Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 30 - Evidence, May 7, 2002
OTTAWA, Tuesday, May 7, 2002
The Standing Senate Committee on Energy, the Environment and Natural Resources to which was referred Bill C- 27, respecting the long-term management of nuclear fuel waste, met this day at 5:35 p.m. to give consideration to the bill.
Senator Nicholas W. Taylor (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, we are fortunate to have on the first panel Blair Seaborn, The Very Reverend Lois Wilson, a former colleague from the Senate, and Dr. Louis LaPierre from Moncton.
Mr. Blair Seaborn, Chair, Seaborn Panel: Mr. Chairman, thank you very much for the invitation to address the Senate committee on the Nuclear Fuel Waste Act.
Reverend Lois Wilson, Dr. LaPierre and other colleagues of mine have spent a number of years looking at the question of nuclear fuel waste management. I am happy to have an opportunity to share some of my thoughts on the legislation that the government is proposing on the topic.
Before doing so, I would like to remind you of a few key features of our panel's mandate and conclusions. For the mandate, we were asked to review the AECL concept of deep rock disposal. We were asked to review the safety and acceptability of that concept — no site, no site-specific design — to examine the criteria used for determining safety and acceptability, and to provide policy advice on long-term management.
Among our conclusions was that with respect to any concept, this or any other, broad public support is needed in order to ensure acceptability. Safety is a key part but only one part of acceptability. Safety must be viewed from two complementary perspectives, technical and social. With respect to the AECL concept, we have concluded that safety of the concept from a technical perspective had been, on balance, adequately demonstrated, but from a social perspective it had not.
Let me turn to Bill C-27 to see how it responds to our panel's conclusions and recommendations. I would like to stress my satisfaction that the government has accepted a number of important recommendations in our panel's report.
Our first recommendation was consultation with the general public — in particular Aboriginal peoples — as we try to solve the problem of what to do with the accumulated wastes. Second was the creation of a new and separate entity, referred to here as the Waste Management Organization (WMO). Third, we recommended the creation of a broadly based advisory council to the WMO. Fourth, the establishment of a segregated fund to finance the WMO. The contributors to which fund are to be the producers and owners of nuclear fuel waste, i.e. the utilities and AECL, not the general taxpayer. Finally, we recommended the development by the WMO of several options for the long-term management of the wastes before any final decision is taken on what approach is most appropriate for Canada.
Each of these options or approaches must contain a comparison of its benefits, risks and costs in comparison with the other approaches, the ethical, social and economic considerations associate with that approach, and an implementation plan, which will include a program for public consultation.
I am less satisfied that in this legislation the government has not accepted certain other of our recommendations. I would like to note them and explain why I am disappointed.
References to consultation with the general public and the Aboriginal peoples in the legislation are encouraging, but it would have been helpful if Bill C-27 had set out — perhaps in preambular form — the essential nature of broad public support to ensure acceptability; therefore, the vital importance of meaningful consultations with the general public, with Aboriginal peoples and with the potentially affected communities at all stages of decision making.
I note, for example, that in clause 14(1) we merely see ``the Minister may engage in such consultations on the approaches set out in the study as the Minister considers necessary. It is particularly important that the potential host community for any facility be given full and transparent opportunity to accept or reject a proposal with respect to the location of that facility.
Next, our report did not specify the preferred organizational and legal status for the WMO, but it did stress that it should be at arm's length from the utilities and AECL, that its board of directors should be appointed by the federal government and be representative of key stakeholders, that its advisory council also should be appointed by the federal government on the basis of recommendations from professional and other organizations, and finally, that the WMO should be subject to ``multiple oversight mechanisms,'' including regular public review, preferably by Parliament.
I think it should be obvious that these criteria would be much more easily met if the WMO were to be a Crown corporation, or something closely akin to that model, rather than a private corporation.
However desirable it may be to stress in this legislation the accountability of the nuclear industry for the waste it creates, I fear that a WMO created by the nuclear energy corporations themselves will not have an easy time convincing the public that it is acting in the public interest. Public confidence in the new agency is essential to public acceptance of what it proposes and does.
Third, the failure of the legislation to mention who will be on the board of directors, let alone specify that the board should be appointed by the federal government, may further reduce public confidence unless the nuclear corporations make a special effort to have a board more broadly based than just the nuclear industry.
Our report, for example, said that with respect to the board that its members' backgrounds and skills should reflect in a balanced way the interests of, for example, federal and provincial governments, electrical utilities, and the engineering, science and social science communities.
Next, I wish to address the subject of the advisory council. Rather than have it appointed by the federal government, the WMO is to appoint its own advisory council. It will have to make special efforts to ensure that the appointment is seen as being broadly based if that council is to engender public trust and confidence. At a minimum, one should remove the phrase ``as needed'' from sub-clause 8(2)(b)(ii) in order to make it clear that social scientists are every bit as necessary on the advisory council as are the scientific and technical disciplines.
On the matter of multiple oversight mechanisms, the WMO will, of course, be subject to the regulator, the Canadian Nuclear Safety Commission, which has strong powers to tell it what it can and cannot do. However, as a private corporation, it will not come under the scrutiny of the Auditor General nor, I believe, that of the Commissioner for the Environment and Sustainable Development.
The Department of Natural Resources is given considerable responsibility with respect to the WMO. This is a very important oversight mechanism, as is the requirement that the minister submit to the Governor in Council his or her recommendations as to the preferred approach to long-term management. This requirement would carry greater weight with a questioning public, however, if the submission to the Governor in Council were to be made jointly by the Ministers of Natural Resources, Health and the Environment.
It is particularly regrettable that there is not a requirement for parliamentary consideration of the preferred approach nor, indeed, for periodic parliamentary consideration of the work of the WMO. Both would help increase public confidence and trust in the process and in the organization.
One final matter that I think is of importance is domestic waste. It is probably implicit in the bill that it is meant to deal with nuclear waste reactors in Canada, but this could be made explicit if the definition of nuclear fuel waste in clause 2 were to include the word ``domestic'' before ``commercial.''
I shall stop there on the proposed legislation. In due course I will be pleased to attempt to respond to any questions that senators may have.
The Chairman: Thank you very much. We will go on to Reverend Wilson.
The Very Reverend Lois Wilson, former senator, Member, Seaborn Panel: I am pleased to appear before this committee of my former colleagues, and also with my former colleagues on the Seaborn Panel.
The work on Bill C-27, which started in 1996 before the Seaborn Panel finished its hearings, incorporates some of the terminology of the recommendations we made but, as the Chair says, fall short of capturing the intent of our recommendations. Some of the words are the same, but they do not reflect what we had recommended.
I have four points. The main recommendation was that a new and separate entity, the Waste Management Organization, be established at arm's length from the utilities and the AECL. That was a unanimous recommendation of our panel. We felt it would allow a new start in Canada and would build public trust and confidence. The public has a lot of fear and dread about this subject that is sometimes not very rational. We felt that whoever took on the management role would have to be trusted by the public. The following is contained within page 62 of our report:
There was moreover, at least a perception of conflict of interest in that both the AECL and the utilities were said to be looking for a solution to the nuclear waste disposal problem as a means of ensuring either the sales of CANDU reactors or continued use of reactors in power generation.
