Canadian Nuclear Safety Commission (CNSC) Policy Statement: CNSC's Commitment to Indigenous Consultation and Engagement

The CNSC’s commitment and ongoing obligations

The CNSC, as an agent of the Government of Canada and as Canada’s nuclear regulator, acknowledges the importance of building relationships and consulting with Indigenous peoples in Canada. The CNSC ensures that all its licensing decisions under the Nuclear Safety and Control Act and its environmental assessment decisions under the Canadian Environmental Assessment Act uphold the honour of the Crown and consider Indigenous peoples’ potential or established Indigenous and/or treaty rights, pursuant to section 35 of the Constitution Act, 1982 (together, the Indigenous interests).

The CNSC recognizes that Indigenous peoples may have concerns about the nuclear sector; it also recognizes how important it is to seek opportunities to work together to ensure safe and effective regulation of nuclear energy and materials. The CNSC will continue to communicate objective scientific, technical and regulatory information about CNSC activities and the effects of the nuclear industry in Canada, in keeping with the objectives of the Nuclear Safety and Control Act.

CNSC’s approach to Indigenous consultation and engagement

Good governance

The CNSC strives to meet its commitment to excellence, in part through a good governance approach to effective and well-managed Indigenous consultation and engagement processes when Indigenous rights or interests could be impacted.

Guiding principles

The CNSC is also mindful of its role as a statutory administrative tribunal exercising quasi-judicial powers, which imposes on it the duty to treat all participants in its proceedings fairly. When developing and implementing consultation processes, the CNSC takes into account the guiding principles that have emerged from Canada’s case law and best consultation practices, as outlined in the document Aboriginal Consultation and Accommodation – Updated Guidelines for Federal Officials to Fulfill the Duty to Consult – March 2011.

The CNSC builds on the guiding principles to establish project-specific processes for Indigenous consultation and engagement:

• that provide opportunities for CNSC staff and Indigenous peoples to meet and discuss issues and to allow for reasonable opportunities for participation in the hearing process before the Commission, such that all evidence relevant to the Indigenous interests – including any potential impacts thereon by Indigenous peoples, CNSC staff, the licensees, the various federal, provincial and territorial departments and agencies, and other interested parties – is heard and taken into account by the Commission in relation to a project, and
• that are as accessible as reasonably possible to Indigenous peoples through: organized community meetings, open houses, technical workshops and/or site visits; other direct consultation with Indigenous peoples where appropriate; the CNSC’s public hearings which are occasionally held in host communities with opportunities for oral or written interventions by Indigenous peoples; video-conferencing facilities (in some situations) for intervenors at hearings held in Ottawa; webcast public hearings and meetings on the CNSC website; the publication on the CNSC website of hearing transcripts, information on CNSC licensing processes, technical/safety facts and publications about the nuclear industry that the CNSC regulates; and, assurance that the licensees and proponents are assisting the CNSC in consulting and engaging with Indigenous peoples.

Scope of consultations

The consultation and engagement activities for a given project may vary with the circumstances. For example, CNSC staff may work more closely with Indigenous peoples prior to a Commission hearing where the possibility of more serious potential adverse effects on Indigenous interests arises from a CNSC licensing decision. Indigenous peoples are encouraged to raise their concerns before the Commission.

Accommodation measures

The CNSC recognizes that as an effect of good-faith consultation, accommodation measures may need to be established to prevent or minimize the impacts that activities involving nuclear substances have on Indigenous interests. Accommodation will likely flow through licensing requirements on licensees subject to the CNSC’s authority. Any such potential accommodation must be made within the statutory mandate of the CNSC, keeping in mind that the CNSC has a broad mandate that allows for the protection of the environment and of the health, safety and security of Canadians, and keeping in mind that there are opportunities for mitigating potential impacts on rights through the licensing processes.

Coordinated approaches

Insofar as its statutory functions allow, the CNSC supports a whole-of-government approach to Indigenous consultation and engagement, with a goal of coordinating consultative efforts, where feasible, with other federal, provincial and/or territorial regulatory departments and agencies, through a one-window approach for environmental assessment and licensing activities.

Assistance of licensee to CNSC Indigenous consultation activities

While licence applicants and existing licensees of nuclear projects do not bear the Crown’s legal obligation to consult Indigenous peoples under section 35 of the Constitution Act, 1982, as proponents of a project that will need to be regulated by CNSC, their role to engage Indigenous peoples is important to the efficacy of the Commission’s decision-making. Therefore, licensees’ consultation activities are important and can inform and assist CNSC staff’s consultation activities. The outcome of all such activities, including any accommodation measures proposed by the licensee, will also form part of the evidence presented by licensees for consideration by the Commission.

Participation of Indigenous peoples

The CNSC encourages Indigenous peoples to outline the nature and scope of their Indigenous interests that they feel may be affected by a proposed project or activity regulated by the CNSC. It also encourages them to bring forward outstanding issues and concerns throughout the regulatory process.

Capacity

In 2011, the CNSC established a participant funding program to ensure the timely and meaningful engagement of the public, stakeholders and Indigenous peoples in CNSC regulatory processes. The CNSC, as an independent regulator, has highly trained scientific and technical staff available to meet with Indigenous peoples to discuss regulatory or technical issues and to answer questions.