Deliberative Democracy for the Future : The Case of Nuclear Waste Management in Canada [1 ed.] 9781442687837, 9780802096074

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DELIBERATIVE DEMOCRACY FOR THE FUTURE: THE CASE OF NUCLEAR WASTE MANAGEMENT IN CANADA

In today’s world, public policies are increasingly associated with social and environmental risk and scientific uncertainty. Given such potential impacts on the moral freedom and equality for existing and future generations, policies should reflect decision-making standards beyond those of economic efficiency and technical safety. They should reflect the imperatives of social justice and democratic legitimacy now and into the future. Deliberative Democracy for the Future identifies an approach to ethical policy analysis that promises to serve the ends of justice and legitimacy in areas of public policy such as hazardous waste management, energy generation and regulation, climate change control, and genomics research and commercialization. Based on a wide reading of ethical approaches to policy analysis found in contemporary political theory, moral philosophy, and public policy literatures, it evaluates these three central approaches to ethical policy analysis in light of moral dilemmas arising in a particularly timely case: Canadian nuclear waste management policy. The volume’s central argument is that the most desirable approach to ethical policy analysis contains the philosophical tools necessary to address problems of understanding risk and safety, identifying obligations to both existing and future generations, and conceptualizing legitimacy-conferring decision-making processes. Genevieve Fuji Johnson argues that neither welfare utilitarianism nor modern deontology is sufficiently equipped for these tasks. She proposes that only deliberative democracy contains convincing conceptions of the good, justice, and legitimacy that provide for the justifiable resolution of debates about the moral foundations of public policy. Responding to challenges in nuclear waste management in ways more comprehensive and more tenable than both utilitarianism and deontology, deliberative policy analysis promises to be an effective approach to other cases associated with risk, uncertainty, and futurity. (Studies in Comparative Political Economy and Public Policy) genevieve fuji johnson is an assistant professor in the Department of Political Science at Simon Fraser University.

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Restructuring Family Policies

Studies in Comparative Political Economy and Public Policy Editors: michael howlett, david laycock, stephen mcbride, Simon Fraser University Studies in Comparative Political Economy and Public Policy is designed to showcase innovative approaches to political economy and public policy from a comparative perspective. While originating in Canada, the series will provide attractive offerings to a wide international audience, featuring studies with local, sub-national, cross-national, and international empirical bases and theoretical frameworks. Editorial Advisory Board jeffrey ayres, St Michael’s College, Vermont neil bradford, University of Western Ontario janine brodie, University of Alberta william carroll, University of Victoria william coleman, McMaster University rodney haddow, University of Toronto jane jenson, Université de Montréal laura macdonald, Carleton University riane mahon, Carleton University michael mintrom, University of Auckland grace skogstad, University of Toronto leah vosko, York University linda white, University of Toronto kent weaver, Brookings Institute robert young, University of Western Ontario For a list of books published in the series, see page 171.

Contents

GENEVIEVE FUJI JOHNSON

Deliberative Democracy for the Future The Case of Nuclear Waste Management in Canada

UNIVERSITY OF TORONTO PRESS Toronto Buffalo London

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© University of Toronto Press Incorporated 2008 Toronto Buffalo London www.utppublishing.com Printed in Canada ISBN 978-0-8020-9032-4 (cloth) ISBN 978-0-8020-9607-4 (paper)

Printed on acid-free paper

Library and Archives Canada Cataloguing in Publication Johnson, Genevieve Fuji Deliberative democracy for the future : the case of nuclear waste management in Canada / Genevieve Fuji Johnson. (Studies in comparative political economy and public policy) Includes bibliographic references and index. ISBN 978-0-8020-9032-4 (bound). ISBN 978-0-8020-9607-4 (pbk.) 1. 2. 3. II.

Radioactive waste disposal – Government policy – Canada. Radioactive waste disposal – Moral and ethical aspects – Canada. Radioactive waste disposal – Risk assessment – Canada. I. Title. Series.

TD898.13.C3J63 2008

363.72′8960971

C2008-901551-7

University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council. University of Toronto Press acknowledges the financial support for its publishing activities of the Government of Canada through the Book Publishing Industry Development Program (BPIDP).

Contents

Contents

Acknowledgments vii Abbreviations ix 1 Introduction 3 2 Ethical Policy Analysis and Its Importance 7 Risk, Uncertainty, and Futurity 7 Positivism and the Rise of Non-positivist Critique 11 The Ethical Primacy of Justice and Legitimacy 17 3 Canadian Nuclear Fuel Waste Management Policy: A Discourse of Two Coalitions 24 Aikin Report and Seaborn Panel 25 Government Response, Policy Framework, and Nuclear Fuel Waste Act 28 The NWMO’s National Consultation Process 31 4 Ethical Issues in Canadian Nuclear Fuel Waste Management Policy 34 Future Generations 35 Safety and Risk 37 Burdens and Benefits 40 Inclusion and Empowerment 44 Accountability and Oversight 47 Criteria for Ethical Policy Analysis

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5 Ethical Schools: Welfare Utilitarianism, Modern Deontology, and Deliberative Democracy 55 Welfare Utilitarianism 55 Modern Deontology 69 Deliberative Democracy 79 6 The Promises and Pitfalls of Deliberative Democratic Policy Analysis 95 The NWMO’s National Consultation Process Evaluated 96 Inclusion 97 Equality 99 Reciprocity 101 Precaution 102 Agreement 103 Lessons from Canadian Nuclear Fuel Waste Management 106 Conclusion 110 Notes 113 Bibliography 147 Index 167

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Acknowledgments

Many friends and colleagues have contributed to this book’s development. I am grateful to associates of Centre de recherche en éthique de l’Université de Montréal for the opportunity to develop the primary ideas of this book during a two-year post-doctoral fellowship. I am especially thankful for the support and friendship of Daniel Weinstock. Céline Nègre, Avigail Eisenberg, and Wayne Norman were very generous in commenting on key parts of this book. Colin Macleod was particularly helpful in bringing increased clarity to this work as a whole. But each member of the ‘equipe,’ 2004–2006, was an excellent colleague from whom I learned a great deal. At Simon Fraser University, David Laycock, Mike Howlett, and Steve McBride have been not only great series editors but also generous colleagues. I have benefited from conversations with Yoshi Kawasaki about the importance of solid methodology in interpretive and qualitative research in political science. In addition to great colleagues, I have been very lucky to have had the research assistance of four of our very fine students, Maria Aoki, Linda Elmose, Julie MacArthur, and Tanja Gibney. I am also grateful to a number of individuals from the University of Toronto. Ronald Beiner, Richard Simeon, and Joe Wong offered very helpful insights during the early stages of this work. Michelle Bonner, Ellen Gutterman, Sarah Hartley, and Julie Simmons offered both keen insights and close friendship. Sylvia Bashevkin, Grace Skogstad, Rob Vipond, and Joan Kallis were also very supportive. Finally, I have very much appreciated the support, over the years, of Virgil Duff at University of Toronto Press. I owe special thanks to two dear friends. Melissa Williams was an excellent doctoral thesis supervisor. This book wouldn’t exist were it

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not for her patient and skilful guidance during my years at the University of Toronto. Her strength, clarity of thought, and critical standards continue to inspire me. I am also very grateful for the kind, but critical, feedback provided by Cole Harris. As many know, Cole is a wonderful scholar and a true Canadian treasure. I am most grateful to my family. Tsuneko Kokubo, Paul Gibbons, Murray Johnson, Aaron Johnson, Kayla White, Seth Johnson, Etsuko Izumi, Eiko Kokubo, and Patricia Rosenbloom-Gibbons have been tremendously supportive over the years. This book is for my late grandfather, Hideo Kokubo, who passed away in February 2006. My grandfather had nothing to do with nuclear waste, let alone moral and political theory. But in his own way, he stood up for what he believed to be true and right. He embodied the virtues of compassion, generosity, and spiritedness. Most importantly, he sought enlightenment and probably achieved it.

Foreword ix

Abbreviations

ACF AECB AECL AFN ARC CAN CAP CBA CCEER CEAA CNA CNS CNSC CPRN DOE EARP FEARO GBN H-Q IAEA ICRP ITK NBP NEA NRCan NSCA NWAC

Advocacy Coalition Framework Atomic Energy Control Board Atomic Energy of Canada Limited Assembly of First Nations Aboriginal Rights Coalition Canadian Nuclear Agency Congress of Aboriginal Peoples Cost-Benefit Analysis Canadian Coalition for Ecology, Ethics, and Religion Canadian Environmental Assessment Agency Canadian Nuclear Association Canadian Nuclear Society Canadian Nuclear Safety Commission Canadian Policy Research Networks U.S. Federal Department of Environment Environmental Assessment Review Process Federal Environmental Assessment Review Office Global Business Network Hydro Québec International Atomic Energy Agency International Commission on Radiological Protection Inuit Tapirrit Kanatami New Brunswick Power Nuclear Energy Agency Federal Department of Natural Resources Nuclear Safety and Control Act Native Women’s Association of Canada

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NWMO OECD OH OPG QRA RCBA

Nuclear Waste Management Organization Organisation for Economic Co-operation and Development Ontario Hydro Ontario Power Generation Quantitative Risk Assessment Risk Cost-Benefit Analysis

Understanding Adolescent Self-Injury from a Resilience Perspective

DELIBERATIVE DEMOCRACY FOR THE FUTURE: THE CASE OF NUCLEAR WASTE MANAGEMENT IN CANADA

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1 Introduction

I argue in the following pages for a deliberative democratic framework for public policy analysis1 in areas associated with risk, uncertainty, and long-term consequences. Many of today’s policy areas, including the development of biotechnology and nanotechnology, large-scale generation of electricity, and, of course, management of nuclear waste, may be associated with serious, even catastrophic, social and environmental hazards for the present and future. Certain policy decisions, even those well intended and well thought out, may result in very serious acute and stochastic harms to humans, societies, cultures, and the natural environment for thousands of years. Making decisions to avoid or minimize such harms can be extremely difficult, since there are many epistemological and methodological limitations that restrict our understanding of the probability and magnitude of these harms, not to mention much uncertainty and conflict about ways best to manage them. No doubt we need such policies and benefit from them. Many of these policies constitute much-desired and much-needed responses to pressing public problems, including disease, drought, famine, energy shortage, and hazardous wastes. A paradox of many policies is that, while they respond to important problems and create social and economic benefits, they can give rise to very serious harms that profoundly affect present and future persons, their social relations, and the natural environment – that profoundly affect the conditions for individual moral equality, freedom, and autonomy.2 The desirability of or need for certain kinds of policies, combined with the possibility that these policies will create or exacerbate very serious social and environmental risks, engenders an imperative for their ethical assessment and justification. The inherent social and

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scientific uncertainty about future impacts only intensifies this imperative. All public policy binds or, at least, pervasively affects people. All public policy is, in some way, at some level, coercive. The problem is to justify this coercion. This is especially important in cases of risk and uncertainty for present and future generations. This book focuses on Canadian nuclear fuel waste management policy.3 Canada, like other countries of the Organisation for Economic Co-operation and Development (OECD), is on the verge of another nuclear growth spurt. Ontario is no stranger to nuclear energy, deriving roughly 50 per cent of its supply from nuclear fission. Seeking to avoid a possible pitfall in future energy supply, the province is moving away from coal and towards nuclear. In the Maritimes, there is a possibility that the government of New Brunswick will build a second reactor at Point Lepreau. There is also a possibility of nuclear spread to western Canada, with the partnership of Atomic Energy of Canada Limited (AECL) and Energy Alberta Corporation to provide energy for the tar sands project. Given the magnitude of possible harms associated with nuclear generation and its waste, intractability of social and scientific uncertainty, length of time frame for radioactive decay, historical polarization of perspectives of pro- and anti-nuclear coalitions, and growing popularity among political elites of the nuclear option, this case exemplifies pressing ethical challenges. Nuclear waste management policy is not merely an interesting case study for those concerned with applied ethics. More importantly, it is a policy of pressing social and environmental significance. I examine three broad ethical schools, each comprising principles specific to a conception of justice and legitimacy. Related to costbenefit analysis, utilitarianism seeks to maximize the welfare of sentient beings in policy decisions. Modern deontology seeks to supplement standard decision-making principles with substantive normative principles based on the moral equality of persons. Deliberative democracy seeks to infuse policy processes with communicative exchanges oriented towards a justificatory agreement among a wide diversity of potentially affected persons. Of these three schools, deliberative democracy yields the most defensible framework for the ethical analysis of public policy. Although utilitarianism and deontology have their strengths, deliberative democracy is the most informative for the ethically justifiable rendering of contentious policy decisions with ramifications for existing as well as future generations. A deliberative framework

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provides policy makers with determinate principles of inclusion, equality, reciprocity, precaution, and agreement. These principles can direct policy makers in resolving justifiably normative conflicts that arise in areas associated with hazards for the present and future. These principles can thus promote both legitimacy and justice in such policy areas. In the next chapter, I elaborate the ethical challenges of risk, uncertainty, and futurity. These challenges are insufficiently addressed by positivist policy analysis, which tends to dominate the mainstream in public policy formulation, implementation, and evaluation. Policies associated with far-reaching hazards should instead be justified with reference to the broader standards and richer requirements of legitimacy and justice. Determinacy is also important. Any framework for ethical policy analysis in a real-world context must yield determinate and applicable principles. For a more concrete understanding of the criteria of justice, legitimacy, and determinacy, I examine Canadian nuclear waste management policy. In Chapter 3, I provide an outline of important developments in this policy area, which I argue have been defined by two competing discursive coalitions of actors – a dominant coalition of industry representatives and bureaucratic officials and a critical coalition of activists from religious and environmental organizations and representatives of aboriginal nations. To highlight specific challenges in meeting these criteria, I engage in a more in-depth interpretation of this case in Chapter 4. I identify the following fault lines of normative conflict: (1) future generations, (2) safety and risk, (3) burdens and benefits, (4) inclusion and empowerment, and (5) accountability and oversight. Addressing these challenges requires that a framework for ethical policy analysis encompasses (a) a basis for moral standing that rationalizes the inclusion of existing and future persons in policy deliberations, (b) a theory of the good that speaks to both existing and future persons, (c) a conception of justice applicable to both existing and future generations, and (d) substantive and procedural criteria defining the legitimating relationship between decision makers and those, existing and future, bound or affected by their decisions. Again, all of these elements must yield determinate direction to policy makers. In Chapter 5, I examine the strengths and weaknesses of welfare utilitarianism and modern deontology. I argue that frameworks based on these schools, while appearing promising, provide us with (a), (b),

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and (c), but not (d). Not fully providing legitimating criteria is problematic, leaving policy recommendations not only unjustified but also indeterminate. I go on in Chapter 5 to detail how ethical policy analysis drawing from the ideal of deliberative democracy provides us with all four elements. While deliberative democracy is not immune to problems of indeterminacy, it better ensures the justice and legitimacy, and thus justification, of public policy decisions. The ideal of deliberative democracy provides moral justification for the inclusion of the fundamental interests of both existing and future generations within contemporary policy deliberations. It conceptualizes the fundamental interests of persons, existing and future, in terms of basic conditions for justifiably rendering and re-rendering policies that bind or affect them, which contribute to upholding the conditions for their moral equality, freedom, and autonomy. With respect to these interests, the ideal counsels existing deliberators to engage in reciprocal reasoning among themselves and exercise precautionary reasoning vis à vis future generations. The aim of precautionary reasoning is to protect the conditions that will most likely enable future generations to review and, if necessary, revise decisions made in the past but that bind or affect them in their present. This reasoning extends the ideal of democracy to future generations by making consideration of their fundamental interests present in our decision making and by seeking to enable them, as they come into existence, to visit and revisit policy decisions of the past. In the concluding chapter, I highlight the promises of a deliberative democratic framework for public policy analysis but also identify lingering problems. Recent developments in Canadian nuclear waste management reveal prospects for as well as pitfalls of deliberative democracy in areas of risk, uncertainty, future consequences, and ethical conflict. Deliberative democracy has much promise, but this promise is contingent on addressing power relations among coalitions and actors inhabiting many areas of contemporary public policy. This conclusion has implications not only for deliberative democratic theory and practice, but also for ethical public policy in an age of risk, uncertainty, and futurity.