The fact that AECL's preferred model for deep underground disposal remains one of the options and is likely to be pursued vigorously despite the fact the panel noted 95 technical deficiencies in the model. That does not build public confidence, nor does the repeated reference to ``each proposed approach'' as though these really are options, since the secret cabinet document that fell into my hands and which I released to The Globe and Mail on May 2, 2001, said the government had concluded the deep disposal method to be the preferred option.
Given all that, it is important that within the bill there are guarantees for multiple oversight mechanisms and parliamentary review. If that is the best we can get, we better set it in.
Second, my remarks about the board of directors echo those of Mr. Seaborn, so I will not repeat them. I will say, however, that we had suggested and recommended a broad approach that would include the socio-economic fields and public educators. That is one of the main things necessary in this bill.
My next point relates to the advisory council. Again, it must be broadly based until public trust is placed in it. An amendment might be considered that would specify not only the requisite engineering and science people, as they are key, but also the social scientists, Aboriginal peoples, environmental, ethnic and religious groups, and others who would make significant contributions to the agency, which is what we had recommended.
In our view, the advisory council should be appointed at the same time as the board of directors by the federal government — not simply by the board of directors who would then appoint those whom they know and are likely to be like-minded people. Nor is it acceptable that the organization should ``make all reasonable efforts to reflect a broad range of disciplines.'' That, in my view, should be made mandatory and should not be ``do your best, boys.'' I concur that the phrase about ``social scientists as needed'' should be eliminated, because we desperately need the social scientists in on this dialogue.
Third, the bill refers to the need for public consultation with the general public and the Aboriginal peoples. However, it is not good enough to say that the minister ``may'' engage in such consultation; it should be mandatory — if for nothing else than to build public trust. Small, economically vulnerable northern communities and poor Aboriginal communities — if and when designated as an ``economic region for implementation'' — must then become fully informed before making a decision to accept the waste. According to our experience, that will take some doing because you cannot use the same charts for every group of people that you meet. We have received strong messages from the north about reluctance to accept the garbage of the south. I certainly have received a number of e-mails recently on that.
The plans for public consultation need to be carefully worked out; otherwise, the bill is simply setting a stage for citizen protests such as happened in Germany. You will be aware of the deep societal divisions that have arisen in other countries on this issue. I plead with you to be careful that this bill does not set up Canada to exacerbate such deep divisions in the public in this country. So far, the Canadian government has not covered itself with glory in terms of public consultations.
As I mentioned, before the Seaborn Panel delivered its recommendations in 1998, Natural Resources in 1996, two years earlier, was conducting its own consultations with a group of selected stakeholders and in essence doing an end run around the panel. That did not engender trust among the public. To be promised yet again another public consultation raises questions as to the quality of that public consultation and the seriousness with which it will be taken.
My final comment, and perhaps most important point, is about the necessity for multiple oversight mechanisms to ensure checks and balances in a process that is laced with public distrust, dread and fear. Would it not be prudent to ensure additional mechanisms for review, especially when a private corporation is not subject to the Access to Information Act and the whole exercise would appear to be shrouded in secrecy?
There surely could be scrutiny — as we recommended — by the Auditor General and the Commissioner of the Environment and Sustainable Development. I favour an annual report to Parliament or its committees rather than a report every three years simply by the minister. Parliamentarians need to keep track of what happens when this legislation begins to be implemented. This could be achieved either through this committee or a joint committee with the House of Commons, but the legislation does need parliamentary input and accountability.
Senators know what it is to be closed out of major policy decisions. In my short time in the Senate, there was much discussion on this point as I recall. Here is a bill that cries out for oversight. You have the power to make an amendment that would make that difference and give you collectively a strong hand in future developments.
You enjoy support from the people in your regions and provinces. If you had a voice in this matter according to the bill, then you could express the feelings of your constituents, all of whom will certainly have an opinion on this subject, particularly when a site is announced. I think the usual annual ``reporting to the minister'' is grossly inadequate for this organization on such a critical matter.
To summarize my comments: arm's length board of directors; broadly based advisory board not appointed by the board of governors but independently by the government; public consultations; and multiple oversight mechanisms.
The Chairman: I am sure we will question you more later after we have heard from Dr. LaPierre. Before you start, Dr. LaPierre, can I ask whether you are a consultant or adviser to the New Brunswick nuclear plant?
Dr. Louis LaPierre, Member, Seaborn Panel: No, I am not.
The Chairman: You are independent. I am just asking that for the record.
Dr. LaPierre: Honourable senators, I am grateful for the opportunity to address you today on issues arising from Bill C-27. I will not repeat the comments that were made by my colleagues. I would, however, like to focus on one issue; that is, from a technical perspective, as a panel we agreed that the AECL concept has, on balance, adequately demonstrated to be safe for a conceptual stage.
However, we did express reservation with the robustness of the model and the conclusions that it projected. There were safety mechanisms built into this issue. If all of the parameters hold, then we agree that the system would be safe. There were numerous assumptions that went into the model. As you project assumptions over a period of time — particularly 10,000 years — you have to wonder how reliable some of these projections may be.
The past can serve to give us some examples. When I was listening to the CBC on Sunday, I heard it was the 10th anniversary of the Westray mine disaster. This reminds us how the best technologies do not always meet their projected expectations. The Westray mine disaster was a good example of that. The chief engineers, the engineers and the CEO clearly indicated before the mine opened that the best available technology was going to be used, that the technology was safe and that there was no problem in mining the coal. However, nine months later, many men lost their lives because technology failed.
Following from the number of assumptions that were incorporated into the model, I believe it would be prudent for the waste management organization charged with the disposal of the waste to adopt a precautionary principle approach in developing the final options. A precautionary principle approach would allow for the inclusion of an adaptive management process, which would ensure that new knowledge is incorporated in the concept as it becomes available.
I am not saying that this may not be done. However, in the bill as it stands, it is not clear to me that it would be done. Clause 8(2) of the bill suggests that the advisory council reflect a broad range of scientific and technical disciplines, as well as expertise in nuclear waste and social science. It would be important to ensure that this advisory committee be perceived as having the responsibility to conduct an independent scientific peer assessment process of all of the components that go into the final option.
It was stressed on numerous occasions during the hearings that the agency should be perceived as being free of vested interests. As I read the bill at the present time, with the advisory council being named by the WMO, there is the possibility that the agency could be perceived as being inclusive and that the latest science may not be addressed.
The essential element of my argument lies with the creation of an arm's length body with the clear responsibility within the bill to conduct an independent scientific peer review. I think this would add a great deal of credibility to the present structure. That is my presentation, Mr. Chairman.
The Chairman: Dr. LaPierre, where would you fit the precautionary principle about which we hear so often into the bill? Would it be in the preamble, in your opinion?
Dr. LaPierre: The precautionary principle should fit in the preamble to the bill. I believe that we have acted with the best science to produce the model. However, honourable senators will be aware that today's knowledge might be obsolete tomorrow. The precautionary principle is an important one. It leads to an adaptive management strategy, which leads to independent peer review, which leads to a greater perception of justice being done.
The Chairman: You know there is more than one version of the precautionary principle. One precautionary principle is in the Endangered Species Act. Have you studied versions that you particularly liked?
Dr. LaPierre: That is why I couch my precautionary principle within the adaptive management strategy. An adaptive management strategy means you have a process that allows you to incorporate new knowledge as it is discovered.
