JOINT FIRST NATIONS' SUBMISSION

This intervention is submitted to the Nuclear Fuel Waste Management and Disposal Concept Environmental Impact Assessment currently being conducted pursuant to the Environmental Assessment Review Process Guidelines Order.

It is submitted by the following First Nations organizations, representing many hundreds of First Nations virtually throughout the Canadian Shield area:

• The Federation of Saskatchewan Indian Nations

• The Assembly of Manitoba Chiefs

• The Assembly of First Nations of Quebec and Labrador

• The Grand Council of the Crees (of Quebec)

Rather, this submission reviews the conformity and adequacy, from a First Nations perspective, of the proponent Atomic Energy of Canada Limited's (AECL) Environmental Impact Statement [2] (EIS), in light of the Final Guidelines [3] requirements issued by the Federal Environmental Assessment Review Panel (EARP Panel).

This conformity and adequacy analysis was prepared without funding from the EARP process or from any other external source. It therefore focuses on fundamental points of concern, namely those concerning Aboriginal and treaty rights, and social, economic, cultural, spiritual and ethical issues as understood and experienced by First Nations peoples.

The above organizations are concerned with the rights and interests of numerous First Nations in the Canadian shield area. As we learn more about this concept, which involves decisions that could affect the environment for millions of years, it becomes clear that there is a necessity for greatly increased and broad-based First Nations involvement in all discussions regarding its possible implementation, including in the present review.

2. The Proposed Nuclear Waste Concept and Aboriginal Peoples

Atomic Energy of Canada Limited proposes to dispose of high level nuclear waste in the geological formation known as the Canadian Shield. This formation covers much of Quebec, Ontario and Saskatchewan, as well as the Northwest Territories. [4]

First Nations have lived on the lands and near the waters throughout the "Canadian Shield" since time immemorial. There is virtually no part of the area so described on which Aboriginal peoples' ancestors have not walked, hunted, fished and trapped, traveled, traded, and buried their dead.

As the present Review Panel is well aware, the Canadian Shield is thus much more than a mere geological formation to First Nations. It is their home, their physical and spiritual sustenance. It is part of what they are. The possible implementation of this concept on or near First Nations' territories, or the transport of high level nuclear waste through and past their lands, are of great concern to them.

First Nations organizations are therefore greatly concerned with the conduct of this review process, and particularly with the quality, adequacy and accessibility of the information available to First Nations peoples to judge this proposed concept and its impacts on us. It is on the basis of this information that critical decisions affecting the rights, interests and well-being of present and countless future generations of First Nations people will be made.

The Guidelines as issued by the Panel do not necessarily fully reflect the broad range of First Nations' concerns. In addition, it is extremely difficult to assess a proposed concept such as this one when it is divorced from any particular environment, because First Nations' cultures are diverse, and they live differently in many different environments.

Nevertheless, we believe it is critical that the proponent be directed to comply fully in letter and spirit with all Guidelines requirements such as they are, particularly as they affect the well-being and interests of present and future generations of First Nations peoples.

3. Scope and Requirements of the Guidelines:
    Environmental, Social, Economic, Ethical, and Moral Aspects

As mentioned above, the environmental, ethical, social and economic aspects and impacts of the concept are very important to First Nations peoples.

In interpreting the words "environmental" and "ethical, social and economic" aspects of the concept as expressed in the Guidelines [5], we naturally include all impacts on First Nations peoples' spiritual, cultural well-being and all aspects of First Nations' treaty rights, institutions and governance.

First Nations peoples have lived on this continent for millennia in harmony with the lands, waters and animals. Their societies and economies have been sustainable and in keeping with their moral and spiritual obligations to protect the Earth and conserve its creatures and resources. To this day, First Nations people depend on the environment of the Canadian shield for traditional pursuits including hunting, fishing, trapping, gathering, and for the maintenance of the cultural and spiritual integrity of their societies.

In recognition of the concerns of First Nations as expressed to the Panel in earlier phases of this assessment, the Panel's Guidelines included a significant number of requirements concerning Aboriginal and First Nations peoples' rights, knowledge, views and concerns. The Guidelines should necessarily be read as a whole, rather than as disintegrated parts. The following analysis of the Guidelines requirements with respect to Aboriginal peoples demonstrates the manner in which these requirements interact.

The Guidelines require [6] that:

The proponent should consider the different viewpoints when presenting its EIS, particularly the viewpoints of Aboriginal peoples... [Emphasis added]

Ethical and moral perspectives, along with various social issues... are as important as scientific, technical and economic considerations. The proponent should investigate how relatively narrow and focused considerations of a scientific, technical or economic nature should be viewed in the much broader context of ethical, moral and social considerations....

Discussions and analyses on the scientific, technical, ethical, social and economic aspects must be considered with the same degree of attention and rigour throughout the EIS. [Emphases added]

discussion [regarding options for a siting process] should include... an integration of socio-economic and bio-physical criteria [8].

