JOINT FIRST NATIONS' SUBMISSION

TO THE FEDERAL ENVIRONMENTAL REVIEW
OF THE NUCLEAR FUEL WASTE MANAGEMENT AND DISPOSAL CONCEPT

CONFORMITY AND ADEQUACY ANALYSIS

OF THE PROPONENT AECL'S
ENVIRONMENTAL IMPACT STATEMENT

on behalf of

    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)

August 1995


PART TWO



Contact:

Andrew J. Orkin
Barrister and Solicitor (Ont.)
2208 Melrose Avenue
Montreal, Quebec H4A 2R8

Tel. (514)483-2170
Fax (514)483-4427



. . . back to [ TABLE OF CONTENTS]


7. A Particular Note Regarding "Voluntariness" and First Nations Peoples

As noted above, the Guidelines require the proponent to address

  • "the strategy and methodology" for concept implementation [45];

  • the "safe and acceptable "disposal of nuclear waste [46];

  • ethical and moral perspectives and impacts of project implementation,

  • "in particular, [those of] those groups that could be most affected by the disposal concept." [47]

The EIS refers extensively to the principle of "voluntariness" as an ethical principle to which the proponent subscribes with respect to concept implementation. [48]

For a decision to be voluntary, it is axiomatic that the consent of the party making the decision must be obtained. To be genuine, this consent must be obtained in a manner that is fully informed, and free of conditions of coercion or duress.

With respect to full information, it is critical that First Nations peoples be fully informed about this proposed concept (and any variant of it that may proceed towards implementation). The concept would clearly constitute a highly invasive, long-lasting and potentially serious social and environmental imposition on any "host" community, whether Aboriginal or of other socio-cultural status. It is therefore essential that the level of "informedness" about all relevant aspects of the concept be high.

This is not just a requirement for a future site-specific review of concept implementation. Given (a) that it is proposed that certain critical aspects of this proposal receive approval during concept review (for example, whether or not permanent "disposal" is viable and acceptable), and given (b) that it may not be possible to re-visit these assessments during later phases of concept implementation, it is critical that First Nations peoples be adequately informed at this stage of review (as well as some future point during a decision whether to become a "host community"). In effect, Aboriginal and First Nations peoples' consent is being sought at this stage of the concept "implementation" for significant and far-reaching aspects of the proponent's proposal.

The proponent's public information and consultation processes failed, by its own assessment, to even get off the ground in respect of Aboriginal peoples. As discussed in earlier sections of this submission, the proponent's EIS fails to meet basic requirements of the quality and quantity of information that First Nations societies require (or will require) to be informed to standards necessary to understand, consider or consent to the concept, whether in present or future stages of assessment.

It is imperative, both at this stage of review and at any later stage(s) of concept review and implementation, that First Nations peoples be fully informed. An important additional aspect of "full information" is that Aboriginal and First Nations peoples be afforded access not only to information and expertise from the proponent, but also from independent sources, including individuals and organizations with differing or opposing views on nuclear waste management to those of the proponent.

The various descriptions in the EIS and ancillary documents of the public information processes indicate inadequate access that First nations had little access to these processes, and thus little or no exposure to views and expertise that was independent of the proponent. First Nations peoples in the north are isolated both geographically and "informationally" from southern society, and the information they receive on the concept, if any, is likely to be in great measure provided by the proponent.

It is apparently accepted by the Panel that there are many Canadian organizations of stature and expertise, who are independent of the proponent, that question or are critical of some or many aspects of the proposed concept. [49] As a matter of equity and full information, Aboriginal and First Nations peoples should be afforded access to the knowledge and views of key independent groups and individuals, in order that Aboriginal views included in the EIS are fully informed about some of the serious issues that the proponent has shown a tendency to devalue in its EIS.

  • THE PROPONENT SHOULD BE DIRECTED TO ENSURE THAT ABORIGINAL AND FIRST NATIONS PEOPLES ARE AFFORDED ACCESS, IN THE CONTEXT OF THEIR CONSIDERATION OF THIS CONCEPT IN THE PRESENT STAGE OF REVIEW (AND ITS POSSIBLE IMPLEMENTATION AT LATER STAGES) TO INDEPENDENT EXPERTISE AND TO VIEWPOINTS DIFFERING AND OPPOSED TO THOSE OF THE PROPONENT.

