SON testimony – Oct. 11, 2013

We will now move to the presentation on behalf of the Saugeen Ojibway Nations.

Chief Kahgee, Mr. Monem, welcome, and thank you for your patience. The floor is yours.

Thank you, Madam Chair, Panel. For the record, Alex Monem on behalf of the Saugeen Ojibway Nations.

I’m joined today by Chief Kahgee. In the audience today is Chief Chegahno and a number of members of the SON leadership, as well as many members of the community.

By phone today, we have with us Messrs John Greeves, Daniel Mussatti and Stewart Bland.

We also have SON fisheries biologist, Dr. Steve Crawford, available in the audience if necessary.

Originally, we had planned today to provide final submissions and closing comments. However, the Panel has now helpfully added three hearing days at the end of this month, and our understanding is that a number of key issues will be addressed on those days.

We understood that that might include an opportunity to continue our discussion with Dr. Leiss, but I see Dr. Leiss is here today, so we are hopeful that we can do that.

Dr. Leiss has raised a number of new issues and new considerations that would be very helpful to explore.

The main subject of the added hearing days is to be licensing permits and authorizations. These are important matters, but we believe they have been made far more important as a result of developments during the course of these hearings.

I will discuss this in my presentation today with the hope that it might help to inform a more focused discussion on those days.

For my presentation today, I will begin with a discussion of what we see as the key unanswered questions at this point in the process, the problem of leaving central characteristics of the DGR project to be defined in subsequent licensing or regulatory processes and the question of social safety and why it should apply in the context of this project.

I’ll be followed by Chief Kahgee, who will speak on the significance of the concept of social safety to the Saugeen Ojibway Nation communities and the path forward.

We have previously outlined that there remain many unanswered questions and key uncertainties concerning OPG’s application. Some of which we say fundamentally effect the scope and nature of the project.

These include an incomplete waste characterization and inventory, an undefined geoscientific verification plan including; expressly defined thresholds and go, no go events, and as of yet, insufficient alternative means assessment, and in particular no principal analysis of different options for the management of various intermediate level waste components, no assessment of transportation issues, either to the DGR project alone or in combination with the transportation of other future nuclear waste streams to or from the site, and an inadequate stigma analysis and related adverse effects prediction.

On September 27, we received a response concerning Undertaking 12 concerning decommissioning wastes. A preliminary review suggests that the response raises as many questions as it answers.

The first and most important thing to note is that the response is strongly qualified as based on preliminary information and planning assumptions.

There is, as it stands, a poor characterization of the intermediate level waste components and a basic assumption that decommissioning wastes would be fundamentally the same as operation and refurbishment wastes without any supporting analysis.

There appears that there will be more than a doubling of the near and long-term radioactivity as a result of the introduction of these materials. There’s only a very preliminary and perfunctory assessment of how this doubling of radioactivity would impact the safety case.

We have no analysis of the consequential design changes, no assessment of how the potential increased volume could be accommodated, or whether low level waste could be displaced in order to accommodate the new waste stream. And of course there’s no discussion of transportation issues.

From the perspective of SON this is inadequate. As we have stated before, this appears to be a new and materially different application for the project, and we are still left very unclear on the potential implications of this change or when we can expect they will be addressed.

I will discuss shortly that we believe this is not acceptable for decisions of this type to be postponed to future regulatory processes.

We have heard Dr. Duinker express a significant lack of confidence in the cumulative effects analysis carried out by OPG, and its methodology for predicting the significance of effects. He states that these shortcomings represent a failure of OPG to meet the requirements of CEAA and the guidelines.

One of his key concerns -– I understand –- is that unless a residual adverse effect from the project alone was identified, no subsequent cumulative effects analysis was performed to determine how that potential effect could combine with other stressors.

It was clarified for us that this approach was applied to potential impacts on the Lake Huron aquatic environment, and as OPG had identified no adverse effects on Lake Huron, no subsequent cumulative effects analysis was performed.

