Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 32 - Evidence
OTTAWA, Thursday, June 6, 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 9:05 a.m. to give clause-by-clause consideration to the bill.
Senator Nicholas W. Taylor (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, is it agreed that the committee move to clause-by-clause consideration of Bill C-27?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 1 stand postponed?
Hon. Senators: Agreed.
The Chairman: Carried.
There is an amendment to clause 2, which has been circulated to committee members.
Senator Spivak: Mr. Chairman, I move:
That Bill C-27 be amended in clause 2, on page 2, by replacing line 9 with the following:
```nuclear fuel waste' means domestically irradiated fuel.''.
The amendment adds one word.
The Chairman: The clause was wide open before with respect to handling imported waste. This amendment is intended to make the clause more focused.
It is your pleasure, honourable senators, to adopt the motion?
Senator Gauthier: Mr. Chairman, I cannot support the amendment. This is a domestic bill; it deals with Canadian nuclear waste. It does not deal with any foreign waste, import or export. This is basically something that happens in Canada. We will have to define what ``domestic'' means. To me, it means in-house, and I do not see that this requires to be specified.
I asked the minister about selling CANDU reactors and the fact that there is some waste. I asked about the conditions of the sale. The minister answered specifically that we did not deal with any import or export. He clarified the point at that time that this bill does not deal with any foreign waste. It is a matter of not crossing the bridge before we get to it, or not jumping off it before we get to it.
I do not see that ``domestic'' will add anything to clarify the bill. It will make it fuzzier. I do not think we should entertain such a motion.
The Chairman: The honourable senator did not attend all the committee meetings. One of the issues raised most often was that this bill left the consideration of importing foreign waste down the road to the minister and the government. In fact, the minister did anything but make us feel secure by saying, as you just did, Senator Gauthier, that the thing was rather open.
We are crossing a bridge before we come to it. We are trying to ensure that the thing does not occur until it comes to Parliament.
Senator Day: When the word ``domestic'' is added, does that mean domestic from the point of view that the waste is found in Canada or produced in Canada? If it were found in Canada by virtue of having been produced somewhere else and came across the border, does this bill then catch that? Are we creating problems without defining ``domestic''?
Senator Spivak: It is quite clear that ``domestic'' means produced in Canada.
Senator Day: Produced.
Senator Spivak: Sure. If it has been imported, it is imported no matter where it then is.
Senator Day: It is in Canada.
Senator Spivak: I would rather have the word in the bill than just leave the issue wide open, in which case, you could drive a truck through it.
Senator Day: In which case, Mr. Chairman, there would not be any ambiguity because the question of where the waste was produced would not arise unless we put the word ``domestic'' in the bill.
The Chairman: Yes, that is why ``domestic'' is in there. The clause refers to ``irradiated fuel bundles removed from a commercial or research nuclear fission reactor.''
Clause 6 reads, ``...purpose under this Act is to do the following on a non-profit basis...'' The minister argued that imported waste would not be done on a non-profit basis, but that did not answer our concern. One of the problems many people brought up was that if we sell a reactor to Burkina Faso, part of the deal would be that we take the waste back and process it ourselves. That would be non-profit, supposedly.
In effect, we thought that the clause is too wide open. The minister could always come back to Parliament. If they want to make a deal of importing waste later, they can always do that.
Senator Spivak: There needs to be a public debate.
The Chairman: Senator Gauthier, if you speak now, you close the discussion, although I know that you proposed the bill.
Senator Gauthier: I do not want to do that.
The Chairman: Does any other senator wish to speak?
Senator Gauthier, I know that you are the sponsor of the bill, and it is your duty to sponsor it as given to you, but you are only allowed to talk a couple of times.
Senator Gauthier: This is a question of government policy. Government policy did not address the import or export of nuclear waste. That was a decision made not by us, by the cabinet, the government. They have clearly stated that this bill is a Canadian nuclear waste bill, not an import-export bill. There are other laws for that and there is other legislation available to do that.
In adding the word ``domestic,'' we would be passing an amendment that would cause more problems than anything else. It would not add anything at this time that would move us beyond the policy advanced by the government. I recommend that we vote against this motion.
The Chairman: In our committee deliberations, we asked for these so-called laws or rules on foreign importation and there are none. This amendment would be the first one that even approaches it.