  • At this stage of review, the requirement that Aboriginal and First Nations peoples be fully informed is an ethical obligation of both the proponent and the Panel. We have made recommendations above which embody minimum requirements for the study by the proponent of Aboriginal and First Nations peoples' knowledge, views and concerns, and the integration of the results of these studies into a greatly augmented and reorganized EIS.

    With respect to voluntariness and consent, the proponent's EIS fails to discuss the critical factors of potential coercion or duress that are inherent to the possible implementation of the concept in a First Nations context.

    The Supreme Court of Canada has recognized in a number of cases that "inequality of bargaining power", position or status, and "distress" through social or other need, can render the giving true consent an impossibility in a context where the stronger party is seeking to obtain a particular benefit at the expense of the rights or interests of the weaker, or can even vitiate any consent given under such conditions. [50] In Norberg v. Weinrib it was in addition stated [51] by the Supreme Court that the existence of a special relationship of trust and confidence (a relationship that is often referred to as a fiduciary relationship) may also indicate that the "weaker party was not in a position to choose freely".

    The proponent's EIS itself indicates that "many Aboriginal communities are disadvantaged because of inadequate employment, housing, health care and community infrastructure". [52] This understated reference is undeniably and tragically true for First Nations, virtually without exception. First Nations suffer from high and endemic levels of poverty, violent injury and death, suicide and social disintegration, largely as a result of decades of systematic dispossession, discrimination, governmental neglect and abuse.

    In addition, First Nations are beneficiaries of special fiduciary relationships with the federal and provincial governments, [53] [1990] 1 S.C.R. 1075 at 1108 - 1109.[54] and, arguably, federal agencies including the proponent.

    It is also arguably the case that the social distress, vulnerability, isolation, poverty and fiduciary beneficiary status of many First Nations communities would render any assent given to the implementation of this concept by such a First Nation involuntary by reason of duress. It may well be that many First Nations are simply not in a position, by virtue of the devastatingly high levels of unemployment and social distress they experience, to freely consent to or to withhold such consent for this concept.

    While it is not being implied in this submission that the proponent would deliberately exploit desperate social conditions to obtain "consent" from a First Nation to site a waste repository in their jurisdiction and on their lands, it is clear that communities with either (a) lower levels of social distress and/or (b) other options for short- and longer-term "development" are much less likely to entertain the possibility of "hosting" the proponent's proposed concept.

    It is noteworthy that AECL reports that it was stated in an ethical issues workshop discussion on compensation that:

    "[t]he consequences of nuclear fuel waste disposal could go well beyond the capacity of any existing system of compensation... since we cannot deal with compensation with confidence, there exists and ethical basis for talking about "incentives". However, there should be a caution about offering incentives to disadvantaged groups... In dealing with disadvantaged groups, the issues of compensation and informed consent become somewhat complicated. We cannot "buy consent" if people are in dire circumstances: it is not "genuinely given consent" if individuals do something for a desperately needed, immediate benefit, e.g., the poor selling their organs for transplant." [55] [Emphasis added]

    This critically important point, presumably raised by one or more participants in an AECL workshop, was not carried forward into or discussed by the proponent in its EIS.

    The Guidelines require the proponent to identify and discuss exclusion criteria, or "criteria for the rejection of a site". [56] It is submitted that the proponent should (in light of (a) this Guidelines requirement, (b) the above discussion at one of its own workshops and (c) recent Supreme Court of Canada jurisprudence [57]) have identified the social distress, vulnerability, desperation and fiduciary beneficiary status of many First Nations communities as possible legal and ethical exclusion criteria, and discussed this critical issue in the depth it clearly requires.

  • THE PROPONENT SHOULD BE DIRECTED TO DISCUSS, IN SOME DEPTH, THE LEGAL AND ETHICAL IMPLICATIONS OF THE SOCIAL DISTRESS, VULNERABILITY AND FIDUCIARY BENEFICIARY STATUS ON THE CAPACITY OF ABORIGINAL AND FIRST NATIONS PEOPLES TO CONSENT FREELY TO THE GRANTING OF SUCH GREAT BENEFIT TO THE CROWN, THEIR FIDUCIARY, AND TO SOCIETY AT LARGE. PURSUANT TO GUIDELINES REQUIREMENTS IN THIS REGARD, THE PROPONENT SHOULD DISCUSS FULLY WHETHER SUCH ADVERSE CONDITIONS AND STATUS CONSTITUTE CRITERIA FOR THE EXCLUSION OF COMMUNITIES EXPERIENCING SUCH CONDITIONS AS HOST SITES, AND FULLY JUSTIFY ANY CONCLUSION THAT THEY DO NOT.