This is obviously a concern to SON, particularly when taken in conjunction with the uncertainties that have been raised about the adequacy of the stormwater management pond, and perhaps the response to the undertaking we’ve just heard clarifies some of these uncertainties but we haven’t had time to assess that, and it sounds like there’s still –- uncertainty still remains.

And further, it appears no consideration has been given to the potential future increases in thermal discharge from the Bruce nuclear facility.

It is also of concern to SON that OPG has assumed in its analysis that the quality of MacPherson Bay -– the MacPherson Bay aquatic habitat is poor, and as a consequence we can assume not significant to the local ecosystem.

This conclusion appears to have been based on very old data, and one more recent sampling program conducted for Bruce Power in 2007. Our technical reviewers believe that this is likely an insufficient basis for coming to these conclusions.

We have not prepared submissions on this, but we’d be happy to provide some if that would be helpful to the Panel.

As we did indicate in our written submissions, SON is currently sponsoring a research program in collaboration with Bruce Power, the University of Guelph, McMaster University, to assess impacts from the Bruce facility on lake whitefish.

Included in this is a study to identify, discriminate and understand lake whitefish populations. SON and its researchers have long maintained that this represents a gap in our current understanding of the Lake Huron aquatic environment, and that this makes it very difficult to understand the significance of various impacts on lake whitefish.

As part of this research program, researchers from the University of Guelph plan on carrying out a sampling program within MacPherson Bay and the surrounding embayments in early 2014.

We believe it’s premature to draw any conclusions about the quality of that habitat 1 and the potential impacts from releases until our baseline understanding of the area is more complete.

Taken collectively, all of these gaps in our understanding of the project, all of these unanswered questions, amount to a tremendous degree of uncertainty about the character and scope of the project.

For this reason, we repeat our earlier submissions that at this time we do not believe the Panel has before it a sufficient record to make a determination of whether the project is likely to cause significant residual adverse effects.

In my opening, I stated that the added three-day session at the end of this month has increased in importance. I say this because many of the key uncertainties I’ve just talked about have been pushed forward to be resolved in future regulatory processes, including the geoscientific verification plan, waste characterization and inventory, package design that could support retrievability and possibly even the final design of the stormwater management pond.

Most importantly however, we now 1 understand that whether this facility can be used for decommissioning wastes, and on what basis, could largely be decided in future regulatory processes.

On Tuesday we heard that new environmental assessment would only be triggered under CEAA if there was a proposed expansion of the facility greater than 35 percent.

But it was explained by Mr. Peter Elder that the proposed introduction of decommissioning wastes would trigger review only if it caused a deviation from the existing safety case and the volumes and mixes between low and intermediate level wastes assumed there.

And such a change would be dealt with through a licence amendment process. This is made more complex because we do not yet have a final waste characterization and inventory. As we understand it, this is only required as part of the update to the safety case at the time of application for an operating licence.

We can assume that even the 80/20 split between low level waste and intermediate level waste will not be fixed until many years down the road during the operating licence application stage.

The concern here, of course, is that with the new decommissioning waste stream, the DGR could migrate from being a DGR for low and intermediate level wastes towards becoming a pure intermediate level waste repository.

This would represent a very different kind of project. And it appears that this could be done entirely through licence amendments.

There are three kinds of problems with this approach to leaving key design elements to be determined in downstream regulatory processes.

First, the function of this review and all EAs is quite different than the function of regulatory processes. The purpose of an EA is to assist in decision making. It’s designed to help us consider whether projects such as this one should go ahead or not.

The guidelines capture this well, and I quote:

“Environmental assessment is a planning tool used to ensure the projects are considered in a careful and precautionary manner in order to avoid or mitigate the possible adverse effects of development on the environment and to encourage decision makers to take actions that promote sustainable development and thereby achieve or maintain healthy environment, […] healthy economy.”

Subsequent regulatory processes will not consider the high level acceptability or advisability of the DGR Project; rather, will focus on compliance with legislation.

It is now that we must perform this more fundamental kind of assessment of the DGR Project. And we can only do this if we have a clear and complete understanding of the project and its potential impacts.

