Rejection of the proponent's initial project description and call to suspend the impact assessment

To: Impact Assessment Agency of Canada

Re: Rejection of the Proponent’s Initial Project Description and call to suspend the impact assessment

My name is Mary McPherson and I am an Anishinaabe member of Couchiching First Nation, currently residing in Thunder Bay. Since time immemorial, my ancestors have lived on the lands that are now covered by Treaty #3. I urge the Impact Assessment Agency of Canada (“Agency”) to reject the Nuclear Waste Management Organization’s (“NWMO”) Initial Project Description (“IPD”) of the deep geological repository for Canada’s used nuclear fuel (“DGR”, Project No. 88774), and to suspend the impact assessment, for the following reasons.

Excluded from the scope of the IPD is the transportation of radioactive waste to the project site from current storage sites, which is project splitting

The IPD excludes from its scope the handling, loading, and long-distance transportation of nuclear waste from interim storage sites, despite the persistent concern on this issue as vocalized over the last several years by residents, Indigenous peoples, organizations, and the public. As stated in the IPD: “Transportation of nuclear and non-nuclear materials within existing highways and railways is independently regulated and ongoing, does not require changes to current infrastructure or regulations and would continue regardless of the Project’s implementation.”[i] (#_edn1) This statement directly contradicts the NWMO’s own legitimate expectations that they previously publicized: “Transportation is an essential step…while the transportation of used nuclear fuel occurs on a small scale in Canada today, the transportation of all Canada’s used nuclear fuel will be a significant undertaking—one that we want Canadians and Indigenous peoples to provide input to and help us plan.”[ii] (#_edn2) I echo previous comments that the transportation of radioactive waste along public transportation corridors, which would occur daily over 50 to 60 years, is unprecedented and must be scrutinized.

The handling, loading, and long-distance transportation of radioactive waste, as publicized by the NWMO, is an integral component of the DGR project. Without transportation, the DGR would not exist. Transportation therefore cannot be split away from the IPD. The project in its entirety must be assessed.[iii] (#_edn3) I urge the Agency to reject this IPD that fails to align with section 22 of the Impact Assessment Act.[iv] (#_edn4)

The NWMO is engaged in bad faith conduct that is inconsistent with the constitutional principle of the honour of the Crown and the United Nations Declaration on the Rights of Indigenous Peoples

a.  The Impact Assessment must be suspended as there is a pending judicial review of the NWMO’s decision to exclude Eagle Lake First Nation as a potential host community

The IPD’s description of 1) the site selection process and 2) the methods of ensuring that potential host communities are “informed” without an assessment of the impacts of the DGR project is woefully inadequate. It is unclear how the NWMO determined WLON to be an “informed” host. The IPD describes that in 2020, the NWMO narrowed its focus to two potential host communities for the DGR project: the Wabigoon Lake Ojibway Nation (“WLON”) and Ignace area and the Saugeen Ojibway Nation-South Bruce area. The WLON formally agreed to be an “informed and willing” host for the DGR project.[v] (#_edn5) The NWMO’s site selection process, however, was conducted without the meaningful engagement of Eagle Lake First Nation (“ELFN”), who until 1932 shared a reserve with WLON, whose traditional territory overlaps with WLON and the project area, and who is located a mere 79 kilometers away from the project area (this distance is only marginally farther than WLON, and only 10 kilometers farther than Saugeen First Nation would have been from the Bruce Peninsula location).

From the IPD, it is unclear what criteria the NWMO used to select potential host communities and what justification exists for them to have to excluded ELFN. ELFN argues they were excluded as a potential host community because ELFN members had expressed concerns about the DGR and therefore the NWMO assumed that ELFN would be opposed to the DGR site. ELFN has brought an application before the Federal Court of Canada for judicial review over the NWMO’s dishonourable conduct and procedural unfairness[vi] (#_edn6) and has since called for the impact assessment (which commenced despite ELFN’s objections) to be suspended.[vii] (#_edn7) I fully support ELFN and request that the Agency reject this flawed and dishonourable IPD.

b. The IPD’s list of potentially affected First Nations is too narrow in scope and must be broadened to include all First Nations communities potentially impacted by the DGR project, including First Nations communities located along the transportation corridor

In the IPD, the NWMO lists only four potential Crown consultation list communities that are potentially impacted by the DGR project: Eagle Lake First Nation, Lac Des Mille Lac First Nation, Lac Seul First Nation, and Seine River First Nation.[viii] (#_edn8) This list is far too conservative. Regardless of how inconvenient it is for the NWMO, the NWMO has a constitutional obligation to consult and accommodate ALL potentially affected Indigenous communities. This includes other communities in Treaty #3 and Treaty #9, and communities that are located along transportation corridors.

The duty to consult and accommodate arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that has the potential to adversely affect it.[ix] (#_edn9) The duty to consult and accommodate lies on a spectrum: at one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor. On the other end of the spectrum lie cases where the Aboriginal rights claim is strong and the potential for adverse effects on those rights is high. In the latter cases, deep consultation is required, such as formal participation in the decision-making process.[x] (#_edn10) Further, the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) has been adopted into Canadian law through the United Nations Declaration on the Rights of Indigenous Peoples Act,[xi] (#_edn11) and as confirmed by the Supreme Court of Canada in Reference re An Act Respecting First Nations, Inuit and Métis children, youth and families.[xii] (#_edn12) Article 29.2 of UNDRIP says that “states shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent.” The Federal Court of Canada in Kebaowek First Nation v Canadian Nuclear Laboratories recently held that, in the context of the disposal of nuclear waste, the honour of the Crown requires that the Crown deeply consult with the objective of obtaining the consent of the Indigenous peoples affected, and such consultations must be conducted in a manner which is tailored to Indigenous laws, knowledges, and practices.[xiii] (#_edn13)

The treaty rights of affected Aboriginal communities are undisputed, and the potential for the infringement of treaty rights is significant. The unprecedented nature of the DGR project and the handling, loading, and transportation of radioactive waste poses the grave risk of direct and irreversible contamination of surface waters, groundwater, sediments, and ecosystems which First Nations communities rely upon. These affected First Nations communities, beyond those listed in the IPD, are owed deep and meaningful consultations, which, aligned with UNDRIP, must be conducted with the objective of obtaining the consent of the First Nations affected. The fact that the Crown will be conducting impact and environmental assessments in the future does not mean that the NWMO is relieved of its immediate duty to consult and accommodate First Nations who may be adversely affected. Yet, the NWMO has disregarded its procedural obligations to the First Nations communities located in the vicinity of the DGR site and the First Nations communities located alongside the transportation corridor. The NWMO has also failed to follow its own policy of obtaining the consent of the people situated in the DGR project area, as exemplified by ELFN.[xiv] (#_edn14)

Conclusion

The Agency must reject the NWMO’s IPD because the IPD 1) fails to meet minimum legislative requirements and engages in project splitting, and 2) is inconsistent with the Crown’s constitutional duty to consult and UNDRIP as it a) ignores the ELFN’s existence on the lands overlapping the DGR project area, and b) excludes Indigenous communities whose constitutionally protected rights are directly at risk. If this assessment is not suspended for the aforementioned reasons, there must be a full impact assessment conducted by a review panel which includes a public hearing, as per sections 16 and 43(a) of the Impact Assessment Act.[xv] (#_edn15)