1. The proponent was clearly required to gain a comprehensive understanding of Aboriginal views.

   It was clearly required by the Panel that the proponent gain a comprehensive, current and sensitive appreciation and understanding of First Nations' and Aboriginal peoples' approaches to and views of environmental, social, economic, ethical and moral issues related to the proposed concept.

2. The proponent was explicitly required to afford these Aboriginal views, concerns particular consideration in its EIS.

   This would require a proponent seeking to comply with the Guidelines to (a) incorporate these views and approaches meaningfully into its EIS, and (b) to discuss and incorporate them into its decision-making about the proposed concept, indicating where particular views are being disregarded, and why.

3. The proponent was explicitly required to give social, moral, cultural and spiritual considerations (including Aboriginal views on these) equal weight to its scientific, technical and economic analyses.

   The concept under review was not to be considered from a wholly (or even mainly) scientific and technical perspective, but rather scientific and technical considerations were to be considered with the same degree of attention and rigour as social, cultural, spiritual and ethical viewpoints (and, as noted, Aboriginal approaches to these).

4. The proponent was clearly required to fully integrate social, moral, cultural and spiritual considerations into its scientific and technical analyses.

   The Guidelines clearly require the proponent to integrate "throughout the EIS" a comprehensive understanding of Aboriginal cultural, social, spiritual, ethical and economic values into its EIS in general and into its technical and scientific analysis. The proponent is thus required to subject the core technical and scientific aspects of its proposal to cultural, social, spiritual, ethical and economic analysis that is meaningfully representative of broad Aboriginal approaches on these areas.

The Guidelines provide a section-by-section structure for analysis of the concept, and in doing so state (in section 1) that:

"Each section within this guidelines document has a specific purpose"

"[t]he proponent is encouraged to present its EIS in the clearest terms possible"

"[t]he potential social, economic and environmental impacts... should be described and discussed in detail... clearly, unambiguously and, wherever possible, quantitatively." [Emphasis added.]

In looking for a response to a particular Guidelines requirement the reader is referred to many, often a dozen or more different sections of the EIS. In some cases, the relevance of some of the cited sections are not apparent [10].

The difference in structure between the Guidelines and the proponent's response to them in its EIS makes the process of determining the conformity of the EIS a daunting, laborious and sometimes impossible task.

The negative impact of the proponent's use of a different structure for its EIS was particularly apparent in the area of environmental, social, economic, cultural, ethical and related issues, especially with respect to Aboriginal concerns. In the case of these issues, the paucity of information was obscured by broad references to entire sub-sections of the EIS, some of which actually made only passing mention (if any) of issues of concern.

The EIS does not contain an index. In the case of references to Aboriginal issues, for example, this made it necessary for a concerned First Nations user to labour through the document as a whole.

Such information as was presented by the proponent is, for this reason, not readily accessible to those needing the information most, namely First Nations peoples and other potentially affected communities.

In attempting to work with the present EIS, it became clear that the Guidelines requirements of accessibility, clarity and presentation of data and analysis for the specific purposes envisaged by the panel have not been met.

IN MEETING THE REQUIREMENTS OF THE GUIDELINES AND ANY FURTHER REQUIREMENTS THE PANEL MAY IMPOSE, THE PROPONENT SHOULD BE DIRECTED TO REORGANIZE AND INDEX ITS EIS IN SUCH A WAY THAT ITS RESPONSES TO SPECIFIC GUIDELINES REQUIREMENTS ARE EASILY AND FULLY ACCESSIBLE, ESPECIALLY WITH RESPECT TO THE CONCERNS OF THOSE ABORIGINAL PEOPLES AND/OR OTHER COMMUNITIES WHO MAY BE MOST AFFECTED.

THESE RESPONSES SHOULD PREFERABLY BE GROUPED CONCEPTUALLY ACCORDING TO THE STRUCTURE OF THE GUIDELINES, PARTICULARLY WITH RESPECT TO ENVIRONMENTAL, SOCIAL, ECONOMIC, CULTURAL, ETHICAL AND RELATED ISSUES.

In the analysis that follows, we conclude that the EIS fails almost totally to conform with the requirements of those Guidelines that mention -- or concern -- the rights, interests or concerns of First Nations and Aboriginal peoples.

First Nations peoples and their lands are not bystanders, or necessary accessories, to this concept. First Nations are an integral part of the environment in which it the proposed concept would be placed. In order to analyze the potential impacts on First Nations peoples and lands, it is essential that these "components of the environment" (both bio-physical and social) be adequately described and understood by the proponent.

The Guidelines require that:

[t]he EIS should describe in sufficient detail all components of the concept to provide the rationale and the necessity for the concept... [11]

should include... an investigation and characterization of social, economic and cultural conditions of candidate sites... [12]

the discussion of the investigation and characterization of social, economic, and cultural conditions of candidate sites should include... a demonstration that appropriate techniques have been developed, tested and are available for sufficient description of all relevant characteristics and interactions occurring in the human environment of the candidate sites... [Emphasis added] [13]

the potential impacts of all phases of the implementation of a disposal facility and of the contents of a disposal vault on humans, human communities, the work site and the natural environment should be described and discussed in detail.

