During the Day 2 Darlington nuclear relicensing hearing, Tristan Willis and Hannah Gladstone will post daily updates providing a look inside a CSNC hearing. This is the fourth of a series of four.
Administrative tribunals play an important role in our legal system. With the growing list of complex issues to be adjudicated, commissions such as the CNSC are relied on as experts in these intricate and technical matters.
Over the past four days, comments on the relicensing of the Darlington Nuclear Generating Station have been presented to the CNSC, where OPG has requested an unprecedented 13-year license period.
Let's take a step back. Why does this decision belong in front of a tribunal, instead of a court?
Administrative tribunals are relied on for their “expertise” and “independence.” Independent because they are quasi-judicial in nature (separate from industry and government, like a court), and expert because courts are seen not to have the necessary knowledge to appropriately adjudicate the matter.
After witnessing a tribunal hearing of the CNSC first hand, I question if the CNSC has the independence and expertise necessary to fulfil this role.
Let me explain why I think this: expertise is essential for tribunals dealing with highly specific issues from nuclear regulation to competition law. There is a valid justification for having those individuals making the decision about the future of the Canadian nuclear industry to be knowledgeable about the science and the industry.
There is, however, some indication that the CNSC is not as expert in this area as one would assume. The best example of this, was pointed out by Tristan in our last post; the Commission members seemed confused about their own jurisdiction. This is worrisome, because an understanding, at the very least, of what you have the authority to adjudicate is the most basic matter facing every tribunal.
Assessing independence is tricky. It this means that is especially important for tribunals to not only be independent, but also appear to be independent. Coming out of the hearing, I was left with some doubts.
In the opening statements made by CNSC President Dr. Binder, emphasis was placed on the independence of Commission members from staff, proponents, intervenors and even each other.
But a number of intervenors also raised concerns about the ability of the Commission to be an impartial regulator. Furthermore, past comments made by Dr. Binder have been perceived by some members of the public as being pro-nuclear. Additionally, some intervenors raised concerns about the CNSC staff’s independence. (The CNSC staff are relied on by the Commission throughout the administrative processes.)
In addition to concerns about the the lack of independence and expertise (or perhaps because of it), the Commission’s own process was highly problematic. The CNSC has the authority, under the Canadian Nuclear Safety and Control Act, to lead a rigorous process, but this is not what we witnessed over the past four days. Over the course of this hearing, we have highlighted several problems including, a lack of cross-examination, limited opportunities for public intervention, and the timing and sufficiency of information available to all parties.
In a criminal trial, which decides the fate of a single individual, such procedural safeguards are always in place. Witnesses are cross-examined to ensure the accuracy and truth of their statements. In matters of public importance, qualified experts and intervenors are allowed to make submissions. Disclosure of all relevant evidence is mandatory to ensure all parties can adequately prepare.
So why then, with an issue that could potentially affect millions of people, is the procedure so relaxed by comparison?
At one point, Dr. McDill, a permanent member of the Commission, began questioning CNSC staff and OPG on a matter raised by a public intervenor. President Binder appeared to try and bring her questioning to an end, but Dr. McDill responded that intervenors come to these hearings to have their concerns addressed, and deserve to have these questions answered.
This incident was not an isolated event. There were other moments where a commission member (often Dr. McDill and Ms. Velshi) would push OPG or CNSC staff for a response, when other members of the Commission appeared unwilling to do so. A few instances, however, of more rigorous questioning does not make up for our overarching concerns with the CNSC’s procedure.
After four days, and 79 interventions, the Darlington Nuclear Generating Station relicensing hearing came to a close. The final day wrapped up, rather unceremoniously, after the intervenor presentations had concluded and the CNSC posed a few final questions. OPG had the final word, stating that they appreciated all the comments from the intervenors over the course of the hearing, and that all were helpful to OPG going forward.
We started the week discussing the importance of public participation, and that has not changed; if we want to see an improved process for the regulation of the nuclear industry, our opinion must be voiced at every opportunity. So thank you for everyone who participated and followed along throughout the #DarlingtonNuclear hearing.
Stay tuned for updates as we await the CNSC’s judgment.