Natural Resources Committee on Nov. 30th, 2009

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

In clause 17, on the environmental contamination time after an accident.... I'm sorry, I'm trying to understand this.

A tribunal will exist until the cleanup is done and all the claims have been filed. It seems inordinately expensive to keep a tribunal going, potentially, for one claimant. If it happens in Ontario, then the Province of Ontario is the principal claimant for environmental damage, I would imagine. I'm trying to imagine the scenario. Suppose they estimate that it's going to take 50 years. It seems a strange process to say that if it's going to take 50 years, and the only way to compensate you is if the tribunal exists, then we're going to keep the tribunal running until you've finished cleaning the environment.

[Dave McCauley]

There are time limits elsewhere in the legislation that limit the period over which you may bring claims.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Again, back to clause 17, some of the cleanup processes could take many years. If clause 17 is eventually limited later on in the act, is that what we mean by “reasonable”? Does “reasonable” have something to do with the timeline as much as it has to do with the size of compensation?

It seems a bit misleading. Clause 17 says that the government will allow this limited liability act to compensate people who do the cleanup. That leaves some assurance that the environment will be cleaned. Then later on in the act it says that it will only be for a couple of years or that we're going to limit the length of the thing. It seems to be not a false assurance, but.... Do you follow my meaning?

[Dave McCauley]

I don't see it as a false assurance. When the cleanup is done, the victim can bring forward a claim to either the court or the tribunal. But there is a limit on the time period, so it's important for the cleanup to proceed without delay.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

It's not so much the concern with clause 17 and when the cleanup is initiated as much as it is about how long the cleanup takes. For example, nuclear facilities that have been decommissioned around the world need to have their initial cleanup estimates. They bring in the best scientists and they say that to attempt to remediate this section of an old reactor site, let's say, will take about this much money. As they go through the process, they find out that it takes more money and takes much longer, because this stuff is complicated. It's the most toxic thing we can possibly deal with, I think. I'm not a scientist, but it seems pretty toxic.

What is the time limit on when there can no longer be compensation sought for environmental damages?

[Dave McCauley]

It's covered in a later provision. It's three years after there's recognition that there is contamination or damage.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Okay, so that's helpful. I don't want to get into the length and nature of that time limit and whether it's suitable, although a three-year limit raises some concerns for me. Is it reasonable to say that all environmental damage has to be assessed and put in place and paid for within three years? If that is reasonable to the department, from which study or research do you get that? The number must have been chosen from somewhere. To say three years is the limit for an environmental cleanup operation and for compensation for economic loss, health, and psychological....

[Dave McCauley]

Ms. MacKenzie has just pointed out to me that it's three years from the date on which you recognize that there is an issue. It is ultimately 10 years from the day the incident occurred.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

It is 10 years from the moment of a nuclear accident itself.

There's an extra clause, again, that I'm not getting into but that I think is pertinent to the discussion on environmental damage. It is three years after it is identified, and anything beyond that won't be compensated. Is that right? It's excluded.

[Dave McCauley]

For environmental damage, the limit is 10 years. The absolute limit is 10 years. You must bring forward a claim within three years of the date on which you recognized that there was contamination, which in the event of an incident you would expect would happen quite quickly.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

I would imagine very much so. The number of initial claims would happen as the dust settled, so to speak, after an incident.

My concern is that if a province finds that three and a half years down the road there's another point of contamination they didn't identify originally, is that exempted under clause 17 if it comes up 10 and a half years later?

[Dave McCauley]

If it came forward 10 and a half years after the incident, then it would be excluded, but it is very unlikely that they would not identify the damage earlier than that.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

We have an amendment to this section, as well. I'm assuming it's legalistic language, but what is “reasonable costs” based on? Where does the term come from? Who determines it? Is it the tribunal? Is it the court?

[Dave McCauley]

It is the court that determines it. This is common language in the international conventions in this area as well as in domestic legislation addressing environmental damage.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

How much freedom does the court or tribunal have in determining what “reasonable” is? Is it a great latitude? I'm imagining that somebody comes in front of a judge or at a tribunal and says, “I cleaned up this body of water. I did it immediately; I wasn't sanctioned by the province”, and the judge says, “Well, that's unreasonable because it wasn't sanctioned by the province”. Is that an example of how someone may not get compensated for cleanup after a nuclear incident?

[The Chair, Conservative, Leon Benoit]

Ms. MacKenzie, could you speak towards the microphone, and maybe a little closer, so the interpreters can hear you clearly? Thank you.

[Brenda MacKenzie]

Okay.

“Reasonable” is a legal concept, and it's well understood at law. That's what courts do; they adjudicate reasonable claims. It does give them quite a bit of latitude to decide what is reasonable and what is not in the circumstances. The objective, of course, is to avoid having a court think it has to compensate any claim, no matter how frivolous or minor. It's looking for reasonable costs, reasonable activities, and the trigger of being objectively ordered by somebody to do it.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

In terms of the competent authority question and the speed with which things can be administered, for instance, in Ontario they have a special investigations unit for the police when an incident happens, a designated authority that comes in immediately, and the roles are known. Who does the environmental assessment of damage in a nuclear incident under clause 17?

[Dave McCauley]

It could be any number of organizations that are competent to assess whether there has been contamination.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

That term “any number” concerns me. There's a potential for confusion. I want to know who's running the show to determine the environmental impact once an incident happens. Who is the relevant authority, as decided by Bill C-20?

[Dave McCauley]

It's not Bill C-20 that will determine that; it will be a court, when it's presented with the claim for damages. In your example, if the individual is not told to decontaminate the property, then there would be no compensation for that decontamination.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

And “told by” means the province?

[Dave McCauley]

The competent authority, be that the federal authority or the competent provincial authority.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

I won't cast aspersions, but is there not a way then to limit your costs, as a government, by not issuing as many cleanup orders as otherwise would be done? It seems like it's the fox watching the henhouse a bit. If the only way to have a cleanup happen.... Say the federal government deems it to be a worthwhile cleanup. That's the only way you can be compensated under the act. Is that correct?

[Dave McCauley]

For environmental damage—