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2 Ethical Policy Analysis and Its Importance

Like many projects in applied ethics, this book is animated by a concern to maintain conditions for the moral equality, freedom, and autonomy of persons in light of the coercive elements of public policies. The kind of public coercion that I find especially interesting takes the shape of serious risks that are created or exacerbated by policies. After all, the conditions for our freedom and autonomy are fundamentally connected to our health, the health of our societies, and the health of the natural environment, all of which may be placed at risk by our policies. I seek a way ethically to evaluate and justify policies that are strongly desirable, even necessary, but that may be associated with serious anthropogenic risk to humans, non-human species, and the natural environment of the present and future. In this chapter, I discuss the features of risk, uncertainty, and futurity and the importance of ethical policy analysis. Risk, Uncertainty, and Futurity ‘Anthropocentric risk’ refers to the probability of a harm of a significant magnitude created by human activities, especially those related to industrial, technological, and scientific developments. ‘Risk,’ more generically, refers to the known probability of an adverse consequence multiplied by the magnitude of this consequence.1 Naturally, all activities are associated with a level of risk. Efforts to avoid risk can create countervailing risks, which may be of a greater probability and/or magnitude and, consequently, may be more dangerous. We can aim to avoid risk, but often, even in the best case, we can only minimize and manage it.

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In the context of many policies, risk is not solitary. Many probable harms are accompanied by scientific uncertainty, i.e., the epistemological unknowns that limit or postpone the achievement of sound scientific knowledge about their nature, causes, and effects.2 This kind of uncertainty stems from the impossibility of scientific testing, insufficiency of data sets, and inadequacy of data analysis to determine the probability and magnitude of a possible harm. It refers to the incomplete basis upon which to assign probabilities and magnitudes to an adverse consequence. Strictly speaking, a case of uncertainty cannot also be one of risk. However, since uncertainty is often integral to processes of risk assessment, we can speak of uncertainty as an intrinsic feature of many decisions based on these processes. Kristin Shrader-Frechette identifies several kinds of uncertainty in technical or quantitative risk assessment (QRA).3 According to Shrader-Frechette, framing uncertainty invokes questions about using either two (i.e., acceptable versus unacceptable) or three values (i.e., acceptable, unacceptable, or insufficient data).4 Risk assessment decisions generally bear upon either the acceptability or unacceptability of a proposed activity, technology, or system. But certain risk assessments – especially those involving high stakes, such as nuclear waste management – may be more suited to a three-value frame that includes explicit reference to the insufficiency of data. Modelling uncertainty refers to questions of validating and verifying models of complex systems that function over the very long term.5 Given the timeframes at play in numerous areas of science, technology, and environment, there is often no possible way of checking certain models against the reality they represent or of verifying hypotheses based on these models. We cannot observe, for example, the behaviour of a nuclear waste management system over its projected lifespan. Statistical uncertainty refers to questions about the priority of avoiding either type I or type II errors.6 Quantitative risk assessment tends to seek the avoidance of false positives, or false conclusions that x causes y. It tends effectively to place the burden of proof on those who postulate causation between a proposal and an adverse consequence. Those who claim that there is a causal relationship bear the responsibility of demonstrating that causation. Yet, in many cases of high-magnitude risk, there may be good reason instead to favour avoiding false negatives, or false conclusions that x does not cause y, and to shift the burden of proof to proponents of a potentially harmful activity or technology. Decision-theoretic uncertainty, finally, refers to questions revolv-

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ing around when to use either an expected-utility rule or a maximin rule.7 Questions here relate to whether an assessor should choose either maximizing the average expected utility or welfare or minimizing the chance that the worst outcome will occur. All of these forms of uncertainty tend to increase the further into the future risk assessors cast their sights. All render decision making in, for example, nuclear waste management even more challenging. The radiological decay of used nuclear fuel spans potentially hundreds of thousands of years. A risk assessment of a proposed system to contain this radiation over such a period of time is virtually meaningless in light of the uncertainty surrounding the events and processes that could occur. Another companion of risk is futurity. ‘Futurity’ refers to an explicit concern about the impacts of practices and technologies on future generations.8 Gregory Kavka was among the first contemporary philosophers to treat the moral problems of futurity, which he understood largely in terms of the status and standing of future persons.9 He was primarily interested in whether or not we should consider future persons as our moral equals. As posed by Kavka, ‘putting aside considerations based on special relationships such as love, friendship, or contractual obligation, ought one, in his moral decision making, assign equal weight to the interests of present and future persons?’10 Kavka argued that neither the temporal location of future persons nor lack of knowledge about their interests justifies not treating them as our equals. According to him, the equal moral status of present and future persons suggests that our generation should collectively aim to leave our posterity a planet as rich in nature as that we inherited from our ancestors. Although this is an intuitively sound conclusion, it has not gone unchallenged. This basic intuition has been the fodder of many philosophical debates, especially in the 1970s, about responsibilities and obligations to future generations.11 These debates were particularly abstract, expounding on the metaphysical category of person, morally relevant differences between existing and future persons, conceptions of well-being for future persons, justifications of the rights of future persons, and the like. Although largely confined to the realms of analytic and moral philosophy, these debates elucidated a problem that should not be ignored by policy makers: many of today’s policy decisions can and will very pervasively affect future persons, societies, and environments. We should not underestimate problems of futurity. They raise very difficult questions, requiring us to push our abilities to assess many

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public policies, forecast their long-term consequences, identify areas of uncertainty associated with them, and abate serious harms that they might cause. They put to the test our moral thinking about the status of future persons, the fundamentals of their visions of the good, the requirements of their conceptions of justice and legitimacy, and our responsibilities and obligations to them. Perhaps more poignantly than any other contemporary philosopher, Derek Parfit has expounded upon the problematic nature of our relationship to posterity.12 His most insightful contribution to this study has been his ‘non-identity problem,’ which is rooted in the fact that decisions made now will affect the identity of future persons.13 The problem, Parfit argued, is that different policies will affect the time of one’s conception and hence affect one’s identity. While we might make decisions motivated by a concern to improve the welfare of future persons, these decisions would be neither here nor there in moral terms because they would result in persons coming into existence other than those with whom we were initially concerned. If implemented, he argues, these decisions would not result in a higher level of welfare for future persons than they otherwise would have had. Instead, these decisions would result in creating a different set of persons than would otherwise have existed. Parfit’s illuminations of the paradoxes of moral thinking applied in the inter- or, more specifically, trans-generational14 context are of such significance that it remains nearly impossible to discuss responsibilities and duties to future generations without referring to them. It should not be surprising that the policy characteristics of risk, uncertainty, and futurity tend to give rise to vociferous social conflict. This conflict centres on which values, interests, and reasons should be articulated in policy decisions, how they should be articulated, and by whom. For example, members of local communities who could bear the immediate brunt of hazards find themselves often pitted against industry representatives or government officials proposing the potentially hazardous activity, technology, or system. Where there is a possibility of a proposal causing far-reaching harms, these two sets of actors often hold conflicting perspectives on pertinent economic, social, and environmental issues.15 The uncertainty shrouding each stage of risk assessment often only exacerbates competing perspectives. Moreover, there are often competing perspectives on the very conceptualization of risk and language of risk assessment. Experts trained in the field of risk assessment and risk management often

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speak a language of numbers, for example, of fatalities, fatal cancers, hectares of arable land lost, and so on. Experts from other fields, including members of local communities, representatives of ENGOs, and aboriginal peoples, conversely often speak in terms less amenable to quantification. They tend to be more interested in the values of individual and community autonomy, social welfare and cohesion, and environmental integrity. They tend to seek a more empowered and participatory role in identifying hazards, developing scenarios, constructing models, and deciding the acceptability of a risk. Those articulating concerns for social and environmental justice and participatory democratic legitimacy often challenge the priority of technical experts and industry representatives and the faith in scientific, technological, and economic development that characterizes decision making in certain policy areas. These challenges, in turn, often provoke strong rebuttals that critics are unduly slowing down progression towards a future that is safer, wealthier, more efficient, and more just. A framework for ethical policy analysis sufficient for many cases of the contemporary world should account for and respond to the ethical dilemmas arising from the characteristics of risk, uncertainty, and futurity. Such analysis should contribute to the justifiable resolution of conflicts arising from these policy features and inhabiting the prescriptive dimensions of many policies. In the next section of this chapter, I trace the history of policy analysis in North America to reveal several candidates for an ethical framework. Positivism and the Rise of Non-positivist Critique Approaches to policy analysis were once primarily positivistic, with the unfortunate consequence of obscuring ethical issues underlying policy decisions.16 Positivism is a reference, at this point quite remote, to what Auguste Comte termed ‘positive philosophy.’17 Positive philosophy comprised his systematic reconstruction of scientific knowledge into a unified body of laws. The promise of empiricism inspired nineteenth-century positivist philosophy and its descendant, earlytwentieth-century logical positivism.18 As Mary Hawkesworth writes, positivist philosophers were committed to finding a method to ‘determine the truth once and for all.’19 These philosophers asserted that knowledge about the truth derived from observation or, more generally, experience. They claimed that a proposition about the world, i.e., a contingent proposition, was meaningful only if it was empirically

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verifiable. Contrasted with analytic or a priori truths, which are based on the rules of logic, contingent truths were understood as having a verifiable bearing in the natural world. Strictly speaking, statements about either the natural or social world that were not verifiable were seen not only as non-scientific but also nonsensical. Metaphysical, aesthetic, and moral claims were rejected as having no sense to those other than the individual making them. In addition to empirical verification, positivists took induction as a central method of knowledge formation. The systematic observation of cases, over the course of time, was seen as a way to discover regularities in the relationships between or among entities or phenomena in the external world and to make generalizations about empirical reality. The purpose of science, accordingly, was to organize these generalizations in order to explain and predict patterns of occurrences that characterize this reality. As Hawkesworth writes, to promote this objective positivists developed a technical vocabulary comprising ‘facts (empirically verifiable propositions), hypotheses (empirically verifiable propositions asserting the existence of relationships among observed phenomena), laws (empirically confirmed propositions asserting an invariable sequence or association among observed phenomena), and theories (interrelated systems of laws possessing explanatory power).’20 Drawing from Karl Popper’s critique of this verification criterion, neo-positivists hold that a more reliable approach to amassing knowledge lies in rigorous attempts empirically to falsify causal generalizations. Popper argued that neither induction nor verification could fully accomplish the positivist objective of truth.21 His basic critique, as summarized by Hawkesworth, held that ‘because the future could always be different from the past, generalizations based upon limited observations are necessarily incomplete and, as such, highly fallible.’22 Inductive generalizations could not, therefore, be presumed to be true. Popper proposed falsification as a mechanism by which scientists could test their conjectures against reality. While no number of confirming cases could prove a theory, one disconfirming case would be sufficient to disprove. In Hawkesworth’s words, an ‘unrelenting quest’ for falsification became characteristic of the scientific endeavour.23 Fragments of positivism and neo-positivism characterize the core literature of policy analysis. According to Frank Fischer, positivist assumptions are said to be the ‘stuff of the research methodology textbook.’24 Positivist ideas about a fact/value divide and value neutrality

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are manifested in, for example, systems analysis, program evaluation, quantitative risk assessment, and cost-benefit analysis. As Dan Durning notes, when analysts use economic concepts, ‘they assume that this framework does not incorporate values that affect the advice they give and that their use of this framework can be done without their own values or other values affecting the advice they give.’25 Albert Flores and Michael Kraft note that formal methods of risk analysis are attractive because they ‘appear to offer a systematic and objective way’ to address contentious issues relating to conceptions of safety that underlie many areas of public policy.26 Hawkesworth writes that the appeal to value-neutrality as a regulative ideal is intended to distinguish policy analysis as a science and to ensure that it remains free ‘from bias, distortion, and willful manipulation.’27 Mainstream policy analysis is based on the so-called rational model of decision making.28 This model involves choosing policy objectives, considering alternatives, outlining impacts, determining criteria, implementing preferred options, and evaluating consequences. As Leslie Pal writes, ‘the rational model has embedded in it a strong concern with efficiency ... defined as choosing alternatives that provide the greatest results for the least cost.’29 The principle of efficiency stems from the ideal of a perfectly competitive market, i.e., a perfectly competitive field for exchanging goods between individual entities. The perfectly competitive market facilitates exchanges that maximize each entity’s preferences or utility. Utility is defined as an entity’s perception of its own satisfaction, pleasure, happiness, or well-being. Each entity is understood to have a utility function converting quantities of the goods that each consumes into a utility index. Higher numbers imply greater utility. All else being equal, the more of any good an entity has, the greater its utility. David Weimer and Aidan Vining write that idealized markets, involving large numbers of ‘profit-maximizing firms’ and ‘utility-maximizing consumers,’ exhibit certain patterns of production and consumption.30 They claim that these patterns are efficient in the sense that it would not be possible to change them to make some better off without making some other worse off. Pareto optimality is achieved when no one’s utility can be increased without decreasing another’s. Efficiency in this sense is believed to ensure that general utility is maximized. The need for policy arises, according to this view, from the incapacity of real-life markets to achieve perfect efficiency because of externalities, public goods, and free-market distortions. Accordingly,

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cost-benefit analysis (CBA) and risk cost-benefit analysis (RCBA) in policy formulation, implementation, and evaluation aim to address disruptions to efficiency. Guy Peters writes that CBA is ‘the principal method of policy analysis’31 and Michael Munger that it is ‘the most commonly used form of decision analysis.’32 In the Canadian context, Pal describes it as a ‘major technique’ used in policy evaluation.33 In North America, costbenefit analysis took off in the 1980s in response to heightened concerns to minimize government expenditures.34 As a model it comprises four basic steps. The first is to identify the impacts of a given policy option and categorize them as either costs or benefits for agents determined to have standing. The second step is to monetize impacts, by identifying the opportunity costs and willingness to pay among those with standing. These ways of monetizing costs and benefits serve as guides for estimating changes in social surplus. The third step is to discount for time and risk, which provides the basis for comparing costs and benefits that accrue at different times. As Weimer and Vining explain, people generally ‘value a dollar today more than the promise of a dollar tomorrow; they generally prefer a certain dollar more than a lottery with an expected value of a dollar.’35 Costs and benefits accruing in different time periods should thus be discounted to their net present values. If, after discounting for time and risk, analysts determine that a policy offers positive net benefits and satisfies the Pareto-improving or Kaldor-Hicks criterion – the criterion that those who will gain could fully compensate losers and still be better off – they should adopt it. A direct descendant of cost-benefit analysis is risk-cost-benefit analysis. RCBA is a composite of CBA and quantitative risk assessment. Like CBA, QRA is among the commonly employed policy decision-making models. Again like CBA, it took off in the 1980s. The basic presuppositions of QRA are that (1) risk is defined as the probability of a harm multiplied by its magnitude; (2) probabilities are objective, determined empirically, and expressed quantitatively; (3) harms can be identified, quantified, measured, and weighed; and (4) the acceptability of risks can be rationally calculated according to a ‘maximizing’ standard. Generally speaking, the risk assessment paradigm is divided into stages: Hazard Identification (otherwise known as Problem Formulation, Hazard Evaluation, or Hazard Assessment), Risk Estimation (sometimes referred to as Risk Analysis, comprising Dose-Response Assessment and Exposure Assessment or Exposure Assessment and

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Effects Assessment), and Risk Characterization (sometimes referred to as Risk Evaluation).36 Risk-cost-benefit analysis involves determining whether the benefits derived from a hazardous activity outweigh associated risks and costs. This method begins with a definition of the risk problem and proposed solutions. For each proposed solution, a series of consequences is identified including anticipated risks, costs, and benefits that are reasonable to expect. Flores and Kraft note that, since ‘risks and benefits are normally incommensurable quantities,’ they must be expressed in common terms – terms that are usually monetary.37 Once the consequences of each proposed option are cast in these terms, there is a presumed common basis for evaluating costs and risks against benefits, and for deciding what is acceptable. On the risk-cost-benefit model, a hazardous activity is acceptable if the benefits exceed the risks and costs by an appropriately defined margin. Critiques of positivism arose during the latter stages of the behavioural revolution in the American academy.38 Their focus was not so much on the policy tools of, for example, CBA, QRA, and RCBA per se. It was less the tools than their use that came under fire. In particular, critics challenged those who employed economistic approaches for (1) not recognizing the value bias of their methods, techniques, and tools; (2) upholding a myth of value neutrality in their contributions to policy; and (3) assuming that policy decisions are legitimate and just when they are made in ostensibly value-neutral terms and adopted within processes of liberal representative governments. Criticizing the use of cost-benefit analysis, operations research, systems analysis, and decision theory, Lawrence Tribe remarked in 1972 that ‘the myth endures that [these] techniques in themselves lack substantive content, that intrinsically they provide nothing beyond value-free devices for organizing thought in rational ways.’39 Tribe argued that employing cost-benefit analysis incorporates only ‘hard’ values, i.e., values that can be quantified, and ignores numerous ‘soft’ values, such as ecological balance, unspoiled wilderness, species diversity, urban aesthetics, community cohesion, and the integrity of the body. Since Tribe, many have made similar arguments.40 John Rawls, for example, criticized positivist approaches not only because they reduce all values to quantities, but also because they uphold a moral supremacy of existing over future generations.41 In an early articulation of obligations to future generations, Rawls pointed out an ethical deficiency in social discounting involved in cost-benefit analysis.42