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    8. CONCLUSIONS [58]

    It can only be concluded that the EIS is wholly inadequate with respect to the rights, knowledge, concerns and views of First Nations and Aboriginal peoples. The extremely limited EIS content of environmental, socio-economic, cultural and ethical knowledge, concerns and views specific to Aboriginal peoples cannot be said to meet the numerous applicable Guidelines requirements and the fundamental criteria identified above, namely:

    • comprehensive study and presentation of the environmental, socio-economic, cultural and ethical concerns and views, particularly of Aboriginal peoples;

    • giving these Aboriginal concerns and views particular consideration in the EIS;

    • giving environmental, socio-economic, cultural and ethical concerns and views equal weight in the EIS to scientific and technical issues; and

    • integrating environmental, socio-economic, cultural and ethical concerns into scientific and technical considerations, throughout the EIS.

    It is notable that no direct, first-hand views of Aboriginal or First Nations people are presented in the body of the EIS. Numerous Aboriginal witnesses addressed various FEARO scoping workshops, and their testimony is reproduced in R-Preclosure, R-Public and other ancillary documents, but is not carried forward into the EIS. In many cases this testimony expressed grave concerns regarding the equity of the concept and impacts of its implementation on First Nations peoples, their culture, economies and way of life. This oral testimony represents the views of many Aboriginal peoples, and we can only view its exclusion from the EIS with concern.

    It is further notable that discussions of social, economic environmental and ethical "acceptability" in the EIS, such as they are, are premised wholly on "Western/Judeo-Christian/'modern' scientific and technical" paradigms and world-views, and not at all from those of Aboriginal and First Nation societies.

    If Aboriginal and First Nations peoples' concerns are to receive particular consideration, as required in the EIS, it cannot be accepted that this knowledge and these concerns are then evaluated in terms of wholly inapplicable epistemologies and belief systems. If this is permitted, it is likely that such issues as First Nations peoples' connections to the land, their view of their duty to the Earth, and their obligations to future generations of people and animals will be further discounted or ignored.

  • THE PROPONENT SHOULD BE DIRECTED TO INCLUDE, TO THE GREATEST EXTENT POSSIBLE, FIRST NATIONS AND ABORIGINAL PEOPLES' VOICES VERBATIM IN ITS EIS, AND TO CONSIDER, DISCUSS AND TAKE INTO PARTICULAR CONSIDERATION THE VIEWS AND CONCERNS THEY EXPRESS IN ITS (THE PROPONENT'S) EVALUATION OF THE CONCEPT AND ITS ACCEPTABILITY. THE CONCEPT OF SOCIAL, ECONOMIC ENVIRONMENTAL AND ETHICAL "ACCEPTABILITY" SHOULD BE CONSIDERED FROM THE POINT OF VIEW NOT ONLY OF "WESTERN/JUDEO-CHRISTIAN/'MODERN' SCIENTIFIC AND TECHNICAL" PARADIGMS AND WORLD-VIEWS, BUT FROM THOSE OF ABORIGINAL AND FIRST NATION PERSPECTIVES.

  • The implementation of the proposed concept would affect the rights, well-being and ways of life of First Nations peoples. The Guidelines require the proponent to understand and present the views of First Nations peoples in this regard, both with respect to a "baseline" body of knowledge and to the impacts of the proposed concept.

    This would necessarily require that the proponent enable representative and affected First Nations to undertake systematic study of their values, concerns and baseline understanding of the environment of which they are part, for inclusion and particular consideration by the proponent in its EIS.

  • THE PROPONENT FAILED TO OBTAIN, AND INCLUDE IN ITS EIS, ADEQUATE FIRST-HAND ENVIRONMENTAL, SOCIAL, CULTURAL, ETHICAL AND SPIRITUAL VIEWS AND CONCERNS OF TYPICAL OR REPRESENTATIVE ABORIGINAL AND FIRST NATIONS PEOPLES IN ITS EIS, AS REQUIRED BY THE GUIDELINES.