You take the decision with the knowledge that you have today, but you ensure that the process is such that new knowledge will be incorporated. The best process through which to incorporate that is the independent, scientific peer review. In Canada, we have an exemplary system of scientific peer review. We are cited worldwide for the work we do.
The Chairman: Senator Gauthier, who, by the way, is responsible for piloting this bill with or without amendment through the house, had some questions he wanted to ask.
Senator Gauthier: Reverend Wilson, you talked about public consultation and did not feel the government is responding to the recommendations of the Seaborn panel? Could you elaborate on that? Could you suggest a better way to provide for public consultation in the bill? What is your current opinion on that?
Rev. Wilson: Public consultation should take place while there is a possibility of options, that is, before something has been set in stone. Otherwise, the public may make comments but cannot change anything. Therefore, the timing would be important.
In my experience, government seems to have the same pattern for consultations, which is putting an ad in the paper, or, in one case, posting it in the post office. Then it waits for people to turn up. The government would be well served by hiring people who professionally do public consultation in other areas of our country's work. They would bring quite a bit of expertise to the methodology of public consultations that would help to establish credibility.
The third thing is that the government responded using the terminology. However, when you read the fine print, the intent of the recommendation to be made is not there, although in a cursory reading it sounds all right because the terminology is there.
The main point would be to put on staff people whose vocation and whose work is doing this all the time and not follow the general rule that we send a thing out and see who turns up.
Senator Gauthier: In your remarks, you also mentioned a parliamentary overview. You used the term ``parliamentary considerations.'' Would this follow the public consultation process? You have been there. You were in Parliament. How can you reconcile scientific advice with parliamentary knowledge?
Rev. Wilson: This is a public issue. Dr. LaPierre has addressed some of the scientific issues, but it is above all a public issue because the public must accept it in order for it to go ahead. Parliamentarians, senators and MPs are in a unique position to monitor and oversee this. I would like to see a report made annually to perhaps a special joint committee or at least a Senate committee to monitor it. Then you have some idea of what is going on and can make it known publicly. It is to build trust.
Senator Gauthier: The minister will table an annual report, according to Bill C-27. That will be tabled in Parliament. Every three years the minister will table a more comprehensive report that will also be tabled in the House of Commons or in the Senate. Does that not meet with your approval?
Rev. Wilson: No, it does not. I have been in the Senate long enough to know that when a minister tables a report it goes through, usually. It needs to go through very good strong committee work, for example, that this committee does.
If you sat through the hearings, you know what the issues are, and you can ask the appropriate questions. That is the function of the Senate committee, to review it.
Senator Gauthier: I think I hear you clearly.
[Translation]
Senator Gauthier: I have a question for Mr. Seaborn. In its press release, the Sierra Club said that the government had not considered your recommendations.
I looked at your report as well as the government's response. I concluded that the government had accepted most of your recommendations save one or two concerning the establishment of the management council, but the rest seems pretty straightforward. Did you see the document featuring the recommendations from the Seabord Panel as well as the purposes of the Bill? Recommendation 3.3 is the only one that was not fully accepted by the government. What are your thoughts?
[English]
Mr. Seaborn: The government response to our report, which came out a few months afterwards, was couched in fairly general terms. Indeed we were given some encouragement that so many of our recommendations had been accepted or accepted in principle.
However, as I said, when people asked me what I thought about the government response, I said, ``It is fine as far as it goes. The general principles are good. There are one or two that I regret did not come closer to our report's recommendations.'' The important question was ``how would this get itself translated into legislation?'' What would be the legislated requirements, and how well would they meet the recommendations of the report?
That is why, in speaking to the committee today, I tried to point out a number of things that, regardless of what had been said in the government's initial response, seemed to fall considerably short of what we had recommended and in several quite important areas.
The government response was not bad, but the legislation is a good bit short of what we had hoped for.
[Translation]
Senator Gauthier: I asked the question to Mr. Dhaliwal, the minister of Natural Resources, concerning the possibility of a conflict of interest between your recommendation on the creation of an independent body in the nuclear industry and of Atomic Energy of Canada Limited. His response was as follows:
The role of the government is to properly and efficiently supervise the industry, not to control it.
This was in response to a project I had brought forward to sell a CANDU to another country. This CANDU pollutes, and in accordance with the principle that polluters must be the payers, Atomic Energy of Canada Limited offered: ``We take full responsibility for the waste your plant will produce.''
But the bill does not address the issue of importing nuclear waste. What is your opinion on the subject?
[English]
Mr. Seaborn: I certainly appreciate the importance of stating that the nuclear industry must be responsible for the waste that it has produced, and that they must have an ongoing and full responsibility to manage it in the long term and in a safe fashion. However, my fear is that the organization being proposed in Bill C-27 will not engender the kind of public confidence, for reasons that Reverend Wilson and others have mentioned, that will make for an acceptable decision. It looks too much like an offshoot of the nuclear industry. It will, of course, be controlled by the Nuclear Safety Commission. All nuclear activities are, and that is a body of great importance. However, in order to give more openness and transparency to the work of this very important organization, changes could very usefully be made that might create more public confidence than a private corporation formed by the nuclear industry.
The Chairman: While you are on the subject, in Alberta, my home province, we have an organization called the Petroleum and Natural Gas Conservation Board that was set up for much the same reasons that we are now setting up this organization. The board in Alberta was set up half a century ago because of the manufacture of natural gas, benzene and sulphur. Its set-up is similar to this in that the cost of running it is assessed against the oil companies. However, the organization is entirely separate and seems to answer to the public — at least, it holds public hearings and so on — although it is financed solely by the industry. It seems to be able to maintain an independent point of view in spite of the fact that its members are appointed by the government rather than the oil and gas industry, but is paid for by that industry.
Mr. Seaborn: I am not familiar with the details of that organization in Alberta. Did I correctly understand you to say that it is funded by the oil and gas industry but its members are named by the Alberta government?
The Chairman: That is correct.
Mr. Seaborn: We are saying that this entity would be more acceptable if the federal government appointed the board of directors and the advisory council.
The Chairman: You do not like the idea of having representation from the nuclear industry?
Mr. Seaborn: On the contrary, there must certainly be representation.
The Chairman: But not in any control position?
Mr. Seaborn: There should be important people from that industry, because they are very knowledgeable, but other interests must be represented as well. With the failure to say anything about the composition of the board of directors of this organization, I would be somewhat sceptical that it would get the wide representation that we have strongly recommended.
The Chairman: In Alberta, they are not concerned that there is no one from the oil industry on the board. There is a combination of people with technical expertise in the industry and socially aware people. It is to the advantage of the industry to have the public on their side. They do not want it to appear that they are in any way controlling the findings.
Mr. Seaborn: Precisely so. The industry would have an easier time of it if there were certain changes made in the method of appointing people to these bodies and also in ensuring a broader cross-section of the wider public.
Rev. Wilson: We had hoped that the legislation would name those other sectors, rather than merely hope it will happen. This is, above all, a public issue.
The Chairman: Reverend Wilson mentioned that she was worried about the emphasis on underground or geological storage.
Rev. Wilson: That is not correct. I am not worried about it; I am worried that that may already be decided as the preferred option.
The Chairman: I see.
