Debates of Feb. 4th, 1997

Nuclear Safety And Control Act

[Bernard Deshaies, Bloc, Abitibi, QC]

Mr. Speaker, I would like to say a few words on the two NDP motions. Motion No. 4 proposes that a specific policy apply to foreign vessels, in that they should comply with Canadian laws as regards atomic energy.

It is very difficult to have such laws apply to foreign vessels, particularly when these vessels are invited to Canada for purposes of representations or for commercial operations.

Therefore, I have to disagree with the NDP member. His motion seeks to have only one law apply in Canada but, unfortunately, we cannot enforce our laws in other countries.

In fact, this is precisely what the Helms-Burton bill sought to do regarding international trade. We must keep an open mind and hope that foreign visitors will comply with basic legislation.

As for Motion No. 5, I am in partial disagreement with my colleagues. It is in the public interest to have some flexibility when dealing with specific situations, for example smoke detectors that contain only minute amounts of radioactive material. While it may seem ridiculous to try to regulate everything, there are circumstances where regulations may be necessary.

It would be inappropriate to let the commission make these decisions alone. As I said earlier, even in the new bill, the commission does not have the transparency required to make all Canadians believe that, regardless of the situation, the commission's decision would be, if not impartial, at least as informed as possible.

We will support the amendment proposed by the NDP, because it should be up to the minister and the House of Commons to pass general regulations. I am not talking about specific cases, such as smoke detectors, but since atomic energy is a very important aspect of public safety we should be responsible for this issue. Any exemption should be subject to a vote in this House, so as to have a framework in which all Canadian stakeholders can have a say.

[English]

[The Deputy Speaker]

Pursuant to the agreement made earlier, all motions in Group No. 3 are deemed put, recorded divisions deemed requested and deemed deferred.

The House will now deal with motions in Group No. 4.

[Bernard Deshaies, Bloc, Abitibi, QC]

Mr. Speaker, I see that I get to speak again rather quickly.

Group No. 4 contains two motions, Motions Nos. 7 and 8, which are designed to respond to the witnesses that appeared before the natural resources committee. They once again pointed to the lack of transparency, which should no longer exist 50 years after the creation of the Atomic Energy Control Board. To ensure transparency, these people have suggested that the number of members sitting on the commission should not increase from 3 to 5, as in the bill before us, but rather from 5 to 7.

Why? So that a representative of the environmental community and a representative of the industry can sit on the commission to express the views of those who are concerned by our environment and of the industry, which is considered one of the economic development tools of Canada.

Of course, these two new appointments could be voted upon here, in the House of Commons. Basically, these two members could among other things really tell the people or the industry whether regulations are justified or not. Right now, the commission is made of 3 to 5 members. These people, I am sure, would protect the interests of the people or industry, but their main task would be mostly to protect the interest of the commission itself.

We will see later on in another motion that the industry is concerned about unilateral decisions by the commission forcing the industry to bear the costs related to nuclear energy. I think the industry as a whole must be responsible and pay for these costs. However, if the industry had a representative on the commission who were in a position to take part in the decision making process, I believe it could accept these decisions or regulations even more easily.

Having a representative from the environmental community on the commission would also make it easier to explain to the public at large that the commission's decision is justified and in the public interest.

It is essential in the interest of all Canadians that the Canadian Nuclear Safety Commission established under this bill give this image of transparency, which will be easier to develop if a member of the public sits on the commission.

The government knows that all the necessary tools are in place for the very purpose of ensuring that transparency. But ask the average Canadian, ask those who live near a nuclear facility, and I am sure the vast majority of them will tell you they are worried because they are not sure that everything is being done.

On this subject, during the sittings of the Standing Committee on Natural Resources, I proposed an amendment to change the notion of danger in the acceptable standards and in the minimal standards. My amendment was negatived on division because the government thought that it would be difficult to reach a minimal level from an environmental point of view.

If the government is sure that the commission can respect the desire of Canadians to live in safety, all the more reason to have somebody who will act as a watchdog and who will even have the opportunity to endorse certain decisions in order to prove that the decisions made by the Atomic Energy Control Board are good for Canadians.

[John Solomon, NDP, Regina—Lumsden, SK]

Mr. Speaker, I rise in support of Motion No. 7 which the Bloc has put forward. This amendment would include more people in making the decisions that affect their lives.

We in this House often forget when governing this country that we have to be more inclusive. We have to include people who are affected by decisions taken by government. We have to include more people whose environment is affected by decisions of either the provincial or federal government, for example, to establish a nuclear facility or to have a nuclear mine in their communities. We have to include these people because they are the ones who live nearby; they are the ones who have experience with the impact of these facilities on their environment.