[a]n important initial step... is to establish the current knowledge base... This knowledge base should be comprised largely of what is actually known or could be determined in a straightforward manner...

The proponent should consider: human population size and characteristics, the physical and psychological health of the local population; local economies and infrastructure; local employment situation; land use patterns; valued areas and protection of valued natural resources; local level of economic development and education; multiple resource use and integration of competing uses; and ethical and moral considerations... [15]

it is necessary to establish reference baselines against which actual and expected impacts... can be measured. To this end, local human communities and the natural environment, particularly regional ecosystems, should be described in terms of those parameters that are relevant to the assessments of the environmental and socio-economic impacts in the short and long term. [Emphasis added.]

It is also clear to us that in order for the proponent to gain an adequate understanding of the possible impacts (whether negative, positive or neutral) of its concept on First Nations peoples, it was required that the proponent first gain an adequate background or "baseline" understanding of First Nations peoples' views on the environment, their relationships with the land, their societies and systems of governance, their cultures, spiritualities, economies and ways of life.

The following sections examine the proponent's treatment of these requirements in its EIS.

6. The Proponent's Treatment of
    First Nations' Peoples Views and Concerns

The Guidelines require the proponent to address many issues of specific concern to Aboriginal peoples, and numerous others of general concern to them. [17]

In respect of many of these Guidelines requirements, the proponent is required to pay particular attention to Aboriginal views and concerns, especially in the areas of environmental, social, economic and cultural views and concerns.

However, the proponent's EIS contains what can only be described as a minimal mention of Aboriginal views and concerns:

• the only "significant" discussion of Aboriginal views or concerns is less than one page long, at Section 3.9 of the EIS. The proponent's EIS is almost 500 pages in length. Less than 0.2% of the proponent's EIS therefore is specifically devoted to a description of the environment as understood and experienced by Aboriginal peoples, and their knowledge and concerns.

• approximately fourteen (14) other passing mentions of Aboriginal peoples' issues or concerns were located elsewhere in the EIS. (In the absence of an index in the EIS, these references -- or references to any other subject -- could only be located by reading the entire document.)

In the concept study area, there are hundreds of First Nations, each with related (but often greatly differing) relationships with the land, systems of governance, languages, traditions and cultures.

First Nations have lived throughout, and governed the lands and waters comprising, the Canadian Shield for thousands of years. While some do not, many First Nations have treaty relationships with other governments, are an important part of the legal and political landscape concerning First Nations.

First Nations peoples are therefore not just an unavoidable component of the consideration of any invasive or intrusive major proposal for their communities or their lands. As required in the Guidelines, their understanding of their environments, societies, relationships with the land and ways of life warrant full description and discussion, a priori and not just as an element of a proposed concept that will have to be managed, mitigated or compensated.

6.1 Specific treatment in the EIS of Aboriginal issues, views or concerns

6.1.1 Section 3.9 of the EIS

In less than one page of text in section 3.9 of its EIS, the proponent makes brief mention of the special constitutional and historical status of Aboriginal "people" (sic) in Canada, stating that this status "and their social circumstances would require special consideration of their interests during the siting of a nuclear waste disposal facility." [18]

The disadvantaged situation of many Aboriginal communities is stated in one sentence; the preservation of culture, including traditional pursuits is stated in another. [19]

It is further stated (in single sentences or paragraphs) [20] that Aboriginal "people" (sic) have tended to bear the adverse effects of resource development without benefiting extensively; that these activities have encroached on their traditional resource areas and weakened their cultural ties to the land; that in certain named developments special consideration has been given to Aboriginal interests through participation, employment, training, and accommodation of traditional pursuits.

It should be noted that the title of this EIS section refers to "Aboriginal people", in spite of the use of the correct term "peoples" throughout the Guidelines, and in spite of the mention in the EIS of recognition of First Nations' status in s. 35 of the Constitution Act as "Aboriginal peoples".

This is not just a legal or symbolic issue. The term "peoples" carries with it recognition of the collective nature of First Nations societies and cultures and their relationships with each other and the land.

The approach used by the proponent in its EIS, as evidenced by its use of the word "people" to describe us, is deficient and incorrect in at least two important respects. First, it is in contradiction of many of the requirements of the Guidelines. The proponent was required to gain at least a basic working understanding of who and what First Nations societies are. Its use of the word "people" shows it has neither studied, nor understood these societies at all. Second, as noted below, the EIS appears to subsume special Aboriginal status, conditions and needs in its generic "community-based" approach to the proposed concept. Its use of the term "Aboriginal people" appears to support this approach, insofar as it is then possible to characterize us as groups of individuals who happen to be of Aboriginal origin, but are communities like any other for the purposes of the implementation of this concept.

It cannot possibly be concluded that this section (3.9) of the EIS is an adequate treatment of First Nations and Aboriginal peoples' rights, knowledge, views and concerns. On the contrary, this section is the obvious result of a failure to ask us, in a manner that would produce the results required by the Guidelines, about who and what First Nations peoples are, their understanding of their rights and obligations, their knowledge about the land, the Earth, and their views and concerns about this concept.

