AANR Committee Meeting

STANDING COMMITTEE ON ABORIGINAL AFFAIRS, NORTHERN DEVELOPMENT AND NATURAL RESOURCES

COMITÉ PERMANENT DES AFFAIRES AUTOCHTONES, DU DÉVELOPPEMENT DU GRAND NORD ET DES RESSOURCES NATURELLES

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, November 6, 2001

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[English]

The Chair (Mr. Ray Bonin (Nickel Belt, Lib.)): We'll resume proceedings. We are here today to deal with Bill C-27, an act respecting the long-term management of nuclear fuel waste.

We are pleased to have with us today—honoured, as a matter of fact—from the Assembly of First Nations Grand Chief Matthew Coon Come, National Chief. Welcome, it's a pleasure to have you here with us. Before your presentation, if you would, introduce to us those who accompany you. We have an hour. You said you have a brief presentation, so we'll have around ten minutes, and then we'll open up to questions. So please carry on, Chief.

Grand Chief Matthew Coon Come (National Chief, Assembly of First Nations): Good morning. On my right is Peigi Wilson, who works for the Assembly of First Nations, and on my left is Richard Powless, who is my political adviser.

I will be making a formal presentation. I don't often apologize publicly, but I will apologize to this committee. We haven't had time to translate my presentation into French, but we will make sure you have a copy, Mr. Chairman. With that, I'll proceed to read a brief from the Assembly of First Nations.

The Assembly of First Nations is a non-profit organization dedicated to promoting the interests of first nations in Canada. Through the chiefs in assembly, the Assembly of First Nations represents more than 633 first nations across the country. First nations are deeply concerned about the state of the environment.

Our elders advise us that we should think of the impact of our actions seven generations hence. Nowhere is this truer than with respect to the creation and disposal of nuclear waste. The production of energy from nuclear sources is fraught with peril. Disposal of the waste can have unforeseen and potentially dangerous long-term impact, even if managed with the utmost care and caution. Many first nations communities are either in close proximity to 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 individuals, communities, and organizations participated in the Seaborn panel, including the AFN, the Assembly of Manitoba Chiefs, the Algonquin of Golden Lake First Nations, the Chippawas of Nawash First Nation, Grassy Narrows First Nation, Walpole Island First Nation, and Sagkeeng First Nation, among others. During the Seaborn panel hearings, these representatives expressed concern that they had not had the opportunity to study the proposals and that the proposals did not incorporate traditional ecological knowledge. The proposals strongly conflict with their deeply held beliefs, and they doubted they would derive any significant benefit from agreeing to accept a nuclear fuel waste facility in their territory.

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. The comments that follow must be considered in light of our obligation to generations yet to come.

First, on the purpose of the bill, we know clause 3 stipulates that it 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. The phrase is sufficiently broad and general to mean all things to all people, depending on the perspective one brings to the issue.

First nations, for example, might argue that comprehensive and integrated means the impact on societies, cultures, and human health, the potential disruption of animal habitat, so the approach recommended will be holistic, environmentally sound, and sustainable. Others may not consider these elements in determining what is comprehensive and integrated. It is the opinion of the Assembly of First Nations that sustainability, environmental protection, and recognition of aboriginal and treaty rights must be uppermost in the minds of the Governor in Council when it makes its decision on the management of nuclear fuel wastes and should inform the waste management organization as it develops its proposals.

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In the 2001 Speech from the Throne the Governor General stated:

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 treaty rights of the aboriginal peoples of Canada, including the first nations. The federal government has committed itself 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 therefore recommend that this clause 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, environmentally and economically sound approach for Canada and respects aboriginal 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. It is the responsibility of the waste management organization to propose approaches to the federal government for the management of nuclear waste, and then to implement the approach adopted.

While the federal government retains responsibility for making the decision, it is relying on the nuclear energy industry, through the waste management organization, to advise it of its options and implement the decision. The provisions of clause 14 would permit the minister to conduct consultations if he or she deems it necessary, but these are wholly adequate for ensuring that the interests of first nations are protected. There is a 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 material on earth. There must be appropriate checks and balances in place when dealing with such potentially dangerous substances. The proposed organizational structure lacks these fundamental checks and balances.

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 and transparency and greater comfort to the first nations that their needs and those of all people of Canada are protected.

The interpretation of the phrase “affected economic region” raises some concerns. Economic region is defined in the legislation by reference to the Guide to the Labour Force Survey of January 31, 2000. In the guide economic regions “generally correspond to regions used by the province for administrative and statistical purposes” and “an Economic Region is a geographical unit generally composed of several Census Divisions within a province”, all “determined through a consultative process with the provinces.” These economic regions may or may not coincide with the traditional territories of first nations. The traditional territories are loosely defined by the first nations as the area in which the first nation pursued its primary economic activity. First nations have the right to pursue their traditional activities, including hunting, fishing, trapping, and gathering, in their traditional territories, which go beyond reserve boundaries, in accordance with our aboriginal 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 an amendment of subclauses 12(3) and (4) 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 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.

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The suggested amendments to subclause 8(2) to address this issue are provided below. Clause 8 stipulates that the waste management organization shall create an advisory council. The advisory council shall, among other things, examine the proposed approaches and recommendations prepared by the waste management organization. “The governing body of the waste management organization shall make all reasonable efforts to ensure that” membership on the advisory council includes “representatives nominated by...aboriginal organizations that are affected because their economic region is specified for the approach that the Governor in Council selects under section 15 or approves under subsection 20(5).”

The AFN has a number of concerns regarding this approach. First, the proposals put forward by the waste management organization have the potential to significantly affect subsistence economies, first nations' way of life, as well as human health and the disruption of animal habitat. This being so, first nations expect to be represented on the advisory council. To ensure that this occurs, we would request a more definite statement that first nations be involved in the advisory council.