  • THE PROPONENT SHOULD BE DIRECTED TO ENABLE AN ADEQUATE NUMBER OF TYPICAL POTENTIALLY AFFECTED FIRST NATIONS IN REPRESENTATIVE AREAS OF THE CANADIAN SHIELD TO SYSTEMATICALLY UNDERTAKE (IN PARTNERSHIP WITH THEIR REGIONAL ORGANIZATIONS, AND IN COLLABORATION WITH RECOGNIZED EXPERTS OF THEIR CHOICE) COMPREHENSIVE STUDIES OF THEIR KNOWLEDGE, VIEWS AND CONCERNS AND IDENTIFY BASELINE UNDERSTANDINGS OF THE ENVIRONMENT OF WHICH THEY ARE PART.

  • THESE STUDIES SHOULD BE CONDUCTED ACCORDING TO THE BEST CURRENT PRACTICE IN IMPACT ASSESSMENT AND THE HIGHEST ETHICAL STANDARDS GOVERNING RESEARCH INVOLVING ABORIGINAL PEOPLES. IN FUNDING AND FACILITATING THESE STUDIES, THE PROPONENT SHOULD BE DIRECTED TO ENSURE THAT ABORIGINAL PEOPLES ARE ABLE TO DETERMINE THE DIRECTION OF THE RESEARCH FOR THEMSELVES, AND HAVE FULL ACCESS TO THE PROPONENT'S AND OTHER PARTIES' VIEWS ON THE PROPOSAL AND ALTERNATIVES TO IT.

  • THESE STUDIES SHOULD FURTHER ENSURE THAT THE KNOWLEDGE, VIEWS, CONCERNS AND VOICES OF ALL SEGMENTS OF THE STUDIED FIRST NATIONS SOCIETIES, INCLUDING ELDERS, WOMEN, YOUTH, HUNTERS AND TRAPPERS, AS WELL AS POLITICAL LEADERSHIP, ARE AFFORDED AN OPPORTUNITY TO INFLUENCE THEIR FINAL CONTENT AND OUTCOME.

  • THE PROPONENT SHOULD BE REMINDED THAT THE ENVIRONMENTAL, SOCIO-ECONOMIC, CULTURAL, SPIRITUAL AND ETHICAL ASPECTS OF THE AFFECTED ENVIRONMENT AND THE CONCEPT, SHOULD, AS THE GUIDELINES REQUIRED, BE CONSIDERED WITH THE SAME DEGREE OF ATTENTION AND RIGOUR AS SCIENTIFIC AND TECHNICAL ISSUES.

  • THE PROPONENT SHOULD BE DIRECTED TO FULLY INTEGRATE RESULTS OF THESE STUDIES INTO THE PROPONENT'S EIS, TO PERMIT THEIR PARTICULAR CONSIDERATION BY THE PROPONENT AND BY THE PUBLIC AT LARGE AS ENVISAGED IN THE GUIDELINES.

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    APPENDIX A      [5 pages]

    Excerpts from AECL TR-333 -- "Selection of groups to participate in the Canadian Nuclear Fuel Waste Management Public Consultation Program (June 1985)."

    [Copy of pie-charts from Appendix A of AECL study TR-333; it shows "natives" as a small subset of "consumers", which is in turn a slice of "organized special interest groups, which is a subset of "the public"; another large category of "the public", called "community special interest groups", is on a par with "organized special interest groups"-- but "natives" are not encountered there]

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    APPENDIX B      [4 pages]

    Joint Great Whale Hydro-electric project
    Environmental Impact Assessment Process

    - Consultation Agreement
    between
    Hydro-Québec
    and
    the Grand Council of the Crees (of Quebec),
    February 1994.

    [Copy of consultation agreement, providing for full community-based consultation of nine James Bay Cree First Nations, designed and undertaken by Grand Council of the Crees and funded over 6 months by the proponent Hydro-Quebec]

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    APPENDIX C      [6 pages]

    Royal Commission on Aboriginal Peoples, Ethical Guidelines for Research (1993)

    [Copy of Royal Commission Guidelines]

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    APPENDIX D

    FURTHER ANALYSIS OF CANADIAN LAW
    ON CONSENT, DURESS AND FIDUCIARY RELATIONSHIPS.

    The following discussion [59]is provided in support of the recommendation that the proponent be required to discuss whether conditions of social distress and economic desperation constitute a barrier to free consent or voluntariness, and whether these conditions are thus criteria for the exclusion of communities experiencing such conditions.

    Canadian law is not silent on the issues of consent in the context of distressed conditions and fiduciary relationships. These concerns are very relevant to proposals by Crown agencies to site waste repositories in return for compensation with the consent of First Nations experiencing varying levels of social distress. The points below serve only to illustrate the fundamental legal and ethical issues that the proponent failed to address in its EIS.

