The Dominion - Paula Lapierre

An Eagle Feather for Linda Keen?

dru — Wed, 28 May 2008 15:55:46 +0000

The question of jurisdiction (Part III in a series)

[Continued from Part II]

When it comes to how to deal with polluting nuclear power plants and other matters, jurisdiction becomes very important, especially with regard to unceded Aboriginal territory.

Although the Atomic Energy of Canada Ltd. (AECL) installation at Chalk River is located along the shores of the Ottawa river in Ontario, it is situated within unceded Algonquin territory. Traditional Algonquin territory straddles both sides of the Ottawa river, with most Algonquins residing on the Quebec side.

In 1992 the federal and Ontario governments entered into land claim negotiations under the Comprehensive Land Claim process with the Indian Act band of Pikwakanagan and several other contemporary Algonquin communities. Recent Supreme Court of Canada and international case law has affirmed that the title and associated jurisdiction of Aboriginal polities in place prior to sovereignty assertions of the Crown have legal recognition and constitutional protection.

Currently, the Kichesipirini Algonquins are the only Algonquins meeting these legal requirements, yet they are consistently denied recognition within any consultation or negotiation processes. To enter into negotiations, they are told they are required to first abrogate their basic rights.

While the Canadian Nuclear Safety Commission (CNSC) has attempted to ensure that at least a semblance of public participation and consultation had taken place, even it has wondered if Aboriginal groups have been adequately consulted.

As the following exchange shows, the CNSC had not been informed on the question of Aboriginal jurisdiction, nor had it conducted research into the matter.

During the Environmental Assessment Screening Hearing Report of March 30, 2006, CNSC member James Dosman questioned Claude David, Environmental Assessment Specialist for the CSNC, about which First Nations had been consulted.

"We regularly send correspondence to the Algonquins of Pikwakangan which is, I believe, the Golden Lake Reserve in the area," David responded.

Dosman then asked: "May I ask, have you received any reply?" David`s response: "We never received any reply, response from these groups."

"And has anyone discussed this matter with them?" asked Dosman.

"Staff have never gone out to meet with the chief or the tribal council to explain the reasoning for our requests for their participation in the environmental assessment process," David responded.

Dosman then directed questions to Bill Coopershmidt of AECL, asking: "And may we have any comment from AECL on this matter of consultation with First Nations; which groups and what the efforts were that were made?"

Coopershmidt responded: "We have had on a number of occasions representatives from the Algonquins of Pikwakangan on site and as part of that we have briefed this group of individuals on a number of our activities including this particular project. So we certainly have made the nature of this project fully aware to this particular interested party."

"And were any concerns expressed by the Algonquin First Nations following what I take was a presentation to them?" Dosman asked.

"There were no concerns expressed," said Coopershmidt.

Mainstream Canadian society has come to expect the romanticised attempts of Aboriginal Canadians to act as heroic environmental watchdogs. So why no bark out of the Algonquins of Pikwakanagan, a federally funded Indian Act Band?

And why were the Algonquins of Pikwakanagan, a federally funded Indian Act Band located in Ontario the only Aboriginal group "consulted"?

The Algonquins of Pikwakanagan have no legal jurisdiction beyond their reserve at Golden Lake, a 76 kilometre drive from the Chalk River reactor, completely removed from the Otawa river. There were no concerns expressed because the matter had never even been taken to that community for proper consultation.

There were no concerns expressed because the vast majority of federally-recognized Algonquins, intimately attached to the Ottawa River, reside in Quebec, on the other side the river, and were never informed or consulted. The issues were not even advertised beyond the AECL website.

The actual Aboriginal community most associated with the Ottawa River is Kichesipirini. Kichesipirini, however, is not federally recognized and is continually persecuted because of their adamant stance regarding protection of the environment and their refusal to abrogate or derogate their constitutionally and internationally protected rights and responsibilities.

This partially explains why the Kichesipirini Algonquin First Nation, despite meeting the legal requirements to enter into negotiations, despite having submitted a claim without reliance on any government funding or assistance, and despite demanding third party expertise and international standards of good governance be applied to the process, has been consistently rejected from land claim or treaty consultation and negotiations.

Corporate Canada, parading as political representatives, are experts at circumventing legitimacy. They wiggled out of their actual obligations to the actual Aboriginal peoples of Canada by creating facsimile Aboriginal communities, under domestic policy, that are not party to the original legal international contracts.

As part of the same masquerade, they are attempting to circumvent a commitment to safety and environmental stewardship by implementing the Cabinet Directive on Streamlining Regulation (CDSR). It sounds impressive, but the CDSR, put into effect by the Canadian Government on April 1, 2007, "introduces several key 'improvements' to regulation in Canada," which actually shifts the onus away from uncompromised safety and environmental protection and marries these concerns to "a number of performance management requirements," most notably to "promote a fair and competitive market economy that encourages entrepreneurship, investment, and innovation." Rather than solely adhering to the scrutiny of independent expert watchdog organizations, new Canadian policy will "require timeliness, policy coherence, and minimal duplication throughout the regulatory process by consulting, coordinating, and cooperating across the federal government, with other governments in Canada and abroad, and with businesses and Canadians."

