Natural Resources Committee on June 10th, 2014

[Jeff Labonté]

The bill does provide for exclusive absolute liability for the operator. It then, if you will, channels that liability such that the operator ensures that the contractors and the people working on the installation are accountable; since they are accountable for the billion dollars, they certainly recognize and manage that. The regulator also does the risk assessment and the evaluation of the facilities and regularly monitors the facilities. I think that's an important element of the aspects.

Several proposed sections in the bill address the issue of other persons and other parties. Proposed section 5, proposed subsection 5(1) and 5(2), and proposed sections 12 and 13 address results from proposed subsection 5(1), “an act of war, hostilities, civil war, or insurrection”.... It does not apply to damage during construction.... Proposed sections 12 and 13 are on page 139 of the bill. Proposed section 12 states, “An operator is not liable for damage that is suffered by a person if that person intentionally caused the nuclear incident wholly or partly...”. It does recognize that certain elements are addressed.

The focus of the bill is to channel the liability and to hold it exclusively to the operator. It sits within a regulatory framework that, I would suggest, has a fairly rigorous and regular process that evaluates the facilities. Certain elements of the bill address, I think, what would be extraordinary circumstances as they are defined here: “act of war”, “civil war”, heaven forbid.

[The Chair, Conservative, Leon Benoit]

Okay.

Ms. Duncan, do you have something further on that?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you for the clarification. Of course those are exemptions to liability by the operator, but it doesn't impose liability on anybody else.

I am advised that India, which has ratified the convention, has imposed liability on suppliers. I'm looking forward to reading the convention to see if this is an absolute prohibition if you've ratified the convention.

[The Chair, Conservative, Leon Benoit]

Thank you.

We go, therefore, to the vote on PV-17.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Mr. Chair, I believe Mr. McCauley had a comment with regard to what Ms. Duncan said. I would like to hear that.

[Dave McCauley, Director, Uranium and Radioactive Waste Division, Electricity Resources Branch, Energy Sector, Department of Natural Resources]

Thank you very much.

It's with respect to the Indian situation. They have signed the convention for supplementary compensation, but they have not yet ratified it. One of the issues associated with their failure to ratify it is the fact that they have not channelled all the liability to the operator. They give right of recourse to suppliers and contractors, and they also open up liability under other legislation in India against the operator. This is quite contrary to the various principles contained in the convention.

[The Chair, Conservative, Leon Benoit]

Thank you.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Through you, Mr. Chair, do our officials know in which direction Japan is going?

[The Chair, Conservative, Leon Benoit]

Go ahead, please, Mr. McCauley.

[Dave McCauley]

Yes. We expect Japan will sign the CSC, the convention on supplementary compensation, before the end of this calendar year and then proceed to ratification.

[The Chair, Conservative, Leon Benoit]

Thank you.

Now we will go to the vote on PV-17.

(Amendment negatived)

Now we move to NDP-8. Just a note that if NDP-8 is adopted, then PV-18 cannot proceed due to the line conflict.

Go ahead, please, Ms. Moore.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

The goal of this amendment is to allow the operator to seek recourse against any person whose gross negligence causes an accident. Proposed section 13 in clause 120 of Bill C-22 nullifies common law practice, and by deleting lines 35 to 39 we remove the part in the bill that goes beyond common law practice. If the responsibility is only with the operator, this will ensure the operator will be able to....

We want to make sure that the operator will be able to seek recourse against a subcontractor who has demonstrated negligence and responsibility for an accident. This amendment is quite important. It reflects the discussions that have been held as this bill has been studied, specifically in the testimony from Mr. Stensil.

[The Chair, Conservative, Leon Benoit]

Ms. Duncan, go ahead, please.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Through you, Mr. Chair, I wonder if the officials could give us a rationale for why they would be precluding the operator of the facility from taking legal recourse in the case of gross negligence. Why is it only intentional actions?

[The Chair, Conservative, Leon Benoit]

I think Ms. Kellerman is first. Go ahead, please.

[Joanne Kellerman]

I'm just looking at the wording in proposed section 12, which does refer to circumstances amounting to gross negligence.

As I understand the policy, the policy of the government has always been that an operator should have recourse against any party who would intentionally cause damage to an installation.

The point about gross negligence would be that the principle of the bill is that liability of an operator is exclusive and absolute, and that therefore the issue of negligence of other parties does not arise at all in terms of proof of damage. Causation in terms of nuclear accidents can be very complicated to prove, so the principle is that it is absolute and exclusive.

[The Chair, Conservative, Leon Benoit]

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Through you, Mr. Chair, we're not talking about a criminal action, we're talking about a civil action in damages against somebody who through their gross negligence causes damage to a nuclear installation.

My question remains, why would we deny the right of the operator of the facility of seeking recourse against a party who, through their gross negligence, causes damage to the nuclear installation? Is this prohibited in the convention, or is this just something the government has decided? It is really limiting civil liability.

[The Chair, Conservative, Leon Benoit]

Go ahead, please, Mr. McCauley.

[Dave McCauley]

The bill mirrors the convention in this regard on these two items. The operator has no right of recourse against any person other than an individual who intentionally caused the nuclear incident by an act or omission. There has to be intention there to cause the nuclear incident by act or omission.

As I indicated, both proposed section 12 and proposed section 13 reflect the principles contained in the convention.

[The Chair, Conservative, Leon Benoit]

Thank you.

On NDP-8, then, we'll go to—

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

A recorded vote, please.

[The Chair, Conservative, Leon Benoit]

—a recorded vote on NDP-8.

(Amendment negatived: nays 5; yeas 3 [See Minutes of Proceedings])

We've been working on this for two hours now. We'll take a break and come back in five minutes to continue with our clause-by-clause discussion on Bill C-22.

[The Chair, Conservative, Leon Benoit]

We'll resume the meeting. I'll just wait for everyone to get to their chairs and then I'll turn the floor over to Ms. May for PV-18.

Ms. May, would you like to speak to that?

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Yes, and Mr. Chair, this won't surprise anyone at this time. PV-18, as in previous efforts, attempts to ensure that liability will extend to suppliers and contractors in the nuclear industry. This is based on testimony. Certainly, the committee heard from a number of witnesses, who came from law associations, Greenpeace and others, that there's no rationale provided for shielding nuclear reactor suppliers from liability.

I would just note very quickly that in the attempts at explanations that we've heard from officials, essentially, they have said that we don't have to worry on the nuclear side because we're channelling the liability to the operator. The operator will ensure that the supply chain is held responsible because they're ultimately going to be liable for a nuclear accident. That same explanation would work on the oil and gas side.

One could say the project proponent, the operator, will make sure that all suppliers and contractors are responsible and accountable because the ultimate liability and costs will rest with them.

Again, I don't think we really have an explanation for why the nuclear industry is being treated differently, except for the fact that, historically, and I mean going back to the 1950s, the nuclear industry has always been treated differently in this country. It probably stems from the fact that nuclear materials were seen to be a military target. We had a lot less transparency around the nuclear industry.

Traditionally, the nuclear industry has been the recipient of billions of dollars in subsidies and it tends to continue, under Bill C-22, to be treated differently from the more private sector industries in this country. Of course, as the nuclear industry in Canada is being operated now by more private sector companies, as the role of AECL has changed, there's less and less excuse for treating the nuclear industry differently from the way we treat other sectors in the economy.