Second, regulatory review, by definition, occurs after a decision to proceed has been made, as will be the case here after significant project milestones have been passed.

As I said in my last presentation, this creates significant institutional and economic pressure to mitigate problems rather than avoid them, which is less precautionary –- a less precautionary approach.

There’s a corollary problem. If a project is approved and constructed and we only learn subsequently of critical design problems, we are exposed to tremendous wasted effort and expense.

For example, if it is the intention of OPG to use the DGR as a repository for all Pickering decommissioning waste, we ought to consider now whether that waste mix between LLW and ILW and the total volume of ILW could possibly meet the safety case that is the basis of this review. We should not find this out after the construction of the DGR is complete.

Lastly, regulatory processes, including those of the CNSC, do not provide the same level of public engagement as a full environmental assessment.

Licensing processes are inherently more technical in nature, issues are far more tightly scoped, preventing broad consideration of issues, and hearings, if required at all, will be time constrained and with significantly less opportunity for public participation.

As I said, it’s very helpful that the Panel has added days to the hearing so we can address these issues fully.

And in order for that session to be as productive as possible, I suggest the Panel might consider directing OPG and CNSC to provide key information in advance, including identification of which project design features, characteristics and components, including study, monitoring and verification plans will be determined or finalized in subsequent processes, an explanation of the stages at which each of these elements will be finalized and subject to review, a description of the regulatory procedure through which each will be reviewed, including a description of the opportunities for public participation, and a clear identification and explanation of triggers for various licensing amendments or other review processes, especially in regard to changes in waste streams, mixes and volumes.

I appreciate that much of this information is likely already in the record. But it appears to us that a significant amount of new information has been presented during these hearings, and it will be very helpful to have a clear, current and consolidated document on the record.

To conclude on this point, for SON and others to have confidence in the development and review of the project and confidence in the project itself, it is critical that we have an understanding of the full project before us now.

If it is reasonable to leave certain technical details to be determined at a future date, we need to understand that. And we need to have comfort that these really are technical details and not critical aspects of the project that ought to have been decided at an earlier point.

The very first question in these proceedings concerns the concept of safety. The question was asked about the differences between safety as regulated and safety as perceived and whether OPG’s concept of safety encompassed a broader perspective.

In our view, this is the proper frame in which to consider the DGR Project, that is, not only should we consider the safety of the project from a regulatory perspective, but also from the perspective of perceived safety of the project. This idea is somewhat — sometimes referred to as social safety.

As the Panel knows very well, the concept of social safety was first fully articulated in the Canadian context by the Seaborn Panel in its review of AECL’s concept for a used fuel repository.

That panel was asked to determine whether AECL’s concept was a safe and acceptable response for the long-term management of nuclear fuel wastes.

The panel defined these terms. It stated:

“By safe, the Panel means meeting, on balance, criteria for safety as interpreted both from a technical and social perspective. By acceptable, the Panel means broad societal consensus that the proposed course of action is the best available, taking into account ethical, social, technical and economic views.”

Although the Seaborn Panel was here considering a concept rather than a specific project, they did note that, quote:

“Although public acceptance might be demonstrated at the conceptual stage, it would have to be demonstrated again at the site and design specific stages before the concept could be implemented.” (As read)

As you know, that Panel ultimately concluded that, while AECL’s concept had been demonstrated to be technically safe, it had not been demonstrated to be safe from a social perspective.

That Panel’s work has become the foundation of our current law and policy by respecting the management of nuclear fuel wastes.

In our written submissions, we have said that the concept of social safety, including public acceptability, must be applied to the current project. And we said so for very basic reasons.

One, OPG has included within this project long-lived intermediate level nuclear wastes, which are functionally equivalent to used fuel wastes from a management perspective.

Two, in our submission, there is a real and demonstrable connection between this project and NMWO’s project for a used fuel repository and there is an existing public perception of this connection.

And three, this project has the potential to cause permanent harms and risks to SON rights and interests.