Is your attitude affected by the fact that the U.S. is disposing of waste in Yucca Mountain? I would like to ask you and Dr. LaPierre if you have more comfort with an underground disposal system now that you know the Americans are using such as system.
Dr. LaPierre: I will reiterate that the committee agreed that on balance the option presented for underground storage by AECL was technically feasible. However, as I indicated, we did have some concerns about the assumptions. The assumptions are based on the best science we have, however we needed more information and we did not have it at the time. We hope to learn more as we progress.
My concern is that we ensure that the process that we put in place will require that we incorporate new knowledge as it becomes available. That is not always the case. Projects are set up and budgets are put forward over time. This is a huge, multi-year and multi-societal project that will carry on through various generations.
The United States is moving forward. They have similar problems. With regard to Yucca Mountain, they have adopted a precautionary principle adaptive management structure, as they indicated they would.
Rev. Wilson: I would like to express my support for Dr. LaPierre's recommendation that the advisory council be made into a peer review group so that, as new scientific knowledge comes along, it can be adapted. That does not appear in the legislation.
With regard to Yucca Mountain, when we were on the panel we heard that there is a great international consensus for underground disposal and so on. My concern is the consensus among the public, who have never been consulted. Is there a great consensus among them, or is it only among the scientific community? Time will tell how people will receive that if they have not been consulted.
Senator Keon: Mr. Chairman, I wish to return to the fundamental organization. I have received correspondence on this bill that expresses enormous unhappiness with the organization. I am at a loss to understand why the government would not have set in place the organization that was recommended by the Seaborn panel. The correspondence I have received reflects the trite old saying about the fox guarding the chicken coop, and it comes independently from several sources.
Dr. LaPierre referred to peer review to ensure that the advisory panel would be state-of-the-art on an ongoing basis. Apart from being driven by cost containment or whether this was an oversight on the part of the drafters, I find it difficult to understand how this happened. However, I do think that it has become almost a showstopper and that people are very unhappy with this.
I would like to hear you expand on why you think the government came out with this fundamental ORG chart that does not seem to work or make sense.
Mr. Seaborn: Chairman, I can understand the government's desire to load a good bit of responsibility on to the nuclear industry — not only with respect to financing the operation, which must be carried out, but also to say, in effect, ``You created this stuff; you are the potential polluter; you have the responsibility of looking after it over the long term.'' That is probably what led to the decision to come up with this particular model.
As I have also said, I have concerns that a model of that kind emanating from the nuclear industry is much less likely to generate public support and trust than one created in the manner you have in mind, a Crown corporation or one of the variants of the Crown corporation that I think are being used in government now.
I hesitated to say, ``Scrap the whole thing and start all over again,'' although that would be very nice. I contented myself with saying, ``If you are determined to go ahead with this particular private corporation model, then at least bring about a number of amendments that will: give it greater public accountability, enhance the requirement for public consultation, and add to the oversight mechanisms, which may help to give greater confidence to a rather sceptical public.''
Rev. Wilson: I have no idea why the government did this. My fear is that by doing this, the government is setting up in Canada the possibility then of civil disobedience in the future.
People feel very deeply about this. The media have not touched it yet. They probably will not until a site is chosen. However, once the siting comes in, I wish the government luck with the present stock.
Senator Sibbeston: Mr. Chairman, I do believe the current thinking about geologic disposal is based on the idea of permanent storage, the notion that one can put the waste deep in the ground and somehow lock it up and keep it there.
However, I believe there has been some thought about the idea of retrieval in the future of the waste so that, as technology is developed, these wastes could be retrieved and disposed of in some better way. Is that an issue with which you dealt in all of this?
Mr. Seaborn: We certainly heard this from a number of people who participated in our hearings, that it might be a prudent thing to have an element of retrievability in case one wished to make use of the buried waste at a later stage, or if one found a better method of looking after the waste.
We have some comment in our report in that regard. However, it is because of that thought that we stressed the importance of looking at more than one option, other than deep rock disposal, more or less in perpetuity. We said that you must bring forward at least two alternatives — we named several — and then compare the costs, benefits and disadvantages of those alternatives before you come to a firm decision.
Dr. LaPierre: We did spend some time on three options. The first option was on-site storage, which, according to the information we had, we could ensure storage on-site safely for 100 years. Second, we looked at intermediate storage. Third, we looked at deep geological storage.
Regardless of which method one uses, at some time there will be a need for a more permanent type of storage. However, there was always the argument that 50 years ago we did not know too much about nuclear energy. Fifty years from now, what knowledge will we have?
We do know, with the way the CANDU reactors are built, that there is still a significant amount of energy left in the waste fuel. We wrestled with that. However, our mandate was to assess the deep geological component proposal and we focused on that one.
Senator Sibbeston: The Seaborn Panel concluded that geological disposal methods might be feasible from a technical point of view but is not socially proven or acceptable.
My understanding is that the conclusions of these and other commentators is that progress on this issue can only be achieved when people in the local affected area have honestly and effectively been consulted and have a genuine feeling of safety, and that they have had an opportunity to be involved in the decision-making.
You have alluded to your concerns about this aspect. Obviously, you would know because you have heard people and gone through the hearing process about this.
How significant is this matter of public consultation and also the fear for the safety of the waste materials being dealt with properly?
Mr. Seaborn: I will start, and I suspect my colleagues may respond as well.
It is extremely important that, through a variety of means — Reverend Wilson has mentioned some of them — you make the determined effort to get public understanding, in the first place, of what the options are before them, and then a method of listening to what the public has to say about those. Thus, you will act in a fashion that takes into account the public concerns, which are real.
This is acutely the case if you are moving towards the choice of a site and a community. There we felt most strongly that there must be a very open and honest process of public consultation. In that way, people will understand what is being proposed and will have an ongoing opportunity to influence how that facility, if it is actually established, should be monitored and run. They will not have constant fear. They will have some opportunity to understand it themselves.
This consultation and participation of the local communities is particularly important at a certain stage down the road.
Rev. Wilson: I underline, and you will find this in our report, that we concluded that from a technical point of view, on balance — which is a caveat — for the conceptual stage — that is another caveat — that the concept was safe from a technical point of view, but from a social point of view, it was not.
Every time I read a description from the government, it had dropped the part that from a social point of view it is not safe. They went on to say it is technically probably okay, but it is not acceptable. We also said that from a social point of view, many felt it was not safe, because how people make their judgments of safety are often not on a technical basis. Whether you like it or not, they have history and previous experience and things that have happened elsewhere. That has to be considered, and it has not been yet.
In terms of the interest here, as I have said, I do not think there will be great interest until some economic regions are identified and someone realizes, ``Hey, they will bring it here.''
We spent a lot of time talking about the right of a community to be fully informed and to make a decision, but we stumble over ``what is a community.'' Is it only a municipality? What about neighbouring communities? They do not want it. Will they bring their pressure to bear? The Aboriginal peoples do not go along with our idea of community as being a municipality because they overlap. There is a great deal of ambiguity in how that will happen when the siting comes and how the consultation will be carried out.
I am convinced there has to be as much or more energy put into that question as there is to the peer review of the scientific side or it will simply bomb.
The Chairman: Before I let you go, I have one quick question, although perhaps not a fair one. As you recall, you were many years preparing your report. In here, it says you expect the WMO to make a report within three years. Is that enough or too much or just right?