Second, the present wording of paragraph 8(2)(c) creates a dilemma respecting first nations participation in the preliminary work of the advisory council. As noted above, the advisory council is to be established in advance of a study referred to in subclause 12(1). Yet first nations, to be included on an advisory council, are to be selected on the basis of whether the approach approved will affect their economic region. This arrangement would have the effect of excluding first nations from the development of the approaches and recommendations of the waste management organization, allowing their participation only once the approach is determined.

Furthermore, the situation is not remedied by clause 14, which simply provides the possibility of consultations with the general public by the minister. There is no guarantee that first nations will, in fact, be consulted in the initial review of approaches and recommendations. This is unacceptable to first nations.

Third, there is no reference in the bill to aboriginal traditional knowledge. The first nations in this country have tremendous experience and expertise, equivalent to traditional western science. The first nations know the history of this land as no others. In making decisions about where and how to store nuclear fuel waste, first nations practitioners of traditional knowledge will be of tremendous assistance. 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 Canadian Environmental Protection Act, 1999, Bill C-5, the Species at Risk Act, and Bill C-10, the Marine Conservation Areas Act, recognize the importance of aboriginal traditional ecological knowledge and make specific reference to this knowledge in the legislation.

Further, first nations governments, in addition to aboriginal organizations referred to in paragraph 8(2)(c), would be interested in participating on the advisory council. Federal legislation exists recognizing first nations governments, including the Canadian Environmental Protection Act, 1999, Bill C-5, the Species at Risk Act, and Bill C-10, the Marine Conservation Areas Act. Finally, there's the issue of economic regions discussed above.

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To address all these concerns, it's recommended that subclause 8(2) be amended as follows:

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;

For paragraph 8(2(c) we suggest:

includes representatives nominated by local and regional governments and aboriginal governments and organizations...

And we add a new subclause (3):

Upon selection of the approach by Governor in Council under section 15 or approved under subsection 20(5), the representatives nominated by local and regional governments shall be included in the Advisory Council by virtue of the fact that their economic region is specified for the approach the Governor in Council selects under section 15 or approves under subsection 20(5). Aboriginal governments and organizations are to be included on the Advisory Council by virtue of the fact that their traditional territory is specified for the approach the Governor in Council selects under section 15 or approves under subsection 20(5).

As for significant social and economic effects, paragraph 12(6)(c) stipulates that the implementation plan for each proposed approach must include:

the means that the waste management organization plans to use to avoid or minimize significant socio-economic effects on a community's way of life or on its social, cultural or economic aspirations;

There is no definition of “significant socio-economic effects” included in the legislation. The Assembly of First Nations has been advised that the Department of Natural Resources plans to rely upon the guidelines and principles for social impact assessments as prepared by the Inter-Organizational Committee on Guidelines and Principles for Social Impact Assessment, which is an American institution, and the guidelines employed by the Canadian Environmental Assessment Agency to define the significant socio-economic effects.

It is uncertain how the waste management organization will interpret “significant socio-economic effects”. Considering the responsibility of the waste management organization to finance the avoidance or minimization of significant socio-economic effects, as per subclause 11(2), and that the waste management organization is composed of bodies with a vested interest in limiting the liability of the waste management organization, it is conceivable that the waste management organization will strive to define this term narrowly. The AFN is concerned that a narrow or otherwise inappropriate interpretation of “significant socio-economic effects” could have negative impact on aboriginal and treaty rights.

The Assembly of First Nations desires to be involved in defining the significant socio-economic effects so that it includes consideration of potential impacts on our rights. This state of affairs makes it even more imperative that first nations participate on the advisory council from the start. So the AFN recommends the inclusion of a definition of “significant socio-economic effects” in clause 2 of the bill as follows:

“Significant socio-economic effects” include impacts on aboriginal and treaty rights guaranteed under section 35 of the Constitution Act of 1982.

In conclusion, Mr. Chairman, the Assembly of First Nations encourages the federal government to heed its responsibility to generations to come in the further development of its nuclear policy. We also encourage the federal government to take full responsibility for the management of nuclear fuel waste by establishing the waste management organization as a public agency responsible to the crown. However, whatever decisions are taken on these matters, the first nations are committed to working with the federal government to ensure the appropriate management of nuclear fuel waste. First nations will be in the best position to do so if their interests are addressed in the legislation and they have the opportunity to participate in the decision-making process.

The Assembly of First Nations would like to thank the Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources for its consideration of the issues I have raised herein.

I thank you very much, Mr. Chairman.

The Chair: Thank you very much, Chief.

Joining Chief Coon Come today are Peigi Wilson, Senior Policy Analyst, and Richard Powless, Special Adviser to the National Chief. Welcome.

We'll open the questioning. The first round will be four minutes for the question and the answer. For our guests who may be new to this chair, we do try to stick to the four minutes. This way we get more questions in. You will have an opportunity for closing remarks. If I turn on this light it means we're over the four minutes. You will have ample time to come back and finish getting on record what you need to do.

We'll start with Mr. Elley.

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Mr. Reed Elley (Nanaimo—Cowichan, Canadian Alliance): Thank you very much, Mr. Chairman.

I want to thank Grand Chief Coon Come and the others who have come today to share with us their feelings about this particular bill. I think all of us in this country—I hope all of us in this country—are starting to clue in to the fact that we cannot leave our aboriginal peoples out of the processes of government, but we should get their kind of input into matters that affect not only them, but all Canadians.

The major thrust of your presentation is in the consultation area. You are pushing for active participation in consultation and decision-making in the ambit of this bill. However, I think there are some of us, myself included, who do need some elucidation on certain things.

One of the things I wish you would help me with, and perhaps other members on the committee, is a fuller explanation as to how you see someone with aboriginal traditional knowledge being able to be helpful in the consultation process about long-term management of nuclear fuel waste. How would that fit into the whole context? I think we need some help from you on that.

If there's any time left over, I've got another question, but I'd certainly appreciate having some feedback on that.

Grand Chief Matthew Coon Come: Thank you very much.

