Deep Geologic Repository Joint Review Pcmel

Deep Geologic Repository Joint Review Pcmel September 6th, 2012 E-docs Word 4195088 PDF 4195089 John Mann <personal information removed> Subject: Request for preliminary rulings Dear Mr. Mann: Please find attached, the decision of the regarding your request for preliminary rulings in accordance with section 4 of the Public Hearing Procedures for the Deep Geologic Repository for Low and Intermediate Level Radioactive Waste Project. Any questions that you may have may be directed to the Panel Co-Managers, Kelly McGee at (613) 947-3710 or Debra Myles at (613) 957-0626. Sincerely, <original signed by> Kelly McGee Panel Co-Managers Deep Geologic Repository c.c.: Stella Swanson, Chair, Member James F. Archibald, Member Gunter Muecke, Member Enclosure C/O canadian Envitonmenttl Assessment Agency - 160 Elgin Street, Otttwa ON K1A OH3

Decision of the for the Deep Geologic Repository on Preliminary Rulings- Section 4 of the Public Hearing Procedures for the Deep Geologic Repository for Low and Intermediate Level Radioactive Waste Project (the Procedures) provides the process to follow regarding requests for preliminary rulings. In accordance with the Procedures, participants had until July 23, 2013 to request a ruling of the Panel with regard to the Procedures or any other procedural or administrative issue. As part of their submissions, participants were directed to provide the reasons for the request together with any supporting material they wanted the Panel to consider for the ruling sought. On July 22, 2013, Mr. John Mann filed a request for preliminary rulings. In addition to the material filed on that day, Mr. Mann asked that the documents previously filed for the DGR Public Hearing be considered as supporting material for the request. In his submission, Mr. Mann requested that: 1) The recuse itself or be removed from further involvement in the DGR process because, according to Mr. Mann, it is in a situation of conflict of interest and because there is an appearance or reasonable apprehension of bias, in favour of the proponents of the DGR for low and intermediate level nuclear waste, with request to present oral submissions to the Panel; 2) He be provided with more than 30 minutes to present his oral submissions, with request to present oral submissions to the Panel; and 3) He be granted the right to fully cross-examine the witnesses at the DGR Public Hearing. Following the review of the submission together with the supporting material, the Panel determined that it had all of the required information to make a decision regarding the submitted request and that it did not need to hear further from Mr. Mann or any other participant. For the reasons that follow, the Panel has rejected the three (3) preliminary requests submitted by Mr. Mann. 1) The recuse itself or be removed from further involvement in the DGR process; 1

A) As first ground for recusal, Mr. Mann alleges that that the Panel needs to recuse itself from further involvement in the DGR process because, among a number of reasons, he has lost all trust and confidence in our government in this process, the process is unnecessary and nothing more than governmental abuse of power. According to Mr. Mann, the DGR process is flawed and as such the Panel should not proceed with the Review: fundamental due process requires a complete record related to storage of ALL nuclear waste before any DGR process continues and until such time, no panel should consider the DGR for low and intermediate level nuclear waste. Mr. Mann further suggests that by agreeing to continue with the review of the project as proposed, the Panel puts itself in a situation of conflict of interest: the Joint Review Panel has a built in pecuniary interest and bias in reviewing 2 DGRs rather than just 1 DGR. By allowing the 2 DGR process to continue, the Joint Review Panel will assure itself of at least double the work at double the Taxpayer cost when only 1 DGR for all nuclear waste and 1 DGR review and 1 DGR Taxpayer cost is necessary. Mr. Mann s submission details at great length his objections to the project and the proposed site, his personal conviction that there should only be 1 DGR for all waste and not 2, his description of the DGR review process as flawed and depriving him of fundamental fairness, the alleged confusion between the DGR review process of a low and medium level waste repository and the Nuclear Waste Management Organization (NWMO) site selection process for a high level waste repository, etc. The Panel has reviewed Mr. Mann s submission and is of the view that the material submitted amounts to a compilation of his personal views and objections to the DGR project which he is rightly entitled to. Contrary to Mr. Mann s opinion though, the Panel has concluded that he has not presented any information to raise any suspicion or to support the allegation that the Panel members are in a situation of conflict of interest or have an inclination or are subject to influences leading to a particular result. 1 As stated by the Alberta Court of Queen s Bench, suspicions of bias, speculations of bias, or possibilities of bias are not sufficient: Anything less must be consigned to the interesting but unproven notions pile. 2 The test, as stated by the Supreme 1 Definition of bias adopted by the Ontario Superior court of Justice in Ridout & Maybee LLP v. Johnston, 2005 CarswellOnt 1183 (Ont. S.C.J.). 2 Robertson v. Edmonton (City) Police Service, 2003 Carswell Alta 1203, 49 Admin. L.R. (3d) 275 Alta Q.B. 2