6.1.2 Other specific mention of Aboriginal issues and concerns in the EIS

The proponent's treatment of the requirements of the Guidelines with respect to Aboriginal and First Nations peoples' issues and concerns is not saved by the dozen or so other passing specific references in the EIS to Aboriginal peoples.

The following other specific references to Aboriginal issues, views or concerns were located in the EIS:

1. on page 62 (2 lines): a reference to a study of Aboriginal involvement in the nuclear industry;

2. on page 62 (2 lines): a reference to the "valuable input" received from single consultant on Aboriginal culture and tradition in a workshop on moral and ethical issues held by the proponent in 1991; [21]

3. on page 67 (2 lines): a reference to the assessment by the Mescalero Apache Nation of the feasibility of hosting a waste facility;

4. on page 92 (2 lines): a reference to the nutritional role that fish and wildlife play in the health of Aboriginal peoples in Canada;

5. on page 94 (2 lines): a reference to the possibility that Aboriginal people may require that burial grounds, village sites and petroglyphs be protected;

6. on page 152 (2 lines): a reference to the "special status of Aboriginal peoples and their social circumstances" vis-à-vis siting issues;

7. on page 255 (2 lines): references to two indicators of cultural and social vitality of Aboriginal communities;

8. on page 256 (1 paragraph): a brief discussion of the effects on an Aboriginal "area" of in-migration of facility workers and families;

9. on page 257 - 58 (3 paragraphs): a brief discussion of "either adverse or beneficial effects" [22] on Aboriginal business and economic pursuits, political life;

10. on page 259 (2 sentences): a mention that the need to restrict land use on the disposal site may affect the legal and traditional land base of Aboriginal communities, possibly placing "demands on the Aboriginal political leadership to exercise control over their land."

11. on page 262 (1 paragraph): a brief discussion of radionuclide ingestion through fish in wilderness areas by Aboriginal communities under certain scenarios;

12. on page 265 (3 lines): a reference to the possible susceptibility of Aboriginal communities to adverse effects from a disposal facility and fuel transportation, thus requiring "special attention during concept implementation"; [23]

13. on pages 403 and 404 (2 paragraphs): two sections (ss. 25 and 35) of the Constitution Act, 1982 and one section (s. 88) of the Indian Act concerning Aboriginal peoples are reproduced.

14. on pages 470 and 472 (4 lines): two references to Aboriginal peoples in the context of "methods' for characterization".

These further references to Aboriginal and peoples in the EIS are possibly worse than no mention at all.

First, many display remarkable ill-informedness about First Nations' ways of life. For example, the two-line reference on page 92 to the role that wildlife and fish play in the way of life of Aboriginal peoples makes the unreferenced assertion that this "dependency" is "likely somewhat lower in Ontario". First Nations hunting, fishing and trapping activities are not a "dependency". They are not even just a food source, important as this may be. They are a key part of First Nations social, cultural and spiritual existence.

Second, all of these references to First Nations knowledge and/or concerns are, without exception, extraordinarily brief (none are longer than a few lines). First Nations societies are diverse, and study of their ways of life has already generated significant bodies of academic and other literature. More importantly, however, First Nations peoples themselves have considerable knowledge about the land, the environment and peoples' interactions with it.

The passing references in the EIS, which make little if any use of First Nations peoples' knowledge and the existing literature about us, indicate that the proponent has chosen to ignore the Guidelines requirements concerning us, and places little value, if any, on these things.

6.2 Treatment in the EIS of issues of concern to Aboriginal peoples

There are numerous Guidelines requirements of a general nature that directly concern Aboriginal peoples interest, rights and concerns. [24] The issues of greatest concern to First Nations include:

• (Guidelines Preamble and Section 1) ethical, social and economic aspects of the concept, particularly Aboriginal views on these issues:

  These aspects of the concept have (in a limited way) been described and discussed in the EIS in general form, applicable to generic communities of unspecified socio-cultural make-up. However, much of this discussion is so general as to be inapplicable to First Nations, and First Nations views have for all intents and purposes not been presented in direct or indirect form.

• (Guidelines Section 2) health issues, including First Nations' definitions of health and definitions of risk:

  There is no word for "radiation" or "radionuclide" in First Nations languages. While the EIS explains the biological and other effects of radiation on health, it does so without paying any attention to the difficulty of communicating these critical concepts to First Nations peoples in a manner that would ensure understanding, which we believe is essential for achieving informed consent/voluntariness.

  While R-Preclosure identifies one Aboriginal definition of health, this concept or understanding was not validated, canvassed amongst First Nations, or even simply presented in the EIS. [25] Had it been, the proponent may have learned that non-radiological effects of concept implementation could be as or more significant than radiological effects. For example, loss of confidence in country food has severe health impacts, whether or not it can be established that it is caused by a particular "contaminant'.