My grandfather is 110 years old. His father was 115 years old. His grandfather was 135 years old. They were people of the land. They supported themselves by living off the land. One of the things my grandfather used to say was, how can anyone make plans down south without ever having stepped on the land? They do not know the elements of the environment, do not understand the relationship we have with the animals, because that's how we identify ourselves, as hunters and fishermen in relation to that land. They have not set foot on this land, and yet they have engineers who make these plans.

What he was saying was, we need to get involved. We're not anti-development, we just don't like the way development takes place, where there's a practice of exclusion and not inclusion. That's why we're suggesting we participate. I believe that wherever you plan to set up the nuclear waste disposal, you have to take into consideration the people who live there. These people can, if they have the resources, tell you, through a land-use plan, how they use the area. If you affect a certain area, they'll know that's a spawning ground, they'll know that's a calving ground, and that will have an impact on them. That's why we kept saying, if you affect the animals, if you drive the animals away, in effect, you're driving us off the land, you affect a way of life.

Certainly, I believe that because of our experience, we can provide that knowledge just by being members of the advisory council, and not just as needed. I believe that with all the scientific study that has been done, most of it has been done, because we've been studied to death. These people got their doctoral degrees because we passed that knowledge to them.

We are certainly advancing, in that there's a recognition of traditional knowledge and traditional ecological knowledge of the land. This has been recognized in various international instruments. Certainly, within the last bill we participated in, which is the Species at Risk Act, there's a recognition of the knowledge of the land of the indigenous peoples and the need to involve them.

The Chair: Thank you.

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Before I go M. Cardin, I can relate an example of what you're talking about. In Lake Nipissing the water levels were controlled by employees who had years of experience, not that much education, but they would say, I have a gut feeling, open those dams, and we had no problems. They got a package and have retired now, and we have these people with the degrees, and everything is flooded. I understand exactly what you're saying. I appreciate that.

[Translation]

Mr. Cardin.

Mr. Serge Cardin (Sherbrooke, BQ): Thank you, Mr. Chairman. And thank you, lady and gentlemen, for being here today.

I will first make a general comment on the tack that our committee is presently pursuing in studying Bill C-27. I want to take this opportunity, Mr. Chairman, to make an aside about the way we conduct our business. I was studying my notes during the weekend and I went over our schedule.

You came here today to share with us your point of view and express your willingness to be involved in the management of nuclear waste. However, I can see that the window of opportunity is beginning to close on this committee because as soon as Thursday, we will start the clause-by-clause study of the bill. There are people who come to us with representations that we should perhaps take into consideration in order to, eventually, amend the bill. But I already feel somewhat squeezed by the constraints for introducing amendments or by the delays required for their introduction.

Out of respect for the witnesses who are here this morning, and for others who will come later and for those that we will hear on Thursday morning, I was wondering, Mr. Chairman, whether we should not, out of necessity, extend our study of the bill and our reflexion on possible amendments that we might want to propose to the bill.

I would also like to hear the opinion of Mr. Coon Come on the hearing of witnesses in committee and on the effect of that process on the introduction of amendments to a bill.

[English]

Grand Chief Matthew Coon Come: We've always appreciated being invited to appear before a standing committee so that our voice can be heard. But you and I know the decisions that will be made are within the systems you have created, whether it be the waste management system, the waste management organization, or the advisory council. That's where the real work will be done. That's where you're going to be looking at alternatives, options, formal recommendations, what type of research may be done, etc.

Certainly, being here gives us an opportunity to make those recommendations, and again I apologize that you don't have it in front of you, but that can speed our participation and inclusion of our recommendations. We actually drafted the wording we would like to see. They're not substantial changes; we just added two or three words in there where we hope they will be included.

We'd have appreciated maybe having more time. We recognize the timeframe. What I would like to know is, will our issues be considered? We've done what we could, given the lack of financial and human resources to really do further research. But given the timeframe, I do appreciate being given an opportunity to make a presentation, whether you decide you want to extend this meeting or not.

The Chair: Before I go on to Mrs. Grey,

[Translation]

I will tell you, Mr. Cardin, that the reason why our schedule is such is because you have decided to proceed in this way. This committee has made the decision as to how we were to proceed. If Grand Chief Coon Come is at a disadvantage today, it is because he had to replace at very short notice Mr. Charles Fox, regional chief of Ontario, who was supposed to appear. There was a mortality in his family and the Grand Chief obligingly replaced him at the last minute. That is what has made our job somewhat more complicated. But we will receive a written brief, which will be translated and available in both languages, so that will solve the problem. Thank you.

You can reply to my intervention, if you whish to do so.

Mr. Serge Cardin: Mr. Chairman, it is indeed the schedule that we had prepared. However, it is often the case that we do not anticipate the scope of interventions and the relevance of the presentations made by people appearing before the committee.

Perhaps we should come back to this issue another time, to avoid shortening the time provided to today's witnesses. But in my view, it would be wise to extend our study of the bill before going to the report stage, in order to introduce in a discriminating way some more amendments to the bill.

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The Chair: As you can see on the agenda, this is what we will be doing at one o'clock today.

Mr. Serge Cardin: The revised agenda?

The Chair: No.

[English]

Miss Grey.

Miss Deborah Grey (Edmonton North, PC/DR): Thank you.

I don't know if time is the essential issue here. Probably will is. We could study this, I suspect, all year, but if the will isn't there to make these things happen, I suppose you could put all the recommendations you like forward. So I'm looking forward to seeing how much will there is in that area.

Thank you, again, for your presentation. You talked about the aboriginal traditional knowledge, which Reed Elley mentioned also, regarding land use plans, spawning grounds, calving grounds, and how essential that is for the traditional way of life. That fits with lots of development, but nuclear waste being man-made, something your forefathers weren't aware of, obviously, or had anything to do with, what would you recommend in regard to the elders or the aboriginal traditional knowledge? What might be a solution? Because I suspect nuclear waste is not going away, so we need to do the best thing we can in managing it. I appreciate that you're filling in for someone else—thank you, Ray for letting us know that—but what might be a practical way? There has been talk, of course, about putting it deep under ground in the Canadian Shield. Is there anything you're aware of in the traditional knowledge that might suggest a practical, safe, environmentally friendly way of dealing with waste?