Court of Canada is: what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude. 3 Contrary to Mr. Mann s allegations, the Panel fails to recognize how exercising diligently the statutory mandate it has received amounts to placing the Panel in a situation of conflict of interest: the fact that Mr. Mann disagrees with the review process does not give rise to an apprehension of bias. The has been specifically appointed to conduct the review of the project components and activities as proposed by Ontario Power Generation Inc. and as described in Deep Geologic Repository for Low and Intermediate Level Radioactive Waste Project Description. The Agreement 4 directs the Panel to conduct the review in a manner that: a) Discharges the requirements set out in the Canadian Environmental Assessment Act b) Permits it to obtain the information and evidence required for it to consider the Licence Application under the Nuclear Safety and Control Act; and, c) Permits it to obtain information and evidence about the adverse effects the project may have on potential or established Aboriginal rights, title or treaty rights as identified to the by the Saugeen Ojibway Nations and enables it to bring any such information and evidence to the attention of the Minister of the Environment and the Responsible Authorities for the Project in support of consultation between the Crown and the Saugeen Ojibway Nations. Further, the Terms of Reference for the Review, stipulate that the mandate of this Panel does not include the review of the long-term management of used nuclear fuel under the mandate of the Nuclear Waste Management Organization. Accordingly, the Panel rejects Mr. Mann s allegation that the Panel is in a situation of conflict of interest and ought to recuse itself. B) As a second ground for the request for the recusal of the Panel from further involvement in the DGR, Mr. Mann alleges that by labelling his emails as SPAM, JUNK MAIL the is biased against (him) and cannot provide (him) with an impartial and neutral and fair tribunal here in the DGR Public Hearings 3 Committee for Justice & Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 (Justice de Granpré where his dissent wording has become the standard formulation) 4 Agreement to Establish a for the Deep Geologic Repository Project by Ontario Power Generation Inc. within the Municipality of Kincardine, (the Agreement) between the Minister of the Environment and the Canadian Nuclear Safety Commission, 3

and that the has prejudged and discarded (his) submissions as reflected by labelling them as SPAM. Mr. Mann further argues that the delay in posting his submissions is evidence that the does not post and review criticism. In particular, Mr. Mann refers to 9 separate submissions between February 22, 2013 and April 22, 2013 that were not posted on the Registry for review by all Citizens and they were not provided to the for review and consideration and decision when submissions critical of his submissions were immediately posted. Section 6 of the Agreement contains provisions for a public registry that includes all submissions, correspondence, hearing transcripts, exhibits and other information received by the and all public information produced by the Joint Review Panel relating to the Review. The Canadian Environmental Agency is responsible for the creation of the site, and the Secretariat is responsible for the maintenance of the site during the Review. The information posted on the Registry is subject to federal legislation dealing with the collection and publication of personal information, including the obligations imposed under the Access to Information Act 5 and Privacy Act. 6 When certain of Mr. Mann s submissions were provided to the Panel with the SPAM labelling appearing in the subject line, the Secretariat explained that the labelling was the result of the government s anti-spam filter. The Panel was made aware that the marking was applied automatically by the security software in response to certain characteristics of the incoming message; it is added to protect the recipient and it does not affect the delivery of the message. The SPAM labelling appeared also on other submissions, not only Mr. Mann s. All electronic submissions go through an automated process where emails that trigger certain criteria in the anti-spam filter are automatically labelled as SPAM or are labelled as rejected. The criteria for the SPAM trigger include administrative triggers such as, but not limited to, a very long list of recipients. With regard to the allegation of apprehension of bias relating to the application of the SPAM labelling, the Panel wants to make it absolutely clear that: It is not and has not been involved in the operation and maintenance of the Registry; It has no role in determining the parameters of the government s anti-spam filter that the government applies to its public registries; 5 R.S.C, 1985, c.a-1 6 R.S.C. 1985, c. P-21 4