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Those employing CBA reduce costs and benefits to their net present value. Analysts determine the net present value in direct proportion to their proximity to the present. The farther into the future costs and benefits are expected, the lower their net present value. As Derek Parfit and Tyler Cowen note, a social discount rate of five per cent would render one statistical death next year equivalent to a billion deaths four hundred years in the future.43 When applied to cases distributing risks over an extended time scale, this kind of analysis can justify unfairly imposing risks on future generations. Policy analysis now includes a wide range of approaches to making, understanding, and evaluating public decisions. This conceptual, methodological, and normative diversification has stemmed, in part, from a certain realization that all endeavours in policy analysis appeal to an evaluative standard. From critiques of positivism launched in the early 1970s, we see the rise in popularity of post- or non-positivist approaches. I prefer ‘non-positivist’ to the more common ‘post-positivist’ because the former refers to a wider variety of approaches than the latter. Focusing on post-positivist approaches excludes approaches to policy analysis predating positivism that challenge claims of a fact/value divide and value-neutrality and that address explicitly and systematically the ethical dimensions of policy decisions.44 This broader perspective includes approaches advanced by not only those frequently associated with post-positivism in public policy, such as John Dryzek, Frank Fischer, and John Forester, but also John Martin Gillroy, Robert Goodin, Maurice Wade, and many others.45 With the ascent of these approaches, we see more vividly the interplay of evaluative ideals in public policy analysis and ethical ideals in moral and political philosophy. Some of these approaches bear much promise as ethical complements to more positivist approaches. I say complements, as opposed to alternatives, recognizing the ethical importance of quantitative approaches to policy analysis. It is important to note that cost-benefit analysis, risk-cost-benefit analysis, quantitative risk analysis, and other forms of positivist analysis are very important policy tools and that to dismiss them outright would be unethical, especially in the context of policies associated with risk and uncertainty. It would be unethical to implement policy decisions without having systematically taken stock of the quantifiable costs and benefits, developed the most comprehensive ‘worst-case’ scenarios, and employed the best available scientific modelling techniques. As Cass Sunstein writes, without ‘some sense of both costs and benefits –

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both non-monetized and monetized – regulators will be making a stab in the dark. Human beings have a great deal of difficulty in assessing risks, making them prone to both hysteria and neglect; CBA does not supply definite answers, but it can help to establish which risks are serious and which are not.’46 Similarly, with reference to widespread fears about the health hazards of cellular phones, Adam Burgess argues for a balanced approach to risk assessment so as to distinguish scientific problems from political and media constructions.47 Richard Posner, moreover, contends that global warming and other potentially catastrophic problems cannot sensibly be approached without disciplined efforts to quantify and monetize both costs and benefits. He thus invokes CBA on behalf of aggressive controls on possible causes of potentially serious dangers.48 Once again, it is important to recognize that, while avoiding or reducing high risk is a laudable goal, it is seldom cost or risk free. Efforts to avoid or reduce a risk will inevitably involve the creation of a countervailing risk. Policy decision makers should therefore aim to avoid, reduce, and manage risks in a way that is both scientifically optimal and ethically sound. Their goal should be to avoid or minimize risks while ensuring justice and legitimacy in the distribution of remaining and countervailing risks. The Ethical Primacy of Justice and Legitimacy Proponents of ethical policy analysis seek directly to reveal and resolve conflicts among and within the normative foundations of many public policies. They acknowledge the presence of value and value conflict underlying many policies. They are attentive to the complexities and persistence of this conflict and to the role of policy analysis in it. In their view positivism, far from resolving this conflict, may exacerbate it. Frameworks for ethical policy analysis aim specifically to resolve such conflict with reference to standards drawn from schools of ethics, such as utilitarianism, modern deontology, and deliberative democracy. The best kind of ethical policy analysis surely takes particular heed of the justice and legitimacy of policy and does so with respect to the fundamental rights or interests of those who could be affected by it. Although there are many important criteria that should obtain in policy, such as economy, efficiency, effectiveness, and stability, as well as justice and legitimacy, and although these are not hermetic but are overlapping and interrelated categories (e.g., effectiveness can be a

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component of legitimacy, and efficiency can affect stability), the latter stand out as particularly important from an ethical perspective. Economy, efficiency, effectiveness, and stability are, of course, important; but they are not the defining characteristics of ethical public policy. Granted, these policy characteristics can serve in respecting and promoting the moral equality, freedom, and autonomy of persons, and in this sense are contributory characteristics of good policy. But only the characteristics of justice and legitimacy guarantee (or, at least, seek to guarantee) the direct protection of the fundamental rights or interests of persons and the justification of constraints necessarily imposed upon them by the legal, social, and environmental effects of organized collective existence. As John Rawls writes, ‘Justice is the first virtue of social institutions, as truth is of systems of thought. A theory however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust.’49 Whatever the practical ends of public policy, it is of ultimate ethical importance that it be just and legitimate. More specifically, it is crucial that conflicts characterizing its normative basis be resolved in a way that reasonably protects the fundamental rights or interests of all those who could be affected by it and that is reasonably acceptable to them. Appealing to ideals of justice and legitimacy helps serve this purpose, for these ideals prescribe respecting the fundamental moral equality of persons, including their equal claims to freedom and autonomy, and justifying to persons any infringements of their moral equality. Given the fact that public policy involves a degree of legal coercion, may have very pervasive social and environmental effects, and necessarily implies an inequality of power in a context of individual moral equality, it must be and can only be justified in terms of justice and legitimacy. Admittedly, these are lofty claims. Towards the end of bringing what may be abstract ideals to real-life policy processes, it is helpful to rely on relatively simple concepts. The analytic distinction between concepts and conceptions, however tenuous, helps to clarify the essential meaning of terms and their specific implications. This categorization enables us to focus on the heart of justice and legitimacy, while also enabling us to recognize their fuller embodiments in various contexts. According to H.L.A. Hart, a concept is a general principle that refers to the defining element of an idea, while a conception is a reference to a particular instantiation of this idea.50 Hart argues that the essence of

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justice is that individual persons are entitled to a relative position of equality or inequality. According to this essential precept, justice directs us to ‘treat like cases alike’ and ‘different cases differently.’ Justice is thought of as the maintenance or restoration of a certain balance between and among cases. As Hart claims, this principle is ‘to be respected in the vicissitudes of social life when burdens or benefits fall to be distributed; it is also something to be restored when it is disturbed.’51 Drawing from Hart, Rawls writes that a concept of justice is at work when no ‘arbitrary distinctions are made between persons in the assigning of basic rights and duties and when the rules determine a proper balance between competing claims to the advantages of social life.’52 A concept of justice refers to the non-arbitrary, equitable, and, ultimately, fair distribution of primary social goods, including rights, duties, and the basis of social respect. In the words of Rawls, people ‘can agree to this description of just institutions since the notions of an arbitrary distinction and of a proper balance, which are included in the concept of justice, are left open for each to interpret according to the principles of justice that he accepts.’53 The work of Iris Marion Young, however, reveals that a concept of justice refers to much more than distribution.54 Young argues that, given the logic of distribution, that is, of treating all goods as identifiable items to be distributed in a static pattern among individuals, this paradigm should be limited to material goods. The reification, individualism, and pattern orientation of distribution obscures other important dimensions of justice. As Young notes, the scope of justice extends beyond the distributive to include the political or, in her words, ‘all aspects of institutional organization insofar as they are potentially subject to collective decision.’55 It includes the totality of existing policy decision-making processes, social divisions of labour, and cultural interactions. For Young, the essence of social justice is the ‘elimination of institutionalized domination and oppression’ not just in terms of distribution but in terms of all aspects of political life. The essence is the termination of exploitation, marginalization, powerlessness, cultural imperialism, and violence that unfortunately permeate all dimensions of collective life. This is achieved by attending to group-specific interests and needs and by providing for group representation in the rendering of collectively binding decisions, which promote the social equality and recognition necessary to undermine domination and oppression. Although advancing an important critique of distributive theories of

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justice, Young nonetheless articulates an understanding of justice as non-arbitrariness, equality, and autonomy. She maintains the essential idea that justice involves upholding the principle of non-arbitrariness in balancing or resolving competing claims and realizing the moral equality of persons. What distinguishes Young is her deeper and more nuanced understanding of how class, culture, and gender diversity make it much more challenging to resolve fairly competing claims and much more important to include or represent this diversity within decision-making processes. While this concept may help to clarify what we mean by the essence of justice, it is inherently limited. To be more informative, a concept of justice needs to be fleshed out by thicker principles that constitute conceptions of justice. Conceptions of justice comprise principles of moral standing, i.e., principles concerning who matters, why they matter, and in what way they matter in moral judgment.56 These principles speak to the basis of the moral worthiness of entities, be it sentience, dignity, rationality, or some other quality or combination of qualities. In turn, they provide us with a basic rationale for recognizing in public decision making certain morally relevant similarities and differences among potentially affected entities. Conceptions of justice also comprise principles of the good. All moral theories contain a sub-theory of the good, even if they resist this language. William Frankena speaks of a sub-theory of value and, more specifically, of non-moral value, as a necessary component of any moral philosophy.57 The good is nonmoral in the sense that, although it comprises what should be sought (e.g., pleasure, happiness, autonomy, or self-realization), it doesn’t prescribe to us how we should seek this good or what we should do to achieve it. Generally speaking, teleological or consequentialist theories make the right, the just, or the ethically obligatory (i.e., what we should or must do from an ethical perspective) dependent on advancing or maximizing the good. What we should or must do is contingent on the consequences of our options for advancing the good. Conversely, in deontological theories, again generally speaking, the right is held to exist prior to the good. The right, in other words, is neither always nor entirely dependent on the good that it advances. The right is determined by other considerations.58 That said, deontological theories do contain conceptions of the good, although these are often less pronounced. For instance, Rawls’s theory of justice includes a ‘thin conception of the good,’ consisting of basic rights, liberties, and the basis for self-respect, that informs his view of justice as fairness.59

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From both teleological and deontological perspectives, the good comprises a set of assertions about what is axiomatically valuable, what individuals or institutional agents should honour, seek, or promote, and what principles of justice should regulate. Principles of justice, in turn, tell us how fairly, impartially, or evenhandedly to achieve this good in a public context. Each of these kinds of principles – of moral standing, the good, and the just – is fundamental in any conception of justice. We can also apply this heuristic distinction between concepts and conceptions of legitimacy. We could say that the essential idea of legitimacy refers to a justifying relationship between the agents, institutions, or system of state power and the persons upon whom this power is imposed. We could say that it refers to a relationship that justifies the monopolistic power of the state over morally free and equal persons. Drawing from Max Weber, the modern state is ‘a compulsory association’ that monopolizes ‘the legitimate use of physical force as a means of domination within a territory.’60 The primary questions with which Weber was concerned here related to justifications for this domination. He famously put forth three kinds of ‘legitimation’: tradition, charisma, and legality. Weber’s work has inspired numerous writings on the nature of, conditions of, and measurements of legitimacy.61 This interest in legitimacy is not surprising. Monopolistic and coercive power, expressed here in terms of publicly binding laws with sometimes far-reaching and high-magnitude social and environmental consequences, is very problematic. For A. John Simmons, the relationship of a legitimate government to its citizens can be characterized by a right and correlative duty. The right, according to Simmons, is to rule and the duty is to obey.62 He argues that a legitimate government possesses a right to be the exclusive imposer of binding duties on its subjects, to have its subjects comply with these duties, and to use coercion to enforce these duties. For Simmons, the ‘proper grounds for claims of legitimacy concern the transactional components of the specific relationship between individual and institution.’63 From this perspective, political power is legitimate only where the subjects have freely consented to it and only where it continues to be exercised within the terms of the consent given. The legitimacy of particular states and their public policies turns on consent. Similarly, the work of Allen Buchanan illuminates legitimacy as a special moral relationship between a state and those it coerces.64

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However, his discussion is based on a distinction between political authority and political legitimacy. He understands the former as a composite of political legitimacy and the right to be obeyed. From this perspective, political authority, entailing a right to be obeyed, necessarily correlates with obligations to obey. Whether an entity is politically legitimate, however, depends only upon whether it has moral justification for making, applying, and enforcing policy. According to Buchanan, a wielder of political power (the monopolistic making, application, and enforcement of laws in a territory) is legitimate (i.e., is morally justified in wielding political power) if and only if it (a) does a credible job of protecting at least the most basic human rights of all those over whom it wields power, (b) provides this protection through processes, policies, and actions that themselves respect the most basic human rights, and (c) is not a usurper (i.e., does not come to wield political power by wrongly deposing a legitimate wielder of political power).65

Political power, from this perspective, is justifiable if it upholds these fundamentals of justice and if every citizen has ‘an equal say’ in determining who will wield that power and how they will wield that power in the formulation and implementation of public policy. Once again, this justification emerges from a moral relationship between agents, institutions, or system of power and persons subject to that power. Conceptions of legitimacy specify the moral properties of this relationship. These conceptions contain criteria for how political power should be justified to those subject to it. They tell us why those subject to this power should abide by, agree to, or authorize it. They highlight the kinds of reasons that should inform collectively binding decisions and, equally important, ways in which these reasons should be expressed in the processes of decision making, if decisions are to be convincing to the persons and collectivities of persons bound or affected by them. Criteria of legitimacy are both substantive (e.g., that the power imposed adheres to or promotes principles of efficiency, economy, and/or social and environmental justice) and procedural (e.g., that the agents of power respect spheres of jurisdiction, submit to periodic elections, and/or garner broad public support, agreement, or consensus). Public policies, being expressions of the monopolistic and coercive power of government and state, and often being associated with risk

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and uncertainty for both existing and future generations, should be evaluated and justified in terms of justice and legitimacy. A framework for ethical policy analysis should complement more positivistic approaches and facilitate this kind of evaluation and justification. Not only should ethical policy analysis serve the ends of justice and legitimacy, but it should do so in a way that provides specific and determinate direction to those engaged in policy formulation, implementation, and evaluation. An ethical framework remains inadequate insofar as it does not yield determinate direction to policy makers and analysts. What good is such a framework if it does not make sense to and cannot be employed by those who make and analyse policy? These, then, are the three meta-criteria of ethical policy analysis in an age of risk, uncertainty, and futurity: justice, legitimacy, and determinacy.

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3 Canadian Nuclear Fuel Waste Management Policy: A Discourse of Two Coalitions

Canada has been producing nuclear energy and, by extension, nuclear fuel waste since 1962. Currently, three energy corporations – Ontario Power Generation (OPG) (formerly Ontario Hydro [OH]), New Brunswick Power (NBP), and Hydro-Québec (H-Q) – own CANDU reactors, as well as the radioactive waste materials they produce. CANDU reactors in Ontario produce about 90 per cent of Canada’s irradiated nuclear fuel, while reactors in New Brunswick and Quebec produce about 8 per cent. Prototype and research reactors, owned by Atomic Energy of Canada Limited – the federal crown corporation responsible for developing and marketing nuclear technologies for non-military purposes1 – produce 2 per cent of Canada’s used nuclear fuel. All reactors in Canada have produced roughly 2.5 million used nuclear fuel bundles. These bundles are currently in interim storage at reactor sites. Canada’s Nuclear Waste Management Organization (NWMO) forecasts that the inventory of used fuel bundles from existing reactors will mount to 3.7 million if all of the reactors have an average operating life of forty years.2 Historically, senior civil servants in the federal Department of Natural Resources (NRCan) (formerly the Department of Energy, Mines, and Resources), in consultation with an alliance of senior executives and scientists from AECL and OPG, have dominated decision making in this policy area. However, in recent years, non-traditional policy actors from a range of environmental and religious organizations, local communities, and aboriginal nations have become increasingly active in decision-making processes. Thus, while negotiations among officials in various government departments and Crown corporations tended to determine policy developments during the 1960s

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and 1970s, and while the influence of industry stakeholders and expertise of industry scientists and engineers were the primary drivers during the 1980s and 1990s, democratic dialogues involving actors traditionally excluded from these processes have played a greater role in the first decade of this millennium. In this chapter, I trace this policy history and reveal how it has been shaped by two discursive coalitions3 of policy actors. Aikin Report and Seaborn Panel Canadian nuclear waste management policy dates back to the mid1960s, during which time it was largely confined to the purview of the federal Department of Energy, Mines, and Resources, AECL, and Atomic Energy Control Board (AECB) (now the Canadians Nuclear Safety Commission [CNSC]).4 The late 1970s signalled the beginning of important changes to this closed-doors approach to policy decision making. In 1977, the department released a report making two important recommendations with respect to Canada’s growing stockpile of nuclear waste. The authors of the report, having surveyed various waste management options, including launching the used fuel into outer space and burying it in ocean plains, recommended it be disposed of deep in the Canadian Shield.5 They also recommended a more directly democratic approach to the formulation and implementation of nuclear waste management policy, noting that the existing approach had for too long involved only ‘the cooperative action of AECL and Ontario Hydro’ and ‘the concurrence of the appropriate ministers.’6 The report called for a move away from ‘working agreements between officials’ and towards an ‘effective interchange of information and ideas’ among the public, industry, and government.7 It recommended that the federal government develop a waste management plan that could be submitted for public discussion prior to the consolidation of a national program. The following year, the Governments of Canada and Ontario formally accepted the first of the report’s recommendations and established the Canadian Nuclear Fuel Waste Management Program.8 This program directed AECL, with the assistance of OH, to develop a concept for the deep geological burial of Canada’s used nuclear fuel in the Canadian Shield.9 The report’s second recommendation, its call for the increased democratization of the policy area, would wait for more than a decade.

