Natural Resources Committee on Nov. 30th, 2009

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

And do they define that level now, or will they define it once an accident happens? Does that exist...? The struggle is to vote on a clause when we don't know what the standard of reference is. We don't know what it's referencing to. And that's flying a bit blindly, if you follow me.

If it says that this act orders a cleanup to happen and to pay for the remedial costs, and then when we ask what the standard of remediation is, it's referencing something that we can't see as legislators. Then it's irresponsible for us to vote for it. It's like saying that we're going to compensate to a sufficient level and we ask for a sufficient level, and that's decided by somebody else who hasn't written it down. We have no idea what “sufficient” might mean.

[Dave McCauley]

Well, that's not the purpose of this legislation, to specify cleanup criteria. The purpose of this legislation is to indicate that where a competent authority--and we understand that the Canadian Nuclear Safety Commission is very competent in this area--defines that a property must be cleaned up, then the court takes that and compensates the victim for the costs incurred in undertaking that remedial measure.

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

I totally understand.

And does the CNSC have a working definition of what remediation is? Do they have a level at which they say something is now returned to a pristine state? Or is it still contaminated, but not so long?

[Dave McCauley]

I believe it would be based on the specific case that was presented.

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

I'm sorry, I don't understand what you mean.

[Dave McCauley]

The level of cleanup that would be required, the order--

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

It's contextual. They'll decide on a case-by-case scenario how clean the cleanup needs to be.

[Dave McCauley]

They have specific requirements, but I think it would be better for somebody from the Canadian Nuclear Safety Commission to be explaining those to you.

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

Chair, in terms of an amendment we have to clause 17, shall we move it now?

[The Chair, Conservative, Leon Benoit]

Yes, go ahead, if you'd like, Mr. Cullen.

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

Thank you, Chair.

Clause 17 reads:

Reasonable costs of remedial measures taken to repair, reduce or mitigate environmental damage caused by a nuclear incident may be compensated if the measures were ordered by an authority acting under federal or provincial legislation relating to environmental protection.

Our amendment, which is in the committee's package under NDP-2, is that Bill C-20, in clause 17, be amended by replacing lines 9 to 11 on page 6 with the following:

compensated.

Essentially what this has the effect of doing is saying that clause 17 would read as follows:

Reasonable costs of remedial measures taken to repair, reduce or mitigate environmental damage caused by a nuclear incident may be compensated.

[The Chair, Conservative, Leon Benoit]

Are there any comments on that?

Mr. Allen.

[Mike Allen, Conservative, Tobique—Mactaquac, NB]

Thank you, Mr. Chair.

I have a couple of questions to the witnesses about the impact of this amendment.

I've been listening to Mr. Cullen dance around this for about 50 minutes now, and the simple measure in clause 17 is that there has to be some kind of competent authority to designate what that damage is, because if you leave that open-ended and stop at saying compensated, who the heck is going to make that determination? It could be someone from God knows where if they have an opinion on something. So if it's a competent authority, a federal or provincial legislation, as you said, under CEPA, it could fall under that, and then it would be compensated under this. I think it would be very risky to put this in, so I'd like your comments about that.

I would also like to ask a second question, since I've listened to Mr. Cullen dance around this for 50 minutes. Does this clause represent a change from the previous act? How do you believe this has strengthened it? I think globally when we look at this act as it is, this is a better act than what we had before. There exist a number of nuclear installations out there now that we do need to cover. Whether or not anybody ever builds another one is not the question here today. We have things that we have to cover.

Further, we also know from the testimony that we heard--and we'll get there a little bit later--about the potential risk to ratepayers and other people from compensation levels being too high.

So do you see this amendment opening up something that we won't be able to close and opening us up to too much risk? Also, how has this clause changed from the previous act?

[The Chair, Conservative, Leon Benoit]

Mr. McCauley.

[Dave McCauley]

Thank you.

Regarding the first question, in terms of the amendment, yes, I believe that in fact the amendment would open up the legislation by requiring the courts to determine if these measures were reasonable. Our view was that it was best to provide some rigour into the determination of what remedial measures were, and that's why we introduced the concept of federal or provincial competent authorities into the legislation.

In answer to the second question, this provision does not exist in the existing legislation, the Nuclear Liability Act. It was introduced for the very reason that the Nuclear Liability Act was brought into force in the 1970s when there was very little concern about the environment or environmental damage. This really addresses the fact that there could be damages to public lands and that it was appropriate that there be something in place ahead of there being any damage here, so that the mitigation of that damage could be compensated. This provision would also bring Canadian legislation up to the standard of some of the international conventions in this area as well.

[Mike Allen, Conservative, Tobique—Mactaquac, NB]

So the short answer is that Mr. Cullen is filibustering a bill that's better than what we have today and for nuclear installations that we need coverage for today. So the best thing to do is to get on with it.

Thank you.

[The Chair, Conservative, Leon Benoit]

Thank you, Mr. Allen.

Madame Brunelle.