Is the committee ready for the question?
Hon. Senators: Agreed.
The Chairman: Shall the amendment carry? All in favour?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: All in favour? Are some committee members abstaining? All those in favour?
Senator Finnerty: For the amendment?
The Chairman: The amendment that adds the word ``domestic.'' You are not sure now.
Senator Finnerty: I would like to see it in the bill. It is not a change to the legislation. It is a safeguard.
The Chairman: All those against the amendment? Four.
All those in favour of the amendment? Three.
The amendment is defeated.
Senator Watt: You have to recount, Mr. Chairman.
The Chairman: We may have a bad vote here because both Senator Watt and Senator Adams are not allowed to vote and they both did vote. We had better call the vote again. Let us make sure. There are many substitutes here today.
The membership now includes Senator Day — I am sorry — Senators Adams, Carstairs, Finnerty, Gauthier, Phalen for Christensen, Sibbeston, Stollery for Kenny, Kelleher, Spivak and me. Senators Buchanan, Eyton, Cochrane and Lynch Staunton are not here.
Let us conduct the vote over again. Senators Watt and Adams cannot vote.
Senator Day: You read Senator Day and then said ``I am sorry.'' Am I no longer eligible?
The Chairman: Senator Finnerty has replaced you. You are not a member either. I think the whip sent you over out of panic. He seems to have sent everybody who has a Liberal membership.
All those in favour of the amendment? Three.
All those against?
Senator Spivak: Does the chairman vote?
The Chairman: Yes.
Let us do it again. I have never seen so many people who did not belong at a meeting.
Senator Spivak: If the chair votes, it is a tie.
The Chairman: All those in favour of the amendment? Four, with my vote.
Those against? Five. I hate to send you back to Senator Kenny's office after this if you sink his amendment. You will owe him one.
Senator Stollery: Someone should have given me some idea of what it was.
Senator Spivak: Chairman, I want to note that on a matter as important as this there are some people here who do not know how they should be voting. That is, I think, not in the public interest.
The Chairman: That is one of the faults of our committee system. We sometimes get pulled out of things and sent over and told to vote for the government or vote for the opposition.
Senator Spivak: I wish I would have known; I would have had all the Conservatives come out to vote.
The Chairman: Too late.
Here is your chance for those who are against. Shall clause 2 carry? In other words, if you vote against it, we can go back and do it again.
Senator Spivak: Vote against.
Senator Finnerty: They cannot do that.
Senator Spivak: Why not? We are now voting for the clause, and I will vote against it.
Senator Adams: You cannot do that.
Senator Spivak: Why not? If you can vote against the amendment, I can vote against the clause.
They have knocked down an amendment, Senator Buchanan. I think I can vote. I am a free agent here.
Where is Senator Cochrane when we need her?
Senator Day: I would like to vote, and I would like the record to show it.
Senator Spivak: You cannot.
The Chairman: Shall clause 2 carry? All those in favour of clause 2 as stands now in the bill?
Senator Gauthier, you would be in favour of that?
Clause 2, without amendment, just as it stands in the bill. Let us get this straight again. We have people putting their hands up and down. Five.
Those against? Three.
Clause 2 carries.
Shall clauses 3 to 5 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clauses 6 to 8 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clauses 9 to 14 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
I believe Senator Finnerty has an amendment to clause 15.
Senator Finnerty: Yes. I move:
That Bill C-27 be amended in clause 15, on page 8, by replacing line 41 with the following:
``recommendation of the Minister, may select''.
The Chairman: This amendment has been proposed to give the minister more freedom. I talked to the minister yesterday and he seemed to like it, but God knows what this substitute crowd will do.
Senator Finnerty: It is just a change of one little word.
The Chairman: It changes ``shall'' to ``may.'' Before, the old definition said that the minister was restricted to choices presented by the waste management organization or sending them back to the WMO for reconsideration. This ``may'' gives him an opening.
Senator Sibbeston: This amendment makes it so that the government may not act, may not make a selection, whereas in the present clause the word ``shall'' is an onus on the government to make a decision. This amendment would leave the government in a situation where it does not have to make a decision at all. In my view, there is a void, and I do not think it is good that the government is in a position where it does not have to make a decision. It can just sit on the decision forever. I am in favour of the clause as it is, where the government is forced to make a decision.