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After more than ten years of closed-doors research and development by AECL and OH, the concept was finally put to a public assessment under the auspices of the federal Environmental Assessment and Review Process.10 In 1989, the federal minister of the environment appointed an independent environmental assessment panel that would be chaired by Blair Seaborn.11 The terms of reference for the panel directed it to examine the social, economic, and environmental implications of the proposed concept for both existing and future generations. The terms called specifically for the establishment of a scientific review group ‘of distinguished independent experts’ to conduct an in-depth examination of the safety and acceptability of the concept.12 Despite its mandate’s privileging of scientific expert views, the Seaborn panel took very seriously its responsibility to consult widely with members of the Canadian public. The panel initiated its review by holding what are known as public ‘scoping’ meetings to develop guidelines for AECL’s environmental impact statement. These meetings were held in Ontario, New Brunswick, Quebec, Saskatchewan, and Manitoba – that is, in the provinces that have constituents with interests in some aspect of the nuclear fuel chain (e.g., uranium mining, fuel fabrication, nuclear generation, or nuclear waste management). The panel finalized these guidelines and issued them to AECL in March 1992. In October 1994, AECL submitted its impact statement to the panel for a series of public hearings.13 Organized into three phases, the public hearings were held in sixteen communities from March 1996 to March 1997. Phase 1 focused on broad societal issues related to managing nuclear fuel wastes; Phase 2 examined the safety of AECL’s concept from a technical viewpoint; and Phase 3 looked at opinions on its safety and acceptability. During these public hearings, the panel heard from 531 registered speakers and received 536 written submissions. In addition, it received 108 responses to presentations given by participants during the hearings. These hearings were complemented by round-table discussions, providing the panel with deeper understandings of the views and concerns of members of the public. Public participation was partially funded by AECL. The panel distributed $840,000 to participants – the most a federal environmental assessment panel had ever distributed. The Seaborn hearings provided an opportunity for individuals and organizations to exchange ideas, coalesce around shared interests, and consolidate positions. Very soon into the hearings, it was clear that two discursive coalitions were forming. On the one hand, the historically

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dominant coalition of government and industry official from NRCan, CNSC, AECL, OH, H-Q, and NBP was further consolidating. On the other, a historically looser grouping of actors from environmental and religious non-governmental organizations, as well as aboriginal nations, was gaining strength. Individuals comprising this coalition were members of, for example, the Assembly of First Nations, the Canadian Coalition for Nuclear Responsibility, Energy Probe, the Inter-Church Uranium Committee, Northwatch, the Nuclear Awareness Project, and the United Church of Canada. Throughout the hearings, these two coalitions would incline towards opposing conceptions of risk and safety, which would tend to feed into opposing positions on the formulation and implementation of nuclear waste management policy. The coalition of government and industry put much faith in the processes of technical risk assessment.14 From this perspective, insofar as a proposal was deemed by expert risk assessors to fall within a level of risk established by the AECB, it was safe. Safety, in other words, was defined in terms of compliance with quantifiable risk limits pertaining to the concept’s characteristics and behaviour projected over the course of at least ten thousand years. Members of this coalition thus argued that AECL’s concept was safe and that it should be publicly acceptable. The more critical coalition argued that safety cannot be determined strictly by quantitative risk assessment.15 This coalition held that safety is more fully defined with reference to the broader social context in which the nature of potential harms, and ways of mitigating these harms, can be properly understood. From this perspective, some potential harms are so horrendous that they should be avoided by any means necessary. Members of this coalition argued that AECL’s concept was neither safe nor acceptable. Following from their positions on risk and safety, the coalitions put forth opposing views on the requirements of nuclear waste management policy.16 The former argued for a dominant role of the industry, whereas the latter argued for a dominant role of the public. The former maintained that the industry has the best expertise to make technically and economically sound decisions in this area. The latter questioned this wisdom and argued for the democratic incorporation into policy processes of a range of actors much broader than those of industry and government. It held that public participation at each stage of the assessment and implementation processes would be a crucial component of any safe and acceptable nuclear waste management system.

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Seeking to capture these competing positions, the Seaborn panel released in 1998 a very carefully worded report. It concluded: From a technical perspective, safety of the AECL concept has been on balance adequately demonstrated for a conceptual stage of development, but from a social perspective, it has not. As it stands, the AECL concept for deep geological disposal has not been demonstrated to have broad public support. The concept in its current form does not have the required level of acceptability to be adopted as Canada’s approach for managing nuclear fuel wastes.17

Among its specific recommendations, the panel called upon the federal government to (1) initiate an Aboriginal participation process for nuclear waste management; (2) establish a nuclear fuel waste management agency at ‘arm’s length’ from the utilities and AECL; (3) set up a segregated fund to finance the agency – a fund into which only the owners and producers of nuclear waste (i.e., OH, H-Q, NBP, and AECL) would contribute; (4) appoint the agency’s board of directors as well as its advisory council; and (5) direct the agency to develop a comprehensive public participation plan.18 The panel called for ‘broad Canadian public participation,’ an ‘on-going and interactive process between citizens and the agency,’ and a ‘two-way system’ of information and communication between the public and the agency.19 In addition, it called for an integrated approach to assessing nuclear waste management options, one that would employ not merely a technical but also an ethical and social assessment framework.20 Further, it recommended that the agency be subject to multiple oversight mechanisms, including federal regulation of its scientific-technical work and its financial arrangements, policy direction from the federal government, and regular public review.21 The democratic virtue of the report is that it publicly articulated a discursive position overwhelmingly critical of the dominant coalition and called for further deliberation among a wide range of citizens to the end of finding a safe and acceptable management option for Canada’s used nuclear fuel. Government Response, Policy Framework, and Nuclear Fuel Waste Act This discursive position was largely muffled in the subsequent formulation of Canada’s nuclear waste management policy. In its official

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response to the Seaborn panel, the federal government effectively prioritized the technical over the social conceptualization of safety. The government response noted that the panel had deemed AECL’s concept to be safe from a technical perspective,22 but made no mention that it had not deemed it safe from a social perspective. In addition, the response reinforced the priority of the nuclear energy industry by directing the three nuclear energy corporations and AECL to establish a private nuclear waste management organization and appoint its staff, board of directors, and advisory council. Gone was the language of an arm’s-length agency. This industry-based organization would ‘manage and coordinate the full range of activities relating to the longterm management, including disposal of nuclear fuel waste.’23 It would study three waste management options (i.e., deep geological disposal, continued storage at reactor sites, and centralized storage either above or below ground), recommend to the federal government its preferred option, and implement the chosen option. The drafters of the government response adhered to the federal Policy Framework for the Disposal of Radioactive Wastes, which officials in NRCan had developed in 1996. In very important ways, the framework circumvented the more democratic processes of the Seaborn hearings, having been derived from an agreement of ‘major stakeholders’ as narrowly identified by NRCan. These stakeholders included officials from the five nuclear provinces, executives from the three nuclear utilities, uranium mining companies, nuclear fuel fabrication companies, and representatives of nuclear interests groups.24 None of the aboriginal nations, local communities, religious groups, or environmental organizations participating in the Seaborn hearings was included in these negotiations. Consisting of principles for policy, operational, and financial arrangements, the framework laid out a division of responsibilities between government and industry. Accordingly, it gave the federal government the responsibility to develop policy, regulate practices, and ensure that producers and owners of nuclear waste comply with certain financial and legal requirements. The framework simultaneously gave the waste producers and owners the responsibility of establishing, organizing, managing, and funding radioactive waste facilities. It thus established a policy role for government and an operations/financial role for the nuclear energy industry. The latter role would effectively grant extensive discretionary powers to the nuclear energy industry in the management of its wastes.

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The policy framework defined not only the contours of the government response to the Seaborn panel but also the institutional, financial, and legal requirements of the Nuclear Fuel Waste Act. The act, which came into force in November 2002, mandated policy and oversight roles for the federal government and operations and financial roles for the owners and producers of high-level nuclear waste. It effectively granted the nuclear energy corporations the lion’s share of power in establishing, staffing, and funding the future nuclear waste management organization. Through the act, the nuclear energy corporations and AECL became responsible for forming the organization, as well as appointing its board of directors and advisory council. Lost was the Seaborn report’s language of an agency, an independently appointed board of directors, a strong and representative advisory council, and an ethical and social assessment framework. Also lost was the language of public and aboriginal participation. Finally, lost was the language of multiple public oversight mechanisms. Although the waste management organization would have to table its reports in Parliament, it would fall under neither the purview of the auditor general nor of the federal access to information law. However, the position held by the coalition of religious and environmental organizations and aboriginal nations did influence the formulation of the act in two crucial ways. Firstly, this coalition can be credited for the act’s incorporation of an integrated approach to assessing the waste management and disposal options. According to the act, each proposed option must ‘include a comparison of the benefits, risks, and costs of that approach with those of the other approaches, taking into account the economic region in which that approach would be implemented, as well as ethical, social, and economic considerations associated with that approach.’25 Each proposal must include a description of the ‘means that the waste management organization plans to use to avoid or minimize significant socio-economic effects on a community’s way of life or on its social, cultural, or economic aspirations’ and a description of a ‘program for public consultation.’26 Secondly, the critical coalition contributed to the Act’s provision for a multimillion-dollar trust fund established and maintained by the owners and producers of nuclear waste. The act holds that OPG, H-Q, NBP, and AECL must contribute annually to this fund. It holds, moreover, that only the waste management organization may withdraw from this fund and only for the purposes of assessing waste management and disposal options and implementing the option chosen by govern-

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ment.27 The Act embodies the ‘polluter pays’ principle and is very punitive with respect to failures to comply with its financial obligations.28 Although the discursive position of the industry–government coalition was prioritized in the formulation of the government response, policy framework, and act, the discourse of democracy filtered into the act in ways that would affect the implementation of the policy. The NWMO’s National Consultation Process Indeed, 2002 saw a surprising democratization of the implementation of nuclear waste management policy. In that year, the newly established NWMO launched its national consultation process towards the end of identifying, and recommending to the federal government, a safe and acceptable waste management option. From the beginning, the intention of the designers of the NWMO’s consultation process was to realize what can be understood as principles of deliberative democracy.29 They premised their process on the understanding that the insights of all those affected by the policy, and not just the views of industry representatives and technical and scientific experts, are important and should be incorporated. The process comprised no fewer than twenty sets of dialogues designed to incorporate the values, interests, and principles held by individuals randomly selected to be broadly reflective of the Canadian populace, individuals with diverse experiences and expertise in various aspects of nuclear waste management, and individuals, organizations, and aboriginal nations with a historically and publicly articulated interest in nuclear waste management policy.30 These dialogues were supported by an information base of at least sixty peer-reviewed papers from a variety of disciplines, methodologies, and ideologies.31 The process also involved at least 120 public information sessions held across the country, a series of public opinion surveys drawing from statistically representative samples of the Canadian adult population, and several ‘e-dialogues’ with experts, youths, and members of the public.32 The NWMO designed this three-year process iteratively over four phases, during each of which it focused the dialogues on a key decision. To provide independence to the dialogues, the NWMO hired third parties – think tanks and consulting firms – specializing in deliberative approaches to decision making. After each dialogue, the third party would report its findings to the NWMO. The NWMO would

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then publicly release a discussion document encapsulating the overall results of the dialogues held during that particular phase. This document would also serve to focus dialogues in the following phase. Throughout the process, the NWMO’s website provided a public platform not only for all of the background papers, third-party reports, and discussion documents, but also for further submissions from concerned Canadians. Based on the conclusions of this process, the NWMO recommended an adaptive phased management approach in either the Canadian Shield or Ordovician sedimentary rock basins.33 In June 2007, the federal government formally accepted this recommendation. Adaptive phase management is essentially an amalgam of on-site storage, centralized storage, and deep geological disposal implemented over an extended time frame. The approach seeks flexibility in the construction and implementation of the waste management system by incorporating a ‘step-by-step’ public decision-making process, ongoing monitoring, and waste retrievability. The NWMO’s consultation process was much more reflective of the discourse of democracy articulated during the Seaborn hearings than of the policy itself. A possible explanation for this lies in (1) the function of the Seaborn hearings in facilitating the development of a strong coalition of democratic forces and (2) the creation of institutional and financial opportunities that enabled a positive response to these forces. The Seaborn hearings served as a public forum that brought together previously dispersed actors from non-governmental organizations and aboriginal nations sharing very similar views on the requirements of nuclear waste management policy. Finding resonance in each other’s arguments, they consolidated their positions into an increasingly powerful coalition. The consolidated stance of this coalition served to make clear that the effectiveness of the policy would be contingent on addressing a wide range of social issues and on attaining wide social acceptance. This coalition consistently articulated the need for an independent waste management agency, aboriginal and public participatory decision-making processes, and a transparent reporting system. Its perspectives were adopted not only by the Seaborn report, but also by all opposition members on the parliamentary Commons committee that reviewed Bill C-27, which would become the Nuclear Fuel Waste Act.34 Although those engaged in the formulation of the policy framework and the act – primarily senior civil servants at NRCan, in consultation

Canadian Nuclear Fuel Waste Management Policy

33

with executives at OH, OPG, H-Q, NBP, and AECL – had been able to resist this argumentative stance, those responsible for the implementation of the policy – the staff at the newly established NWMO, a number of whom had participated on behalf of OH in the Seaborn hearings – could not afford to. They had come to realize over the course of these hearings that the implementation of this policy would eventually involve entering into an agreement with a community willing to host a future nuclear waste management facility. They had also realized that communities currently hosting nuclear facilities, as well as communities along future transport routes, would eventually have to be engaged. While the organization itself was new, its staff was not. That staff, which came in significant part from the Strategic Planning and External Relations of the Nuclear Waste Management Division of OPG, had over the course of the Seaborn hearings become well aware of the necessity of involving these and other communities. They understood that without addressing certain social concerns and obtaining social acceptance of the nuclear waste management program, the program could be thwarted by a vociferous anti-nuclear campaign launched at the national, provincial, and local levels. Motivated by the prodding of a strong coalition arguing for the democratization of this policy area, and supported by the institutional and financial autonomy of the new NWMO, the implementers of the policy designed and ran a serious attempt to realize principles of deliberative democratic decision making towards the end of establishing a nuclear waste management program that would be safe, publicly acceptable, and ultimately politically stable. In the next chapter, I unpack the competing discourses historically characterizing this policy area. This unpacking helps us better understand the ethical issues at stake and reveals concrete criteria for an approach to ethical policy analysis in cases associated with risk and uncertainty.

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4 Ethical Issues in Canadian Nuclear Fuel Waste Management Policy

As highlighted in the last chapter, decision making in Canadian nuclear waste management policy has recently experienced a significant democratic turn. An explanation for this lies in a history of contestation between two discursive coalitions – a history woven through the environmental assessment of AECL’s concept for deep geological burial, stakeholder meetings on the Policy Framework for the Disposal of Radioactive Wastes, and parliamentary hearings on the nuclear fuel waste bill. In large part, these debates focused not on the technical details but on the ethical considerations of nuclear waste management. Which conception of safety should inform nuclear waste management policy? Whose values and whose interests should be reflected in this policy? Who should participate in rendering these policy decisions? How should they participate? And, what about future generations? Over this history, members of the critical coalition made it clear to members of the dominant coalition of industry and government that an effective waste management and disposal program would be contingent on addressing these questions. If it failed to address them, the dominant coalition would find it difficult to garner general public acceptance of, and to implement a stable and effective public policy for, its nuclear waste program. In this chapter, I explore these contestations, which were fuelled by competing views on (1) future generations, (2) safety and risk, (3) burdens and benefits, (4) inclusion and empowerment, and (5) accountability and oversight. This examination highlights challenges for ethical policy analysis. But, in doing so, it suggests specific criteria for a framework for the ethical analysis of policy decisions associated with risk, uncertainty, and futurity.