    Considerations relating to Fiduciary Relationships and Aboriginal Peoples

    The origins of the fiduciary relationship between Aboriginal peoples and the Crown are in the common law and the relationship is reflected in the Royal Proclamation of 1763.[60]

    Dickson J. ruled in Geurin that "...in this sui generis relationship [between Aboriginal peoples and the Crown], it is not improper to regard the Crown as a fiduciary."[61]

    The Supreme Court subsequently confirmed in Sparrow v. The Queen [62] that the "recognition and affirmation" of Aboriginal and treaty rights in s. 35 of the Constitution Act, 1982 has strengthened First Nations' assertion that the Crown has a fiduciary obligation.

    B. Slattery indicates that:

    "[t]he trust relationship attaches primarily to the Federal government, but it also affects Provincial governments in certain contexts... so long as the Provinces have powers and rights enabling them to affect adversely Aboriginal interests protected by the relationship, they hold attendant fiduciary obligations..."[63]

    and that:

    "[t]he Aboriginal trust relationship is collective in nature. The Crown's fiduciary obligations are owed to Aboriginal nations... even if the individual members of the nations are also affected." [64]

    The possibility of Crown agencies and provincial governments acting as fiduciaries is consistent with the ruling of Mr. Justice Dickson in Guerin v. The Queen:

    "It is the nature of the relationship, not the specific category of the actor involved that gives rise to the fiduciary duty. The categories of fiduciary, like those of negligence, should not be considered closed".[65]

    In International Corona Resources Ltd. v. Lac Minerals Ltd., Mr. Justice Sopinka of the Supreme Court stated that:

    "Relationships in which a fiduciary obligation has been imposed seem to possess three general characteristics:
    1. The fiduciary has scope for the exercise of some discretion or power.

    2. The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary's legal or practical interests.

    3. The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power.

    It is possible for a fiduciary relationship to be found although not all of these characteristics are present, nor will the presence of these ingredients invariably identify the existence of a fiduciary relationship.

    The one feature... which is considered to be indispensable to the existence of the fiduciary relationship...is that of dependency or vulnerability. In this regard, I agree with the statement of Dawson J. in Hospital Products Ltd. v. United States Surgical Corp., [(1984) 55 A.L.R. 417] at p. 488, that:

    'There is, however, the notion underlying all the cases of fiduciary obligation that inherent in the nature of the relationship itself is a position of disadvantage or vulnerability on the part of one of the parties which causes him to place reliance upon the other and requires the protection of equity acting upon the conscience of that other.' [66]

    In the recent Supreme Court of Canada case of Norberg v. Wienrib [67], McLachlin J. indicates that fiduciary principles are applicable to "fundamental human and personal interests":

    "The principles alluded to by Wilson J. in Frame v. Smith and applied by this Court in its earlier decision in Guerin v. The Queen, [1984] 2 S.C.R. 335, are principles of general application, translatable to different situations and the protection of different interests than those hitherto recognized. They are capable of protecting not only narrow legal interests, but can also serve to defend fundamental human and personal interests..." [68][Emphasis added.]

    Considerations relating to consent

    Sopinka J. states in Norberg v. Wynrib:

    "In assessing the reality of consent and the existence and impact of any of the factors that tend to negate true consent, it is important to take a contextually sensitive approach. In relation to medical procedures, several courts have emphasized the need to consider all relevant surrounding circumstances in assessing whether there was valid consent. See, for example: Morrow v. Hôpital Royal Victoria (1989), 3 C.C.L.T. (2d) 87 (Que. C.A.); Cowan v. Brushett (1990), 3 C.C.L.T. (2d) 195 (Nfld. C.A.). Such an approach applies equally in other situation. For example, the commentary to 892B, Consent under Mistake Misrepresentation or Duress, of the American Law Institute's Restatement of the Law of Torts (2d), states in relation to duress that '[a]ge, sex, mental capacity, the relation of the parties and antecedent circumstances may be relevant'." [69] [Emphases added]

    Sopinka J. stated in Norberg that:

    "Certain relationships, especially those in which there is a significant imbalance in power or those involving a high degree of trust and confidence may require the trier of fact to be particularly careful in assessing the reality of consent... The beneficiary of a fiduciary relationship can still consent to a transaction with the fiduciary but the court will subject such a consent to special scrutiny." [70] [Emphasis added.]