• (Guidelines Section 3) public consultation on concept development, and potential risks of the concept, including various viewpoints on risk, particularly Aboriginal peoples viewpoints;

  The accessibility of any "Public Consultation Programs" in the context of this proposed concept is of critical importance to First Nations peoples. We reviewed documents cited in the EIS as being central to the proponent's "Public Consultation Program", and found them fundamentally flawed from the perspective of First Nations involvement. [26]

  First Nations peoples' views of risk and responses to these views were apparently not sought or not discussed in the cross-referenced sections of the EIS, or both.

• (Guidelines section 7) case studies of major projects in Canada and elsewhere; site characterization, including natural and social aspects of site characterization and their interrelationship; criteria for rejection of a site; characterization of the natural environment and socio-economic conditions; particular sufficient description of all relevant characteristics and interactions occurring in the human environment of the candidate sites; site selection process, and in particular ethical considerations, availability of sites, and integration of socio-economic and biophysical criteria; management issues, including conflict resolution, community involvement mechanisms; activities, including local infrastructure; labour and resource requirements, including local employment, education and training, transient worker influxes; proposed transportation system, including political jurisdiction, risks to humans, human communities, and public involvement; management, including dispute resolution and public involvement mechanisms; operation, including transport route criteria and public involvement; labour and resource requirements; environmental protection, including mitigative measures, radiation exposure requirements, recognition of resource and land use, protection of critical habitats and endangered species, and restoration; occupational protection; monitoring, including changes in human communities; emergency planning; and

• social, economic and environmental impacts on humans, human communities; the viewpoints of various public groups, particularly Aboriginal peoples; strategy for impact evaluation, including understandings of ethics and values of review participants in particular those groups most affected; accumulation of impacts, especially on key elements within human communities and the natural environment, and public involvement; case studies, including socio-economic impacts of major projects, and discussion of these impacts on Aboriginal peoples, evaluation of scope and extent of impacts, and baseline indicators and characteristics; scenarios, including representative and reference sites and communities, and key indicators of unacceptable outcomes; baseline conditions, including relevant human and natural parameters in candidate site environments, and changes therein; health considerations; possible short-term impacts, including significant impacts on humans in representative reference communities and concerning certain key factors; possible long-term impacts, including ethical dimensions (Guidelines section 8):

Unfortunately, except for the few references referred to in sections 6.1 and 6.2 of this submission above, the proponent does not make mention of or meaningfully discuss First Nations' rights, knowledge, concerns and views with respect to these important questions in the Guidelines, rather submerging all First Nations issues concerns in a "generic" description and assessment.

This is unacceptable to us, and clearly deficient in terms of the Guidelines. It may well be that some of the information presented is in some ways applicable to Aboriginal or First Nations peoples, but, in the absence of adequate study in the context of this concept, this cannot be known by the proponent and cannot be verified by us, the Panel, or any other reader of the EIS.

(It may also be that this information is in part or whole inapplicable in Aboriginal or First Nations contexts. This also clearly cannot be known by the proponent in the absence of study in the context of this concept and cannot be verified by us, the Panel, or any other reader of the EIS.)

In light of (a) the Guidelines requirements, and (b) the possibility of the approval of this concept and (c) the possibility that the proponent would seek to implement the concept in a First Nations context, the deficiency of the proponent's knowledge regarding Aboriginal and First Nations peoples concerns is one that the proponent must be required to remedy in a fully comprehensive manner, at this stage of review.

Of particular concern is the proponent's indication that it intends to pursue an approach of cooperation with Aboriginal peoples in impact management and mitigation. It is the experience of many First Nations that the impacts of large projects cannot be predicted adequately and then inevitably cannot be managed. These concerns would inevitably have received greater treatment had First Nations' views been adequately sought by the proponent.

Also, the proponent raises a number of case studies as evidence that employment, training, business and contract opportunities and community spin-offs would likely mitigate the negative impacts of concept implementation. It is well-known that many of the cited case studies are far from being success stories. Meaningful consultation of the First Nations involved may have distinguished their experience from that reported in the literature used by AECL.

Our recommendation to the Panel with respect to the preceding parts of section 6 of this submission is:

THE PROPONENT'S ATTENTION SHOULD BE DRAWN TO THE GUIDELINES REQUIREMENT THAT IT ADEQUATELY DESCRIBE ALL SIGNIFICANT COMPONENTS OF THE BIO-PHYSICAL AND SOCIAL ENVIRONMENT, AND THAT THIS PARTICULARLY INCLUDES FIRST NATIONS AND ABORIGINAL PEOPLES AND THEIR UNDERSTANDING OF THEIR ENVIRONMENTS. THE PROPONENT SHOULD BE DIRECTED TO GREATLY AUGMENT ITS DESCRIPTION AND DISCUSSION OF THESE ISSUES ACCORDING TO THESE GUIDELINES REQUIREMENTS.

THE PROPONENT'S ATTENTION SHOULD FURTHER BE DRAWN TO THE GUIDELINES REQUIREMENT THAT IT ADEQUATELY DISCUSS POTENTIAL IMPACTS OF THE CONCEPT ON THESE ENVIRONMENTS, IN PARTICULAR FIRST NATIONS AND ABORIGINAL ENVIRONMENTS. THE PROPONENT SHOULD BE DIRECTED TO GREATLY AUGMENT ITS DESCRIPTION AND DISCUSSION OF THESE IMPACTS ACCORDING TO THESE GUIDELINE REQUIREMENTS.

