In its final report the Truth and Reconciliation Commission calls for implementing the United Nations Declaration on the Rights of Indigenous Peoples no less than 15 times. Whether all levels of government and their agencies revise their practices to conform with the Declaration will be a key test of their willingness to seek reconciliation with Indigenous nations.
A recurring theme throughout the Declaration is the right of Indigenous peoples to exercise free, prior and informed consent (FPIC) when state measures affect their environmental, economic, social, cultural or spiritual well-being. The right to FPIC is explicitly mentioned seven times in the Declaration. Article 29 pertaining to the protection of the environment and productive capacity of Indigenous territories specifies 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.”
A test of the willingness of the federal and Ontario governments, and their agencies the Nuclear Waste Management Organization and Ontario Power Generation, to adhere to this obligation is their handling of a proposed deep geologic repository for low and intermediate nuclear waste on Saugeen Ojibway territory on the shores of Lake Huron.
Ontario Power Generation (OPG) is proposing to bury 200,000 cubic meters of low and mid level nuclear waste 680 meters underground one kilometer from Lake Huron. Low level waste includes such things as gloves or gowns worn by workers at the Bruce nuclear power plant. Intermediate waste includes such things as reactor fittings that are almost as radioactive as high level waste according to Dr. Gordon Edwards of the Canadian Coalition for Nuclear Responsibility. Dr. Edwards reports that “in September 2013, OPG publicly acknowledged its intention to double [the amount of waste to be stored] by adding decommissioning wastes – including radioactive reactor components and contaminated building materials and rubble – through a license amendment after approval based on the initial proposal has been issued.” (Gordon Edwards CCNR media release May 15, 2015.)
The Saugeen Ojibway Nation is concerned about the long term environmental impact on water quality and on their Aboriginal fishing rights that have been affirmed by a court decision. Previously, Ontario Power Generation and the Nuclear Waste Management Organization gave the Saugeen First Nation assurances that the geological repository would not proceed without their consent.
However, on May 6, 2015 a Joint Review Panel, appointed by the federal Minister of the Environment and the Canadian Nuclear Safety Commission, submitted a report recommending that Environment Minister Leona Aglukkaq allow the project to proceed in spite of the evidence the panel heard from experts concerning numerous uncertainties due to the use of unproven technologies. Minister Aglukkaq has 120 days to review the report. If she agrees the project can proceed there will be a further round of panel hearings on site preparation and eventually an application to the Canadian Nuclear Safety Commission for an operating licence.
Indigenous peoples’ free, prior and informed consent is necessary at every stage of the process before a project of this nature can proceed. This must involve direct government interaction with the First Nations rather than delegating responsibility to an arms-length body like the Joint Review Panel. This responsibility was affirmed by the Supreme Court of Canada in the 2004 Haida decision which stated that “the ultimate legal responsibility for consultation … rests with the Crown.”
In response to the panel’s report, Chief Vernon Roote of the Saugeen Ojibway Nation restated his community’s firm opposition to the project. He reiterated a concern about leakage from the storage site that would contaminate drinking water for future generations downstream throughout the Great Lakes. The Saugeen First Nation has received firm messages of support from other Indigenous peoples including the Anishinabek Nation and the Mohawk Council of Kahnawà:ke in Quebec.
A citizens’ group, Save Our Saugeen Shores, has raised concerns that if the low to intermediate level project is allowed to proceed it could lead to the eventual storage of even more dangerous high level nuclear waste. Spent fuel bundles from reactor cores would have to be stored for 400,000 years or more before they would become safe.
Isadore Day, the Grand Chief for the Lake Huron Region, has written to Ontario Premier Kathleen Wynne to ask that her government talk directly with First Nations and “come to a fair and acceptable resolution” about the location of the deep geological repository. Grand Chief Day notes that the sites being considered by the Nuclear Waste Management Organization for high level waste in nine Ontario municipalities are all on treaty lands. Accordingly, he insists that municipalities have no right to decide on waste storage projects without the consent of First Nations.
In the wake of the clear message delivered by the Truth and Reconciliation Commission, it is incumbent upon the federal and provincial governments to consult directly with the Indigenous peoples who would be affected by nuclear waste repositories. Respecting the rights of the Saugeen Ojibway Nation to refuse to permit the low and intermediate disposal site on their territory is essential if the federal and Ontario governments truly want to achieve genuine reconciliation with Indigenous nations.