    The Supreme Court of Canada recently analyzed in some depth legal considerations surrounding the issue of consent (including in the context of fiduciary relationships) in Norberg v. Wynrib. [71] Basing their judgment in that case on an amalgamation of principles drawn from tort, contract and criminal law, La Forest, Gonthier and Cory JJ. held that the concept of consent

    "is based on a presumption of individual autonomy and free will. It is presumed that the individual has freedom to consent or not to consent. This presumption, however, is untenable in certain circumstances. A position of relative weakness can, in some circumstances, interfere with the freedom of a person's will. Our notion of consent must, therefore, be modified to appreciate the power relationship between the parties." [72][Emphasis added.]

    Drawing from the law of contract, the three justices held that a fiduciary relationship, while it may inform a consideration of the reality of consent

    "is not a necessary ingredient for a claim involving inequality of bargaining power, even though such a relationship may be present. This principle was stated by Boyd C. in the early Ontario case of Waters v. Donnelly (1884), 9 O.R. 391, at p. 401:

    ...if two persons, no matter whether a confidential relationship exists between them or not, stand in such a relation to each other that one can take an undue advantage of the other, whether by reason of distress, or recklessness, or wildness, or want of care, and when the facts shew that one party has taken undue advantage of the other by reason of the circumstances I have mentioned, a transaction resting upon such unconscionable dealing will not be allowed to stand...." [73][Emphasis added.]

    Circumstances requiring an assessment of consent were held in Norberg to arise in a number of ways:

    "...the weakness may arise out of a special relationship in which trust and confidence has been reposed in the other party." [74][Emphasis added.]

    The relevant impact of such circumstances were held to be that:

    "in certain circumstances, consent will be considered ineffective if it can be shown that there was such a disparity in the relative positions of the parties that the weaker party was not in a position to choose freely." [75] [Emphasis added.]

    La Forest J. (Gonthier and Cory concurring) emphasized in Norberg [76] that scrutiny of a defence of consent must be broad:

    "As Heuston and Buckley, Salmond and Heuston on the Law of Torts (19th ed. 1987), at pp. 564-65, put it: "A man cannot be said to be 'willing' unless he is in a position to choose freely; and freedom of choice predicates the absence from his mind of any feeling of constraint interfering with the freedom of his will." A 'feeling of constraint' so as to 'interfere with the freedom of a person's will' can arise in a number of situations not involving force, threats of force, fraud or incapacity." [Emphasis added.]


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    [ Radioactive Waste Sub-Directory ] [ COMPLETE DIRECTORY ]


    ENDNOTES

    1. The order of the recommendations is changed slightly from that of their occurrence in the text.

    2. Environmental Impact Statement on the Concept for Disposal of Canada's Nuclear Fuel Waste, Atomic Energy of Canada Limited (September 1994), document AECL-10711, COG-93-1.

    3. Federal Environmental Assessment Review Panel Final Guidelines for the Preparation of and Environmental Impact Assessment Statement on the Nuclear Fuel Waste Management and Disposal Concept, March 1992.

    4. See EIS, Figure 1-4, page 8.

    5. See for example Guidelines page viii, paragraphs 8.1, 8.3, 8.4, and pages 44 - 45, section 8.

    6. Guidelines at page viii, paragraph 8.1. See also section 8 at page 44.

    7. Guidelines at page viii, paragraphs 8.3 and 8.4. See also section 8 at pages 44 - 45.

    8. Guidelines at page 35, section 7.2

    9. At pages 389 - 392.

    10. See, for example, Appendix A, Guideline Section 2.2, wherein Section 3.9 of the EIS is cross-referenced but appears not to contain any directly relevant information.

    11. Section 1, paragraph 1, page 1.

    12. Section 7.12, page 34. See also section 7.1 at page 32, where it is stated:
      The EIS should demonstrate a capability for investigating and characterizing actual candidate sites for the safe and acceptable disposal of nuclear fuel waste. Both natural and socio-economic aspects as well as their inter-relationship should be considered.