The Chairman: Are you in favour with the minister being restricted to what the WMO gives him? That is what it says clearly in the bill.
...shall select one of the approaches for the management of the nuclear fuel waste from among those set out in the study...
Remember, the WMO is run entirely by the generating companies. There is no government input at all. In effect, you are saying that the minister has to do what a removed party tells him to do.
Senator Sibbeston: In terms of the way the bill is structured, if the word is not ``shall,'' there is no onus at all on the government to make a decision and so the process breaks down. The legislation is based on certain things happening, such as establishing the WMO, having it come forward to the government, and the government then being forced to make a decision. If we insert the word ``may,'' the whole system breaks down because then there is no onus on the government to do anything.
The Chairman: That is not the way the minister or I looked at it. We thought that if there were another method of handling the waste, even cheaper or better, he would be able to do so. I think the public pressure would be such that he could hardly leave a pile of waste sit there.
Senator Gauthier: Here again we are dealing with a policy of the government. The WMO is charged with proposing solutions to the long-term disposal of nuclear waste. It is their responsibility to propose methods of disposal, but the government must be involved to make a final decision as to how they will dispose of nuclear waste. To put it any other way than ``shall'' would, in my view, weaken the whole bill and not allow the government to meet its responsibilities.
The word ``may'' would weaken section 15. ``Shall'' makes it mandatory and obligatory for the government to take its responsibilities. That is what the bill says, and I do not think that we would be doing anyone a good service by giving the government a way out. It has to decide something. It will be offered options and it will have to pick one.
I could give committee members a number of suggestions as to the ``whys'' and the ``hows'' of the issue. Why? Because the government has the responsibility for Canadian policy. This is a policy statement. The clause states that the minister ``shall'' select one of the approaches for the management of nuclear waste. I cannot see us changing a policy at this time unless members want to vote against the whole bill. I would strongly support the clause reading ``shall select.'' It should remain as is.
Senator Spivak: This is an Alice-through-the-looking-glass argument. In other words, by giving the government other options, the supporters of the government seem to be saying, ``Let us restrict the government.'' Frankly, I have confidence in the government. Therefore, I think the government should have as wide an option as possible.
Furthermore, look at France. France is researching transmutation. This legislation is hopefully not just for tomorrow; it is for a number of years. Perhaps transmutation is an option. Surely the public interest is served by giving the government as wide an option as possible, not by restricting them to options that are totally in the hands of the nuclear utilities. We are supposed to be here for the public interest, not for party interests. I would support giving the government more options.
Senator Stollery: I do not know anything about the substance, but I understand the parliamentary calendar pretty well. The parliamentary calendar is such that if the bill is amended at this point, then I would argue that it puts the bill at risk. It would have to go back to the House of Commons and then come back to the Senate. I would say that the House of Commons will adjourn shortly, and I think the session may end. Thus, amending the bill at this point puts the bill at risk if you to pass it in this session of Parliament.
Senator Spivak: May I just respond to that? In a court of law, the judges never consider inconvenience as an argument not to look at the case properly. If you are saying that something as important as an option for the disposal of nuclear waste should not be looked at because of the parliamentary calendar, I find that very hard to believe.
Further, bills often go back to the House of Commons and are returned to the Senate in a day. This amendment could be passed instantly in the other place.
It is important at this time that we disregard the calendar and look at the bill. I think we should have the bill, but I do not think it matters if we have it today or in September.
Senator Stollery: You did not hear the end of my observation. If there is a new session of Parliament in the fall, you will not have the bill in September.
Senator Spivak: It will be reintroduced. Look at the species-at-risk bill.
Senator Stollery: Circumstances change and people will have different ideas a year from now.
Senator Spivak: I cannot argue against that logic.
Senator Stollery: It is a very real consideration at this point.
The Chairman: Nuclear waste, by the way, has been around for 35 years. I do not think the government is trying to get the bill through in 30 days. It does not matter when the bill comes through.
Senator Sibbeston: Mr. Chairman, I think the word ``must'' is important to the process. There is a process established where the waste management organization is to be involved in coming forth with a recommendation or proposals to the government. The government has to deal with it.