Grand Chief Matthew Coon Come: Before I answer your question, let me say that we're consumers, so we need energy, and I think we need to look at the alternatives for producing energy. I don't like diversion of major rivers, but I think we can look at a run-off of the rivers. I think there are alternatives in energy-efficient programs, co-generation, etc. on the demand side of energy efficient-programs.

We as first nations, of course, feel that if we were involved from the outset, given the area in which you're going to store the nuclear waste, that would be important, because we are consumers, we use energy, and we have to do something with this man-made material, as you said. It depends on where you locate it. That's why I feel that as aboriginal peoples, our views should be taken into consideration, because it is the first nations who live there, and they would know the area. The elders, who are more familiar with possible solutions, might be able to contribute in trying to find a safe storage area. Only if they are allowed to participate will we be able to know the depth of knowledge they have, but I believe they can contribute.

Miss Deborah Grey: It's such a difficulty right across the country—we always think it would be perfect for it to be somewhere else—but I appreciate that's essential for the local people, because they know the patterns, specifically, I suppose, if it were an out-of-the-way place for hunting and trapping, what would be a practical area, regardless of whether it's at ground level or far beneath the earth's surface.

As to the discrepancy you mentioned earlier about the aboriginal representation with certain bills, do you see a deliberate omission of aboriginal people in this piece of legislation vis-à-vis those other ones you mentioned earlier.

Grand Chief Matthew Coon Come: I'm not sure if it's deliberate, but there is an omission, and we just wanted to remind the legislators to be consistent.

Miss Deborah Grey: Okay.

Grand Chief Matthew Coon Come: You've done it in other legislation. It's a good opportunity for the inclusion of our people and participation. If you followed that through, at least we'd feel we were involved in the process.

Miss Deborah Grey: We'll assume it was an accidental omission then, and we'll look forward to dealing with that when the time comes.

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The Chair: Thank you, Miss Grey.

Mr. Bagnell.

Mr. Larry Bagnell (Yukon, Lib.): Thank you.

I too thank the witnesses for coming, and in fact, we're very honoured to have the Grand Chief, going right to the top.

I agree that different viewpoints are important. I made that point in the House of Commons yesterday when I was defending ANWR and the unique life of the Gwich'in people there.

I only have one question in the first round, and that's related to your concern about checks and balances. You'll probably not be the only witness to raise that concern. From my perspective, an option would be an independent board, such as you might have with a utility or the CRTC. I have some comfort with this model and the fact the buck stops with the minister, cabinet, or whoever actually makes the final decision. In some of those other processes, where we've set up other bodies outside government that are not elected to make those decisions, I've seen, in years when inflation might be 3%, our phone or utility bills go up 10%, 20%, or 30%, and those people have no one with a vested interest on those boards. So I'm not sure that model works as well. At least in this model the decision-makers are going to be accountable to the electorate if they make a wrong decision. Although this model may have some weaknesses, I think that's a benefit of this model.

I don't know if you have any comment on that.

Grand Chief Matthew Coon Come: One of the greatest challenges, I think, we have in our society is that we always allow the developers, the industry, to operate. Certainly, they have a lot of experience, but they act in their own interest, they're there to maximize the return on the investment and to represent their shareholders. Therefore, we need an independent body.

My experience with the Great Whale River project was that we cannot rely totally on industry, because they're promoters of it. You need to look at even a no-build option. Industry will not entertain the idea of a no-build option, whatever the project may be. Maybe we don't need to build any more nuclear power plants. But do you think they will promote that? I don't think so. I think you need to have a public body that can carry out public inquiries across this country to ask the people we all say we represent for their input.

We cannot rely on one particular industry to be the experts. I've run into that many times, where people say, we've been in this industry for 50 years and we know what we're doing. Times change, needs change, circumstances change, and other interests are more important. The whole nuclear industry is essential at the moment, but I don't think we need to expand it.

I do think we need to have some kind of public body, a public agency, that can make those recommendations, because they're not representing an industry, they're not there to maximize the return on investment, they're not there to represent their shareholders, they're there to represent the public as a whole. Yet the Government of Canada can retain its powers as Governor in Council, as you recommend here.

The Chair: Reed Elley.

Mr. Reed Elley: I want to thank you, Grand Chief, for your answer to my question. It helped me personally quite a bit.

We have a big problem in our society with the disposal of waste, whether it's nuclear waste or just simple garbage. We can see what happened recently when Toronto wanted to ship its garbage north, with these great outcries from people living in the north—and that wasn't that far north, you know. Now we've got a situation where it's possible that nuclear waste from southern nuclear reactors might be shipped north. I think there were investigations several years ago at the Seaborn commission about putting this under the Canadian Shield.

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At that point did you feel your peoples were actively involved in that kind of decision or that kind of investigation? Have we got a history here you've been concerned about that may repeat itself if some of these amendments you're suggesting today are not brought into the act?

Grand Chief Matthew Coon Come: There were four, five, six first nations participating in that Seaborn panel, and they expressed their concerns in regard to the proposals that were coming up. I highlighted those in my presentation.

Mr. Reed Elley: Yes, I remember you mentioned four or five.

Grand Chief Matthew Coon Come: There is the need for incorporating the traditional ecological knowledge and the need to look at whether they want accept a nuclear fuel waste facility in their territory. All that would have to be discussed and debated, and certainly, the views of the people who live there should be taken into consideration. That's why we're really suggesting that we be participants in the advisory council, so that we can have an input.

Mr. Reed Elley: Did you feel at that point three or four years ago that they listened to what you were saying?