THE PROPONENT'S ATTENTION SHOULD FURTHER BE DRAWN TO GUIDELINES REQUIREMENTS THAT SOCIAL, ECONOMIC, CULTURAL AND ETHICAL ASPECTS AND IMPACTS BE CONSIDERED WITH THE SAME DEGREE OF ATTENTION AND RIGOUR -- IN QUALITATIVE AND QUANTITATIVE TERMS -- THROUGHOUT THE EIS, AND THAT THESE CONCERNS, AND PARTICULARLY ABORIGINAL VIEWS, BE INTEGRATED THROUGHOUT THE EIS. THE PROPONENT SHOULD BE DIRECTED TO COMPLY WITH THESE GUIDELINES REQUIREMENTS.

We have examined a number of the documents that are cited in the EIS as providing additional background information. They provide additional insights into the proponent's treatment of -- and failure to treat -- Aboriginal and First Nations peoples' concerns in this context.

6.3.1 Ontario Hydro Nuclear Study: "R-Preclosure" [27]

In essence, this lengthy document (a) pays inadequate attention to First Nations rights, knowledge, views and concerns, and (b) where these views and concerns are expressed in the words of members of particular First Nations, they are not carried forward, reproduced or discussed in the EIS. This failure to describe or meaningfully consider these First Nations voices gives rise to serious concerns of selectivity on the part of the proponent in its presentation.

One two-page section in this document [28] deals specifically with "Aboriginal perspectives", in the context of ethical considerations of nuclear fuel waste disposal. It contains key insights drawn from FEARO scoping hearings, expressed in the voices of participants in those hearings. These include the obligation of Aboriginal peoples to be "caretakers" of the Earth, and to pass it on to future generations "in pretty well the same condition that they got it"; the necessity of accessibility of the waste for future generations; and the conceptual impossibility of any "permanent solution" because each problem "solved" usually creates others.

While these concepts are mentioned in the R-Preclosure document, these Aboriginal voices are not carried forward into the EIS, and no discussion of their implications for the concept proposal is found in the EIS.

The document does itemize three aspects of an approach to minimize adverse impacts on Aboriginal peoples, namely "a fair, open and voluntary siting process that follows principles and criteria that have been broadly approved through a legitimate social process; direct financial compensation, replacement or restitution; Aboriginal representation in impact assessment, management, monitoring and decision-making." [29]

While these particular points are relevant to issues that it can be assumed will arise, they were not derived from a process of study and understanding of First nations' need and own approaches. They fail therefore to be more than a recitation of generic, formulaic responses to Guidelines requirements.

This report also provides an important example of the potential for misuse of Aboriginal testimony. Mention is made of the fact that "it was clarified" that with respect to "their responsibility to future generations, they regard their present generation as lasting 60 years, and their responsibility for the future to span seven generations." [30] It is however not made clear whether this "clarification" was given in the context of a full appreciation of the known need to isolate certain wastes from the biosphere for millions of years. "Seven generations" is a concept frequently intended as an allusion to "forever". This particular reference in R-Preclosure serves to underscore the need for full understanding of Aboriginal paradigms, and the danger of the misuse through the literal (mis)interpretation of a numerically- expressed metaphorical concept (ie 60 years x 7 generations = 420 years of responsibility for future generations, rather than a responsibility of indefinite duration).

6.3.2 AECL Public Consultation Program
        (R-Public [31] and related documents [32])

It is stated in the EIS that a public consultation program was undertaken between 1985 and 1990, i.e. prior to the issue of the Guidelines. We examined the methods, participation and results of this process from a First Nations perspective and found them totally deficient.

This document concedes that "there are gaps in our knowledge about the view of specific societal sectors, in particular with respect to Aboriginal peoples." [33]

The relevant documents (R-Public and cited consultants' documents) indicate that in spite of mass mailings and invitations extended to numerous groups and organizations, Aboriginal participation was virtually non-existent. [34] It is indicated in R-Public that efforts to "interact and consult" with Aboriginal peoples have been met with "little interest." [35] The reasons cited include a perception on the part of Aboriginal peoples that other issues were a greater priority; the absence of intervenor funding for the hiring of outside experts by First Nations; and a desire to resolve issues related to uranium mine tailings prior to participating in discussion of nuclear waste disposal.

These factors were possibly valid, especially the absence of intervenor funding for the hiring of outside experts by First Nations. However, other factors may well have dissuaded or prevented meaningful Aboriginal participation. One such barrier may well have been the wholly unacceptable characterization -- apparently as a handwritten afterthought -- by the AECL consultation team in its selection procedures of "Natives" as a subset of "Consumers" (which in turn was a subset of "Organized Special Interest Groups") (see attached excerpts from AECL Document TO-333, Appendix A). it can be assumed, given the proponent's treatment of Aboriginal issues, that many other structural barriers prevented First Nations' effective participation and meaningful consultation.