    13. Section 7.12, page 34.

    14. Guidelines in section 8, pages 44 and ff.

    15. Guidelines at page 47 - 48.

    16. Guidelines in section 8.24, at page 49.

    17. See, for example, Guidelines requirements:
      • Preamble (ethical, social and economic aspects, at page xii);
      • Section 1 (ethical and moral perspectives, along with social issues, at page 1; different viewpoints, particularly those impacted, at page 2);
      • Section 2 (2.1 - definitions of health, at page 3; definition of risk, at page 3; analysis of various viewpoints of health including aboriginal peoples' viewpoints, at page 3);
      • Section 3 (3.1 - development of the concept, including public consultation, at page 9; 3.1 - potential risks of the concept, including various viewpoints on risk, particularly aboriginal peoples viewpoints, at page 10);
      • Section 7 (case studies, at page 32;
        • 7.1 - site characterization, including natural and social aspects of site characterization and their interrelationship, at page 32; criteria for rejection of a site, at page 32; characterization of the natural environment and socio-economic conditions;
        • 7.11 and 7.12 - particular sufficient description of all relevant characteristics and interactions occurring in the human environment of the candidate sites, at pages 33 - 34;
        • 7.2 - site selection process, and in particular ethical considerations, availability of sites, and integration of socio-economic and biophysical criteria, at page 35;
        • 7.31 - management issues, including conflict resolution, community involvement mechanisms, at page 36;
        • 7.32 - activities, including local infrastructure, at page 36;
        • 7.33 - labour and resource requirements, including local employment, education and training, transient worker influxes, at page 37;
        • 7.40 - proposed transportation system, including political jurisdiction, risks to humans, human communities, and public involvement, at pages 37 - 38;
        • 7.42 - management, including dispute resolution and public involvement mechanisms, at page 39;
        • 7.43 - operation, including transport route criteria and public involvement, at pages 39 - 40;
        • 7.44 - labour and resource requirements, at page 40;
        • 7.5 - environmental protection, including mitigative measures, radiation exposure requirements, recognition of resource and land use, protection of critical habitats and endangered species, and restoration, at pages 40 - 41;
        • 7.6 - occupational protection, at page 41;
        • 7.7 - monitoring, including changes in human communities, at page 42;
        • 7.8 - emergency planning); and
      • Section 8 (social, economic and environmental impacts on humans, human communities at page 44; the viewpoints of various public groups, particularly aboriginal peoples at page 44;
        • 8.1 - strategy for impact evaluation, including understandings of ethics and values of review participants in particular those groups most affected, at page 45; accumulation of impacts, especially on key elements within human communities and the natural environment, and public involvement, at page 46;
        • 8.21 - 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, at page 47 - 48; scenarios, including representative and reference sites and communities, and key indicators of unacceptable outcomes, at page 48 - 49;
        • 8.24 - baseline conditions, including relevant human and natural parameters in candidate site environments, and changes therein, at pages 49 - 51;
        • 8.3 - health considerations, at page 52 - 53;
        • 8.5 - possible short-term impacts, including significant impacts on humans in representative reference communities and concerning certain key factors, at pages 52 - 53;
        • 8.5 - possible long-term impacts, including ethical dimensions, at pages 53 - 55).

    18. EIS, page 74.

    19. Ibid.

    20. Environmental Impact Statement on the Concept for Disposal of Canada's Nuclear Fuel Waste, Atomic Energy of Canada Limited (September 1994), document AECL-10711, COG-93-1.

    21. Scrutiny of the EIS and the report of this workshop indicate that none of this "valuable input" was included in the EIS, or afforded any meaningful discussion.

    22. These potential effects are neither elaborated upon, nor actually characterized by the proponent, leaving the reader uninformed as to what the effects are and which effects may be adverse and which may be beneficial.

    23. What such "special attention" may be, forecasts of the effectiveness of such measures, and experience elsewhere in this regard are, it would appear, not discussed, either in R-Preclosure or in the EIS.

    24. See note above and associated text.

    25. Section 3.9 of the EIS is cross-referenced in Appendix A of the EIS as dealing with risks to health and the environment, but does not appear to do so.

    26. See section below.

    27. Ontario Hydro Nuclear, The Disposal of Canada's Nuclear Fuel Waste: Preclosure Assessment of a Conceptual System, June 1994.

    28. Section 6.6, pps. 153 - 155..

    29. R-Preclosure at page 6-156.

    30. R-Preclosure at page 6-154.

    31. AECL, The Disposal of Canada's Nuclear Fuel Waste: Public Involvement and Social Aspects, July 1994.

    32. AECL Research Co. and Pat Delbridge Associates Inc., Selection of Groups to Participate in the Canadian Nuclear Fuel Waste Management Public Consultation Program, June 1985; AECL Research Co. and Pat Delbridge Associates Inc., The AECL Public Consultation Program Workshop on the Canadian Nuclear Fuel Waste Management Program 1988 March 25 - 27, January 1988.