Ms. Peigi Wilson (Senior Policy Analyst, Assembly of First Nations): In part they did, by refusing to make a decision.

Mr. Reed Elley: Okay.

Ms. Peigi Wilson: I believe the Seaborn panel recommended that the federal government take the issue back again. It wasn't just aboriginal people, but many people across this country felt they didn't have sufficient information, didn't feel particularly involved. In fact, I understand it was an element of concern to the Seaborn panel when they refused to make a decision, feeling there hadn't been sufficient public involvement in the discussions, certainly on the part of aboriginal peoples, the first nations. Yes, we felt we did not have sufficient time to engage and be sufficiently informed of the issues.

Mr. Reed Elley: Thank you.

Grand Chief Matthew Coon Come: Mr. Chairman, we certainly do have great concern about storage of nuclear waste in the north, and I think it's more the need to put the funds into research on the impacts, because there are a lot of unknowns. We hear what's happening elsewhere, and certainly, the first nations expressed their concern if it was in their own backyard—what did that mean?

The Chair: Ms. Karetak-Lindell, then Ms. Grey, and that will be the end of the questions.

Ms. Nancy Karetak-Lindell (Nunavut, Lib.): Thank you for coming.

You said aboriginal people should be consulted because of their knowledge. When we were listening to the different industry groups, part of the reason they wanted to be part of the decision-making was that they have the expertise and the knowledge. I just wanted to know what your comments are on not giving them the responsibility of managing their own waste, because they're making the waste. I guess the federal government feels they should be responsible for cleaning up their waste, and they're being asked to put in a lot of money to store on a long-term basis the waste they're making.

I agree with the comments you made about traditional knowledge, that it should be incorporated and always be part of anything the government does. Fishermen in the Atlantic or the Pacific and farmers have gained knowledge from the land and our aboriginal people. If you don't include that, you are missing a big part of it.

So industry is saying they have the expertise and the knowledge to contribute to this long-term management plan. I just wonder what your comments are on this one.

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Grand Chief Matthew Coon Come: I don't think anyone would deny that they have expertise. We all benefit from it, because we're all consumers. What we're saying is that we don't want the judge and jury to decide everything because of their vast experience. Gone are those days. I think we have to create a balance, where you have several interest groups as participants.

Certainly, one cannot deny access to industry in making formal presentations or recommendations—if you create a problem, you should have some solutions also. I'm concerned about a waste management organization where the industry is seen as controlling the process. You set up an advisory council, and they're just another recommending body, looking at various options. You're subjugating that to the waste management organization where all the developers are.

With concerns about impacts on health, way of life, the habitat of the animals, we need to create a balance, so that the public itself is a major player. That's why we're saying you need to look at a public body as the real recommending body, one that is balanced, that has teeth, that can make really good recommendations and have a balanced approach.

The Chair: Miss Grey.

Miss Deborah Grey: Thank you.

I just wanted to ask a question or two about time limits and get your opinion on those. The waste management organization will report annually to the minister and every three years provide detailed reports on the impact of the social, cultural and economic aspirations of the areas. Do you think that three-year time limit is too long, too short, wise, unwise?

Grand Chief Matthew Coon Come: You and I would agree that it takes time to do research. We didn't debate the timeframe when we reviewed the legislation. We were more preoccupied with saying we want to get involved and be able to determine how studies will be carried out, in what areas, how you involve the first nations. We weren't really concerned about the timeframe.

Miss Deborah Grey: So they could work within those, or you think they could be somewhat flexible. It's a matter of being in on it, regardless of how long they are.

Grand Chief Matthew Coon Come: Yes.

Miss Deborah Grey: Okay. Thanks, Mr. Chairman.

The Chair: Thank you very much. Thank you, everyone. Chief, I would appreciate closing remarks from you, if there's anything else you need to get on record. Again, I want to thank you very much for being here with us today. We look forward to working with you on other bills, because we know they are coming in large quantity to this committee. We look forward to working with you.

Grand Chief Matthew Coon Come: Once again I want to apologize to the members of this committee. We will forward our recommendations with the changes we are suggesting. I want to thank you again for giving us that opportunity, for at least a short time, where we can hopefully provide a dialogue and an exchange of ideas. I look forward to receiving a favourable reply to our recommendations.

With that, I thank you very much.

The Chair: Thank you very much. We'll suspend proceedings for five minutes.

• 1154

• 1159

The Chair: We will resume proceedings.

We have with us Senator Lois M. Wilson, who was a member of the Seaborn panel. For those of us who aren't that familiar with what the Seaborn panel stands for, I have it in front of me, and I'll try not to take the whole half hour just giving you the title. It is the Nuclear Fuel Waste Management and Disposal Concept Environmental Assessment Panel. There's going to be a test after.

Senator, welcome. Thank you for being here. We invite you to make a presentation of ten minutes or less, after which we will proceed to questions from committee members for 20 minutes.

• 1200

Senator Lois M. Wilson (Ontario, Ind.): In that case, I won't read the script. You have it. I'll just speak. If I've got ten minutes, that's two minutes for each point.

The Chair: Okay.

Senator Lois M. Wilson: I was on the Seaborn panel for what amounted to a decade, and it was a multidisciplinary panel. There were two of us who really did not have scientific backgrounds, but were put on it to raise the social and ethical issues, which we did. I must say, at the end we did not come to any consensus.

The first comment is simply about the government's policy framework on which Bill C-27 is based, which was released a year and a half before the Seaborn panel made its report—so much for panels that advise the government. We knew at the time what was happening. That does not build confidence. It fuels resentment and discourages citizens from working on future government panels. The main problem is, I think, that it tended to exclude many of the values that many of the witnesses to the Seaborn panel brought to us; they didn't build those into the legislation. So that's the first thing, the end run the government did around the panel.

Second, the panel had two conclusions, and these are widely misquoted. The first is as follows; it concerns disposal of mercury waste.

From a technical perspective, the safety of the AECL concept has been, on balance, adequately demonstrated for a conceptual stage of development. From a social perspective, it has not.