Again, in our submission, we say that OPG has recognized the applicability of social safety to its project and has based the development of its project on this. It states in the EIS that, quote:

“The proposed DGR site was chosen because it holds two attributes that based on international experience are essential for the successful development of a long-term waste management facility; technical suitability, in this case geology that offers multiple natural barriers to safely isolate and contain waste for tens of thousands of years and beyond, and an informed and willing host community.”

As we all now understand, the willing host community concept is a central aspect of social safety and public acceptability and it is a core component of the adaptive phase management approach as it is applied in the Canadian context. And as we heard from Dr. Leiss on Tuesday, it is also now understood as a necessary aspect for the successful siting of any DGR project or other hazardous waste disposal facility.

We have said that social safety requires, at a minimum, that OPG employ best practices in the definition, siting and development of the project, that there be demonstrable public confidence in the integrity and completeness of the work and the credible demonstration of public acceptance and support.

OPG has done significant work towards achieving these requirements. It’s clear from the record, and in these hearings, OPG has done much credible and defensible work on technical matters and has made its work publicly available and provided opportunity for testing and has undertaken efforts towards establishing public acceptance and support for the project, and it is committed to ongoing information and public engagement work.

And OPG, through its commitment to SON, has taken another significant and necessary step towards achieving support for the project and, as it says, “obtaining a social licence for the project.”

However, we say there’s more to do before this project can be demonstrated to be safe from both a technical and social perspective and found to be acceptable. As I said earlier, there remain key deficiencies and uncertainties in the application that, from the perspective of SON, undermine public perception that this project is fully defined and fully explained and, consequently, undermine the perception that this is ultimately a safe and acceptable project.

From the perspective of SON, it is absolutely essential that OPG fully and credibly address the full scope of this project, including its potential use for decommissioning wastes, transportation issues alone and in combination with other waste management projects, a credible cumulative effects analysis, an analysis of viable options for the treatment of various categories of intermediate level waste, especially long-lived intermediate waste, and the role of this project in the context of the broader nuclear waste management initiatives.

These matters must be addressed fully, not only to ensure regulatory compliance or technical safety, but rather, to give the public and SON confidence that this is actually a safe and advisable project and, ultimately, to permit a credible demonstration of public acceptance and support for the project.

With respect, we submit that OPG’s work has not yet been completed and that these matters must be addressed before construction of this project could ever begin.

Thank you. I’ll now turn to Chief Kahgee.

Good morning, Madam Chair and Members of the Panel.

I’m Chief Randall Kahgee. I’d first like to acknowledge the Creator for giving us this day, our Elders, our youth. I’d like to acknowledge the leadership and community members that are in the audience today as well as Chief Chegahno and Chief Joe Meskemon, who’s come to offer the SON support in their submissions today.

Today I would like to address my comments to the path forward. Mr. Monem has just spoken about the concept of social safety and why we say that this project — that for this project, OPG must demonstrate not only the technical safety of the project, but also its social safety.

For our people, social safety is of critical importance, but our people say it differently and more directly. They will ask, “Can we trust this project? Can we accept this project and can we agree to have this project as part of our future for all times?”

This is how our people understand the concept of social safety and these are the questions they must answer for themselves.

I’d like to speak briefly about three important concepts; trust, acceptance and agreement.

Throughout these hearings, we have heard a great deal about trust. We have heard that many people do not yet trust that this is a safe project. They do not yet trust that there will no impacts on the water and environment or their health or their means of making a living.

To be sure, some of this lack of trust is due to the technical nature of the information and some is due to the very nature of the nuclear wastes, but it is a failure to respect the intelligence of the public and the seriousness of their concern to assume trust can be remedied by clear or plainer communications.

From what I have heard, much of the mistrust stems from the way in which this project has been developed; namely, that no alternative sites were investigated, that there remain questions about the depth of community support and the means by which it was obtained, that there appear to be last-minute design changes, including the intent to use the DGR for decommissioning wastes, that the connection between the DGR project and the used fuel DGR project remain unexplored and unexplained and that an open discussion of this has been rejected.

Whether mistrust based on these concerns is founded or not, it is real and must be addressed. If the project goes ahead in an environment of deep mistrust, it will remain a project that has been foisted on the public.