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Future Generations During the Nuclear Waste Management Organization’s recent consultation process, no ethical issue spawned more discussion than responsibilities and obligations to future generations.1 By and large, participants in this process agreed on the importance of according to future persons a certain moral standing in contemporary policy decisions.2 Recognizing that future persons cannot partake in contemporary decision making, participants generally felt that we should nonetheless give them a say or, at least, moral consideration, in the policy decisions that will directly affect them. However, participants tended to diverge on the content of this moral consideration. Many argued that, since we derive direct benefits from nuclear generation, since we know that its waste is dangerous, and since we have the capability to dispose of this waste, we should take responsibility for it. These participants also argued that, because of the uncertainty concerning the political stability, technological capabilities, and financial resources of future societies, we should make the final decision about waste management and disposal. They argued that we should ensure our waste is permanently disposed of in a system requiring no future political or technological control or monitoring. From the opposing perspective, more critical participants were less optimistic about existing knowledge in this area. They argued that upholding responsibilities to future persons entails better ensuring that the current management of this waste is safe and reliable, better understanding the nature of waste management and complete range of waste management options, and better guaranteeing funds to accommodate future decisions in the management of the waste. These participants argued that we should not prejudge the needs and capabilities of future generations and not preclude their use of spent nuclear fuel as an energy resource. From this perspective, our responsibility is to ensure that our waste storage practices do not put future generations at social, environmental, or economic risk, and that we pass on to them conditions to enable them to make their own decisions about disposal. These competing discourses can be traced back to the Seaborn panel hearings on AECL’s concept for deep geological disposal. During these hearings, debates concerning responsibilities to future generations were cast with more specific reference to either a passive or active nuclear management system. Members of the dominant coalition

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argued for a passive deep geological disposal system, such as that proposed by AECL.3 AECL’s design included features for achieving longterm safety without the need for continued control and monitoring. According to these designs, the waste would be isolated over the very long term and retrieval would be difficult if not impossible. Members of the critical coalition argued for active containment, which would allow for ‘future use and continual monitoring and remediation, when necessary, and permit easy waste retrieval.’4 This system would require monitoring because the waste contained by it would be retrievable for purposes defined by future generations. During the Seaborn hearings, members of the dominant coalition including representatives of AECL, OH, and the Canadian Nuclear Society argued that AECL’s concept would be a ‘safe and acceptable solution to the long-term management of Canadian nuclear fuel waste.’5 Given the adequacy of current knowledge, analytic tools, and engineering capacity, and given the social and political uncertainties of the future, they argued, this form of passive disposal was the preferred solution. Their principal claim was that we can and should act now to implement passive disposal to reduce the risk of losing systemic and institutional control over the waste.6 Passive disposal would enable current generations to fulfil our responsibilities, which members of the dominant coalition understood as ensuring that international levels of radiation safety would be met now and in the future.7 In addition, they argued that passive disposal would accord with the basic principles of sustainable development. They claimed that it would make nuclear energy more sustainable by providing a solution to its most nagging problem and would contribute to the continuation of a safe, reliable, and emissions-free source of mass-generated electricity.8 The main argument against a passive system was also based on uncertainty – but uncertainty of a different sort. The general sentiment among members of the critical coalition was that, when we lack sufficient knowledge, ‘we have an obligation not to act and to proceed with honesty and humility.’9 Critics argued that, given the gaps in our knowledge, limitations of our analytic tools, and impossibility of running comprehensive scientific experiments on long-term nuclear waste systems, we are unable to predict natural occurrences that could affect those systems. We are unable to predict the behaviour of those systems over the course of radioactive decay. In the event of a leak, the passive features of a system could make remedial efforts even more challenging. As Northwatch stated,

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AECL argues that the irretrievable disposal is attractive on the premise of ‘not burdening future generations,’ however the reverse consideration could be more than equally argued: That imposing the waste on future generations is in itself an onerous and lethal burden; and the more difficult monitoring and remedial measures are made by remote locations, or ‘out of sight – out of mind’ attitudes, the greater the handicap future generations will suffer in dealing with any and all adverse consequences of the buried waste.10

Moreover, as critics of AECL’s concept argued, we are unable to predict the resource needs of future generations. They argued that future generations may need or want to reprocess our used nuclear fuel to meet their energy needs. Yet a passive disposal system would make it more difficult if not impossible for future generations to retrieve these materials for reprocessing.11 From the perspective of critics, the ethical decision in light of the risks to and uncertainty of future generations is to support carefully monitored above-ground storage and more extensive and inclusive research in deep geological disposal.12 Safety and Risk During the NWMO’s consultations, the vast majority of participants identified safety as the most important characteristic of a waste management system.13 They held that a waste management system must be based on reasonably sound assurances that it will not cause individual, societal, or environmental harm. Again, these concerns have roots in the history of Canada’s nuclear waste management policy, where members of the two coalitions have shared the conviction that nuclear waste management must avoid harm to and minimize risks for both existing and future generations. With reference to each major policy statement, both the dominant and critical coalitions have expressed concerns for the safety of existing and future generations. However, they have done so in different terms and have reached opposing conclusions on the requirements for the assessment of nuclear waste facilities, for the long-term management of nuclear waste, and for nuclear waste management policy. Focusing on the technical assessment of AECL’s concept that took place during the Seaborn hearings, we can see vividly these conflicts.

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The assessment of a nuclear waste management or disposal system in Canada seeks to demonstrate its technical safety, i.e., to demonstrate its compliance with quantifiable risk limits enforced by the country’s nuclear regulator, the Canadian Nuclear Safety Commission (formerly AECB).14 These limits are established by the international nuclear safety community, including the International Commission on Radiological Protection, the International Atomic Energy Agency, and the Nuclear Energy Agency of the OECD.15 Experts in radiological risk assessment aim to demonstrate safety in the probabilistic risk analysis of a system’s characteristics and behaviour projected over the course of at least ten thousand years.16 Predicted radiological risk to individuals from a system must not exceed per year one in a million fatal cancers and serious genetic effects.17 With reference to each stage of the risk assessment of AECL’s concept (i.e., hazard identification, risk estimation, and risk characterization), participants in the Seaborn hearings expressed conflicting perspectives. The hazards identified in the assessment of AECL’s concept were expressed in quantifiable terms (e.g., the number of human lives lost and fatal cancers diagnosed in various organisms). The hazards identified were then expressed in relation to radiological exposure and dose rates for humans and the natural environment (e.g., water, soil, and air, and non-human biota).18 As members from the dominant coalition noted throughout the Seaborn review, this understanding of hazards is an international standard in nuclear safety assessments. Members from the critical coalition countered that there are other valuable ways of understanding harms that should be incorporated into risk assessments. Conrad Brunk stated to the Seaborn Panel that, because probabilistic risk assessment is a quantitative methodology, whose output is only as reliable as the quantitative precision of the data input into its algorithms, it is strongly biased in favor of identifying only those values ‘at risk’ that are easily quantifiable. These are not necessarily the values most important to the general public. Among the values excluded, for example, are those of personal and collective autonomy, matters of fairness in the distribution of risks and benefits, as well as cultural, religious, and ‘metaphysical’ values.19

Similarly, as Anne Wiles points out, many participants in the hearings argued that there are ‘issues, concerns, and values of a spiritual and

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non-economic nature that are of great importance to people and society, and that these issues are often missed by standard decisionmaking frameworks and techniques.’20 There were also competing perspectives on the development of significant scenarios that AECL employed in its risk estimation. Generally, scenarios of contaminants, receptors, features, events, and processes provide the basis for conceptual and mathematical models to predict exposures to radiation and the effects of these exposures. The relationship between exposures and effects is then compared with regulatory limits. Proponents of AECL’s concept supported this approach, noting that it was in concert with international radiation protection principles and practices.21 Opponents took issue with the approach. For example, the Aboriginal Rights Coalition (ARC) argued that AECL had not incorporated the impact of the possible radiological contamination on ‘traditional land users, the harvesting of fish, animals, wild rice, berries and other foods as well as medicinal plants,’ which have ‘important cultural, social, spiritual and economic dimensions for aboriginal communities.’22 Based on these and other arguments, the Seaborn panel concluded that the scenarios did not reflect the full reality of life on the Canadian Shield.23 It called for more scenarios modelling a broader range of events that could affect ‘nonhuman biota, as well as on different human settlements – that is, rural, urban, remote, and Aboriginal communities’ – in order to reduce uncertainty around possible consequences in the near and distant future.24 Similar concerns were expressed regarding the final stage of AECL’s risk assessment, i.e., risk characterization. In this final stage, the assessor determines the technical safety of the system. In quantitative assessments, risks that are comparatively acceptable are considered to be safe. This understanding of safety is defined with respect not to a risk’s acceptability to individual people, but to a statistical sample determined by a supposedly objective algorithm. As Brunk writes, risks are acceptable ‘if they (together with their costs) are outweighed by compensating benefits (the “utility maximizing” assumption), or are less than the risks of the available alternatives.’25 Actors from NRCan and the nuclear corporations subscribed to this understanding of safety, arguing that it is a rational approach to making a decision about a system’s safety.26 Actors from environmental non-governmental organizations, aboriginal nations, and local communities took issue with the approach, maintaining that value assumptions other than

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those of a quantifiable nature (e.g., promotion of quality of life, preservation of ancestral lands, enhancement of community cohesion, and exercise of individual and collective autonomy) should determine the acceptability of radiological risk.27 As Brunk writes, clearly implicit in many of the claims by opposition groups that nuclear power is unacceptably risky are quite different assumptions about what makes risk acceptable. When the values at risk are those over which people believe they have ‘rights’ of autonomy or control, for example, they will not view the risks as acceptable merely because there are overriding benefits to be enjoyed. Rather, they will view the acceptability of the risk in terms of their right to consent to the risk. Further, there are certain values many people hold [that] are in some sense ‘non-negotiable.’ Often values relating to cultural and religious identity are of this type. They simply cannot be traded off for other compensating benefits.28

We see in the Seaborn panel’s review two competing understandings of safety. The technical inhabited AECL’s concept and characterized perspectives of bureaucratic and industry actors. Members of the dominant coalition placed faith in this approach to risk assessment, prioritizing the significance of the statistical probability of certain harms.29 Members of environmental and religious organizations, and representatives of aboriginal nations and local communities, held an opposing perspective.30 Their understanding of the safety of AECL’s concept derived from a sensitivity to a range of not necessarily quantifiable values; different social, cultural, and environmental contexts; and the uncertainty that characterizes long-term risk assessments. They argued that safety refers to the nature and magnitude of the possible consequences defined by the specific contexts in which they could occur. Some consequences are seen as so horrendous that they should be avoided by any means necessary. For such consequences, the possibility of occurrence is more significant than their probability. Burdens and Benefits Another very widely articulated concern during the NWMO’s consultation process was fairness in the distribution of burdens and benefits among existing and future generations.31 Here again, we find that this concern has its roots in the policy history preceding the NWMO’s consultations. Over this history, the two coalitions expressed common

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concerns regarding the distributive fairness or justice of the policy. However, similar to their views on safety, each coalition tended to define the details of these concerns in opposing ways. Members of the critical coalition had broader, more socially, culturally, and environmentally sensitive views, while members of the dominant coalition had narrower, more economic views of the burdens associated with nuclear waste management. Indeed, throughout the Seaborn hearings, members of the critical coalition voiced concerns that certain communities would be saddled with the burdens of nuclear energy while not receiving its benefits. As put by Grand Chief Charles Fox, there is an ‘inherent inequity in a proposal which asks those who have reaped NO benefit from nuclear power to take all of the risks associated with its long-term storage ... In the final analysis, AECL is asking us to accept all of the risk for ourselves and our future generations so that others can benefit.’32 Mayors of communities currently hosting nuclear facilities also outlined a number of specific burdens, including the costs of developing and maintaining an emergency plan, emergency response team, and emergency measures office geared to possible nuclear incidents.33 Similarly, members of local communities articulated burdens of a certain ‘stigma,’ making their towns less appealing and reducing their property values.34 The Concerned Citizens of Manitoba, for example, spoke to the sociological burdens of ‘boom and bust’ cycles often imposed by mining, forestry, and exploration on communities in the Canadian Shield.35 In their submission to the panel, they noted negative consequences associated with these cycles, including ‘increased levels of alcohol and drug abuse, family dislocation and break-down, increased levels of depression and suicide, and other personal and societal tragedies.’36 Many participants believed that community conflict would be inevitable in attempts to site, construct, and operate a nuclear waste management facility, with some community members vociferously supporting the facility and others fundamentally opposing it.37 Given their special relationship with their ancestral lands, members of aboriginal communities expressed particular concerns regarding potential burdens of a nuclear waste management facility in the Canadian Shield.38 According to Wiles, the fundamental concern expressed by aboriginal peoples was the importance of the land for their culture and identity, at once grounded in a deep spiritual respect and responsibility for Mother Earth,

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Deliberative Democracy for the Future the basis of their traditional ways of life and the source of their means of economic and physical survival ... aboriginal speakers expressed a strong sense of responsibility to care for the land they live on, as well as the lands they use for hunting and trapping and the watersheds and river systems that feed those lands. They [did] this with the needs of future generations, traditionally the seventh generation, in mind.39

Not only would the occurrence of environmental harms disrupt their ways of life, but so would fears related to the possibility of these occurrences. As put by Grand Chief Charles Fox, if ‘our people fear the land is, or could be, contaminated they may avoid those lands, [effectively removing] those lands from our use.’40 As the ARC argued, the Seaborn panel must recognize that much of the area in the northern Canadian Shield is unceded aboriginal land, and neither AECL nor the Panel have the authority or the jurisdiction to question or annul aboriginal title and rights to their traditional lands. Aboriginal peoples have constitutionally protected rights that must be recognized and integrated within every stage of the environmental assessment process.41

Members of the critical coalition also expressed concerns about environmental burdens and spoke to the importance of achieving environmental justice. These critics sought to uphold the intrinsic value of diverse ecological systems, highlighting their constitution of a whole, complex, web of life. More specifically, in its submission to the panel, Northwatch noted that environmental justice affirms the sacredness of Mother Earth, ecological unity and the interdependence of all species, and the right to be free from ecological destruction; demands that public policy be based on mutual respect and justice for all peoples, free from any form of discrimination or bias; calls for universal protection from nuclear testing and the extraction, production, and disposal of toxic/hazardous wastes and poisons that threaten the fundamental rights to clear air, land, water and food; demands the cessation of the production of all toxins, hazardous wastes, and radioactive materials, and that all past and current producers be held strictly accountable to the people for detoxification and the containment at the point of production; and demands the right to participate as equal partners at every level of decision-making including needs assessment, planning, implementation, enforcement and evaluation.42

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From this perspective, the burdens of nuclear energy and nuclear waste management would include any infringement of these basic principles. Members of the dominant coalition were successful in foiling the broad conception of burdens that members of local communities and environmental and religious organizations articulated. Understanding safety largely as a technical problem to which the solution was AECL’s concept, they focused on burdens of financing a nuclear waste management system and its liabilities. Recall that a major concern of the Policy Framework for the Disposal of Radioactive Wastes was ensuring that the distribution of costs, including liabilities, be justified in terms of economy and efficiency.43 Among the stakeholders involved in the development of the policy framework, there was general agreement that federal liabilities could ‘only be minimized by ensuring that a comprehensive disposal policy framework is established within which the roles and responsibilities of producers and owners are clearly stated.’44 Specifically, the policy framework limits direct responsibilities of the federal government and minimizes its expenditures in nuclear waste management. The framework outlines federal responsibilities for the development of policy, the regulation of health and safety, and the oversight of a waste management program. It simultaneously ensures that the government will not be directly responsible for any combination of siting, designing, constructing, and operating nuclear waste management facilities. Instead, it gives the producers and owners of nuclear fuel waste, OPG, H-Q, NBP, and AECL, the responsibility for these tasks. Moreover, the framework gives the waste producers and owners the responsibility to fund waste management activities, in accordance with the ‘polluter pays’ principle.45 By ensuring that the government is not responsible for the construction, operation, or funding of waste management facilities, the policy framework minimizes its expenditures and risk of incurring financial liabilities.The division of responsibilities was an effort to establish a cost-efficient way of managing high-level wastes. With efficiency in mind, industry stakeholders expressed little support for government involvement in the implementation of nuclear waste management policy.46 They pointed to the U.S. Federal Department of Environment’s mismanagement of funds in its nuclear waste program as an example of what would happen with too much government involvement. As one employee of a Canadian nuclear utility put it, ‘You don’t have to look very far. Just south of the border, you’ve got a government agency that