Just as the Indian Act, cloaked in a language of righteousness and protection, completely eroded the legal obligations and responsibilities of the Canadian government to the original stewards of the land, the application of the CDSR will erode the authority of the Canadian Nuclear Safety Commission.

A report presented to the CNSC entitled "Regulatory Independence: Law, Practice and Perception," explains that "The notion of the 'independence' of a regulatory body such as the Canadian Nuclear Safety Commission (CNSC) relates, from a legal perspective, to two broad ideas: institutional independence and adjudicative independence.

"Both aspects of independence relate to the ultimate goal of independence, which is decision-making that is unbiased and impartial."

Unfortunately for the CNSC and Linda Keen, the former CNSC president, "the Supreme Court of Canada has indicated that the institutional independence required of the judiciary in Canada for constitutional law reasons is not the same as what the law requires of an administrative tribunal."

Instead, the Supreme Court has determined that "it is for Parliament or the legislature to determine what functions" an administrative tribunal should serve.

Regarding issues of adjudicative independence, the "CNSC's processes reflect efforts to ensure that individual members may successfully avoid concerns of undue influence." The process "ensures that all information on which the CNSC may base its decisions is made available to the affected parties, so that they can know the case to meet and have the opportunity to make representations with respect to the information."

Another CNSC report tells us: "Aboriginal groups bring to the CNSC a unique relationship and history with the federal government, and different cultural, environmental, economic and social perspectives on nuclear issues. Working with Aboriginal communities and/or their political representatives requires a solid understanding and respect of the history and cultures of the affected communities, and their past and current relationship to the federal government."

Reliance on only those Aboriginal groups defined as Indian, Metis or Inuit by the federal government limits the consultation to only those Aboriginals represented through domestic policy and fails to recognize those Aboriginal polities, like the Kichesipirini, who have not yet acquiesced any of their inherent traditional rights. Such affected parties have not been given the opportunity, nor granted access to fair or uninfluenced processes, that would allow them participation or consultation as stakeholders.

Welcome, CNSC and Linda Keen to the protracted wrestling match well known to the Kichesipirini between the long arms of the law and the short arms of the Canadian state.

According to the laws of natural justice, common law, civil law, constitutional law and international law, the traditional rights and jurisdiction of the Aboriginal nations in existence prior to sovereignty assertion by the Crown supercede domestic policy... until ceded through military defeat, land claims or treaty negotiations. Kichesipirini title and jurisdiction supercedes the CNSC, the provinces, and the exclusive authority of the existing Parliament of Canada.

An eagle feather for Linda Keen in appreciation for her attempts at protecting our communities and our river? Perhaps. Keen has strongly recommended that her performance as president of the CNSC be referred to a public inquiry, parliamentary committee or independent international review. From our perspective of centuries of persecution and discrimination only an independent international review will suffice.

If Linda Keen is successful in having the issues referred for such examination, and as part of that examination the important issue of Kichesipirini jurisdiction and the rights of the traditional Algonquin Nation are also addressed, then it will be job well done. Until then it is still sword-rattling and ass-covering by the colonizers on unceded Algonquin territory.

Paula LaPierre
Principal Sachem
Kichesipirini Algonquin First Nation

Migizi Kiishkaabikaan

Manufactured Crises on Stolen Land

dru — Tue, 01 Apr 2008 18:34:10 +0000

The Chalk River Reactor and the Kichesipirini Algonquin (part two of three)

[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?]

Migizi Kiishkaabikaan

Lies, Omissions and Nuclear Waste

dru — Wed, 05 Mar 2008 18:43:28 +0000

The Chalk River Reactor and the Kichesipirini Algonquin (part one of three)

On January 16, the Harper government made headlines when it fired Linda Keen from her post as president of the Canadian Nuclear Safety Commission (CNSC). Under Keen's leadership, the CNSC had shut down the aging Chalk River nuclear reactor in November, and had been at odds with the Harper government ever since. Natural Resources Minister Gary Lunn ostensibly fired Keen because of a "worldwide shortage" of medical isotopes supplied by the reactor allegedly caused by its closure. In Canada's media, the debate has been about whether Keen's firing violated the arm's-length nature of the CNSC, depriving it of the ability to make independent decisions.

What reports largely miss is the long history of lies, theft and radioactive contamination surrounding Chalk River Laboratories (CRL). If the reactor continues to operate, this history will find its way to the fore. The one-sided battle between Canadian government and corporations and the area's original inhabitants will continue until accountability, public health and the rule of law--the supposed mandate of organizations like the CNSC--are achieved.

Chalk River Origins

The mining project that became the infamous Port Radium began in 1890, when a prospector laid claim to a vein of silver and pitchblende on the shore of Sahtu, or Great Bear Lake. In the early 1940s, uranium from that site was needed for the Manhattan Project, the US-UK-Canadian intiative that built the first atomic bomb, and the mine was expropriated. Sahtugot'ine workers who were exposed to radioactive materials but who were not warned of the danger began to die of exotic cancers years later; their land and water was contaminated with radioactive materials.