Dr. LaPierre: I was surprised with that recommendation. If the WMO stands as it is, I do not think they will ever achieve it in three years. There needs to be a different structure to ensure doing it. If you build transparency in — and transparency has various components — you may be able to do it.
Rev. Wilson: This is why I stressed the role of Parliament and the Senate in following this issue. It will not go away. It will be with us for a long, long time.
The Chairman: It sounds like the Senate, all right.
Rev. Wilson: It will not be settled in three years, I am confident of that. We had hoped that the year before the bill came out that the Aboriginal community would self-design a process of consultation. That did not happen. I do not see any possibility of it happening in three years. However, you need to be on to it 10 years from now.
Senator Mahovlich: Can you tell me what country in this world is the most transparent to its public with its waste?
Rev. Wilson: Do you mean what they are doing with it?
Senator Mahovlich: Yes. Is it Russia?
Rev. Wilson: Russia just dumps it into the North Sea.
Dr. LaPierre: Sweden. From the information we did receive and the structure that is in place, I would say the Swedes. They have a process in place. They have intermediate storage. They have also addressed the issue of phasing out. I do not know where it is going.
One of the points that became clear as we went along and heard people is that people do not quite understand radioactivity, but they are scared of it. Second, they accept that they have a responsibility to take care of waste from which they did benefit, and I think that is an acceptable.
However, when you move forward from there, then it is a different issue. I echo the comments that both Senator Wilson and Mr. Seaborn have made, in that we need to have a transparent structure. If you do not have one, I think you will have a problem.
Senator Mahovlich: Sweden is a good example, is it?
Dr. LaPierre: Yes, it is a good example.
The Chairman: Thank you very much, panel. We will take into consideration what you have said. We have a few more witnesses hear, and then you will have to read the Debates of the Senate to see how it plays out.
Our next panel is Charles Fox, Regional Chief of the Assembly of First Nations, as well as David Martin, Nuclear Policy Adviser to the Sierra Club. Your statements are probably entirely unrelated, so I will ask each of you to proceed and then we will ask questions once you are both finished.
Mr. Charles Fox, Regional Chief, Assembly of First Nations: Mr. Chairman, I would also like to introduce Lawrence Ignace, a policy adviser on environment from Assembly of First Nations.
Thank you for the opportunity to speak. I want to acknowledge our creator for giving us the opportunity to share this moment together at this time and acknowledge the presence of the spirits of our ancestors who have departed before us. I would like to acknowledge the traditional lands of the Algonquins that we are on today. I am regional chief of Ontario.
I have a written presentation, but I will only read parts of it.
The Assembly of First Nations, AFN, is a non-profit organization dedicated to promoting the interests of First Nations in Canada. Through the chiefs-in-assembly, the AFN represents more than 633 First Nations across the country, as well as citizens living in urban and rural areas.
First Nations are deeply concerned about the state of the environment. Many First Nations communities are either in close proximity of a nuclear power plant or research centre or hold traditional territory in areas that may be considered for long-term storage of nuclear fuel waste.
Many First Nations representatives participated in the Seaborn panel. I had the privilege of making a presentation to them as well. These representatives expressed concern that: They had not had the opportunity to study the proposals; the proposals do not incorporate traditional technological, ecological knowledge, and the proposals strongly conflict with deeply held beliefs. Finally, they expressed doubt that they would derive any significant benefit from agreeing to accept a nuclear fuel waste facility in their territory.
The AFN previously presented on this topic to the Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources in November 2001. We are grateful for that opportunity and for the considerations made at that time in regard to our requested amendments.
However, First Nations are seeking a government-to-government relationship with Canada. This is true of all our dealings, and no less so when it comes to nuclear fuel waste disposal and the environment.
These concerns have not abated with time. First Nations do not support the production of energy through the use of nuclear sources. Alternative forms of energy production must be pursued. First Nations do not support importing nuclear fuel waste from other countries for disposal in Canada. The comments that follow must be considered in light of our obligation.
Clause 3 of the bill stipulates that the purpose of the bill is to facilitate decision making with respect to nuclear fuel waste that is based on a comprehensive, integrated and economically sound approach. The phrase ``comprehensive, integrated and economically sound'' can be interpreted in many ways. It is sufficiently broad and general to mean all things to everyone, depending on the perspective one brings to the issue.
First Nations, for example, might argue that ``comprehensive and integrated'' means that impacts on societies, cultures and human health and the potential for disruption of animal habitat be considered, and the approach recommended will be holistic, environmentally sound and sustainable. Others may take a more limited approach.
It is the opinion of the Assembly of First Nations that sustainability, environmental protection, and recognition of Aboriginal and treaty rights must be the primary concerns when decisions are made about management of nuclear fuel waste. These concerns should inform the waste management organization as it develops its proposals.
In the 2001 Speech from the Throne, the Governor General stated that:
Canada is blessed by the beauty of its vast landscape and the wealth of its natural resources. But with this blessing comes the responsibility to ensure its preservation. A healthy environment is an essential part of a sustainable economy and our quality of life.
Furthermore, the Constitution Act, 1982, recognizes and affirms existing Aboriginal and treaty rights of the Aboriginal peoples of Canada. The federal government has committed to environmental protection, sustainable development, and recognition of Aboriginal and treaty rights. A clear statement to this effect in the bill would underscore these commitments.
We recommend that this clause 3 of this bill be amended as follows:
The purpose of this Act is to provide a framework to enable the Governor in Council to make, from the proposals of the Waste Management Organization, a decision on the management of nuclear fuel waste that is based on the principles of sustainable development and is a comprehensive, integrated, and environmentally and economically sound approach for Canada, and which respects Aboriginal and treaty rights guaranteed under section 35 of the Constitution Act, 1982.
Clause 6 of the bill stipulates that the nuclear energy corporations of Canada shall establish a waste management organization. The waste management organization is not an agent of Her Majesty in Right of Canada. While the federal government maintains responsibility for making the decision, it is effectively relying on the nuclear energy industry to advise it of its options and implement the decisions.
The provisions of clause 14 are wholly inadequate to ensure the interests of First Nations are protected. There is grave concern where a seemingly independent but effectively self-interested body is charged with the proposal, implementation and management of some of the most lethal man-made materials on earth. The federal government, by proceeding in this manner, is abdicating its responsibility for protecting the public good, as well as compromising its fiduciary responsibility to First Nations. The Assembly of First Nations condemns this approach in the strongest language.
The Assembly of First Nations recommends the creation of a public agency as an agent of the Crown to propose and implement the decision of the Governor in Council, leaving the funding arrangements of the bill intact. This would provide for greater accountability, transparency and greater comfort to the First Nations that their interests and those of all people of Canada are protected.
The interpretation of the phrase ``economic region'' used in subclauses 8(2)(c), 12(3) and 12(4) raises some concerns. These economic regions may or may not coincide with the traditional territories of First Nations. Traditional territories are loosely defined by First Nations as the area in which the First Nation pursued its primary economic activity. First Nations have the right to pursue traditional activities, including hunting, fishing, trapping and gathering in their traditional territories, which go beyond reserve boundaries, in accordance with Aboriginal or treaty rights, which are constitutionally protected under section 35 of the Constitution Act, 1982.
In order to ensure that these constitutionally protected rights will be respected, we request the amendment of sub- clauses in 12 as follows:
(3) The study must include a detailed technical description of each proposed approach and must specify an economic region and traditional territory for its implementation.