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is spending massive amounts of money [on nuclear waste management].’47 The general sentiment among industry stakeholders was that they have the knowledge and experience to manage the waste safely and efficiently and that, therefore, they should do so. This sentiment was subsequently reflected in the policy framework’s division of responsibilities between industry and government. Over the course of this history, members from both coalitions expressed concerns about present and future distributive ramifications of nuclear waste management policy. Members from both expressed concerns to minimize risks to, and distribute fairly burdens among, existing and future generations. However, the coalitions diverged on defining the nature of these burdens and on understanding how best to distribute them. In its report, the Seaborn panel incorporated the broad perspectives of the critical coalition on the nature of burdens. It also incorporated its perspectives on the importance of public participation, traditional ecological knowledge, and environmental integrity in the negotiation and distribution of these burdens. The panel, moreover, articulated the need for an ethical and social assessment framework to complement standard approaches to understanding, analysing, and managing burdens associated with prospective waste management options. Conversely, the policy framework and, subsequently, Bill C-27 and the Nuclear Fuel Waste Act embodied language that was much less ethically prescriptive. Arguably, the rationale underscoring this less ethically prescriptive language was to ensure that the industry would have wide discretion in the management of its waste and much flexibility in its quest for economy and efficiency. Inclusion and Empowerment Actors in this policy area have also consistently articulated concerns about inclusion and empowerment in decision-making processes. Actors from both coalitions have expressed concerns for who participates and how they participate in policy processes, but once again have tended to diverge on the specifics of these concerns. In its submission to the Seaborn panel, the Canadian Coalition for Ecology, Ethics, and Religion remarked that a split exists in all open nuclear societies regarding who ought to be making the technically complex decisions; who ought to be deciding

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which values are upheld and which denied (who ought to be deciding what is risked and how) and ultimately who ought to be bearing the responsibility for these decisions being made well or badly.48

Once again with respect to the Seaborn panel hearings, we see this split clearly. Members of the critical coalition felt positively about the hearings. They claimed that the hearings democratized decision making in this area. Conversely, members of the dominant coalition argued that these hearings were illegitimate in that they allowed antinuclear activists to co-opt the decision-making process. Thus, on the one hand, Norm Rubin of Energy Probe states that ‘this was, by far, the most open, participatory, democratic, independent, attempt to find wisdom that this subject has ever had in Canada.’49 On the other hand, Colin Hunt of the Canadian Nuclear Association states that it didn’t matter where you were in Canada, it was exactly the same faces testifying at the previous one ... the usual horde of anti-nuclear groups. That’s who participated in these hearings ... The public didn’t speak. All the Panel heard from was a handful of special interest groups repeating their message time after time after time. So, my question becomes then, is it legitimate to translate a handful of public interest groups to say, or socalled interest groups, to say they constitute the public interest.50

The most heated debates about inclusion and participation focused on the development of the 1996 policy framework. As we’ve seen, NRCan invited to its consultations in the development of the framework its ‘major stakeholders,’ which included bureaucratic officials from the provinces that have interests in aspects of the nuclear fuel chain, AECL, AECB, the three nuclear utilities, uranium mining companies, nuclear fuel processing and fabrication companies, and nuclear interest groups.51 NRCan did not include any of the environmental and religious non-governmental organizations involved in this policy area or any of the aboriginal organizations or nations with interests potentially affected by the framework. Needless to say, members of the critical coalition took issue with how the framework was developed. The following excerpt of a presentation to the Seaborn panel exemplifies the tension. Peter Brown was speaking in his capacity as director of the Uranium and Radioactive Waste Division of NRCan, while Dougal McCreath and Lois Wilson were serving on the panel:

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Deliberative Democracy for the Future dr. mccreath: ... we’ve heard from a number of people today some concern that the discussion paper [on the Development of a Federal Policy Framework for the Disposal of Radioactive Wastes in Canada], which was sent out to, quote ‘major stake-holders,’ was not sent out to a number of – in their view, to a number of major stake-holders, public groups or affected citizenry. Could you just speak to the issue of whom you consider to be major stakeholders? ... dr. p. brown: Yes. Basically what we did was we send out the document to the owners and producers of radioactive waste, the organizations who represent owners and producers, and the provincial government and federal departments. We did not put it out for general distribution, we did not put it out to a wide range of stakeholders. We put it out, in effect, to owners and producers and those who have those responsibilities with the intent of basically finding out what those people want to do. They’re the ones who’re going to have to put the money away, they’re the ones who’re basically going to have to organize ... ... dr. l. wilson: ... I’d like to ask [you to] reply to Dougal [McCreath]’s question about stakeholders, what rather shocked me was that until two or three days ago, many of the people who’ve been at all these [Seaborn] hearings for the last six years never knew that this paper was available even. So they couldn’t use it to integrate it into their questions and in the discussion, and that seems to me highly irresponsible. dr. p. brown: I would say that the paper was developed after [a] cabinet mandate in 1995. It was pushed forward because of the auditor general in 1995. The Policy Framework only came out on ... [July 10] ... dr. wilson: My point is that many of the participants were not in a position to have that information at these hearings. They never heard of it, they didn’t have it.52

Wilson would write in her memoirs of the Seaborn review that many participants were ‘furious’ that NRCan’s policy framework derived from consultations with a select group of its major stakeholders.53 Members of environmental and religious organizations and representatives of aboriginal nations and local communities shared the strong conviction that the framework gave the nuclear energy corpo-

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rations too much discretion in the formulation and implementation of nuclear waste management policy.54 Given their understanding of safety and their emphasis on uncertainties associated with nuclear waste management, they felt that the broader public should have been directly involved in key decisions underlying the framework. Not being involved, they questioned the legitimacy of this important policy statement. Actors from NRCan and the nuclear energy industry felt, conversely, that they could justify their role in developing the policy framework.55 They argued that since expertise in all aspects of nuclear waste management lies with the nuclear energy corporations and AECL, these players should have the lead role in policy-making processes. With a concentration of technical expertise in the industry, and a desire to place financial responsibility with the industry, officials from NRCan felt that they were justified in prioritizing industry actors in the policy’s formulation and implementation. Since the owners and producers of nuclear waste would be operationally and financially responsible for managing their wastes, they were seen by NRCan as rightfully having a direct role in the development of the policy. NRCan thus justified its ‘major stakeholders’ approach to developing the policy framework and the subsequent Bill C-27 and Nuclear Fuel Waste Act. Accountability and Oversight These lines of argument carried over into the parliamentary hearings on Bill C-27, which would become the Nuclear Fuel Waste Act. During these hearings, expert witnesses expressed concerns less in terms of who participated in the formulation of the policy and more who would be responsible for, and how they would be responsible for, the implementation of the policy. They also raised concerns about who would oversee, and how they would oversee, this process. The overarching concerns related to the accountability and transparency of the future NWMO. To whom would the organization be accountable? Parliament? Shareholders in the NWMO? By whom and by which mechanisms would the organization be overseen? Again, we see concerns shared by both coalitions but opposing understandings of specific policy requirements. Officials from the nuclear energy corporations and AECL spoke in

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favour of Bill C-27. They argued that the bill properly granted them the authority to form, operate, and finance the waste management organization as a private entity and that it spelled out the specific lines of accountability to NRCan. Moreover, they claimed, the bill embodied a sufficient oversight mechanism. During the parliamentary hearings, Richard Dicerni of OPG argued the following with respect to the bill’s oversight provisions: First, the bill requires the NWMO to carry out public consultations before formulating a plan. Second, the NWMO must also establish an Advisory Council, whose comments on the NWMO’s study and triennial reports are to be made public. Third, upon receipt of the NWMO report, the Minister of Natural Resources may also undertake consultations. Fourth, the NWMO’s study and reports to the Minister must also be made public. Fifth, the option for managing used fuel waste selected by the Governor in Council will be subject to a federal environmental assessment required by the Canadian Environmental Assessment Act. The environmental assessment will involve public consultations. And, sixth, if the environmental assessment is accepted, then the waste management plan will require construction and operating licenses under the Nuclear Safety and Control Act. This process will also involve public consultations.56

Members of the critical coalition, including representatives from the Association of Nuclear Host Communities, the Assembly of First Nations, and Northwatch, as well as federal opposition MPs, were not satisfied with these provisions. Critics argued that these provisions did not address fundamental concerns relating to the formation of the waste management organization by the nuclear energy industry. They pointed to a history of secrecy around the nuclear corporations and to a history of these corporations seeking to advance their narrowly defined interests. Critics argued that the organization should be formed and should operate as a public entity at ‘arm’s length’ from the nuclear corporations.57 Members of the critical coalition voiced very specific criticisms of the bill’s oversight provisions.58 While they recognized that the bill provided for federal oversight to ensure that the organization would

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meet broad policy objectives, they argued that it provided little direct public oversight for additional assurance that the organization would address the concerns of a wide range of interested parties. They expressed misgivings about provisions that would grant the nuclear corporations discretion in appointing the organization’s board of directors and its advisory council. And they argued that, without legislative requirements, the nuclear corporations would not necessarily appoint a wide range of representatives to these bodies. David Chatters, MP for the Canadian Alliance, thus noted it would only ‘seem reasonable, that if the producers of the waste are establishing an advisory council, they would appoint people with the right expertise, but also people who would have some sympathy for the position of the industry.’59 As stated by Gerald Keddy, then MP for the Progressive Conservative Party, there are ‘some general concerns, certainly, on this side of the committee table, as to the municipalities, the regions, and the aboriginal communities – and the bill pays a certain amount of lip service to them – but there’s absolutely nothing in the bill to ensure that they have some input.’60 Members of the dominant coalition argued that the organization should be a private entity and that its shareholders, i.e., the nuclear energy corporations and AECL, should have a certain right to make its appointments.61 They argued that the bill would not preclude wide representation on either the board of directors or the advisory council. Senior management in the nuclear energy corporations was well aware that, if the organization was going to be successful in implementing a chosen option, it would have to incorporate a range of interests and perspectives into its structure and activities.62 But members of the dominant coalition also argued that too wide a representation would be inefficient and therefore undesirable. One participant in the public consultations on the oversight role of the federal government argued that wide representation would introduce ‘politics’ into the process of implementation.63 According to this participant, ‘antinuclear advocacy groups should not be represented since their presence is inherently political and the purpose of the [organization] will be to implement, not debate ... To bring them into implementation would ... present an unworkable situation for the implementation group.’64 Beyond the appointment powers conferred on the nuclear corporations by Bill C-27, members of the critical coalition expressed other concerns related to the accountability and transparency of the future

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NWMO.65 Witnesses appearing in the parliamentary hearings voiced concerns about the bill’s silence on public participation and weaker language of consultation. Witnesses noted that, while the Seaborn report recommended ‘thorough public participation in all aspects of managing nuclear fuel wastes,’ the bill effectively shunned the word participation. They noted that, while the bill would require the future waste management organization to consult the general public and, in particular, aboriginal peoples, this consultation could involve a range of activities – from administering questionnaires to holding more in-depth dialogues – with no necessary integration into decision-making processes. Moreover, members of environmental groups and representatives of First Nations argued that, although there will eventually be an environmental assessment of the chosen waste management system involving a public hearing, the major decisions as to the assessment of other waste management systems will have already been taken. Participants in the hearings also claimed that the bill would not require ongoing consultations once a waste management approach had been selected. Members of the critical coalition were also concerned about the organization’s not being subject to the federal Access to Information Act.66 Here again, concerns related to the nuclear corporations’ history of secrecy and self-interest. As Wilson argued in her submission to the parliamentary committee, ‘we’re also a little upset that the agency will not be open to federal access to information ... the main problem we met in all [the Seaborn] hearings was the secrecy surrounding this subject and the problem of getting accurate information from both the opponents and the proponents.’67 Others also expressed concerns relating to the organization’s not being subject to the reporting of the auditor general.68 Still others argued that reporting to the minister of natural resources once a year on financial matters and once every three years on operational plans would be insufficient. The Assembly of First Nations, the Association of Nuclear Host Communities, and Northwatch argued that the future NWMO should report to Parliament. As Wilson remarked in her submission to the lower house committee: ‘I’ve been in the Senate long enough to know that this is not an adequate way to review anything. You get a statement by the minister, and maybe there are some questions. It needs to go to committees ... for careful study.’69 All of the opposition members of the committee put forth amendments in these regards. As Keddy proposed, ‘instead of everything being under ministerial control, the minister would certainly have the same access to it that he should have as minister in

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charge of the natural resources department, but parliamentarians actually would have access to it, too.’70 Members of the dominant coalition made several points in response to these arguments. Some argued that access to information laws and the auditor general are neither the only nor the most effective means of public oversight. As an employee of a utility put it, the NWMO could opt for any number of auditing procedures.71 She argued that, since the organization would be committed to and responsible for specific outcomes, i.e., studying high-level radioactive waste management options and implementing the chosen option, it would not be in its interest to be secretive. Similarly, as Dicerni stated in his submission to the Commons committee, ‘We have no problem with providing reports to the minister, to the government, and keeping the public informed. If we don’t do that, we will not get there [i.e., to our intended outcome].’72 However, he went on to note that ‘we’re spending $100 million a year on this’ and that if you do annual reports on a process for which other countries take seven, ten, fifteen years, these reports become sitting targets for charges of not enough consultation, inadequate involvement, superficiality, and you spend three months out of the 12 months writing a report and another three months defending it.73

What we see in these parliamentary hearings are two competing conceptions of the requirements of accountability and oversight in the implementation of nuclear waste management policy. One is embodied in the bill and supported by officials from the nuclear corporations. The other is expressed as criticism of the policy by members of religious and environmental organizations and representatives of aboriginal and local communities. The former maintains that the institutional and legal structure of the nuclear waste management organization and the oversight mechanism established by the bill would sufficiently provide for accountability and oversight in nuclear waste management policy. The latter holds that the bill gives rise to a waste management organization that would be neither sufficiently accountable nor transparent to those other than its shareholders. From this critical perspective, the organization should be designed so that it is independent of the nuclear energy utilities and accountable to Parliament and that it functions within an oversight context of public participation and access to information.

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Criteria for Ethical Policy Analysis During the Seaborn hearings, two discursive coalitions advanced opposing views on policy requirements relating to future generations, risk and safety, distributive burdens, inclusion and empowerment, and accountability and oversight. Members of one coalition argued that the safety of AECL’s concept was a technical problem, understood and addressed in terms of probabilistic risk assessment and risk-costbenefit analysis. Emphasizing the merits of existing knowledge and skills, they argued that a passive system of deep geological burial would best fulfil our responsibilities to future generations to ensure that our waste is disposed of safely, fairly, and cost-effectively. They also emphasized the need for public policy to address fairly the distribution of the economic burdens of nuclear waste management and especially those related to financial liabilities. Moreover, they argued that, since the expertise for nuclear waste management lies in the nuclear industry, and since the financing of the NWMO will come from the nuclear corporations, they have a rightful role to play in related policy decisions and in implementing these decisions. Members of the opposing coalition claimed that safety would be better understood from the perspectives of those who could bear the immediate brunt of a nuclear incident and within the social context in which that incident could occur. From this perspective, they generally argued for an active system of waste management that could adapt to developments in the technical knowledge and resource needs of future generations. Moreover, given the risks and uncertainties associated with nuclear waste and its management, they argued that members of the public beyond those directly implicated in the nuclear energy industry have a right to participate in this policy. This case history provides us with concrete examples of the ethical conflicts that can arise in policy areas associated with risk, uncertainty, and futurity. In doing so, it suggests the kinds of conceptual elements necessary in an approach to ethical policy analysis that seeks to resolve such conflicts. In light of concerns about future generations, distributive burdens, inclusion, empowerment, accountability, and oversight in safety assessments, policy formulation, and implementation, we see that an approach needs to contain principles of moral standing – principles speaking to who matters, why they matter, and how they matter in public decision making. From a philosophical perspective, these principles refer to the foundations of the moral wor-

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thiness (e.g., the sentience, dignity, or rationality) of persons. More practically, they provide us with a basic rationale for both recognizing and including in public decision making certain categories of persons. Particularly challenging is devising principles of moral standing for future persons, which depends on the controversial assertion that generational membership is not, in and of itself, a morally relevant difference in determining distributive patterns and participation in life opportunities. Otherwise put, these principles depend on the claim that one’s generational membership should be neither an advantage nor a disadvantage with respect to one’s achievement of moral freedom and autonomy. Another essential element in an approach to ethical policy analysis is a conception of the good. A conception of the good comprises assertions about ultimate values that should be upheld or realized in public institutions and policies. Such a conception comprises claims about the objects of principles of justice. Ideally, it speaks coherently to the values that should be embodied in public decisions for the sake of both existing and future generations. The purpose of this conception is to inform a theory of justice, which in turn serves in making justifiable claims about the definition and distribution of benefits and burdens. Thus, a framework for ethical policy analysis needs also to be based on a theory of justice indicating which burdens should be minimized and how they should be minimized, as well as which benefits should be maximized and how they should be maximized. This theory should also indicate how fairly to distribute burdens and benefits among existing and future generations. It should, moreover, instruct us in identifying publicly binding responsibilities and obligations to both existing and future generations. In addition, an approach to ethical policy analysis has to contain a conception of the legitimacy-conferring relationship between those who make public decisions and those who are bound or affected by these decisions. Legitimacy concerns the moral justification for the constraining effects of public policy decisions, and is expressed in terms of a moral relationship between those who constrain and those whom they constrain. Principles governing this relationship are substantive and procedural, bearing upon why those constrained should abide by, agree to, or authorize the constraints placed upon them. Substantive principles may include those of efficiency, economy, and justice. Procedural principles may derive from ideas about proper spheres of jurisdiction, hypothetical conditions for rational decision

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making, or ideal procedures for informed and non-coercive agreements. These principles are instructive in evaluating decision-making processes in terms of the quality of legitimating relationship between those who make and those who are bound or affected by policy. Finally, it goes without saying, all of these elements of a framework for ethical policy analysis – moral standing, the good, justice, and legitimacy – must yield determinate principles applicable to actual policy processes. Again, a framework for ethical policy analysis is virtually useless without yielding specific and operationalizable principles. In the following chapter, I evaluate utilitarian, deontological, and deliberative democratic theories with reference to these criteria.

