Evidence of meeting #43 for Natural Resources in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was cleanup.
A recording is available from Parliament.
4 p.m.
Director, Uranium and Radioactive Waste Division, Electricity Resources Branch, Department of Natural Resources
Do you want the existing order?
4 p.m.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
Yes, because we talked about this before. We have this agreement, but does it sit as a statute of law? Does it sit as just a regulation that both governments have passed at some point in the past?
4 p.m.
Director, Uranium and Radioactive Waste Division, Electricity Resources Branch, Department of Natural Resources
It's a rule or regulation.
4 p.m.
Senior Legislative Counsel, Advisory and Development Services Section, Department of Justice
It is a regulation and it is available under the statutes of Canada. I can get that for you.
4 p.m.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
In terms of the breadth and definition of what we've defined as environmental damage under Bill C-20and the comparison legislation in the U.S., did the department spend any time looking at what the U.S. had drawn up for this measure?
4 p.m.
Director, Uranium and Radioactive Waste Division, Electricity Resources Branch, Department of Natural Resources
This wording is analogous to wording in international conventions in this area. As to the U.S. legislation in particular, we have likely seen that, but I don't know at this time exactly what that legislation provides for.
4 p.m.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
You have referenced conventions rather than U.S. law in your response. Am I right that we don't reference U.S. legislative authority as much as we reference international conventions when designing something like clause 17?
4 p.m.
Director, Uranium and Radioactive Waste Division, Electricity Resources Branch, Department of Natural Resources
Most domestic legislation in this area falls out of international conventions. So the differences are largely on the margins. Most of the legislation is similar to the international conventions.
4 p.m.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
I want to get to the lakes. We have standing agreements with the U.S. We have the Great Lakes Water Quality Agreement. I think it's over 100 years old now. What cost estimates did the department do on clause 17? What studies did we reference regarding what a cleanup of Lake Ontario would look like under clause 17?
4 p.m.
Director, Uranium and Radioactive Waste Division, Electricity Resources Branch, Department of Natural Resources
We did not do any studies under clause 17. The purpose of 17 is to define what a compensable head of damage would be in relation to the environment.
4 p.m.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
Sure. The reason I ask is that you suggest that the government will cover reasonable costs in clause 17, but you don't know what those costs might be. Does the government not leave itself open to conflict with the courts? The public reads this and thinks all reasonable costs will be covered. When the public finds out the government didn't do any studies to determine what those costs might be in the event of a nuclear accident near Lake Ontario, is there not an opportunity for a judge to say that the entire limit-setting authority under this act contravenes itself in clause 17?
Ms. MacKenzie looks a little confused, so I want to be clear. You've said that the government will compensate reasonable costs for environmental damage. I've asked if you have gone out and studied what the costs might be. The government has said no, but it has set a limit further on in the act on what the total costs would be for everything. I don't understand how you can make the claim that you will compensate reasonable costs if, since you never looked at it, you don't know what the reasonable costs could be.
4 p.m.
Senior Legislative Counsel, Advisory and Development Services Section, Department of Justice
Clause 17 refers to the reasonableness of doing work ordered by a competent authority. It means you didn't pad your account. This concept of reasonableness is linked to the actual work undertaken. We're not talking about what's reasonable within the context of a particular total liability limit; we're talking about reasonable costs of the work that you've been ordered to do. If you were ordered to do something and you did 47 other things that cost a whole bunch more money, you're not going to be compensated. It's like that. You are going to be compensated for what you were ordered to do by a competent authority. So there's an objective trigger to what you're compensated for.
4:05 p.m.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
I see. So what the judge or tribunal will be looking for when determining costs in clause 17 isn't so much about whether the authority was reasonable in its initial determination of what needed to be cleaned up. Instead, it's looking to see whether the contractor or the province was reasonable in cleaning up what they were told to clean up. It's looking at whether they padded their budgets or did more than they were authorized to do. When you say “reasonableness”, it is directly linked only to what the government ordered done. It's not reasonable in the sense of what reasonably should be done to clean up the environment. That question was answered further up.
4:05 p.m.
Senior Legislative Counsel, Advisory and Development Services Section, Department of Justice
Yes, that's right. What's reasonable to be done is what you've been told to do. And your reasonable costs will be linked to what you were instructed to do by a competent authority.
4:05 p.m.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
I'll go back to the lakes. Who is the competent authority that determines under clause 17 what environmental cleanup would be required in the Great Lakes, which is a shared body of water? Who makes that decision?
4:05 p.m.
Director, Uranium and Radioactive Waste Division, Electricity Resources Branch, Department of Natural Resources
I don't know who that competent authority would be. It would be up to the judge to determine if the agency that ordered the cleanup was indeed the competent authority.
4:05 p.m.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
Here's my next point.
If the judge determines that the agency that did the cleanup was not ordered to by a competent authority, is the cleanup potentially non-negotiable? Is it simply not compensated for?
4:05 p.m.
Director, Uranium and Radioactive Waste Division, Electricity Resources Branch, Department of Natural Resources
That's correct.
4:05 p.m.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
I'll go back to my question about making sure everybody knows who's making the decisions.
The department doesn't know who has the authority to order a cleanup and what extensiveness of cleanup would be done on something like the Great Lakes, yet we've determined that the time immediately following a nuclear incident is a critical time. Decisions will have to be made. Is there not then a burden of risk placed upon those who order the cleanup, that they may in fact not be compensated for it if they didn't, by some later judge's decision, hold the competent authority title?
4:05 p.m.
Director, Uranium and Radioactive Waste Division, Electricity Resources Branch, Department of Natural Resources
The philosophy here is that those who order mitigation or remedial measures on the environment have the competency to order those remedial measures.
4:05 p.m.
Director, Uranium and Radioactive Waste Division, Electricity Resources Branch, Department of Natural Resources
That's correct.
4:05 p.m.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
But my point is this. In the immediate aftermath of an accident, the Canadian public would expect quick action, certainly. This would not be a calm day. Folks are going to have to go out and put booms up or seek to start digging up soil, or do something. I don't even know what they do when it comes to the cleanup of a nuclear accident.
Even under a flood in Canada, we have emergency preparedness guidelines to know exactly who does what and who gets to say what. In order to avoid the scenario in which somebody does a bunch of work that they don't get paid for or does work that's improperly done, they run through those scenarios. Do we run through those scenarios, in terms of a nuclear accident, as to who gets to say yes and who gets to say no?
4:05 p.m.
Director, Uranium and Radioactive Waste Division, Electricity Resources Branch, Department of Natural Resources
There are nuclear emergency plans, and they involve responsibilities of both provincial governments and the federal government and the operator. They have competencies defined and responsibilities in those nuclear emergency plans. And it would be up to the court, when paying compensation, to determine whether in fact the victim who is making the claim is making the claim for measures that were ordered by a competent authority.
4:05 p.m.
NDP
Nathan Cullen NDP Skeena—Bulkley Valley, BC
With respect to environmental contamination, the government feels confident that the nuclear emergency plans in place define all the competent authorities involved. Is that right?
I would imagine that part of the planning is to say, okay, in the event of an accident you do this, you do this, you do this; you are the competent authorities on this, this, and this, and the cleanup will look like the following.