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[Continued from Part I]
The Canadian Nuclear Safety Commission (CNSC) is an independent federal agency charged with protecting health, safety, security and the environment and to respect Canada's international commitments on the peaceful use of nuclear energy.
The CNSC has two components: a staff organization and the Commission Tribunal. The Tribunal is designed to make independent decisions on the licensing of nuclear-related activities in Canada.
The Commission reports to parliament through the minister of natural resources, but does not deal directly with the minister. According to the Guide Book for Heads of Agencies, "Maintaining an arm's length relationship to ministers is particularly important for those organizations whose mandate is to make decisions that determine or regulate the privileges, rights or benefits of Canadians."
The Nuclear Safety and Control Act does allow cabinet to issue directives but they must be of "general application on broad policy matters" [section 12]. It goes against the rule of law and the principle of separation of powers between the judiciary and the executive that the government exercise any authority regarding the autonomy of the CNSC.
The minister is not authorized to give any directive to the CNSC on a specific case.
But that is what has taken place in the case of Chalk River, when the Harper government removed Linda Keen from her post and reversed the CNSC's decision to shut down the reactor.
The Chalk River reactor, however, is not the only dangerous nuclear project on Algonquin land toward which the CNSC has turned a blind eye.
Also located within Kichesipirini jurisdiction and unceded traditional territory is SRB Technologies Canada Inc. (SRBT), a tritium light manufacturer operating in a mini-mall on Boundary Rd., Pembroke, Ontario. This nuclear facility is located near several businesses, a hockey arena and a residential area, including new subdivisions with young families.
SRBT uses tritium to manufacture glow-in-the-dark signs.
This company is considered a source of tritium environmental contamination in the Pembroke area. A growing body of evidence suggests that tritium is mutagenic (mutates genes causing hereditary defects) and teratogenic (causes malformations of an embryo or fetus). The populations most sensitive to tritium are considered to be fetuses, young children and women of childbearing age.
CNSC researchers found that levels of radioactive tritium in the groundwater on plant property were up to 80 times the permissible limit for drinking water. SRBT does not yet have an approved decommissioning plan to deal with the current contamination issues and no financial guarantee for decommissioning or cleaning up their mess.
As a Class 1 nuclear facility, it was required to have such a plan under the Nuclear Safety and Control Act, which came into effect in 2000. The federal nuclear regulator's report called SRBT's record on environmental protection, "significantly below requirements." Previously, CNSC inspectors identified several irregularities and illegal operations by SRBT while under Commission licence. Despite this, SRBT was continually awarded new licences and allowed to continue operations.
Only after Kichesipirini environmental steward Al Villeneuve intervened did the CNSC reverse its endorsement of the at-fault SRBT, in early 2007.
Villeneuve argued: "We have been here since time out of mind. As our ancestors did, we continue to follow 'Algonquin Law' as it pertains to the outright protection of this Earth, our Mother, and all that exists on it."
Referring to a long documented history of persecution and genocide, he added: "Through history from first contact in 1603, the Kichesipirini/Algonquin people have suffered greatly at the hands of non-natives and government[s]. We suffered as a nation, perhaps the greatest attempted genocide in Canada...
"SRB Technologies," continued Villeneuve, "in order to reduce their toxic, nuclear waste contaminating their site, believes it is better to use our river for a 'nuclear dump.' You have no right to pollute the waters of our spiritual and historic heartland...You have no right to dump any garbage...into our waters.
"While this land and this river is still under dispute with our nation and the governments of Canada and Ontario, we, as members of the Kichesipirini/Algonkin nation, will do all that is in our power as a nation of people to alert others of any destruction of our homelands, including the United Nations."
Villeneuve went on to hold the members of the CNSC, including Linda Keen, personally responsible for any breaches of law, associated damages and the continued persecution of the Kichesipirini Algonquins.
To this day, the Algonquins have never signed a land treaty pursuant to the Constitution of Canada. Following the 1997 Delgamuukw decision by the Supreme Court, we now know that "Lands reserved for the Indians" include not only First Nations reserves set aside deliberately, but also all land subject to valid First Nation claims of Aboriginal title.
The Algonquin situation is unique in that reserves have been illegally set aside in unceded Algonquin territory. Algonquin citizens, therefore, have the constitutionally protected right to identify with traditional governance if they so choose. Traditional governance must meet legal requirements according to established rules of law, including international law.