[Paule Brunelle, Bloc, Trois-Rivières, QC]

I listened carefully to what Mr. Cullen said about reasonable costs. However, I think that striking out this part of the clause would be completely unreasonable. Moreover, if you take into account his concern about provincial legislation, then I think it is important to keep this part of the clause so provincial legislation can apply. For this reason, I will vote against the amendment.

[The Chair, Conservative, Leon Benoit]

Mr. Cullen, perhaps you want to wrap up the discussion on this.

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

Not necessarily, but I will make some comments. I'm not sure I'm going to go down Mr. Allen's track. I understand he has somewhere else to be or something else more important to do.

In terms of protecting the Canadian taxpayer from some hundreds of millions of dollars of compensation around environmental damage, I believe the reasonable authorities to pay for it are the ones who caused the damage in the first place. I know it is a strange notion perhaps to my friend Mr. Allen, but it's not to me: that if you caused it you should potentially pay for it.

We heard from witnesses that the insurers were able to cover up to $1 billion. The government set a limit eight years ago. They've listened to many hundreds of hours of testimony and still deem the act they drew up eight years ago to be perfect and without fault. They've learned nothing from the witnesses, nor have they learned anything over all of that time in terms of the international conventions that have happened and have been modified since.

It's incredible: a snapshot in time back then, and also the context of a government willing to sell more nuclear reactors to India and to privatize the entire operation in the same breath. It's remarkable.

In terms of this amendment, which is what we're talking about, the concern I have and the reason we moved a change—and Paul raises a very good point—is that I think the amendment as chosen can be improved. This is a question to our witnesses. Concerning mitigation, there are three central components to the environmental damage caused. There's repair, reduce, and mitigate. The concern we had and what we're seeking to improve in this clause surrounds the scenario that somebody goes forward in that immediate period and tries to stop the flow of a river or to do some mitigating measure, but there's absolutely no time to get the authorities to approve the work. What we're trying to address in clause 17 with our amendment is to have some reasonableness given to the judge to say that while they didn't get an order from the Ontario Ministry of the Environment or the Canadian Nuclear Safety Commission to do the work they did, it was obviously well intentioned and was seeking to mitigate the damage to the environment of a nuclear accident.

What I'm seeking to do in clause 17 is to allow the judge or the tribunal some possibility of awarding compensation for someone who was trying to do the right thing, but in the urgency of the time and the process as described, which is not laid out in clause 17, did not have the authority to go forward and do it. I'm not sure if you follow my reasoning here, Mr. McCauley.

To finish that, Mr. Chair, if that were handled within the clause as it sits right now—that case of somebody going forward without the written authority but just in the urgency and the good intention—then that would be helpful too.

[Dave McCauley]

I think we rely here on the importance that these matters are brought to the attention of those authorities who are most knowledgeable about them, and that they are the ones that authorize measures, rather than individuals moving forward and doing what they think is necessary to mitigate environmental damage. There are competent authorities who know what needs to be done and who will order that.

The turnaround time, I would suggest, would be fairly short in terms of issuing orders and defining what needs to be done. I think that's a preferred route over having individuals going forward and taking whatever actions they feel personally might be necessary in terms of mitigating environmental damage.

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

I guess that's the crux of the amendment on clause 17. It's that trust in the speed.

You've just described a confidence that the authorities will have enough prescience and speed on the ground to be able to issue those orders, to bring in the contractors. I know what you're trying to avoid, which is kind of like the wild west, where people are out doing all kinds of things that might do more harm than good in the end.

I guess why I feel certain that individual actions should be included in this is that a judge or a tribunal is also going to make the determination of the compensable damage. If somebody goes out and does something wrong that causes harm, obviously a judge is going to look at that as well and say that person will not be compensated for something that ended up making matters worse. I suspect it's going to happen anyway, frankly. I don't think everybody living near a nuclear reactor, if they hear about an incident, is going to say that because of clause 17 in Bill C-20, they're not going out with their backhoe to do anything because they're not going to be compensated for it.

I think if folks hear about a contamination or a leak and if something's happening, they may seek to go do it anyway. Under the act as it's written right now under clause 17, they are specifically excluded from taking any mitigative actions.

[Dave McCauley]

I think that leaving it to a judge to determine what is an appropriate remedial measure would also put the individual who took the measure in a difficult situation. If it was left to a judge, that individual would not know whether he or she was going to be compensated. We're saying that it's primarily the competent authority who will determine these actions. It's clear that we don't expect the individual to be going out and remediating the environmental damage. That's for a competent authority.

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

This amendment to clause 17 is attempting to deal with the notion of expediency. I want to understand why you're so confident in the competent authority's ability to get these orders out the door quickly. Did the CNSC, or some authority that you referenced when drawing up this legislation, say that they could issue orders within minutes or that it was going to be days? Where does the confidence that you're expressing in relation to clause 17 come from?

[Dave McCauley]

There are nuclear emergency plans that define response actions in the event of a nuclear incident. Those plans and actions are practised, and there's a learning process associated with those plans. One of the considerations would be to ensure that mitigation and remedial measures are ordered quickly.