(4) Each proposed approach must include a comparison of the benefits, risks and costs of that approach with those of the other approaches, taking into account the economic region and traditional territories in which that approach would be implemented, as well as ethical, social and economic considerations associated with that approach.
In clause 8, sub-clause (2) stipulates that the waste management organization shall create an advisory council. The governing body of the waste management organization shall make all reasonable efforts to ensure that membership on the advisory council includes representatives who reflect expertise in traditional Aboriginal knowledge, and include nominated Aboriginal organizations that are affected because their economic region is specified for the approach that the Governor in Council selects under clause 15 or approved under subclause 20(5).
The Assembly of First Nations has a number of concerns regarding this approach. First, the proposals put forward by the waste management organization have the potential to significantly impact subsistence economies and First Nations' way of life, as well as impacts on human health and disruption of animal habitat. As such, First Nations expect to be represented on the advisory council. To ensure this occurs we would request a more definitive statement that First Nations and nominated Aboriginal organizations shall be involved on the advisory council.
In addition to representation on the council, affected First Nations must be fully informed and have the capacity to effectively participate. The AFN recommends that the federal government resource the participation of First Nations, including the opportunity for First Nations governments and organizations to undertake research and to meet in advance of advisory council meetings to confer amongst themselves on these issues.
Second, the present wording of subclause 8(2)(c) creates a dilemma respecting First Nations participation in the preliminary work of the advisory council. As noted, the advisory council is to be established in advance of the study referred to in clause 12(1), yet First Nations to be included on the advisory council are to be selected on the basis of whether the approach selected or approved will affect their economic region. This arrangement would have the effect of excluding First Nations from the review of the approaches and recommendation of the waste management organization, allowing their participation only once the approach is determined. Furthermore, this situation is not remedied by clause 14, which simply provides the possibility of consultations with the general public by the minister. This is no guarantee that First Nations will in fact be consulted. This is unacceptable.
Our third concern is the reference within the bill to ``expertise in Aboriginal traditional knowledge.'' First Nations across this country are as diverse as the land itself. It would seem impossible that the WMO could easily determine who would be an expert in Aboriginal knowledge for that economic region. ``Expertise'' might also imply some form of higher education. First Nations, however, are drawing on a deep-rooted understanding of the land and environmental values that have been passed down over centuries. Elders who are keepers of this great understanding are not generally referred to as experts, so it is important to allow First Nations to determine who will be the expert for that economic region.
Further, we must recognize that the federal government has made many commitments, both internationally and domestically, to acknowledge the importance of Aboriginal traditional knowledge in sustainable development. Agenda 21, the Rio Declaration and the Convention on Biological Diversity, recognize the vital role of indigenous peoples in environmental management and development because of their knowledge and traditional practices. The AFN recommends that the affected First Nation or First Nations should be the ones to decide who is the underlined expert.
Finally, there is the issue of economic regions. To address all of these concerns, we recommend that subclause 8(2) be amended and an additional sub-clause be added as follows:
(2) The members of the Advisory Council shall be appointed by the governing body of the waste management organization. The governing body shall ensure that the Advisory Council's membership
(a) reflects a broad range of scientific and technical disciplines, including Aboriginal traditional knowledge, related to the management of nuclear fuel waste;
(4) The federal government will provide resources to Aboriginal governments and organizations to facilitate their informed participation on the Advisory Council, including support for research and discussions.
With respect to significant socio-economic effects, sub-clause 12(6)(c) refers to avoiding or minimizing ``significant socio-economic effects on a community's way of life, or on its social, cultural or economic aspirations.'' No definition of ``significant socio-economic effects'' is included in the legislation.
The AFN has been advised that the Department of Natural Resources plans to rely upon the guidelines and principles for social impact assessment prepared by the Interorganizational Committee on Guidelines and Principles for Social Impact Assessment, an American institution, and the guidelines employed by the Canadian Environmental Assessment Agency to define ``significant socio-economic effects.''
Further, our submission includes an annex from the recent report on the conference of the Parties To The Convention On Biological Diversity. This group is part of the United Nations Environment Programme, and they just wrapped up their sixth meeting in The Hague on April 19. The annex we are attaching is a decision endorsed by the signatories, including Canada.
The recommendation is aimed at facilitating First Nations involvement in environmental assessments where proposed developments affect traditional territories. Territories include lands, waters and sacred sites. This recommendation states that ``impact assessments'' must take into account social and cultural concerns as well as environmental ones. The annex has been included to show that another option may be available for tying together the environmental socio-economic aspects in order to deepen and broaden the overall understanding and analysis.
However, it is uncertain how the waste management organization will interpret ``significant socio-economic effects.'' Considering that the organization is composed of bodies with a vested interest in limiting the liabilities of the waste management organization, it is conceivable they would strive to define this term narrowly.
A narrow or inappropriate interpretation could have negative impacts on Aboriginal and treaty rights. First Nations desire to be involved in defining ``significant socio-economic effects'' so that it includes consideration of potential impacts on their rights. This state of affairs makes it even more imperative that First Nations participate on the advisory council from the start.
The Assembly of First Nations recommends the inclusion of a definition of ``significant socio-economic effects'' in clause 2 of the bill as follows:
``Significant socio-economic effects'' includes impacts on the historical use of the land including Aboriginal and treaty rights guaranteed under section 35 of the Constitution Act, 1982.
The Assembly of First Nations encourages the federal government to heed its responsibility to generations to come in developing its nuclear policy. We encourage the federal government to take full responsibility for nuclear fuel waste by establishing the waste management organization as a public agency. Whatever decisions are taken on these matters, First Nations are committed to working with the federal government on this important issue. First Nations will be in the best position to do so if our interests are addressed in the legislation, and if we have the opportunity to participate in the decision-making process.
The Assembly of First Nations would like to thank the Standing Senate Committee on Energy, Environment and Natural Resources for its consideration of these issues.
The Chairman: We will now hear from David Martin and then we will turn the floor over to questions.
Mr. David Martin, Nuclear Policy Advisor, Sierra Club of Canada: Mr. Chairman, and honourable senators, I am appearing here on behalf of the Sierra Club of Canada. In the past, we have provided detailed critiques of this legislation. We have, in fact, submitted more than 30 specific proposed amendments to Bill C-27. I will focus, though, on two fundamental issues.
The main problem is the lack of independence of the proposed waste management organization. As you know, honourable senators, the bill proposes under clause 6 that the waste management organization will comprise only representatives of the nuclear industry — those same people who are responsible for the production of this deadly and long-lived radioactive waste.
Not only does this decision deprive the organization of any credibility, it is an outright conflict of interest. The nuclear industry predilection for deep geological disposal is well known, so it becomes a virtual certainty that this option will be favoured over the other two that are identified in sub-clauses 12 (b) and (c) — namely, ``storage at reactor sites'' and ``centralized storage either above or below ground.''
The Sierra Club of Canada challenges the myth promulgated by the nuclear industry and its ally, Natural Resources Canada, that there is an ``international consensus'' on the acceptability of the geological disposal concept. There may be a consensus within the nuclear industry, but there is certainly no consensus in society as a whole, or, I might add, amongst the scientific community.