Our people will have these same concerns, and we’ll have to overcome these issues so that our people can trust what we are being told and trust that the project is safe and advisable.

There is only way this can be achieved specifically. It must be demonstrated that the project is the best and safest approach to dealing with low and intermediate level wastes.

We must ensure that all potential risks have been identified, including the potential impacts on our rights, interests and way of life. And we must give our people the opportunity to understand all of this in their own way.

This will include an understanding about the impact the facility might have on Lake Huron, fish and fish habitat, the potential impacts, direct and cumulative, that will result from the transportation of waste to or from the site, the potential for stigma, the impact it could have on our fishing and tourism economies, the possibility of segregating the longest-lived and most dangerous intermediate level nuclear wastes, and a full and clear understanding about the plan for decommissioning wastes and the potential scope of this project.

Before we can have trust in this project, we must have a very clear idea of the project we are dealing with and the potential for the project to affect our rights, interests, way of life and territory.

These things cannot be left murky or unstudied. They must be made clear. And this must be done in a way that our people will understand and have confidence in.

The next concept I would like to discuss is acceptance. There’s no question that this project will present permanent risk to our land, waters and people, regardless how small we may now predict.

It is also inevitable that there will be some harm caused to our rights and interests. There is no way around this. The question is, once we have credibly and accurately determined the level of risk and harm, can our people accept it?

Over the last few days we had a very –- a few very clear examples of this. For instance, in the EIS and again in the presentation from OPG, it was noted that the presence of the DGR which directly affects the rock, the first order of creation, may have special meaning to some Aboriginal people and therefore may be seen as incompatible with their worldview and that this might affect how Aboriginal people value the plants and animals they harvest.

The response to this has been, and I quote:

“…that all plants and animals will continue to be exposed to radiation from a variety of natural and man-made sources and the radiation doses they receive from the DGR project are expected to be less than the levels at which there may be potential effects on populations. Therefore, there are no tangible reasons for Aboriginal people to change how they value plants and animals they harvest for traditional purposes.” (As read)

I must be completely honest; I find this very offensive. If our people come to believe that it is no longer right to consume the plants, fish or animals for deep or spiritual reasons, this cannot be mitigated by demonstrating that there are no new radiological effects.

This harm to our people is not one that can be easily mitigated. It must be accepted.

Dr. Leiss raised another example on Tuesday. Dr. Leiss suggested that it would be difficult to predict whether the DGR project would stigmatize the local tourism industry or food industry. He suggested that this should be monitored and if an effect is determined, should be mitigated.

As you have heard, our commercial fishery is in a very critical place right now. We have fought over a century of degradation and exclusion. We are now only in a position to rebuild.

Our fishery may not be able to withstand the blow of stigmatization could cause. This cannot be compensated for by money and it cannot be relocated or reinvented.

The only thing to do is for us to understand the real risks, plan for any realistic and acceptable mitigation measures and then accept the risk that remains.

Nobody is offering any guarantees that there will be no impacts, only predictions on a likelihood of those impacts. Nobody but SON and the other residents of the territory will be asked to bear the costs of those impacts.

We must allow our people to make the decision about whether they are prepared to accept these risks and harms, regardless of how small or large they may turn out to be and on what terms they are willing to accept them.

Finally, the concept of agreement.

Our people must be given the opportunity to determine their support for the project, to be asked for their agreement to have this project become part of their future for all time.

This agreement has been given many names here, a social licence, a willing host community, but they all mean the same thing. The project should go ahead only when the people most affected fully understand the project and when they are supportive of it moving ahead.

This is recognized as best practice and this is the basis of the commitment made between SON and OPG.

Madam Chair, you have asked us more than once to give you a better understanding of the SON OPG commitment and process.

As you have heard from both of and OPG, these are early days; we must now sit down with our communities and with OPG to talk through what is needed in this process and how best it can achieve its goals.

But I do know that first and foremost, the process must be one that works for our communities. They must drive it, they must tell us what they need. We cannot impose a process on them.