From there, the uranium headed south.

The Combined Policy Committee, the three-country committee charged with collaboration in the creation of an atomic bomb, mandated the construction of the world's first large-scale heavy water reactor in Canada. The ultra-secret project required immediate access to very deep water for generation and cooling purposes.

On August 21, 1944 it was decided to locate the heavy water project at Chalk River, Ontario, situated along the shores of the Ottawa River. Here begins the relationship between the nuclear industry, the historic "Kichesippi River" and the Algonquin people.

In an article written in 2000, professor of psychology and historian Evan Pritchard has written that "One band of 'Anishinabe-Algonkians,' the 'Kiche-sipi-rini' or 'People of the Great River,' were possibly the first of this ancient culture to settle down in one place, Allumette Island.

"Allumette is the largest island in the Ottawa River, the river which forms the boundary between Ontario and Quebec, and there is evidence of sedentary Anishinabe-Algonkian settlements there going back at least 6,280 years, and occupation in the area dating back 7,000 years as it became inhabitable after the Ice Age. From this power base in the center of the trade route, their influence and language spread throughout North America. Hence they have been called 'The First People.'

"Allumette Island," Pritchard continues, "was a turning point in the civilization. There is little doubt that the Anishinabe-Algonkians of Allumette are the direct descendants of the so-called "Clovis" people, long considered the oldest group of Native Americans."

The Kichesipirini, in accordance with the Aboriginal legal system -- in place prior to any sovereignty assertions by any imperial Crown, controlled economic activity and political diplomacy of the Ottawa River and surrounding region. Initially, that jurisdiction was to have been protected but the government suddenly changed its mind in 1837, cancelling the promises of a reserve, preferring to move people from their traditional land to areas away from the river. The move opened the door for exploitation of Kichesipirini territory by the lumber trade, and destroyed the Algonquin traditional governance system.

While those who agreed to move to the established reserves or who joined other satellite historic bands were then federally "recognized," many others from the Ottawa, Renfrew and Pontiac Counties did not re-locate and were later referred to as "stragglers." The governments of Canada, Ontario and Quebec, like the colonial imperial governments that preceded them, consistently treated the traditional Algonquin people as squatters on their own land. The Kichesipirini, despite continuing to exist within their territory, were administratively erased from the public record through Canadian domestic Aboriginal policy.

More than 3,000 hectares along the Ottawa River were expropriated, including farm land from several Kichesipirini families, 30 km northwest of Pembroke, Ontario. Thus, Chalk River Laboratories (CRL) had its beginnings. The area is a place of spiritual significance to the Algonquin people because of the depth of the water and its proximity to other sacred sites, including ancestral gravesites.

The local people, predominately Kichesipirini Algonquin, were told that what was being built was a plastic processing plant.

During the first several decades of operation at Chalk River, no safety standards or protocols were in place. Nuclear wastes were handled carelessly, causing widespread radioactive contamination of the site far beyond what would be considered acceptable standards today.

Local residents were never properly informed. Civilians, especially the persons of Aboriginal descent more dependent on local natural resources for food, have still never been identified or monitored. According to expert sources, radioactive wastes are still leaking into the Ottawa River, which is an important source of food, recreation and drinking water used by numerous communities downriver in Ontario and Quebec, including the city of Ottawa.

This site, with its legacy of secrecy, expediency, and experimentation is now owned and operated by Atomic Energy of Canada Limited (AECL), the federal crown corporation that designs and markets CANDU reactors.

The reactor built at Chalk River began operation in 1957, and has been slated for retirement for years. In 2006, AECL assured the Canadian Nuclear Safety Commission (CNSC) that safety upgrades would be made to the reactor, including emergency power supply to two heavy-water pumps. AECL then lied when they submitted a Safety Analysis for NRU relicensing, claiming that the required safety modifications were completed. During a routine meeting in November of 2007, CNSC learned that the pumps were in fact not connected.

AECL loses revenue to a private company. Under the Conservative Mulroney government, one of AECL's hopes of financial sustainability, the lucrative revenue from medical isotope productions, was sold from the Crown corporation to the private firm MDS Nordion. Most of the revenue from isotope productions would always go to MDS Nordion as per their 40 year supply agreement. As a result, taxpayers carried the expenses of reactor and isotopes production, liabilities, decommissioning, and maintenance but MDS Nordion recieved most of the profits that accrued.

The local population, not having recovered from declines in the forest industry, is now becoming dependent on the subsidized nuclear industry as their major employer and economic contributor. Lacking economic diversity, fearful of job loss and community revenue losses, few local people or community leaders will now oppose this leeching giant, this Windego, on their shorelines.

[Read part II: Manufactured Crises on Stolen Land]

Paula Lapierre is the Principal Sachem of the Kichesipirini Algonquin First Nation

Chalk River