We're talking about safety here. We were saying safety has not been adequately demonstrated. Social safety, a well-accepted concept in the social sciences, but not with the technical scientists, has not been demonstrated. That phrase was always dropped in any government reporting of our panel. So it came out that the panel said it was technically safe, period. We said it was technically safe, on balance, for that stage of development, but from a social safety point of view, it was not safe. The panel split on that. We had no consensus.

We did have consensus where we said:

As it stands, the AECL concept for deep geological disposal has not been demonstrated to have public support.

So I think it's very important that you understand the difference there, because I really get tired. The presses pick this up and they always say it's technically safe, all we need to do is now make it acceptable to the Canadian public. That is not what we found after nine years of study.

Briefly, of the recommendations of the panel that are not written into Bill C-27 the first is that the federal government should immediately initiate an adequately funded participation process with aboriginal people, who themselves should design and execute the process. The people who were clearest of those who came to our hearings were aboriginal people. Their spirituality was clear. Their values were clear. They couldn't follow all the technical graphs that were put up, as many of us couldn't, but they were quite clear on what this meant to their lifestyle. We did some consultation with aboriginal people, but not nearly enough, and so we made it clear that we thought the government should have this process happen before the bill and the waste management agency came into being, which obviously it's not going to do.

In reading the bill, I see that aboriginal people are to be consulted about the options, but that seems to me after the fact. After the horse is out of the stable, you consult with people who should have been consulted far ahead. So I really underline that. We've got one aboriginal person on the panel. That took two years, and when she came on, we began to understand that aboriginal people were not simply going to be, perhaps, the victims of this disposal thing, but they had many insights to offer the rest of us, because their value system is not out of the dominant culture. We profited from them very much.

Third—and this is, I guess, the major one—we recommend that a nuclear fuel waste management agency be established at arm's length from the utilities and AECL. Bill C-27 gives it to the utilities and AECL. The reason we made this strong recommendation—and there was unanimity about this—was that after a decade of hearings it became obvious to us that neither the utilities nor AECL enjoyed public confidence, which is a prerequisite for getting the public to accept the concept after the safety has been proven. We felt a higher degree of trust is necessary for any agency charged with a management function, and we felt the utilities and AECL had not had it. They received criticism for lack of openness and transparency, insensitivity to a wide range of stakeholders, and failure to ensure adequate public participation in the process. So we felt that when the crunch came, these bodies would not enjoy the public confidence that would allow any scheme to go ahead. We recommended that a fresh start be made in the form of a new agency, and Bill C-27 does not do that.

• 1205

The Seaborn panel recommended that the board of directors appointed by the federal government be representative of key stakeholders. This is in the bill. This is probably too much detail for the bill, but I want to say that if you read the detail of our report, you'll find that we identified the key stakeholders as those representing the interests of the federal and provincial governments, electric utilities, the engineering science and social science communities. I don't know whether that will be done.

Further, we recommended that the advisory council should represent a broad range of interested persons: engineering science, health and social sciences, aboriginal people, ethical and religious groups, environmental groups, affected communities, and international bodies. We felt that advisory board should be appointed at the same time as the directors by the federal government. Bill C-27 gets the directors to appoint the advisory board, and what I'm very much afraid of is that they will narrow the scope of their advisory board to people who are seen to have a technical interest only, whereas, as I hope I've established, this issue affects many facets of our common life and is too important to be given only to the scientific community. That is very important, but it needs to be balanced with other points of view.

Instead, Bill C-27, in subclause 8(2), states that the advisory council will be appointed by the governors of the waste management agency. It shall make “reasonable efforts”—so it's not going to be mandatory—to reflect “a broad range of scientific and technical disciplines”, and “as needed” other social sciences. In other words, they can call them in or can ignore them. I don't think that's good enough, I think it should be stronger. We thought it essential that persons from other social sciences be appointed, because it's far more than a technical matter, as the government will find out when it goes to siting. Moreover, no terms of reference are given for this advisory committee and no indication of its authority.

The final point is that we recommend multiple review mechanisms to ensure checks and balances as part of the process of building trust and credibility with the Canadian public. We may have overdone it, but I think the government's underdone it. We included federal regulatory control with respect to scientific technical work, to financial guarantees, to regular public review by Parliament. Bill C-27 does not recommend this, it requires review only through the minister and a public statement on each report submitted by him. I've been in the Senate long enough to know that is not an adequate way to review anything. You get a statement by the minister, and maybe there are some questions. It needs to go to committees, for one thing, for careful study. We also recommended scrutiny by the Auditor General and by the Commissioner of the Environment and Sustainable Development, and an annual report of its work to parliamentary committees.

We're also a little upset that the agency will not be open to federal access to information, because of the kind of bill it is. We understand that, but the main problem we met in all our hearings was the secrecy surrounding this subject and the problem of getting accurate information from both the opponents and the proponents. We said together, the nuclear waste is there in the middle of the room, how do we, as Canadians, deal with it? To try to get out of this adversarial mode, where one side was trying to score points against the other, we wished rather to say, we have a common problem, it's a very serious problem, this is toxic stuff, and we need to look at it.

So we feel the annual reporting to the minister mechanism is not going to be adequate, and we think when this goes to siting where the waste will be, the public will react with some furor and some anger. You'll be aware that in other countries, Germany and France and England, deep societal divisions have arisen out of this question. My thesis is that Bill C-27, as it stands, really sets up Canada to exacerbate such deep divisions in this country. If there's any way we can prevent that, I think you should look at it very carefully and try for some amendments that would help to solve the problem.

The Chair: Thank you very much.

We'll open the first round with four minutes for Mr. Elley.

• 1210

Mr. Reed Elley: Thank you very much, Senator, for coming and sharing with us. It's obvious that you've got a depth of knowledge perhaps most of us around this table do not have, and so you bring some light into the darkness, hopefully.