A relatively wide range of non-native organizations and groups participated in the AECL consultation workshop process, such as it was. However, Aboriginal participation was, for all intents and purposes, non-existent. This establishes that particular barriers to Aboriginal participation, albeit possibly unintended, were indeed present. The panel is aware first-hand, of the depth of First Nation concern surrounding this concept; it was able through a somewhat sensitively designed process of hearings and moderate funding to facilitate the expression of many of these concerns.

We submit that specially targeted efforts to consult First Nations peoples should have been made by the proponent after the issue of the Guidelines, in light of the existence of a federal review process and the specific requirements of the Guidelines.

Research techniques regarding Aboriginal knowledge and concerns in the context of resource projects affecting Aboriginal peoples have recently advanced considerably, for example in the Ontario Demand Supply Assessment and the Joint Great Whale Environmental Assessment Process (see 1994 Consultation Agreement between Hydro-Quebec and the Grand Council of the Crees (of Quebec), Joint Great Whale Impact Environmental Review Process, Appendix B).

In addition, the Royal Commission on Aboriginal Peoples has issued highly applicable "Ethical Guidelines for Research", governing the design and conduct of research and studies involving Aboriginal peoples (Appendix C.) In our view, any study in the context of this environmental review should not fail to meet the positive requirements of these ethical guidelines. In addition, however, these ethical guidelines note that much research affecting the rights and interests (which would include the proponent's EIS and ancillary studies) have been undertaken in the past without the full participation of Aboriginal peoples.

It is a necessity that where the rights, knowledge, interests and concerns of Aboriginal peoples are to be paid "particular attention", that such research and study should (a) occur, and (b) be structured and designed by the Aboriginal peoples themselves.

Moreover, if it is genuinely intended that social, environmental and ethical concerns be studied and discussed by the proponent with the same degree of attention and rigour as scientific and technical issues, it is essential that such study be adequately funded and permitted adequate time in which to be undertaken. This is especially the case in the context of First Nations' lack of resources. A failure to fund such study adequately would constitute a serious structural impediment to First Nations peoples' capacity to influence the direction of this concept, and indeed to the complete answering by the proponent of the Panel's Guidelines requirements.

Open-ended invitations to First Nations to determine the methodology and conduct of consultations funded and facilitated by the proponent (rather than the dispatch of invitations to participate in a predetermined program involving non-native expert and other organizations) would have been more respectful of First Nations' self-determination, special status and concerns.

Such consultations could be undertaken by individual First Nations or groups of First Nations, in conjunction with regional organizations and in collaboration with recognized experts of their choice. If used by AECL in the past (preferably in light of the requirements of the Guidelines rather than prior to their issue), it would likely have resulted in a process in which met First Nations' needs, and gave an opportunity for their concerns and views to be understood and taken into particular consideration by the proponent. Unfortunately, for all intents and purposes, this has not been the case.

THE PROPONENT SHOULD BE DIRECTED IN THE CONTEXT OF THE PRESENT REVIEW TO APPLY CURRENT "CONSULTATION" AND STUDY TECHNIQUES FROM RECENT ASSESSMENT PROCESSES INVOLVING ABORIGINAL PEOPLES, AND TO APPLY THE PRINCIPLES CONTAINED IN CURRENT ABORIGINAL RESEARCH ETHICAL GUIDELINES, WHEREVER APPLICABLE, WHEN CONDUCTING AND RESEARCH INVOLVING ABORIGINAL PEOPLES REQUIRED BY THE GUIDELINES AND ANY SUPPLEMENTARY STUDY REQUIRED BY THE PANEL.

THE PROPONENT SHOULD BE DIRECTED TO ENABLE ABORIGINAL AND FIRST NATIONS PEOPLES TO DETERMINE THE METHODOLOGY OF NECESSARY CONSULTATIONS, TO FUND THEM ADEQUATELY TO UNDERTAKE SUCH STUDY IN CONJUNCTION WITH THEIR REGIONAL ORGANIZATIONS AND IN COLLABORATION WITH RECOGNIZED EXPERTS AND INDEPENDENT ADVISORS OF THEIR CHOICE, AND TO PERMIT ADEQUATE TIME FOR MEANINGFUL CONSULTATION TO BE UNDERTAKEN.

6.3.3 AECL Study: "Aboriginal Involvement in the Nuclear Industry" [37]

This 1993 report examines consultative processes, policy and program development relating to Aboriginal peoples and the nuclear industry in Canada.

This study states at the outset that the

"predominant socio-cultural group resident in Shield communities outside of the major mining and government centres consists of Canadian Aboriginals. Therefore, it is a distinct possibility that the siting of a nuclear fuel waste disposal facility in the Canadian Shield would require a full consultative process with potentially affected Canadian Aboriginals." [38]

However, the study concludes that:

"the admirable objective of substantial Aboriginal input which seems to be envisaged by the EAR Panel in their EIS guidelines is next to impossible to fully comply with at this stage of project development. In our view the only practical alternative is to review and evaluate existing relevant experience for alternative approaches and key issues... for use along with EARP public hearing results (hopefully, some Aboriginal communities / groups will choose to actively participate) as a conceptual basis for subsequent siting and 'real' planning processes. [39] [Emphasis added.]