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5 Ethical Schools: Welfare Utilitarianism, Modern Deontology, and Deliberative Democracy

In this chapter, I consider the three most common ethical schools of the Western tradition – welfare utilitarianism, modern deontology, and deliberative democracy – to get a better sense of their strengths and weaknesses for policy analysis in cases of risk, uncertainty, and futurity. Although at an abstract, philosophical level these schools differ quite fundamentally, at the level of application they tend to overlap both procedurally and substantively. Thus, the distinctions among these schools should not be exaggerated. Indeed, I hope not to obscure the nuanced and complex relationships among them. I treat these schools as distinct in order to clarify their potential contributions to an adequate framework for policy analysis. I conduct this assessment with reference to criteria drawn from Canadian nuclear waste management policy. Again, these criteria relate to the status of future generations, understandings of safety and risk, conceptions of burdens and benefits, and requirements of inclusion, empowerment, accountability, and oversight. Each school has certain strengths. But welfare utilitarianism and modern deontology suffer from a persistent indeterminacy of substantive principles and lack of means for resolving this indeterminacy legitimately. Deliberative democracy rises more fully to these challenges. Welfare Utilitarianism Utilitarianism has had enormous influence on ideas and practice, shaping principal arguments in moral philosophy, legal and political theory, and public policy.1 Utilitarianism’s most basic impulse is, in William Shaw’s words, that ‘well-being or happiness is what really

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matters.’2 He writes that the promotion of well-being or happiness ‘is what morality is, or ought to be, all about.’ This rational simplicity is particularly compelling in the context of public decisions, where it is often difficult justifiably to settle conflicts about what we ought to do. Welfare utilitarianism rests on a certain understanding of human interests. One of the best-known proponents of this kind of utilitarianism, Robert Goodin, writes that welfare interests refer to the resources that ‘prove useful to people whatever their ultimate ends.’3 Welfare utilitarians argue that these interests are universal, transcending particular desires, pleasures, and historical and cultural contexts, and that their fulfilment can be determined by observable indicators such as data derived from nutritional and life expectancy studies. Underlying welfare utilitarianism are several basic ideas. As Amartya Sen and Bernard Williams put it, the theory recommends a choice ‘on the basis of consequences, and an assessment of consequences in terms of welfare.’4 The assessment of consequences reveals the right course of action, and this assessment transpires in terms of the welfare that possible courses could create. Consequentialism is a maxim holding that the rightness of a decision is a function of its consequences. It is a decision’s consequences, and not its intrinsic nature or its conformity to certain substantive rules, that determines its rightness. Welfarism holds that we should evaluate decisions in terms of their consequent welfare. Welfare is the sole and ultimate good. As Shaw writes, decisions should be made according to their impact on the well-being of all individuals potentially affected, with the ultimate goal being that their ‘lives go as well as possible.’5 The maximization of expected welfare is another basic idea underlying this form of utilitarianism. Welfare utilitarianism takes equally into account the interests of each individual potentially affected by a decision, combines these interests for each decision option, and concludes that the best option serves the comparatively greatest number or greatest average of these interests. Prima facie, the utilitarian maximand is a clear guide to moral decision making. As an ideal, it directs decision makers to examine each possible course of action for the welfare that it is expected to produce for the collectivity of potentially affected persons. Ideally, insofar as policy makers consider the welfare interests of all, on an equal basis, they will not arbitrarily prioritize the interests of some over those of others. As such, the maximand is a neutral standard that may be well

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suited for public policy decision making. As Goodin notes, it ‘is in the nature of public officials’ role responsibilities that they are morally obliged to “dirty their hands,” make hard choices, do things that are wrong (or would ordinarily be wrong, or would be wrong for ordinary private individuals) in the service of some greater good.’6 Goodin argues that utilitarianism’s ‘universalistic impersonality’ enables public officials to do their job best. Utilitarianism’s inclusive conception of moral standing appears to be another asset for the analysis of policy. Generally, the baseline of utilitarian moral standing is sentience and, more specifically, the capacity to feel pain.7 An entity’s species is no better reason than its race, ethnicity, or culture for excluding its interests from moral consideration. According to Peter Singer, another well-known proponent of welfare utilitarianism, an entity’s non-existence is also no good reason to exclude its interests. Singer boldly argues that members of future generations who will be sentient and capable of suffering have moral standing. Thus, he writes that we should make this universe better by reducing pointless suffering in ‘one particular place, at one particular time, than there would otherwise have been.’8 As long as our decisions do not increase suffering among sentient entities in some other place or time, they will have a positive effect on the well-being of the universe and be ethically justifiable. In AECL’s risk assessment of the concept for deep geological disposal, a utilitarian conception of moral standing could have justified equal consideration of the interests of potentially affected sentient beings. Moreover, it could have been used to argue that there is an obligation to extend the assessment as far into the future as the risk to the welfare interests of sentient beings persists. In addition, this understanding of utilitarianism could have called for much more detailed scenarios, since extending the assessment would increase uncertainty characterizing each of its stages. Ostensibly, at least, utilitarianism could have addressed many concerns participants in the Seaborn hearings expressed about sufficiency of detail in AECL’s scenarios and the projected consequences of these scenarios. Another apparent asset of welfare utilitarianism is its understanding of the good. Welfare utilitarians argue that this conception of the good distinguishes itself from that of classical, more hedonistic, forms of utilitarianism by referring to interests in basic resources as opposed to individual pleasures and preferences. Accordingly, the best consequences are those that maximize basic interests as opposed to subjec-

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tive preferences. Welfare interests are understood as higher-order preferences. We arrive at them by resisting our immediate tastes, desires, and pleasures, and by reflecting on what we really need for a fulfilled life. In this process of reflection, we come to realize that welfare interests are generally those that are both necessary for each of us and prior to the more particular preferences that each of us may have. For Singer, the most important interests are ‘in avoiding pain, in developing one’s abilities, in satisfying basic needs for food and shelter, in enjoying warm personal relationships, in being free to pursue one’s projects without interference.’9 Purporting to transcend particular contexts, this conception of the good could ground judgments about which values and interests should be upheld in policy decisions associated with consequences for a diversity of entities, existing and future. From this understanding of the good, welfare utilitarianism yields a clear understanding of justice: the utilitarian goal of maximizing wellbeing determines what is just. Goodin provides additional substantive content, in the form of principles of distribution, to this idea of justice.10 He begins by noting that we often perceive utilitarianism as premised ultimately on respect for individual preferences and interests. When we push this logic further, Goodin argues, we see that we respect people’s choices because of a more fundamental premise, which is that we respect people qua people. We respect the inherent dignity of people as people. He claims that, contrary to fairly commonplace criticisms, utilitarianism would therefore not bring about policies promoting the welfare of the larger part at the expense of the smaller.11 These policies would be unstable – politically and morally. This instability would, in turn, diminish the collective welfare. On these grounds, Goodin’s utilitarianism gives rise to principles related to legal, socio-economic, and political guarantees to inform policy making so that decisions treat all affected people fairly.12 Goodin also includes ethical principles for decision making in areas of environmental policy.13 These principles include avoiding irreversible harms, comparing alternative courses of action, protecting the vulnerable, maximizing minimum pay-offs, maximizing sustainable benefits, and minimizing hazards. Goodin’s understanding of welfare utilitarianism could have been helpful in addressing certain moral issues in nuclear waste management. This conception of the good and principles of justice could have focused attention on the interests at stake in key decisions and the con-

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sequences for these interests. The utilitarian maximand might have been employed to yield obligations of justice to consider the welfare interests of all affected by each option, including their interests in security, food, shelter, health, education, and the like, and to choose the option that minimizes harm and maximizes well-being understood with reference to these interests. It could have involved detailed and contextualized investigation of these interests, followed by in-depth examination of potential consequences of each policy option for these interests. Goodin’s principle of avoiding irreversible harms, moreover, could have informed arguments to protect the welfare interests of both existing and future generations. This principle could have bolstered the argument of the critical coalition for a system designed for the active management of nuclear waste as opposed to one designed for irretrievable disposal. Members of the critical coalition could have resorted to this welfare utilitarian logic to argue that the former system would be a better choice than the latter, providing future generations with the opportunity to decide how best to manage nuclear waste in light of innovations in technology, changes in energy needs, and evolving concerns about risk and safety. The latter, they could have argued, would circumscribe their decision options and complicate remedial endeavours if the system were not to perform as intended. It is generally accepted that a passive system of disposal would involve more non-retractable problems and greater remedial complications than an active system. Members of the dominant coalition could have also employed this principle to justify modifying AECL’s concept to incorporate active features for monitoring and retrieving waste. Utilitarianism could have thus justified a convergence of perspectives in this contentious policy area. However, Goodin’s principle of maximizing sustainable benefits could have also provided ethical rationale to divergent policy arguments in the Seaborn hearings. This principle speaks directly to considerations of intergenerational equity. It demands that ‘each generation be guaranteed roughly equal benefits’ and that ‘one generation may justly enjoy certain benefits only if those advantages can be sustained for subsequent generations as well.’14 During the hearings, members of the critical coalition sought to draw attention to the importance of sustainable energy policy and questioned the place of nuclear generation and nuclear waste in this policy. They could have employed this principle, which ‘decisively favors renewable sources

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(e.g., solar, geothermal, wind, wave, et cetera) over utilization of scarce natural resources’ – uranium included – to argue for the phasing out of nuclear and phasing in of alternative sources of energy. Likewise, members of the dominant coalition could have employed this principle to highlight the merits of deep disposal as a solution to the waste problem that currently plagues what they consider to be a sustainable form of mass electricity generation. For either position, then, this principle could have supplied moral justification. In this way, utilitarianism is indeterminate. It does not provide direction for the justifiable adjudication of competing policy positions. Another form of indeterminacy can be traced back to the rather misleading nature of Bentham’s articulation of the utilitarian standard: ‘the greatest happiness of the greatest number.’ According to Shaw, this suggests that we should seek to maximize two different things, that is, the amount of happiness and the number of happy entities.15 But if we had to choose, or had to prioritize, which one should we seek to maximize? Should we try to increase the average happiness of a group of entities or the number of happy entities? In the context of thinking about responsibilities and obligations to future generations, these questions, and implications of responses to them, are especially contentious.16 In one of the earliest contributions to the literature on responsibilities and obligations to future generations, Jan Narveson argues that it is wrong to increase the size of the population in an attempt to maximize the total happiness.17 Instead, he argues, we ought to seek the greatest average happiness. Average happiness ‘does not imply that we are to aim at the greatest happiness and the greatest number.’18 Instead, we should aim to make everyone who exists as happy as possible. On this view, utilitarian obligations are to actual persons, existing either in the present or future, and they include not bringing persons into a world where they will surely lead sub-optimal, but marginally happy, lives. Unlike the total happiness maximand, the average does not justify an increase in numbers of persons without considering how happy they are likely to be given forecasted social and environmental conditions. But maximizing average happiness is also problematic, in that it could result in counter-intuitive policies. As Shaw writes, ‘averagehappiness utilitarianism implies, implausibly, that in a world of very happy people, it would be wrong to bring into existence a moderately happy person because doing so would lower average happiness.’19

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The average-happiness view also implies that we have a duty to procreate if our prospective offspring will be happier than average. The standard of maximizing average-happiness, moreover, implies that it would be good if people whose happiness is below average were eliminated. Identifying yet another problem, J. Brenton Stearns argues that the indeterminacy of the number of future people makes the average theory nonsensical.20 Without knowledge of how many future people will exist, it is impossible to calculate their average happiness. Stearns argues for obligations to increase total happiness but with specific reference to the imperatives of environmental conservation. Advancing a strong argument for conservation, Stearns seeks to establish obligations to future generations to maximize the total utility of their natural environment. From his perspective, we must attempt to ensure that our decisions either do not impact detrimentally or do impact positively on the resources provided by their natural environment. The problem with this argument is that, insofar as this view remains utilitarian, it seeks to maximize the satisfaction of interests of an aggregate of affected entities. The emphasis remains on increasing the subjective utility of the aggregate and not on managing sustainably the more objective features of the natural environment. Thus, one possible way to increase total happiness is to increase the number of people in the world to its carrying capacity. As Shaw points out, ‘a large population of only moderately happy people might spell more total happiness than a small population of happier people.’21 As Shaw writes, the total view implies ‘1) that we have some positive obligation to have children, 2) that, other things being equal, the more people on earth, the better, and 3) that in principle increasing the number of people can offset a decrease in people’s happiness.’22 The indeterminacy of the maximand raises many questions about the usefulness of utilitarianism in policy contexts such as nuclear waste management. With reference to either the average or the total welfare, the maximand leaves unanswered critical questions about the size and other characteristics (i.e., characteristics pertaining to what exactly their welfare interests are and how exactly these interests are upheld or violated) of populations that could be affected by each policy option. For example, when assessing nuclear waste management options for their propensity to serve the average welfare, utilitarians would estimate and model for each option the size and welfare characteristics of affected populations. They would then compare the

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options with reference to impacts on the welfare interests of affected populations. Assessors would ultimately choose the option that resulted in the highest average utility. Alternatively, they might assess options in terms of the total number of people whose utility would be maximized. Each option would be assessed for the positive impacts it would have on predicted numbers of people. For instance, assessors might predict that more jobs would be created by a disposal system in the Canadian Shield or Ordovician rock than by continued on-site storage in existing facilities. In either case, the application of utilitarianism would be contingent upon identifying the numbers of those who could be affected, formulating utility indices for them, and aggregating and weighing their utilities. For policy decisions associated with long-term consequences, determining the size and welfare characteristics of potentially affected populations may be impossible. Even if we undertook the best probabilistic assessment, based on the most comprehensive scenario development and computer modelling, we might still face problems related to uncertainty. Scenario modelling in the context of a hundred-thousand-year span necessarily confronts uncertainty about changes in natural systems and, as a consequence, the performance of a system. Moreover, it necessarily confronts uncertainty about the growth of populations and evolution of societies and their norms, practices, and technologies. All of this uncertainty contributes to conflict about understandings of safety and criteria for safety assessments. Indeed, in the Seaborn panel hearings there was vociferous criticism of selected scenarios concerning ‘the size and nature of the “critical group” and changing climatic, geological, or socio-economic conditions.’23 Utilitarianism cannot address these uncertainties. It seems only to perpetuate them and the conflict to which they give rise. Related problems concern the very entities that we should incorporate into utilitarian calculations. The implications of including all affected sentient beings within utilitarian decision making are manifold. These implications only intensify when considering the interests of not only persons but also other sentient entities. How would we determine the size of affected populations that include both persons and other sentient entities? How would we determine the welfare interests of persons and sentient entities? How would we compare these interests? These questions concern essentially whose interests are at stake in the policy decision and how to incorporate these interests into policy decision-making processes. They relate essentially to the

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need for a legitimating rationale to define the parameters of the decision, its processes, and its participants. As we’ve seen, such questions arose throughout the Seaborn panel hearings. Utilitarianism would have provided little direction as to how justifiably to address such questions. Further problems turn on the moral standing of members of future generations. Since the early days of contemporary theorizing on inter-and trans-generational responsibilities and obligations, the standing of future entities has been a matter of much dispute. Nowhere in this literature is the dispute more entrenched than in its utilitarian quarters. Parfit’s illuminations of the paradoxes of utilitarianism in the transgenerational context have stirred many of these debates.24 As Parfit notes, our decisions affect the identities of future people,25 with different decisions resulting in different people. Parfit’s ‘non-identity’ problem is particularly challenging for utilitarians when they seek to maximize the welfare of specific populations. Utilitarian theories tend to hold that the better outcomes is that which affects a specific population for the better, while the worse is that which affects it for the worse. According to Parfit, to make such comparisons in the context of future generations is nonsensical, for each scenario is contingent on a unique decision and therefore refers to a unique set of beings. The concern for the welfare of specific populations that is built into utilitarian theories is thus frustrated by the very decisions made with reference to these populations. In light of Parfit’s thinking, we might be inclined to make future generations morally irrelevant in our policy decisions.26 Many moral theorists and policy practitioners resist this conclusion. They resort to moral intuition to support the claim that we should concern ourselves with the well-being of future generations and that we have obligations to them. It is testimony to the strength of this moral intuition that the central policy statements, national and international, concerning nuclear waste management speak explicitly in terms of obligations to both existing and future generations. In central policy statements in nuclear waste management in Canada, and central policy statements by the United Nations’ International Atomic Energy Agency and the OECD’s Nuclear Energy Agency, we find principles relating to obligations to members of future generations.27 However, even if we fall back on intuition, we find that utilitarian arguments for the moral standing of members of future generations encounter another problem.