The Canadian Supreme Court has determined that those political entities in place prior to sovereignty assertion of the Crown, which have never come under domestic laws such as the Indian Act, are still considered to exist and have jurisdiction. The laws of these entities supersede domestic laws, municipal laws and the Indian Act. Those individuals residing on reserves, or land not recognized by Indian Act registration, still hold inherent Aboriginal rights to participate in governance according to traditional custom and practices, and can seek compensation for infringements.
Currently, nothing in the Nuclear Safety Act relieves the Commission of liability in respect to a tort or extra-contractual civil liability to which the Commission would otherwise be subject.
This guarantees that in an area of grave responsibility, such as nuclear safety, strong incentives are in place to ensure the strictest exercise of due diligence.
On April 1, 2007, however, the Government of Canada put into effect the Cabinet Directive on Streamling Regulation (CDSR) under the pretense of making regulatory improvements. If these regulatory changes are applied to nuclear safety, there will be a gradual shift away from safety and environmental protection as priorities. Regulatory activities resulting in the greatest overall benefit to current and future generations of Canadians would become the new objectives.
On November 18, 2007, the CNSC ordered the shut-down of the 50-year-old reactor after numerous previous concessions over safety concerns regarding the emergency power system not being connected to cooling pumps, as required to prevent a meltdown during possible disasters such as earthquakes.
Federal Natural Resources Minister Gary Lunn claimed that the Conservative government consulted with 800 healthcare facilities across Canada, including close to 250 nuclear medicine facilities reliant on the products to understand the impact of the shortage.
"From the government's discussion with medical experts, it was obvious--the isotope shortage was potentially very serious," he said.
"It was also clear, Mr. Chair, had we not acted, that people invariably would have died. We could not let that happen. We had to act, and we did," Lunn said during a hearing on the matter.
On December 10, the Conservative government issued a ministerial directive and ordered the CNSC to reopen the site. The CNSC, with Keen as president, refused, contending that a required back-up safety system be first installed to prevent the risk of a meltdown during an earthquake or other disaster.
On December 11, an emergency measure passed through the House of Commons overturned the watchdog's decision and the reactor was restarted for a 120-day run on December 16.
In a subsequent press release issued by the Commission on January 15, 2008, the CNSC announced that the Privy Council had adopted an Order in Council terminating Linda Keen’s position as president of the Commission be effective immediately.
Framed as emergency measures taken by a government concerned about the health and safety of Canadian citizens put at risk because of the shortage of medical isotopes, the failing reactor was reactivated and Linda Keen was fired from her position as nuclear safety watchdog.
"In effect, this was a manufactured crisis," says Dr. Ole Hendrickson. "The Harper government depicted the CNSC as being negligent by delaying critical medical diagnostic procedures for patients. This diverted attention away from AECL's [Atomic Energy of Canada Limited] negligence in failing to complete essential safety upgrades."
He says the Harper government was responding to pressure from corporate healthcare giant MDS Nordion and that the shortage of isotopes was an isolated problem that could have been managed. He speculates that by diverting attention from AECL's other problems, this emergency legislation helps the federal government maintain AECL's asset value for future privatization.
It would seem that the dependency of the nuclear medical industry on the facilities located at AECL and the apparent lack of safety-net planning and back-up alternatives are more a display of the inadequacies of the current parliamentary government, than any misjudgement of Linda Keen in her capacity as nuclear safety watchdog.
The Sierra Club of Canada has called on parliament to protect the Nuclear Safety Commission from political interference. It insisted the watchdog be granted powers of independence similar to those given to Superior Court judges and the auditor general. "The safety of Canadians is threatened when our Nuclear Safety Commission is subject to the kind of bullying the minister has demonstrated," Stephen Hazell, the Sierra Club's executive director, told the Canadian Press.
A lead editorial in the magazine The New Scientist condemned Canada's handling of the Chalk River reactor. "Canada is sending a dangerous message to these countries when it is prepared to undermine its own watchdog and compromise the protection of its workers and the public in order to keep one of its reactors open."
The deeper question, rarely discussed, remains that of the land that Chalk River laboratories are built on.
Professor of law John Borrows has argued that "Canada is built on a foundation of sand, as long as the rule of law is not consistently applied to Aboriginal peoples."
If Canada's legal foundations with regards to Aboriginal title are in question, where does that leave a nuclear facility built on unceded Algonquin territory?
[Read Part III: An Eagle Feather for Linda Keen?]
The Dominion is a monthly paper published by an incipient network of independent journalists in Canada. It aims to provide accurate, critical coverage that is accountable to its readers and the subjects it tackles. Taking its name from Canada's official status as both a colony and a colonial force, the Dominion examines politics, culture and daily life with a view to understanding the exercise of power.