While this is not explicitly stated in the EIS, this extraordinary "conclusion" may well explain the failure of the proponent to conduct any post-Guidelines formal consultation or study regarding Aboriginal knowledge, views and concerns, in response to the clear requirements of the Guidelines in this regard.

It is unacceptable to us that this report may have determined or influenced the proponent to fail, as it did, to meaningfully describe and discuss First Nations peoples' understanding of the environment and their concerns and views of the potential impacts of the proposed concept at this stage of the review process.

The Guidelines were written by the Panel in response to certain critical concerns, and are judged by the Panel to be relevant at this stage of review. Whether the above "conclusion" influenced the proponent to virtually ignore the Guidelines requirements or not, the fact remains that they have not been adequately responded to.

THE PROPONENT SHOULD BE INFORMED THAT, NOTWITHSTANDING THE VIEWS OF ITS CONSULTANTS AS TO THE PRACTICALITY OF RESPONDING TO CERTAIN GUIDELINES, THAT THE GUIDELINES WERE FORMULATED WITH SPECIFIC PURPOSES IN MIND FOR THIS STAGE OF THE REVIEW PROCESS, AND THAT IF A RESPONSE IS IMPOSSIBLE, THE PROPONENT SHOULD STATE THIS IN ITS EIS AND JUSTIFY ITS JUDGMENT TO THIS EFFECT IN LIGHT OF RECENT PRACTICE IN SOCIAL AND ENVIRONMENTAL IMPACT ASSESSMENT IN CANADA.

Aboriginal peoples' understanding of their treaty relationships with the Crown, and the rights that flow from them, are a core component of the social and legal environment of the proposed concept. What would the impacts be of site selection and implementation of the concept on First Nations' treaty rights? How would these rights be balanced with the equitable principles of fairness, shared decision-making, and voluntarism be balanced with Constitutional recognized and affirmed treaty rights, where a non-First Nation community was "volunteering" to host a site in a location that would impair First nation treaty rights? Would the principle of voluntarism reach the concept of a First nation veto? These undiscussed issues constitutes critical non-conformities of the EIS.

THE PROPONENT SHOULD BE DIRECTED TO INCLUDE IN ITS EIS A COMPREHENSIVE DISCUSSION OF VARIOUS FIRST NATIONS' TREATY RIGHTS IN THE CANADIAN SHIELD, INCLUDING AN ANALYSIS (DRAWN FROM CONSTITUTIONAL, JUDICIAL, ADMINISTRATIVE AND ENVIRONMENTAL TRIBUNAL, AND ABORIGINAL SOURCES) OF THE SPIRIT AND INTENT OF THESE TREATIES, AND THE IMPACT OF FIRST NATIONS' UNDERSTANDING OF THEIR TREATY RIGHTS ON THE IMPLEMENTATION OF THE CONCEPT.

This document "surveys the literature on the moral and ethical issues pertaining to nuclear waste management." [43] This literature review is instructive in a number of important respects, from a First Nations perspective.

First, it provides an additional example of useful information about First Nations concerns and views that was not incorporated (or was excluded) from the EIS and its conclusions. In the section on "Aboriginal Values" [44], a number of First Nations voices are quoted and views presented that indicate grave concern with the concept of geologic disposal, or developments like it, that are perceived to threaten nature or "mother earth". Once again, these views are not carried into, or discussed in the EIS, nor incorporated in any way in the conclusions of the EIS.

Second, the source of a significant portion of the data referenced is drawn from the scoping hearings of this process itself. The views presented at these preliminary FEARO hearings were expressed for a particular purpose, namely to "scope" the Guidelines. While these hearings and testimony were useful for the purpose they served at that time, they can in no way serve as a substitute for comprehensive study of the knowledge, views and concerns that the Guidelines, formulated and read as an integrated whole, required be canvassed particularly from Aboriginal peoples.

Third, it is stated in the publication that "although there is a great deal of literature available on specific aspects of Aboriginal spirituality around the world (e.g., shamanism) and on the socio-political circumstances of North American Indians, few publications deal explicitly with North American Aboriginal values and philosophy." A quick review of the works cited indicates that a number of obvious and classic texts (such as the Final Report of the Mackenzie Valley Pipeline Inquiry) were not included. To the extent that the proponent relied on this literature review for its EIS, it was noticeably deficient.

Moreover, this literature review misses an essential point, one not reflected in the proponent's EIS: Aboriginal and First Nations peoples are predominantly oral societies, in which knowledge, traditions, culture and spirituality are still to a great extent handed down and kept orally. While the literature is important, it is frequently not Aboriginal literature. What is equally important, if not more so, is that Aboriginal peoples themselves be consulted directly about their knowledge and concerns and given a full opportunity to shape the proponent's and others' understandings.