    33. See R-Public at page ii.

    34. See R-Public at pages 43ff.

    35. R-Public at page 51.

    36. See for example, R-Public at pages 109 - 110 and 153ff.

    37. HBT AGRA Limited, presented to AECL Research, April 1993.

    38. At page 8.

    39. At page 24.

    40. At page 15.

    41. R-Public at page 179.

    42. Hardy Stevenson and Associates, Nuclear Fuel Waste ManagementConcept - Literature Review and Analysis [;] Moral and Ethical Issues [undated], AECL library document no. TR-M-0017 (?).

    43. Foreword.

    44. Section 2.3.4, page 19 - 21.

    45. See Guidelines section 7, paragraph 1 at page vi.

    46. Ibid, paragraph vii at pages vi - vii.

    47. Ibid, section 8, paragraphs 1 and 4, page viii.

    48. See, for example, EIS page 66.

    49. See the various FEARO lists of organizations independent of the proponent who have been awarded funding to intervene on a wide range of subjects in the present High Level waste Disposal Concept Assessment.

    50. See, in particular, Norberg v. Weinrib, [1992] S.C.R. 224; (1992) 92 D.L.R. (4th) 449. See also Appendix D of this submission.

    51. Ibid. at 460.

    52. EIS, section 3.9 at page 74.

    53. See Guerin v. The Queen , [1984] 13 D.L.R. (4th) 321 at 341; International Corona Resources Limited v. Lac Minerals Ltd ., [1989] 2 S.C.R. 574, 61 D.L.R. (4th) 14 at 62 - 63; Sparrow v. The Queen

    54. [1990] 1 S.C.R. 1075 at 1108 - 1109. See also Appendix D to this submission.

    55. Hardy Stevenson and Associates/AECL, Moral and Ethical Issues Related to the Nuclear Fuel Waste Concept , October 1991, Document no. TR-549 at page 20.

    56. See Guidelines section 7.1, page 32.

    57. See Appendix D to this submission for an additional analysis of the law and jurisprudence relating to consent under these and analogous contexts.

    58. Note: the recommendations in this section supplement those submitted in the text above. The section "Recommendations" at the beginning of this submission should be consulted for a complete set of references in conceptual order.

    59. This discussion in Appendix B draws on a number of references in Assembly of First Nations, Violations of Human Rights by the Governments of Canada and Newfoundland in Regard to the Mushuau Innu, (May 1993).

    60. Royal Proclamation of 1763, R.S.C. 1985, App. II, No. 1.

    61. Geurin v. The Crown, (1984) 13 D.L.R. (4th) 321 at 341.

    62. [1990] 1 S.C.R. 1075 at 1108 - 1109.

    63. See B. Slattery, First nations and the Constitution: A Question of Trust, (1992) 71 Can Bar Rev. 261 at 274.

    64. See B. Slattery, First nations and the Constitution: A Question of Trust,(1992) 71 Can Bar Rev. 261 at 273.

    65. (1984) 13 D.L.R. (4th) 321 at 341. See also B. Slattery, First Nations and the Constitution: A Question of Trust, (1992) 71 Can. Bar Rev. 261 at 274:
      "The trust relationship attaches primarily to the Federal government, but it also affects Provincial governments in certain contexts...Since section 91(24) of the Constitution Act, 1867 makes the Federal government responsible for 'Indians and Lands Reserved for the Indians', the main burden of the trust relationship clearly falls on its shoulders. However, so long as the Provinces have powers and rights enabling them to affect adversely Aboriginal interests protected by the relationship, they hold attendant fiduciary obligations."

    66. [1989] 2 S.C.R. 574, 61 D.L.R. (4th) 14 at 62 - 63.

    67. Norberg v. Wienrib, [1992] S.C.R. 224; (1992) 92 D.L.R. (4th) 449.

    68. At 499 (D.L.R.).

    69. Supra, note , at 474 - 475 (D.L.R.).

    70. Supra, note at 476 (D.L.R.).

    71. Supra, note .

    72. Supra, note at 457 (D.L.R.).

    73. Supra, note at 459 (D.L.R.).

    74. Supra, note at 459 (D.L.R.).

    75. Supra, note , at 460 (D.L.R.).

    76. Supra, note at 457 (D.L.R.).
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