q: Who gets to call themselves an “Expert?”
MM: When speaking to experts, the court considers three things: your education, your profession, and your published work. Do you have a Master's degree or a PhD? Do you work in a relevant field? And are you published? If these indicia are proven to the court, the court can certify whether it recognizes that individual as an expert or not.
Why is this important to environmental law? Well, determining if a sample of water is toxic or not relies on an expert’s opinion. Sure, it can be factual. You can take the sample to the lab and the lab can say there's 300 cfu of E.coli per 100 mL of water. The law states that recreational water can only have 100 cfu of E.coli per 100 mL. But who can explain why 100 cfu is important? That's expert opinion.
Just because the result is higher than the standards doesn't mean the court is going to consider the results as toxic. You're going to need an expert to actually look at those numbers and say, based on my experience, based on my knowledge, that is toxic. And if that opinion is accepted, that makes it illegal. But you need that expertise to make it illegal.
Q: What is special about Expert Evidence?
MM: Expert evidence is incredibly valuable. Based on an expert’s knowledge and experience, that individual can provide crucial insight on influencing a court’s decision. Experts can determine if a power plant is harming fish habitat or interfering with water quality. Will the operation destroy fish habitat? Will it destroy the ecosystem? Will it leave the lake or river unable to recover?
That’s what Waterkeeper is concerned about. That’s what I want to know. Will it affect the swimmability, drinkability, or fishability of a lake or river?
The court is the best process Canada has. In Criminal Court, Canadians wouldn’t agree with going to jail based on just anyone’s opinion. When someone goes to jail you have to go through due process – the justice system – because someone’s freedom is at stake. And that shouldn’t be done based on popularity or a vote. No one should be able to link you to evidence if they’re not an expert.
The best decisions are subject to the highest form of scrutiny.
Revoking someone’s driver's license, charging fines, parking tickets – everyone gets due process. You get to go to court. You have the right to go to an independent judge and fight your parking ticket. That’s the way Canadians make important decisions.
When it comes to the environment, Canada used to do that for environmental laws. But that’s been watered down over the last 10 to 15 years. When we look at how the Canadian Nuclear Safety Commission (CNSC) conducts their hearings – evidence isn’t under oath, they’re experts aren’t qualified, and there’s no questioning. So whatever is coming out of their decisions is untested evidence.
When someone says, “Nuclear is safe,” or, “This operation has no impact on the lake,” and when the President of the CNSC claims nuclear is the safest in the world – well, those are all opinions. You need to be an expert. You should do it under oath. You should be cross examined by the public and do it in an open forum.
Q: What makes a great expert?
MM: Knowledge, experience, and transparency. Those are the three most important things. Their knowledge, their experience, and the transparency in how they arrived at their conclusions. If the expert has those three qualities, there’s an opportunity to place a lot of weight on their conclusion.
When you have two experts who disagree, it’s up to the court to decide who is more credible. The more credible expert is determined through cross examination, looking at their knowledge, and their experience. From there, the court has to make a decision. And it can be difficult. You can’t turn opinion into fact. And opinion is always going to be a little risky. There’s never a guarantee when there’s opinion which is why it’s always based on the best evidence and the more experience. That’s why it’s really important that we have really good opinion evidence when it comes to environmental issues.
Q: Do you like the idea of Experts in hearings?
MM: Yes. I’ve been involved in a lot of hearings. And I can tell you that every single one that relied on qualified experts and transparency – whether we won or lost – left everyone walking out with an improved understanding of the situation. Improved terms and conditions emerged. Projects evolved into something better and fairer by the end of the process.
But because I’ve been in so many hearings I’m really worried because this process is no longer happening. The projects that are starting now are more wishful thinking than reality.
Once tested, projects change and evolve. The decisions become more informed and more mature. The process protected Canadians and our waters so much more than what was originally proposed.