If we change the word to ``may,'' then we need to provide another clause or select some other wording. The way the process is set out, the onus is on the government to make a decision according to the recommendation of the waste management organization. The whole system is based on someone making a decision.
If we take that responsibility away from the government and the word is ``may,'' then nothing may happen because of the way the bill is set up. If we were to change the word to ``may,'' we must say select some other arm of the government that is deemed appropriate.
The Chairman: There seem to be two lines of thought. One says that ``may'' does not restrict the government to just doing what the waste management organization recommends, which is controlled and owned by the power generators. ``May'' would allow the government room to ignore that and go on to some other solution that may catch the public's fancy at the time. The other line of thinking is that ``may'' allows the government to suck its thumb and do nothing.
Senator Spivak: That would be good.
The Chairman: In other words, they do not have to reach a decision.
Senator Gauthier: Here again, we are missing the boat if we accept this motion. The WMO is set up to propose, after serious study, methods of disposing of the nuclear waste. If the government were to tell the WMO to implement an option that was not proposed by the WMO, we would be in deep trouble.
The government is proposing in this bill that once the WMO has studied and examined the situation and recommended certain disposal methods, then the government shall take a decision. That is very direct. It is good that the government has the obligation to pick one option and say, ``This is the solution to the problem and this is what we want.'' That is government. That is policy. That is direction. I cannot see us adding a wishy-washy ``maybe'' to the clause. This must be the government's decision. It is a policy decision. It is not an option. They decide. It would be very wrong for us to adopt a change to the clause.
Senator Spivak: Senator Gauthier has spent a lot of time on this bill. Perhaps he can answer this question. Why would we be in deep trouble if the government did not select one of these options but chose another course of action?
Senator Gauthier: The answer is that the government would be in conflict of interest. It would be doing the work that the WMO is supposed to be doing.
Senator Spivak: The government would be in a conflict of interest?
Senator Gauthier: The government certainly would not offer a solution of its own if they gave that responsibility to the WMO. They will either choose A, B, C or D. They cannot come in with W, X or Y.
I can give you all kinds of examples as to why we want this to happen. How it will happen is a discretionary measure. All governments must take discretionary decisions. As far as I am concerned, they must choose. They cannot make another decision. They would be in conflict of interest at that time.
The Chairman: Senator Phalen, you have had some experience with the government handling waste and coal.
Senator Phalen: I do not have any experience with government handling waste, but I know the difference between ``shall'' and ``may.'' ``Shall'' means the government must do it, and ``may'' means that they do not have to do anything. If the discussion was the other way around and you were trying to replace ``may'' with ``shall,'' I could understand the argument. If you take ``shall'' out and put ``may'' in, the government would not have to act at all.
The Chairman: This is with regard to the recommendations of the waste management organization, which is privately owned, not government owned. If the bill says ``shall,'' the government must take from the privately owned waste management organization what they would recommend.
Senator Phalen: If the clause says ``may,'' they do not have to do that.
The Chairman: That is true. They could do nothing, or they could pick a different process.
Senator Spivak: It might be good for them to do nothing.
The Chairman: This debate should have taken place way back in our deliberations. It might have resulted in a better amendment that would have forced the government to do something and, at the same time, freed their hands to take other solutions.
Senator Buchanan: I have listened to all of the opinions that have been expressed here today, as well as the various options. Being one who always carefully listens to all members of this committee, even though, for the most part, I do come down in agreement with Senator Spivak, this time I do not think I do. I believe that the options open to us are the same as the government's options. Our option is to ensure that the government does the right thing. I am one who always believes that government should do the right thing. Therefore, we should put the gun to them and say the mandatory ``shall'' is the word that should be used. Therefore, I will not vote for the amendment.
The Chairman: Is there any further discussion?
Shall the amendment carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chairman: The motion in amendment is defeated.
Shall clause 15 carry as it stands?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clauses 16 to 23 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clauses 24 to 31 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 32 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall clause 1 carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Carried.
Is it agreed that this bill be adopted?
Hon. Senators: Agreed.
The Chairman: Carried.
Is it agreed that I report this bill to the Senate?
Hon. Senators: Agreed.
Senator Adams: Without amendment.
The Chairman: Carried.
The committee continued in camera.