The bill also proposes in clause 8(2) that the advisory council will be appointed by the waste management organization. This virtually ensures that even the advisory body will only reflect the nuclear industry viewpoint.
I would like to clarify one point, especially as this is one of the few areas in which we may be in disagreement with Mr. Seaborn. We do not think there is any place for the nuclear industry on the board of the waste management organization. While, perhaps 30 years ago, there were industry representatives on the board of the Atomic Energy Control Board that is no longer the case. That would not even be considered. It would be scandalous.
It is scandalous that it is being proposed that the industry should have any place in the decision-making body of this organization. The proper place for them, I would suggest, is on the advisory council. I have no problem with them offering advice. We certainly have problems with conflicted people making decisions.
In order to ensure independence and objectivity in deliberations about the long-term management of high-level radioactive waste several changes must be made in the bill.
First, the designated minister under clause 2 should be the Minister of the Environment, rather than the Minister of Natural Resources, who is in a clear conflict of interest because he is also responsible for Atomic Energy of Canada Limited, AECL, which is a ``nuclear energy corporation'' as defined in that same preamble under the act. AECL's central position as a producer of nuclear fuel waste, a promoter of nuclear power and an advocate of deep geological disposal is a matter of public record.
Second, the waste management organization should be truly independent, with its members appointed by the Minister of the Environment in order to reflect a broad range of interests, concerns and expertise. This reflects the recommendations of the Seaborn panel in their February 1998 report.
Third, the advisory council should also be appointed by the Minister of the Environment in order to reflect a broad range of interests.
If the Senate fails to adopt these recommendations, it will be setting the stage for an unprecedented environmental confrontation. The nuclear industry's attempt to force some community — as yet unknown — in the Canadian Shield to accept a nuclear waste dump will be the environmental battle of the new millennium. It is a battle that I have no doubt about the nuclear industry losing, but only at the cost of a great social conflict. A truly wise government would, instead, strive for consensus rather than confrontation, and for objectivity rather than prejudgment.
I would also like to address the concern that this bill will permit foreign radioactive waste to be imported into Canada. It has long been an understood if unwritten rule that Canada would not allow the import of radioactive waste even from the spent fuel waste of CANDU reactors sold abroad. The Senate must close this frightening door that could allow us to become an international nuclear waste dump.
This problem can easily be remedied by simply inserting the word ``domestic'' into the definition of ``nuclear fuel waste'' in clause 2 of the bill. We propose the amendment to this section to read ``nuclear fuel waste means irradiated fuel bundles removed from a domestic, commercial or research nuclear fission reactor.''
While I have focused on several particular aspects of the nuclear fuel waste bill, I should like to stress that the Sierra Club has many specific concerns, which we previously presented to your colleagues in the House of Commons. I would like to adopt the submission made to you by the environmental organization Northwatch on April 21, 2002.
Our earlier recommendations were ignored. Therefore, we look to honourable senators for your proverbial sober second thought on all of these matters. Radioactive waste has been called ``thalidomide forever'' because it remains toxic for hundreds of thousands of years. It is a deadly legacy for the future and more is being produced every day. That is certainly a sobering consideration. I would suggest that it deserves more than thought — it deserves action.
I will be happy to answer any questions you may have.
The Chairman: Mr. Fox, you seem to recommend another Crown corporation, yet you do not trust the Crown corporations, Alberta Energy and AECL that you already have. Why would you want more of the same? Do you think that if one watches the other it will help?
Mr. Lawrence Ignace, Environmental Policy Advisor, Assembly of First Nations: Honourable senators, we do not want another Crown corporation. We are currently in negotiations and we assume that we will be seeing a WMO. However, if there is an opportunity for us to possibly change the minds at this table, then we will accept that decision as well. We are somewhat sitting on the fence at this point.
The Chairman: You do not recommend that the WMO be a Crown corporation necessarily, then.
Mr. Ignace: No, we do not.
The Chairman: Mr. Martin, is this organization very important to you?
Mr. Martin: I do not think we have any particular position on whether it should be a Crown corporation.
Senator Keon: I have read both of your briefs and you have so many objections to this proposed legislation. In particular, the number of amendments proposed by Mr. Martin — which are very thoughtful — would call for a redrafting of the bill, in my opinion. Is that the message you are trying to send?
Mr. Martin: There is no question that there are fundamental problems with this proposed legislation. The issue of independence of the waste management organization strikes to the heart of it. However, I would concur that we are looking at the need for a substantial redrafting.
Senator Keon: Mr. Fox, do you feel the same way? Do you feel the bill could be amended into an acceptable bill?
Mr. Fox: I have deep concerns about nuclear waste, period. I presented to the Seaborn Panel as Grand Chief of the Nishnawbe-Aski of Northern Ontario. We know that the geographic region of Northern Ontario is viewed favourably for storage.
I will quote one of our chiefs whose community is road accessible — not remote like mine is. He said to the Seaborn Panel, ``When the trucks leave with their fuel waste, I will leave with my trucks to meet them.'' That implied to me that he was looking to stop the transportation of the nuclear waste.
When I look at it from that perspective, I come here to make this presentation with mixed feelings and mixed emotions. On the one hand, I am totally dead set against nuclear waste. On the other hand, I am quite cognizant that we must deal with the issue. It exists and it will not go away.
In our presentation, we are saying: Respect our rights and understand where we are coming from. By the same token, we are willing to work with you to resolve the concerns and the impasses that we may have. Let us find some solutions. I believe we are making recommendations in an attempt to find those solutions. If we can rewrite the legislation to reflect that, then by all means we would advocate that. We want to take a results-oriented approach. How do we fix any problems we may have at the end of the day on legislation that is drafted.
Mr. Martin: If I could make an additional response, this proposed legislation is setting us on a path of conflict. This is not a fight that the people of Ontario have started, however, I am sure that the people of Ontario will finish this fight.
If the proposed legislation is not amended to make the waste management organization more broadly represented and to remove conflicted parties, then I think the path of conflict and confrontation will be set. I believe that the high- level radioactive waste management issue will be the Waterloo of the nuclear industry in this country.
The Chairman: As a farm boy and engineer from Alberta, I have spoken to many nuclear people. The thought that you had that geological disposal would be the chosen method is rapidly fading to the background. It will likely end up being disposed of in situ — at the plant — rather than initiate a new area for disposal. That is only my thought, and certainly, there is no need to worry about trainloads of nuclear waste going by your door tomorrow. I have the feeling that everyone is so hyper on this subject that you can only leave the waste where it already sits.
Senator Sibbeston: This is a difficult situation that we face. We have heard from environmentalists about their concerns. Now, we are hearing from Aboriginal people about their grave concerns over the way the bill is set up such that it is not independent. It seems to be somewhat of an incestuous relationship that would exist in the industry. It would be their own people that they would likely appoint to the advisory board.
Advisory boards are just that — they are advisory boards. In many cases, their advice is not heeded nor are their recommendations followed. They are an advisory board.
I understand your feelings. The challenge for us is to determine whether we could take some of your thoughts and suggestions and see whether we can strengthen the bill before it becomes law.
Mr. Fox, if there are no amendments made, do you foresee the day when particularly Northern Ontario is used as a waste disposal site? What minimum amendments would suffice for you to be satisfied and accept the day when there might be a disposal site in Northern Ontario, somewhere far away in the north?