I'm very interested to hear some of the things you have said. You brought up the comment about aboriginal involvement. Of course, we just heard from Grand Chief Matthew Coon Come, who was making it the major point of his presentation that there should be more aboriginal involvement. Then you went on to talk about lack of public confidence in the agencies now involved in this, the AELC and others, saying there was a lack of openness and transparency in the public's perception of these organizations. Maybe this is putting you on the spot—and I know you've been put on the spot many times in your life and have come through—but why would the government, then, do you think, not accept the recommendation you and others have made that this body be at arm's length from industry?

Senator Lois M. Wilson: I think you would have to ask the government that.

Mr. Reed Elley: But I'm sure you have an opinion.

Senator Lois M. Wilson: A leaked cabinet document came to me two years ago in which they had put a spin on several things before it went to the cabinet. One was the point about it's being really perfectly safe, it's just got to be made acceptable to the public, which was not what we said. The second thing was the statement that this really needs to be put through if the nuclear industry in Canada is going to survive. I think it is economic interests, it is lobbying at that level. I have no data to prove that, but you asked me for my opinion.

Mr. Reed Elley: And I appreciate your candidness on that.

This is very important for us, the disposal of nuclear waste.

Senator Lois M. Wilson: I know.

Mr. Reed Elley: And how society reacts to it is very important. As you say, it could produce major splits in our society, and we have enough potential for that anyway. Do you think there has been, on the part of the government, an impetus of expediency in respect of the industry, perhaps trying to minimize the political fallout, rather than taking in the very serious concerns you have about safety, transparency, and so on?

Senator Lois M. Wilson: I think it's partly expediency, I think partly it's economic. You have the Prime Minister trying to sell 10 of these to the U.K., and we're going to sell more to China, without looking at the question of how they are going to dispose of nuclear waste. I don't think that's ever been part of the equation, and I really fault Canada for that.

As you say, this is a very important human problem. It's way past political parties, but I'm not sure. That was my guess as to why they were doing this. I just think it's nothing but trouble ahead. For example, with public participation, they use the usual phrase: these are all special-interest groups, and that's the way you denigrate somebody who has an opposite point of view to yours.

Mr. Reed Elley: I know.

Senator Lois M. Wilson: Yes, they were special-interest groups—they don't want their grandchildren zonked by toxic waste. The public participation at the Seaborn panel was very extensive, as far as it went, and far more extensive than with other things, but I think since then it's been cut back extensively, and I don't know what the future will hold if the utilities and AECL have the control.

The Chair: I'm allowing this type of debate to go on because I want everyone to be able to say that we were open to everybody. It's hardly fair to ask our witness why the government wants to do things a certain way. Government and the department will be here to answer those questions, and those answers are readily available.

Senator Lois M. Wilson: Thank you.

The Chair: If my colleagues become too partisan, I will intervene, and I'm being more generous to the opposition. I just want that to be known.

Mr. Reed Elley: We do appreciate it, Mr. Chair.

Senator Lois M. Wilson: Well, I have the advantage. I don't know who's who.

The Chair: Monsieur Cardin.

[Translation]

Mr. Serge Cardin: Thank you, Mr. Chairman.

• 1215

Senator Wilson, good morning and thank you for being here today. I will ask a series of very brief questions. You said that you had been a member of the Seaborn panel. During how many years have you been a member of that panel?

[English]

Senator Lois M. Wilson: I sat on it for eight and a half years, and then it took our report a year. So it was a decade before we got the report out.

[Translation]

Mr. Serge Cardin: That's it, then. I recall the presentation by the Department of Natural Resources, dealing precisely with bill C-27. We were told that had been done, that the whole project had been developed based on the proceedings of the Seaborn panel that had lasted ten years. So you have been a member of that body for the whole duration and you have been able to examine, in a quite non-partisan fashion, apparently, all the ramifications of that process. However, as you have said earlier, the panel's recommendations have not necessarily been followed in Bill C-27.

I do have some concerns, particularly regarding the arm's length relationship of the organization. We know full well that everyone wants instant hot water in the morning after plugging in the kettle and we all recognize that energy is important. However, when the source of energy is nuclear, the waste are important as well and we must be conscious of the fact that we produce waste when we use energy.

Regarding the arm's length relationship of the organization in the whole process, I share your point of view on that point. I believe that there should be a fully independent organization in order to be able to make a complete assessment of the process. There is some work being done as well in other countries, but the people are... If the persons who are doing the comparison and the assessment are not independent, there will always be economic considerations coming into play. So the danger exist and it is real.

I obviously share your opinion regarding the independence and the participation of the public. I don't know how, together, we could have an influence on the introduction of amendments in order for the bill to be changed in this way. I'm asking for your comments.

[English]

Senator Lois M. Wilson: With respect to the honourable Ralph Goodale, I disagree with him. I don't think it's built on the Seaborn recommendations, and I went through point by point to illustrate some of the contradictions there, the main one being that you've got to be at arm's length from the utilities and AECL.

When this came out, of course, we on the panel all got on the phone and said, guess what they've done, guess what they've done, they've given it to the utilities and AECL, they haven't done what we wanted. We were unanimous on that too. We talked about a lot of things, maybe a crown corporation, maybe this, maybe that, how can we do it? We came to our conclusion because it's so important to public perception and public trust. That's why we felt it had to be at arm's length. That could be one of the amendments, I think.

I mentioned some of the others, such as the conclusion of the government that it's safe technically, so all we need to do is make it acceptable to the public, which suggests to me not a public education job, but a PR thing coming over the horizon. It's up to you to suggest the amendments, but our main problem is the agency itself, which is not at arm's length.

The Chair: Mrs. Grey.

Miss Deborah Grey: Thank you. Let me be perfectly partisan by saying I'm delighted to find that someone knows how to pronounce the word nuclear. I'll just speak as an English teacher there for a moment. Excuse me, but I must say that it's a pleasure.