Therefore, Motion No. 7, put forward by the Bloc, will provide some transparency in the commission's activities. It will also protect those who are affected on the front lines. The NDP will support this and I hope the government will consider this kind of amendment favourably. I know it is always open to suggestions that

are positive in nature, and this is one that is very positive. It has a lot of support across the country.

Saskatchewan's environmental review system is very transparent when it comes to reviewing the environmental implications of mining. It works very well in Saskatchewan as it includes those people who would otherwise be excluded. If the bill is passed unamended, in respect of motion No. 7, it will continue to exclude a lot of Canadians whose lives are very severely impacted by nuclear development.

[Marlene Cowling, Liberal, Parliamentary Secretary to Minister of Natural Resources]

Mr. Speaker, neither motion No. 7 nor motion No. 8 is acceptable.

I have this statement on motion No. 7. Many years ago it was the practice to include a representative from industry on the board. The government, as a matter of policy, abandoned that practice years ago. It is critical that members of the AECD or its successor, the Canadian Nuclear Safety Commission, be unbiased. It is equally important that it be seen to be unbiased by both the public and the industry being regulated. Furthermore, in order for good decisions to be made by members of the commission, it is extremely important that the commission be made up of members appointed for their expertise.

This amendment, if accepted, would risk having poor regulatory decisions made because of lack of expertise or bias toward one agenda or another. It would also raise doubts about the objectivity of the regulator.

There may also be significant problems with interpreting or applying this amendment. It is not clear who the representative should be. It could be a member of an environmental group or a company employee, but it could also be a person simply appointed to speak for the environmental group or the industry. Nor is it clear how the terms, generally recognized, or work in environmental protection, would be interpreted.

The order in council process envisioned for this bill provides complete flexibility. Representatives of environmental groups or industry could be appointed if that is what is desired.

As for Motion No. 8, requiring approval of Parliament for appointments to the commission, there have been times when a new member had to be appointed to the board due to the death or illness of a member. Order in council appointments allow the government to fill vacancies speedily. Requiring candidates to be approved by Parliament could lead to situations where the decisions of the commission are delayed until new members are appointed.

I would suggest that hon. members consider what would need to be done if a vacancy had to be filled during the summer months in order for the commission to carry out its normal regulatory decision making. Should Parliament be reconvened during summer recess in order to confirm appointments to the commission simply so the commission could continue to operate over the summer?

However, if this amendment passes we would have to be prepared to do that or to tell the industry that it will simply have to wait for its regulatory decisions. This could lead to lapsed licences through no fault of the licensees, requiring companies to suspend operations in order to comply with this act.

As a final comment, members of the commission are appointed for their expertise. It is not the practice of this House to review such appointments. In only rare cases, such as where the person acts as an ombudsman, is this necessary.

These amendments are unnecessary and could impede the efficient operations of the commission. For these reasons they are not acceptable to the government.

[The Speaker]

Dear colleagues, pursuant to the agreement reached earlier today, all motions in Group No. 4 are deemed to have been put to the House, and any divisions are deemed to have been requested and deferred.

The House will now proceed to consideration of Group No. 5.

[John Solomon, NDP, Regina—Lumsden, SK]

Mr. Speaker, I rise in support of Motion No. 9, which will amend Bill C-23 in clause 33 by replacing lines 15 to 17 on page 19 with the following:

While exercising any authority under the act, an inspector shall make all reasonable efforts to be accompanied by a member of a health and safety committee or an environment committee whose sphere of activity is affected by the authority exercised by the inspector, and the inspector may also be accompanied by any other person chosen by the inspector.

I guess this is very self-explanatory. What we are calling for is that when the inspection of a facility or a site is underway by the commission that somebody from the health and safety committee or the environmental committee of the working people on site be allowed whenever possible to accompany the inspector to provide the inspector with perhaps insight which the inspector would not have.

Obviously when someone is working full time in a workplace they have a great deal of knowledge of who they are working with and a great deal of knowledge about some of the problems they are working under, some of the opportunities the company has and as

well as some of the areas that may not be looked at by an inspector who may have other commitments and may be rushing through it. At least somebody will be there to accompany this person. I am not saying he or she should be instructing or advising the inspector but at least provide a balance which is what we need. We need a balance to this kind of system in Canada.

We are very supportive of this amendment and are asking members to consider that because it is very important to the safety of workers on the sites. We have had support from the workers in the nuclear industry on this issue. We have had the support of the trade union movement across Canada with respect to this amendment. Therefore we are asking the government to favourably consider this amendment which would, in effect, make the inspection system more efficient, safer and obviously more productive and helpful to those concerned.