Mr. Fox: The issue of safety and environmental soundness is uppermost in our minds. We need significant awareness and education in terms of what we are talking about with respect to nuclear fuel waste.
In terms of the contaminating effects of nuclear fuel waste, what we see is another Chernobyl. In order for us to find the management of storage of nuclear fuel waste acceptable, we would have to be very satisfied that it would be contained, for one thing.
On that note, if and when a decision is made that nuclear fuel waste would be stored within our territory we would have to have that informed consent. As First Nations people, we would have to agree to that, based on the knowledge and awareness that we would have received. Our decisions would have to be based on the knowledge and intelligence that would be imparted to us.
Another key element is proper consultation. In order for us to know exactly what we are dealing with, there would need to be consultation with the communities that would be affected by storage of nuclear fuel waste. When I talk about proper consultation, I am not talking about translation into English and French; I am talking about translation into probably four or five different dialects in Northern Ontario, and holding community meetings.
From our perspective, in order to satisfy what we see as case law, Sparrow and Delgamuukw to name a couple, ``adequate consultation'' means talking to a majority of individuals in our communities to make sure they understand what nuclear fuel waste management is all about and what its implications are before they would make that decision.
At this point in time, we do not have that. To come to that level of decision, this committee would have to examine how the Government of Canada and all the proponents of nuclear fuel waste and the institutions that represent the general public could reach that level so that we would be comfortable in making a decision. That is probably, at this point in time, the best type of approach or recommended solution that I could offer. In terms of proposed amendments to the existing legislation, I really cannot offer any right now.
Senator Sibbeston: Mr. Chairman, the legislation speaks of representatives of Aboriginal organizations. I find this wording to be archaic. Aboriginal people do not speak of themselves as organizations but more often as governments and First Nations governments. That is the new thinking across the country. We have legislation, such as the Marine Conservation Act, that refers to Aboriginal governments.
The Chairman: You do not think referring to section 35 of the Constitution Act, as Chief Fox has done, is good enough?
Senator Sibbeston: I am reading the way the legislation deals with the involvement of Aboriginal people. I think the drafters of the legislation are a little backward and not into modern times. Perhaps that reflects where they are in terms of their view of society: They fall short of the modern thinking in terms of the Aboriginal people.
The Chairman: Sometimes they miss that.
Chief Fox did say that it respects Aboriginal and treaty rights guaranteed under section 35. Is that simplistic enough, or do you wish to get into the non-derogation business?
Senator Sibbeston: The chairman is referring to instances where, in legislation that in any way touches on Aboriginal lands, there is often a non-derogation clause that generally provides that notwithstanding the provisions shall not derogate from the rights of Aboriginal peoples under section 35 of the Constitution. That is the typical non-derogation clause that is usually contained in legislation. I do not believe this bill has it.
The Chairman: I do not believe that it needs it. The Assembly of First Nations submission's recommendation on page 10 reads:
``Significant socio-economic effects'' includes impacts on the historical use of the land including Aboriginal and treaty rights guaranteed under section 35 of the Constitution Act, 1982.
That is fairly simple. As a matter of fact, Chief Fox, you could not have used a lawyer to prepare this, it is so plain and simple.
Senator Sibbeston: Mr. Chairman, Mr. Fox is saying that those rights should be recognized. This bill does not have a non-derogation clause.
Senator Hubley: Thank you for your presentation this evening.
What would your comfort level be with the bottom-line decision? Given your concerns for environmental safety and the need for public consultation and the best scientific evidence that we will have, who would you feel comfortable with making the final decision? Will it be the advisory body?
Mr. Fox: Are you referring to the site selection?
Senator Hubley: I would think so, yes.
Mr. Fox: For me, the bottom line would be the communities that would be affected. They would have to make that decision.
I believe that you can come up with scientific knowledge or scientific solutions — technological, traditional, and ecological — in terms of where the nuclear fuel waste should be deposited or stored. Ultimately, I believe that for the site itself, the community or communities that would be impacted would have to make that decision.
When we talk about treaty and Aboriginal rights, it is in the context of section 35 of the Constitution. I am glad that was raised. There is no reference to treaty or Aboriginal rights in the legislation. How does one deal with that? It is a challenge that is being proposed.
In terms of acknowledging that, it also goes with that question. If you do select a site within a treaty area, the question that we will have is: Does that community individually then wrestle with that issue or is it the treaty area where that nuclear fuel waste is being looked at to be deposited?
I come from Grand Council Treaty No. 9 that covers 210,000 square miles of Northern Ontario. If my community is approached and they go through this whole process, at the end of the day, will it be their decision? Will it be the 50 communities that comprise Treaty No. 9 numbering some 30,000 people who will make that decision? That is another one of the questions with which we must wrestle. When I look at the consultative and decision-making process, those are some of the challenging questions with which we must wrestle. We have not even started doing that.
In terms of making informed decisions, we are saying to the committee that there is still a significant amount of work that needs to be done. We must come up with a consultation process that is driven by ourselves and with which we are comfortable to be able to make an informed comfortable decision at the end of the day.
Mr. Martin: Treaty areas are obviously a special case but, generally speaking, these decisions will require the broadest possible social consensus. There will need to be local, regional, provincial and federal consensus in order to make this happen, I believe. To achieve that consensus, the organization at the helm must have enormous credibility.
This waste management organization, as proposed, has zero credibility. This is mission impossible as set out in this legislation, I would suggest.
Senator Sibbeston: Mr. Martin, you mentioned that a nuclear waste dump would be the ``environmental battle of the millennium.'' I am interested to know what you mean by that as I am not familiar with the Sierra Club and its broad membership and with its potential to exert public pressure.
Mr. Martin: The scientific issue is the question of the validity of the deep geological disposal concept. As honourable senators have heard several times tonight, the Seaborn panel suggested that, on balance, the proposal by Atomic Energy of Canada Limited was technically feasible. I would suggest to honourable senators that that is far from the ringing endorsement that the nuclear industry has suggested and pretended that it is.
For the record, the Sierra Club of Canada opposes the deep geological disposal concept and favours an above- ground management technique that can be monitored. I would note that the Seaborn panel found 95 deficiencies in the technical proposal by AECL. This is not something that just environmentalists perceive; this is a broad perception.
Given that background, I would suggest that the lack of scientific and social consensus around this proposal, this will inevitably become a deeply conflicted proposal should the industry decide to proceed with it.
I did not have a chance to comment on the chairman's suggestion that the industry is moving towards on-site disposal. I do not believe that that is true. Some of the confusion over that may be due to the fact that the nuclear industry is supporting dry storage — these concrete canisters for temporary storage of radioactive waste of spent fuel.
There are federal environmental assessment processes under way right now for the Darlington nuclear station dry storage proposal and at the Pickering station as well. We have just completed an environmental assessment process for dry storage at the Bruce site. There is already dry storage at the Point Lepreau station, and more is being considered.
I have been privy to those proceedings and have seen the documentation. In all cases, they anticipate that fuel will be moved from those on-site storage containers to some centralized disposal site.
The industry is very clear on this. This is not a matter for debate. They anticipate that some centralized site will become operational in the future. They are counting on it and are spending millions of dollars in the infrastructure right now on that assumption.
The Chairman: Thank you very much for coming out. You have emphasized some of the points that have been concerning us.
The committee adjourned.