You said the companies and the utilities, AECL and others, do not enjoy public confidence—as if the government might, if they were to take it over. We need to somehow find a balance in there, for sure. But when you say this advisory council should have representation from the scientific community, of course it should. Those of us in the humanities don't have a clue about scientific stuff, so we appreciate that. But being a social science person myself, I appreciate the fact that you were on that committee and provided ballast there, if you will. Also the aboriginal people, whom we've just heard about, and religious communities are important, because there are ethical concerns we all need to deal with.

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If Bill C-27 is going to go through, with the frustration of the Seaborn panel, how can we do something now to make this thing better, after the horse really is out of the barn? Do you recommend just amendments, or that those of us in government or opposition say this is not just a selling job? This is something huge, nuclear energy is something that, obviously, people are trying to sell around the world. How do we say, where we are now, we can make it better, with the introduction even of this bill?

Senator Lois M. Wilson: To address one of your remarks, we also recommended heavily that before anything happened, there be an ethical and social framework for the bill, which, of course, is not there. Because so many of these questions are questions about whether we should leave future generations their ethical choices or what. Many of those questions we really struggled with, and they're not anywhere reflected. It's as though this were completely value-neutral, and it's not.

I'm not sure what your procedure should be. That's up to you people.

Miss Deborah Grey: Granted.

Senator Lois M. Wilson: But it would take major amendments, I think, particularly as to who manages this. That's the key one, and you might try that. It still comes to the Senate, and I'm going to be on that committee, but we'll see what happens there. I hope it doesn't just go through with no change, because then the goose will really be cooked for Canada.

Miss Deborah Grey: What year were you appointed to the Senate, Lois? I forget.

Senator Lois M. Wilson: Oh, just in June of 1998.

Miss Deborah Grey: And which were the ten years you talked about, the decade? This was before your Senate appointment, then?

Senator Lois M. Wilson: Yes, well before. The report came out in 1998, so it was about 1988 I was appointed.

Miss Deborah Grey: Okay.

Senator Lois M. Wilson: As I say, there were three of us on the panel who were really from the social sciences, including the aboriginal woman, who used to say to me, well, all those slides and graphs they've got up there, I don't know what they mean, but I think the red one's good. But her values were clear. It's a value thing we're after here.

Miss Deborah Grey: Thanks.

The Chair: That was partisan.

Miss Deborah Grey: That was really partisan, and you know, Mr. Chairman, I do not wear red because I'm a Liberal, but because it's the colour of my flag. I celebrate that, and so does the good Senator today.

Senator Lois M. Wilson: I'm not a Liberal either. I'm an independent Senator.

Miss Deborah Grey: There we are.

The Chair: And that's why I'm wearing blue. We'll make it fair.

Mr. Bagnell.

Mr. Larry Bagnell: Thank you.

Thank you for coming, Senator. I think we all agree on the seriousness of this issue, and I think we're mostly debating process, but I just want to quickly comment on your six points.

First, on the end run, I have to disagree with that. I don't think people lose confidence just because we accepted a number of the recommendations, but we didn't accept them all. That often happens with public bodies.

As to the point about deep burial and technical safety, it's good that you clarified the point, but I don't think it's an issue today, because the process will decide which mechanism. This bill isn't about which mechanism, but how to decide which mechanism.

With the advisory council and it not being outlined what their mandate is, it's in subclause 8(1), which basically explains what the advisory council will do. As Miss Grey said, we had a good presentation from aboriginal people this morning.

But your main point is the process. I think we're all agreed on the objective, to make sure it's not just the industry that has input into this or that has the decision-making authority. The debate we have now is on the process, and as I said to the previous witness, I'm not sure the agency type of thing would work. I think there's a possibility that the process outlined here will actually meet the same objectives, because there are three elements whereby there will not be final decision by the industry, and also they don't have all the input, but we get that scientific and that aboriginal and traditional knowledge and social knowledge that we need.

First, they have to go through public mandatory consultations, where all that would come in. Second, there is the advisory council, with its mandate to review it all, and it has all those various aspects. Third, there may even be some of the people appointed to the waste management organization, because that is an option of the producers.

And the buck does stop with those who are elected, who will have to be answerable. As I said before, I've been involved in independent agencies where it doesn't stop with the elected people, and there were huge increases in things like electric or phone bills. That system didn't work either. So it's a debate about two processes to obtain the same objective.

• 1225

The Chair: Senator, if I may, I invite you to respond and then go into your closing remarks. You have five minutes.

Senator Lois M. Wilson: Okay.

The reason I made the point about the end run the policy framework did around the panel and the fact that they have not reported what we said, that it is not safe, simply to say that decreased confidence in the government... When you say maybe this can happen, maybe it can't, maybe it can, but the point is that our confidence was really brought down by that.

As for public participation, at some points in the panel the idea of public participation was to put a notice up in the post office and see if people would come, which I think was totally inadequate. I have no reason to believe it's going to be any better.

It is the process thing, but you people must have an election again by the time this gets going. Some of you may be here, there will be new people. Where is the continuity in following through on this thing, so that people really monitor it? Because it's going to be with us for 25 years. That's what worries me. Some of the NGOs, who are classed as special interest groups, will certainly follow it. I'm not so sure about parliamentarians.

The Chair: Do you have additional closing remarks for us?

Senator Lois M. Wilson: I don't think so, I had my say. I'll be interested to meet some of you in 10 years to see how it came out.

We didn't come to these recommendations lightly. We really disagreed, we fought all the time. I remember when one of the men left, he said to me, well, you're the most irritating woman I've ever met. I said, I'm sorry we disagree. There were no holds barred. We were not polite, because this is such an important item. So I hope you'll look at it carefully, because it's your grandchildren whose future is at stake. That's all I need to say.

The Chair: Thank you very much. If everyone agreed, we wouldn't need government, so continue. Thank you.

Colleagues, we will go in camera in five minutes.

[Editor's Note: Proceedings continue in camera]