[Marlene Cowling, Liberal, Parliamentary Secretary to Minister of Natural Resources]

Mr. Speaker, this is an unworkable amendment. With regard to inspections, there are some points to make. First, there are occasions when inspections are and must be unannounced, as in many regulatory regimes, in order to permit an accurate evaluation of compliance with regulations and licence conditions.

Second, in many cases, particularly in the case of nuclear power plants, this amendment would be inefficient in that it would place an unworkable burden on inspectors as well as on the industry. The AECB has inspectors at each plant and on site inspection of a plant is a part of their daily routine.

To require those inspectors to be accompanied on their daily rounds would be unduly disruptive to the performance of their duties in addition to creating an unnecessary demand on the licensees.

This amendment may also compromise the regulator's ability to meet Canada's international obligations regarding non-proliferation of nuclear materials for non-peaceful purposes.

To satisfy new requirements currently being developed by the International Atomic Energy Agency to strengthen nuclear safeguards, the commission will need the capacity to inspect any facility where it believes unregulated nuclear activities are carried out. This amendment does not provide an exemption for this situation.

While this amendment is intended to apply to inspections, the wording of this amendment does not restrict the requirement to be accompanied by a member of the health and safety committee to that function. It would apply to all activities of inspectors.

The amendment is too broad in its scope for objectivity and efficiency. This amendment is unworkable and not acceptable to the government.

[The Deputy Speaker]

Under the agreement made earlier, all motions in Group No. 5 are deemed put, the recorded division is deemed requested and deemed deferred. The House can now proceed with the motions in Group No. 6.

[Bernard Deshaies, Bloc, Abitibi, QC]

Mr. Speaker, the group of motions we are now considering includes Motions No. 10, 11, 12 and 13. These motions suggest that industry be consulted so as to ensure that the costs it is required to bear are not prohibitive, so that it has an opportunity to suggest solutions to problems, rather than have solutions imposed by the commission.

Industries have, for many years, had to adjust to international competition in order to stay competitive. They have had to find simpler procedures, with less infrastructure, that allow them to reach the same objectives, while cutting costs by one half or one third.

If these amendments are included in the bill, it will give Canada's nuclear industry greater flexibility and improve its competitiveness on foreign markets, with which it will henceforth be on an equal footing. I propose that Motions Nos. 10 and 11 be approved.

This same group also includes Motion No. 13, which is based on a different philosophy. We think that the public should have better access to information. To this end, public information should appear not just in the Canada Gazette but also in the newspapers.

We were told in committee that this method could be very expensive. That may be so, if the intention is to use the mass media to disseminate the commission's decisions. But today there are some very economical means of dissemination, such as the Internet. It is therefore possible to spend less to attain this objective and thus serve Canadians.

[John Solomon, NDP, Regina—Lumsden, SK]

Mr. Speaker, I rise to talk about Group No. 6 which includes Motions 10 to 15.

First I want to talk about Motions Nos. 13 and 14 which the New Democratic Party has put forward. In my critic area I feel these are very important.

Motion No. 13 refers to Motion No. 5, which we discussed earlier, calling for exempting no nuclear substances, or at least those which would be harmful to the environment or harmful to Canadians in the current situation. This basically refers to some of the exemptions and outlines some of the concerns that the govern-

ment had about the almost untraceable amounts of nuclear product in home smoke detectors or in wrist watches. Obviously these are not things that we want to totally regulate. Certainly we have to establish some minimum requirements regarding safe levels of nuclear fuel or safe levels of nuclear product, uranium product, that shall be provided to Canadians with respect to the products that they consume, purchase or have around their homes or offices.

Motion No. 13 is supportive of Motion No. 5 which the government opposed because it did not want to get into protecting Canadians. It wants to make sure that Canadians are subjected to very loose environmental and health regulations with respect to various nuclear products.

Motion No. 14 basically provides for Parliament to be given the final word with respect to the regulations. Regulations are usually made by order in council but they have to have some reflection of the changes in society in this country electorally and governmentally reflected through elections.

Members of the House of Commons are elected from time to time from different regions, from different occupations, from different mindsets as well as different political parties. They should have the final word with respect to what the regulations are when it comes to nuclear safety in this country.

Nuclear safety is something that is paramount in people's minds and in particular those workers who operate in the industry. It is also a very important issue as technology improves and as more information becomes available to Canadians with respect to the impacts of this particular product in our society and in the lives of the people who live Canada.