It is also important to say that our people have always been concerned the DGR project could not be viewed in isolation but the project must be understood as a piece of a larger solution to the issues that face our territory and people resulted from the decades long operation of the Bruce nuclear facility, including the nuclear waste management issues.

OPG and SON have also agreed to address these matters, and because of this, we will be able to consider the DGR project in a comprehensive way. This is the only way that our people will be –- will truly be able to understand the project and challenges and opportunities it presents. Without this bigger view, our members will see the project as just another project forced on them, another insult to the land, on our people.

We are very hopeful that SON and OPG will work together in good faith and with a renewed spirit of mutual respect and interest to fulfil our commitments. However, the work is not ours to do alone. We cannot do this work alone.

In my earlier presentations, I’ve described for you our many Treaties, the solemn agreements they represent, the nation-to-nation relationship they create between our First Nations and the Crown, and the abiding duty they place on the Crown to deal with our people honourably.

The road to reconciliation is not an easy one but it is one we must travel if you’re going to ever restore balance to the Crown First Nation relationship, a relationship that honours the spirit intent of our Treaties and is predicated on mutual respect.

As we have said from the outset, the DGR project, as well as other projects and strategic level decisions affecting the Bruce nuclear site, all stand to profoundly affect SON’s rights and interests.

These are defining issues for our people, our territory and our future. They go to the heart of the Treaty promises.

It is for this reason that SON has fought so hard to be at the centre of these processes. It is for this reason that we have been engaged with the Crown through CNSC and is the reason why we are in the JRP agreement itself.

It is also the reason why we have pushed to have this project reviewed to the highest possible standard under Canadian law. We have counted on this panel review process to be a key mechanism to understand and address our concerns respecting this project. But this review process does not stand on its own.

As stated in the JRP agreement, a key function of the Panel is to take evidence on potential impacts of the project on our rights and interests so this can become the basis of ongoing and future consultation processes with the Crown.

It is our expectation that the work of the Panel and the evidence it has taken will now help to support an ongoing consultation process with Canada to address not only the issues relating to this project itself, but related issues that are within the responsibility of the federal Crown.

It is our expectation when the Panel has made its recommendations, whatever those may ultimately be, that there will be a process between SON and Canada to consider the recommendations in light of SON’s rights and interests and identify necessary accommodationsprior to the Minister making any decision on approval.

As you have heard, SON and Ontario have agreed that issues respecting the history, current operations and the future of the Bruce nuclear site, including future nuclear projects, are properly addressed through a multi-faceted consultation process that includes Ontario.

Ontario has committed to engaging in such a process and we fully expect that Ontario now fulfil its commitment and work with us to develop and support measures to address the challenges that face our people and our territory.

I’m sure there is no dispute among all of us here that the DGR project is a difficult project, but nuclear waste is a difficult challenge, not just for OPG but for all of us.

And I would like to express my appreciation and respect for everyone who has come here to deal with these difficult matters in a respectful and committed way.

We do not dismiss the work done by OPG. OPG has done an enormous amount of work in support of this project and much of it is valuable. But as Mr. Monem has just said, the work is not complete.

Ultimately the Panel will need to decide whether it feels it can recommend approval on the basis of the evidence it has before it.

But regardless of what the Panel decides, our people know that the work is not complete, and SON leadership will work tirelessly to make sure that the work is completed and to the satisfaction of our people.

We ask that the Panel do its part to assist us in this. We ask that the Panel recognize the work that remains and assure that its recommendation, whichever way it may fall, facilitates the completion the work necessary to make sure this is the best and safest solution to nuclear waste issues facing our people and our territory.

I would like to close by acknowledging the brave and sincere words of Caitlin McAllister, the Grade 9 student from Walkerton. In my opening statements, I encouraged all of us to appreciate the responsibility we carry and to approach it with humility. The words of Caitlin were a pure example of this.

I understand her message to be this; let us not get trapped by our fears and interests, let us not get fooled by our own intelligence. Let us instead understand the seriousness of the problem and the concerns of others. Let us not rush into decision, but make the best decision, one that we can all live with.


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