I think that’s still the case in some hearings. Maybe the NEB hearings still have due process and expert opinion. But certainly not with the CNSC where the public is given 10 minutes and nothing is under oath. The project that’s put forward is usually the project that’s approved. And that is not consistent with any other hearing that I’ve ever been involved in. That’s what has me so worried.
If you ask me if I’m an expert in environmental assessment hearings, I would tell you, based on my opinion the decisions that are being approved now are much weaker and more detrimental and more risky than any of the projects that were approved 10, 15, 20 years ago.
Q: Does Expert Evidence guarantee desired results?
MM: Not always. We had experts for a case here in Ontario to determine the dangers of tritium in drinking water.
The federal standard for tritium in drinking water is 7000 bql per litre. But the Ontario Drinking Water Advisory conducted a study and recommended the tritium standard in Ontario be reduced to 10-20 bql. That's over 100-fold decrease.
But that Ontario study still hasn't been followed to this day. The CNSC still uses 7000 bql.
So even when there’s good evidence, sometimes regulators or proponents try and evade. That's why you really need to ensure the government follows the best opinion and not allow the proponents to deflect, defer, or diminish argument.
Q: So who has to prove what?
MM: That's called the burden of proof. Under the Fisheries Act, the old Fisheries Act, the burden of proof was on the proponent who wanted to build a pipeline or release chemicals into the water – to prove it wasn't toxic to fish. The proponent had to bring the facts and expert opinion. And if we then found out they were toxic, we charged them of the offence.
But now, laws have changed so now the burden has been shifted. And it's hard to talk to the public about it because no one really knows what that means.
The burden of proof is now on the public to prove what's being released into the water is toxic to fish. Now most people might not care. But the truth is, by shifting the burden of proof, it’s now impossible to hold the proponent accountable. We have to prove people are guilty of environmental offences which is why in Canada we spend billions on police. Bill C-51 gives them the right to go into your computer, the power of arrest, the power of detention, the power to keep people in jail.
The public has to prove the offence, but we give the government the resources to do it.
With environmental offences, we don't have the resources, we don't have the police forces, and a lot of the offences are on private lands. You can’t monitor and you can't force anyone to give you information. It's impossible to prove in most cases. So it's literally unenforceable. And that's really important. Facts and evidence are important.
In Civil Law, it's in the balance of probabilities – whichever is more probable at the end of the day wins. In Criminal Law, you have to prove it beyond a reasonable doubt. There can be no doubt before we put someone in prison. When it came to public welfare offences and environmental offences, the onus was on the one asking for the permit or the privilege. The proponent had to prove they were not impacting the water and the fish. That's the way the Fisheries Act worked. But now, it's up to the public to prove that the fisheries are significant. The proponent can say, "No they're not toxic." And that's the end of the day. And it's up to the public to prove it. But how the public is going to prove "reasonable probable grounds" without the public resources, police enforcement, and rules – it's really impossible. And that's the great tragedy about losing the sophistication of the government enforcing environmental laws. By allowing the burden to shift, by not relying on expert opinions, and by making it more about public relations – it's quite tragic and there are serious consequences as a result of it.
Laws were put in place in the early 1970s as a result of environmental concerns that emerged in the post WWII era. Canada created laws and processes that were intended to ensure our waters were swimmable drinkable fishable. Americans did it with the Clean Water Act. Canada did it with the Navigable Waters Protection Act, the Fisheries Act, and the Environmental Assessment Act. And it's not just federally, we've seen them wash the rollbacks provincially too.
It's certainly a tragedy but community members are seeing the results and the depreciation and the loss of environmental benefits – the loss of swimmable drinkable fishable water.
Swimmable drinkable fishable water is necessary for a prosperous community. Economically, culturally, socially. You can see how they correlate all over the world. Depressed communities tend to have contaminated drinking water, loss of their beaches, loss of their fisheries.
Until we put back in place a strong environmental law process, no one can be confident their water will always be swimmable, drinkable, and fishable.