Basically we are saying give Parliament the authority to deem which regulations shall be good, bad or indifferent. Give Parliament, the representatives of the people of this country, the democratically elected people of this country, some authority into whether these regulations are satisfactory.

[Marlene Cowling, Liberal, Parliamentary Secretary to Minister of Natural Resources]

Mr. Speaker, Motions Nos. 10 to 14 all deal with clause 44, the regulation-making powers, and for various different reasons each of these proposed amendments is not acceptable in its present form. Furthermore, some of them could create problems. However, for Motions Nos. 11 and 12 the government wishes to propose an alternative amendment that would achieve the proposed objective.

With respect to Motion No. 10, the inclusion of cost benefit analysis in this legislation is something that the government has discussed with industry representatives on several occasions. There was a consensus that there is a role for cost benefit analysis in the regulatory process, but that it is premature to include cost benefit analysis in this legislation. Most important, there is no consensus on the role that cost benefit analysis would or should play in the regulatory decision making process.

For example, should economic considerations be given more, less or equal weight as safety considerations? There are also significant differences of opinion with respect to the application of cost benefit analysis. For example, how do you value a human life or place a value on environmental protection? What cost and what benefits are to be included in the analysis? Until these issues are addressed the government believes strongly that it would be unwise to include a mandatory requirement for cost benefit analysis in this legislation, as this amendment would do.

The government does recognize the importance of this issue and is working with industry to draft a policy for the application of cost benefit analysis to regulatory decision making. That policy will attempt to address how and when cost benefit analysis is to be used in the regulator's decision making process.

With respect to Motions Nos. 11 and 12, the government recognizes the importance of consultation on regulations, particularly on fees. Treasury Board policy requires that all regulations under this act, including regulation regarding fees for services and licences, be published in part I of the Canada Gazette and interested parties be given an opportunity to comment. The AECB often consults with industry before publication in the Gazette . Therefore, the consultation process already exists.

The proposals from the opposition do not specify the manner of consultation. There is no requirement that it be made public nor is there any requirement for a reasonable opportunity to comment. Any consultation process should address these issues.

Motion No. 13 is not acceptable and as I explained when speaking to Motion No. 5, the power to create exemptions must stay in the bill.

With regard to Motion No. 14, clause 44(5) assigns to the governor in council the power to make regulations on matters not otherwise assigned to the commission but which may be necessary to carry out the purposes of the act.

The proposed amendment is counter to normal regulatory practice. It would in essence defeat the intention of the provision, which is to assign the residual regulation making power to the governor in council. It would also be inefficient from a regulatory point of view in that it may lead to unnecessary delays and additional costs associated with having the regulations reviewed and approved by Parliament. For these reasons the government does not find this amendment acceptable.

With regard to Motions Nos. 11 and 12 concerning consultations on fee regulations, we would like to propose the following. I move:

That Bill C-23 in clause 44 be amended by adding after line 20 on page 32 the following:

(12) A copy of each regulation that the commission proposes to make under paragraphs 1(i) or (j) shall be published in the Canada Gazette and a reasonable opportunity shall be given to persons to make representations to the commission with respect thereto.

[The Deputy Speaker]

The motion is in order. Is there further debate with respect to the amendment?

Colleagues, the order that was made earlier did not cover this particular amendment which has just been put to the House. It leaves the Chair in a difficult position because members may not wish to give unanimous consent to include this amendment.

[John Solomon, NDP, Regina—Lumsden, SK]

Mr. Speaker, on a point of order. I would entertain this motion being included with the other motions in Group No. 6. I believe that would be a great idea.

[The Deputy Speaker]

I understand that the hon. member for Regina-Lumsden is certainly in agreement to having this the subject of the earlier order.

As agreed earlier today, all the motions in Group No. 6, including the amendment just proposed, are deemed to have been voted on, and recorded divisions are deemed to have been requested and deferred.

The House will now consider the motions in Group No. 7.

[Bernard Deshaies, Bloc, Abitibi, QC]

Mr. Speaker, I will speak briefly to Group No. 7, which comprises Motions Nos. 16 and 17. In essence, the bill contained something of a technical defect, with no provision for particular situations. I will read the clause in question:

51.1 No person shall be found guilty of an offence under this Act or a regulation made thereunder if the person establishes that he or she exercised all due diligence to prevent its commission.

The notion of due diligence already exists in jurisprudence. It is even found in the Canadian Environmental Protection Act, from which Bill C-23 is drawn. I believe all members of the House of Commons should approve this amendment.