Having been informed of this automatic administrative application, at no point in time did the labelling have or could have had any bearing on the Panel s consideration of any submissions received; It directed the Secretariat to issue a notice to all interested parties on May 22, 2013 explaining the anti-spam procedures of the DGR mailbox; After reviewing the process followed with regard to Mr. Mann s submissions, the Panel is satisfied that all of his submissions were provided to the Panel on as timely basis as possible, subject to the applicable verifications and required formatting by the Secretariat as many submissions contained long chain of emails embedded in each submission prior to posting on the public site. In addition, once the Panel was informed of documents being posted on the Registry with the label still appearing, it directed the Secretariat to take all required measures to ensure that the Canadian Environmental Assessment Agency, who was responsible to post submissions on the Project s Registry, remove all adjectives / labels affixed to certain submissions that had automatically triggered the anti-spam filter. As mentioned previously, the automatic labelling was the result of the information technology services used by the government of Canada and was in no way a reflection of the content of any material submitted. There is no basis supporting Mr. Mann s allegation that the Panel has prejudged and discarded any submissions. The Panel had absolutely nothing to do with the automatic labelling appearing on certain submissions. This is a situation involving anti-spam technology and staff: the Panel was never involved. On the contrary, once the Panel was informed of the situation, it took immediate action to ensure that first, the public was made aware of the anti-spam procedures and second, to direct the Secretariat to take all measures required to stop the spam labelling appearing on submissions posted on the Registry. The situation was further explained in a letter to Mr. Mann s counsel dated May 24, 2013 and once again by the s counsel in a letter to Mr. Mann dated July 12, 2013. The Panel is of the view that Mr. Mann s allegations that the Panel censored, prejudged or prevented his submissions from being considered is unfounded and the Panel rejects his request that the Panel recuse itself from the DGR review process on the basis that it cannot provide him with an impartial, neutral and fair Public Hearing. Mr. Mann has not provided any evidence that would show or raise a doubt that the Panel Members are not approaching the review with an open mind and acting independently and free of extraneous factors that might taint or be interpreted as influencing their judgment. 5

2) Mr. Mann requested that he be provided with more than 30 minutes to present oral submissions to allow you to properly participate, particularly in light of the serious violations of your Charter and Democratic Rights and Freedoms in the DGR process. In his submission, Mr. Mann states, that limiting oral presentation to 30 minutes is an improper arbitrary time limit to censor and limit dissent and Citizen participation in this process. As provided in the Procedures, the Public Hearing will be conducted in a manner that ensures a thorough examination of matters relevant to its mandate, while providing for timely and meaningful public participation. Considering the public interest in the matter, the Panel has determined that granting participants approximately 30 minutes to present their oral submission provides participants sufficient time to speak in support of their intervention and it allows for a greater and broader public participation while ensuring efficient review of the application. If during a presentation, the Panel determines that it requires further information from a participant, the Panel has the authority to extend the presentation time. At this point in time, the Panel sees no reasons to extend Mr. Mann s presentation time to more than 30 minutes and rejects the request that he be provided with more than 30 minutes for oral submissions. 3) Mr. Mann requested the right to fully cross-examine the witnesses at the DGR Public Hearing in order to have proper Due Process and a fair hearing. In his submission, Mr. Mann requested the right to cross-examine witnesses during the DGR hearing. The Procedures adopted by the Panel for the review of the Project were adopted in accordance with the Terms of Reference for the Review. As described in section 4 of the Agreement, the objective of the review is to obtain information and evidence that the Panel requires to fulfil its mandate. The review requires the Panel to conduct an environmental assessment of the complete life cycle of the project; to obtain the information and evidence required for it to consider the Licence Application under the Nuclear Safety and Control Act; and to obtain information and evidence about the adverse effects the project may have on potential or established aboriginal rights. The s process is not an adversarial process like those of a formal court: the Procedures for the Public Hearing set out a non-adversarial opportunity for presenters to ask questions to other participants through the intermediary of the 6

Panel Chair. In such a process, cross-examination is not a right and is often nonconducive to a panel obtaining all the information it requires in order to meet its mandate. The Procedures outline the conditions and considerations that apply to all participants who wish to ask a question. All questions must be addressed through the Chair. The Panel sees no reason to modify its approach. Accordingly, Mr. Mann s request that he be granted the right to cross-examine witnesses at the DGR, except in accordance with the Hearing Procedures, is denied. Stella Swanson Chair Deep Geologic Repository James Archibald Deep Geologic Repository Gunter K. Muecke Deep Geologic Repository 7