The government itself recognized this flaw and proposed Motion No. 17, which is essentially identical, except that it takes into account section 50, which excludes people who might voluntarily go around with a miniature nuclear bomb, for example, so they cannot go to court and be exonerated for this oversight.

So I imagine we will not have to debate this bill at length and we will all agree that it should be corrected.

[Marlene Cowling, Liberal, Parliamentary Secretary to Minister of Natural Resources]

Mr. Speaker, the due diligence defence is available in law for regulatory offences under the charter of rights and freedoms, even if not specified in an act. Therefore, it is not necessary to explicitly provide for this defence in this bill. However, there are instances where due diligence is explicitly found as a defence in other acts. Therefore, the government is agreeable to this amendment.

Having said that, we must exempt offences under section 50, which deals with offences regarding nuclear weapons, from having recourse to this defence. This is because the penalty for this offence, which is up to 10 years imprisonment, indicates that this is more in the nature of a crime than a regulatory offence, making a due diligence defence inappropriate.

We agree with the intent of this motion so long as a due diligence defence is not available for the offence associated with nuclear weapons. We therefore propose an alternative amendment. I move:

That Bill C-23 be amended by adding after line 12 on page 36 the following:

51(1). A person shall not be found to have contravened any provision of this act, other than section 50, if it is established the person exercised all due diligence to prevent its commission.

[The Deputy Speaker]

My colleague, I think the same amendment has already been put forward. Would you please withdraw the motion? I think this would be the easiest way to go.

[Marlene Cowling, Liberal, Dauphin—Swan River, MB]

Mr. Speaker, I will withdraw.

[The Deputy Speaker]

Thank you very much. That seems to be the simplest solution.

Pursuant to the agreement made earlier, all motions in Group No. 7 are deemed put, recorded divisions are deemed requested and deemed deferred.

The House will now proceed with the motions in Group No. 8.

[Bernard Deshaies, Bloc, Abitibi, QC]

Mr. Speaker, Group No. 8 contains the last two motions, namely Motions Nos. 18 and 19. Every board dealing with the government is normally required to submit reports to the House. It would be appropriate for the bill before us, Bill C-23, to provide for the commission to submit a report to the minister at the end of each fiscal year and for this report to be tabled in the House.

For an organization as important as the Atomic Energy Control Board, the fact that reports will be tabled in the House would foster transparency. Not only would its weaknesses and improvements become apparent, but public confidence in our institutions would be enhanced as a result.

In that sense, Motions Nos. 18 and 19, which are identical except for a few technical details, tend to foster the notion that the House should exercise a tight control on the commission's activities and the commission should be made accountable to the public.

[Marlene Cowling, Liberal, Parliamentary Secretary to Minister of Natural Resources]

Mr. Speaker, neither Motion No. 18 nor 19 is acceptable. The motions deal generally with the affairs and management of the commission and how the commission is kept accountable to Canadians.

Motion No. 18 appears to be intended to provide for some form of oversight on the commission's activities in order to promote efficiencies in the commission's internal operations. However the way it is worded would require the commission to publish any comment made to the commission at any time during the year and the commission's response to those comments and to publish those comments in its annual report regardless of whether those comments are reasonable or not. This is an unreasonable burden and would impede the efficient operations of the regulator.

I would like to point out that both the auditor general and Treasury Board provide oversight on the commission's activities: the auditor general, in his intermittent review of the AECB's operations, and Treasury Board when it reviews and approves the AECB's annual estimates.

I would also like to point out that the minister, under clause 12(4), has the right to request the board to provide reports on its general administration and management and to have the results published in the annual report if the minister wishes. Therefore mechanisms are already in place which provide for oversight over the operations of the commission, as this amendment proposes to do. It is unnecessary.

The requirement in Motion No. 19 to hold a public hearing on the internal management, operations and business practices of the commission would impose a significant administrative burden on the commission and a significant cost as well.

Motions Nos. 18 and 19 would both establish a precedent regarding the public scrutiny of the internal operations of the regulatory bodies. There are broad policy implications involved and it would be unwise to do this until the government assesses the implications. For these reasons, the amendments are not acceptable to the government.

[The Deputy Speaker]

Pursuant to the agreement reached earlier today, the questions on all the motions in Group No. 8 are deemed

to have been put and recorded divisions deemed requested and deferred.

The House will now proceed to the taking of the deferred divisions at the report stage of the bill.

Call in the members.

And the bells having rung:

[The Deputy Speaker]

The hon. deputy whip of the government has asked that the votes be deferred until the end of Government Orders today.

The House proceeded to the consideration of Bill C-53, an act to amend the Prisons and Reformatories Act, as reported (without amendment), from the committee.