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The problem here, which has provided fodder for many philosophical debates about utilitarianism, lies in deciding which future entities are to count: ‘actually existing’ future entities or ‘possibly existing’ ones? Actually existing beings are those who will exist regardless of decisions we make. Their individual identities will be affected by our decisions, but they will exist as a population. Possibly existing beings are those who may or may not exist depending on specific acts of procreation. A child I might have is a possible future person. Some utilitarians distinguish between ‘prior existence’ and ‘total existence’ views,28 or between ‘epistemically possible’ and ‘volitionally possible’ persons,29 but the differing terminologies refer to a common set of problems. Some argue that both actual and possible future persons should count, claiming that there is no morally relevant difference between them. D.W. Haslett, for example, writes that ‘future well-being is simply future well-being, whether it be that of prior-existing individuals or not.’30 He argues for the total view, that the welfare interests of all individuals, ‘whether they currently exist or have only potential existence, are to be given equal consideration.’ Where our policies could affect persons, we should take their welfare into consideration. His position, however, is not without controversy. According to Shaw, this argument has questionable implications. As he points out, ‘potential people’ encompass more than zygotes developing into fetuses on their way to birth.31 They include all humans it would be biologically possible for existing people to create. With this in mind, it would not make sense to care about the wellbeing of merely possible people. Where would we begin? And where would we draw the line? Utilitarianism only makes sense in terms of augmenting as much as possible the general welfare of actually existing people – actually existing in the present or in the future. As Shaw writes, there will almost certainly be people on earth two hundred years from now. Not only ‘will their happiness matter then, but also some of the things we do now (for example, how we dispose of our toxic wastes) have moral significance just because they will affect those future people for better or worse.’32 Similarly, according to Trudy Govier, volitionally possible people do not have moral significance comparable to that of epistemically possible people.33 She argues that we should not factor into decision making the interests of volitionally possible people in the same way that we factor in the interests of epistemically possible people. Her reasoning is that, if a

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decision of ours is associated with risks for volitionally possible persons, we could make a pre-emptive decision not to bring them into existence so as not to expose them to these risks. On the other hand, if a decision of ours is associated with risks for epistemically possible people, then we are obligated to factor their interests into our considerations in order to minimize these risks. This is the only option available to us if we want to reduce their exposure to the risks in question. Govier argues that, in such cases, it is ‘entirely appropriate ... to treat epistemically possible people in a way strictly analogous to the way in which we treat actual people.’ These debates raise further questions concerning the applicability of utilitarianism to cases associated with long-term consequences. Would utilitarianism ask us to analyse policy options in terms of who could be affected among both actual and possible entities or in terms of who could be affected among either actual or possible entities? Utilitarians would face great challenges in their attempts to determine justifiably who could or would be affected and to incorporate these entities and their interests into decision-making processes. Again, utilitarianism by itself cannot tell us who should count and provides no way of justifying a decision as to who should count. As Brian Barry and Ian Shapiro argue, the theory cannot answer questions that turn ‘precisely on the issue of who should be counted as belonging to the number whose happiness matters.’34 Other forms of indeterminacy arise out of the vagueness of welfare utilitarianism’s conception of the good. Recall that welfare utilitarianism provides us with an understanding of the good comprising generalized interests and resources. But even the most robust account of welfare utilitarianism is vague – and necessarily vague – on what these are and, perhaps more crucially, how they should be maximized in specific policy contexts. To be sure, the claim that all persons have generalized interests in clean water and air, adequate nutrition, sufficient biodiversity and biological resources, and healthy ecosystems is convincing. These claims could and should bolster arguments for the management or disposal of nuclear waste in ways that reduce risks of contaminating biodiversity and ecological systems. Based on an understanding of welfare interests and resources, safety assessors could and should argue for the necessity of minimizing risks of ground-water corrosion of a waste management system for as long as the used nuclear fuels remain highly radioactive. Welfare utilitarianism’s conception of the good

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could provide the rationale to opt for a more expensive, corrosionresistant container material to better protect the natural environment, its resources, and its inhabitants over the very long term. But the significance of the good and ways of maximizing this good may not always be as straightforward as this example suggests. Indeed, it may become less clear the more we seek to understand how the good is manifest in a specific area of public policy. Identifying welfare interests and resources in specific policy contexts, which are inhabited by policy actors from different cultural backgrounds and with different ideological perspectives, will likely reveal different opinions on what those interests are and how to maximize them. In the case of nuclear waste management, there are very different conceptions of the earth, ecosystems, and biodiversity, which in turn are related to very different perspectives on basic values, interests, and resources that should be protected. Members of the dominant coalition hold that the natural environment should be used as resources for the economic, technological, and scientific advancement of human kind. From the perspective of these actors, mining uranium, processing uranium into fuel, employing this fuel in electricity generation, and disposing of used fuel bundles in the Canadian Shield or Ordovician rock maximizes fundamental material interests. It does so by making an efficient and safe use of a natural resource for the purposes of energy generation, which drives further economic growth and technological development that benefit society at large. It also brings direct benefits to host communities, creating jobs and generating further wealth. We saw this perspective in the policy framework of 1996 and Nuclear Fuel Waste Act of 2002, both of which were challenged by members of the critical coalition. These more critical actors held that biodiversity and ecosystems should be understood as having inherent value and should be protected for their own sake as well as for the sake of the social, cultural, and spiritual interests of human beings. Members of this coalition saw the whole nuclear chain as unjust, infringing or threatening to infringe on the basic interests of non-humans as well as humans. Utilitarianism provides little direction on how justifiably to address the differences in world views that inform competing conceptions of fundamental interests and resources. Moreover, utilitarianism provides little guidance on how to address the indeterminacy of welfare resources in light of genetic, social, cul-

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tural, and moral change. Humans will evolve genetically and socially, and this evolution will have implications for their needs. The genetic make-up of future humans could be significantly different from that of existing humans, which might have consequences for their resource needs. What’s more, social, cultural, and moral conceptions of values and interests are likely to change over time, which in turn could affect future needs and how these needs are met. The fact of this uncertainty, especially as it increases the farther into the future we cast our sights, means that we can never really know what will constitute, or how to realize, the welfare of future generations. While we might take what we perceive to be their welfare into account, and while we might seek to promote their welfare in our policy decisions, we will never really know if these decisions in fact serve their welfare. There are also problems of indeterminacy with Goodin’s principles of justice. We saw, in the case of nuclear waste management, much debate around the ethics of a system premised on the ideal of protecting the vulnerable and, in particular, protecting members of future generations. Although both coalitions expressed great concern for future generations, they differed fundamentally about what exactly this concern would entail for the design of a waste management system. One coalition argued for a passive system, the other for an active. The coalitions also expressed competing concerns about how specifically to protect aboriginal communities and their posterity. Members of the dominant coalition argued that economic development would ensure the viability of aboriginal communities and that the construction and maintenance of a centralized waste management or disposal system in the Shield or Ordivician rock would be a major contribution to this end. Members of aboriginal nations put forth less materialistic and more spiritual perspectives, holding that their welfare interests are not strictly economic but relate fundamentally to the integrity of their lands and cultures. With reference to the distributive consequences of utilitarianism’s conception of justice, other problems of indeterminacy emerge. These relate to the now standard criticism of utilitarianism as not respecting the separateness of persons. As Rawls writes, the striking feature of utilitarianism is that ‘it does not matter, except indirectly, how this sum of satisfaction is distributed among individuals any more than it matters, except indirectly, how one man distributes his satisfactions over time.’35 Sen and Williams write that, from a utilitarian perspec-

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tive, individuals are seen as mere locations of their respective utilities or ‘as the sites at which such activities as desiring and having pleasure and pain take place.’36 When making utilitarian assessments, there is ‘no need to know who is doing what to whom so long as the impact of these actions – direct and indirect – on the impersonal sum of utilities is known.’37 This impersonality could give rise to not only unpalatable but also contradictory policy recommendations, especially in the transgenerational context. Consider two contemporary examples. With respect to debates about the sustainable use of the natural environment, if we were to calculate the probable number of all future persons (say we could, for the sake of argument) and compare this with the number of current persons, the former would likely far outnumber the latter. Given projected numbers, future generations would have moral priority over existing generations. From this perspective, utilitarianism could sanction a massive reduction in consumption (to the point, Rawls argues, of near starvation)38 of the current generation for the sake of the welfare of the larger transgenerational collectivity. With respect to the case of nuclear waste management, conversely, utilitarianism could justify transferring excessive burdens to future generations. As we’ve seen, cost-benefit analysis and probabilistic risk assessment tend to prioritize existing over future generations by discounting the interests of the latter in proportion to how far in the future they exist. Utilitarianism, while based on an initial equality of consideration of interests, could perpetuate this prioritization. It could justify transferring increased risks to future generations by factoring in technological and economic advances that we might presume will take place over time. These advances, they might argue, could offset any increased burdens. Once again, utilitarianism does not contain the concrete resources with which to resolve such conflicting prescriptions. There is a need for clarity, determinacy, and justification in policy decisions associated with risk, uncertainty, and futurity. The issues of indeterminacy raised above speak to the insufficiency of welfare utilitarianism as a framework for the ethical analysis of such policy. While utilitarianism contains principles of moral standing, the good, and the just, these principles remain indeterminate. The ultimate problem is that utilitarianism does not yield specific principles for procedures by which to resolve legitimately the ethical issues often characterizing such policy decisions.

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Modern Deontology Many moral philosophers and political theorists take deontology as the alternative to utilitarianism. Modern deontology is a school of ethics that includes theories of duties, rights, and opportunities.39 These theories build on the idea that ethical decision making requires self-conscious acceptance of fairly specific substantive normative principles. Deontologists generally understand these principles as limits on the pursuit of individual and collective interests. They argue that these principles need to constrain the drive to maximize interests. Despite important distinctions between deontology and utilitarianism, the former confronts problems similar to those that afflict the latter. Indeed, none of these theories can justifiably resolve moral issues in cases such as nuclear waste management. The basic distinction between deontological and utilitarian – or, more broadly, teleological – theories tends to turn on the right and the good. The good is, essentially, a set of assertions about what is ultimately desirable, preferred, or valuable. The right is less about what is ultimately valuable than what agents should or must do to attain, protect, or promote what is valuable. In teleological theories, Rawls writes, ‘the good is defined independently from the right, and the right is defined as that which maximizes the good.’40 When assessing the moral nature of acts, those taking a teleological approach hold that the final appeal is to the comparative amount of the good produced.41 In contrast, Rawls defines a deontological theory as ‘one that either does not specify the good independently from the right, or does not interpret the right as maximizing the good.’42 Generally, in deontological theories, the right is prior to the good. As Rawls writes, ‘something is good only if it fits into ways of life consistent with the principles of right already on hand.’43 The right defines which pursuits are morally permissible. Much of modern deontological political and ethical theory contains slivers of Kant’s thought expressed in axioms concerning the inherent dignity and moral equality of persons.44 These axioms tend to emphasize rights over duties. They articulate claims that persons possess certain special qualities that should be protected or advanced as fundamental rights corresponding to publicly enforceable duties and obligations.45 Thus, deontologists argue, persons have rights when the protection or advancement of their special qualities is recognized as so important as to constitute a steadfast reason for fulfilling correspon-

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ding duties or obligations. These qualities relate to fundamental interests in realizing, in Jeremy Waldron’s words, personal ‘choice, selfdetermination, agency, and independence’46 – qualities that tend to define persons as persons. In a thicker form, they relate to fundamental interests in securing access to certain socio-economic goods (e.g., education, health care, basic subsistence, and so on).47 An apparent strength of modern deontology is a conception of moral standing more determinate than that of welfare utilitarianism. Similar to utilitarianism, modern deontology takes sentience as fundamentally significant to moral standing. Generally, deontologists argue that sentience is the basis of fundamental interests and thus rights, which are to be protected and promoted by society and government. Mary Warren’s perspective, for example, is that ‘sentience is the ultimate source of all moral rights; a being which has experiences and which prefers experiences of some sorts to those of other sorts, has on that basis alone a prima facie right that those preferences be respected by beings that have the intelligence to comprehend this fact.’48 Most deontologists take not merely sentience but, more specifically, a capacity for rational thought as the determinant of moral standing. For instance, Feinberg identifies ‘conative life,’ which consists of conscious wishes, desires, and hopes, as well as unconscious drives, latent tendencies, and natural fulfilments, as the basis of moral standing.49 Only a creature with conations can have a good of its own, the achievement of which is understood as due. The specific dimensions of its conative life, in turn, give rise to interests that correspond to rights that should be upheld. Interests in formulating and achieving its good are the essence of its rights. For Feinberg, all humans and some non-human animals have moral standing.50 Rawls speaks even more specifically of the moral standing of persons, who, from his perspective, can only be human beings. According to Rawls, moral personality consists of powers to develop a sense of justice and a conception of the good.51 Having a sense of justice implies understanding, applying, and acting according to principles that delineate ‘appropriate terms’ for societal cooperation. Having a capacity for a conception of the good involves the ability to form, revise, and pursue ‘one’s rational advantage or good.’ In virtue of having these two moral powers, persons are free and equal. For Rawls, equal justice is owed to all those who have the capacity to take part in and act in accordance with a system of social cooperation governed by a conception of justice.

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While these deontologists attach varying weight to the relative importance of sentience, conation, and rationality, they converge on the claim that all persons have moral standing. Moreover, they agree that both existing and future persons have moral standing. As Warren notes, members of future generations will become persons, ‘with interests and desires, susceptible to pleasure and pain,’ and therefore should be understood to have corresponding rights.52 Similarly, Feinberg writes that whoever these human beings may turn out to be, and whatever they might reasonably be expected to be like, they will have interests that we can affect, for better or worse, right now. The identity of the owners of these interests is now necessarily obscure, but the fact of their interestownership is crystal clear, and that is all that is necessary to certify the coherence of present talk about their rights.53

Finally, from a Rawlsian perspective, insofar as future persons have the potential to develop rationality, a sense of justice, and a conception of the good, they have basic rights, liberties, and claims to other primary social goods.54 Deontological views on moral standing do not lose sight of the special significance of individual persons even in light of considerations of the greater welfare. Indeed, Ronald Dworkin argues that we take rights seriously when we affirm them as necessary to protect a person’s dignity and ‘standing as equally entitled to concern and respect’ against demands based on the general welfare.55 Rights are ‘safeguards’ to protect a person from threats to her pursuits that might be justified by utilitarian considerations. Deontologists hold that it is not merely that each person should count equally; rather, they hold that each person is morally equal. As such, they argue, each person must be safeguarded from threats based on maximizing general welfare. Ostensibly, a deontological conception of moral standing could have been useful in rendering decisions concerning nuclear waste management. It could have supplied a rationale for treating members of future generations as our moral equals in the impact assessment of AECL’s concept for deep geological disposal. It could have supported the argument that persons, no matter when they exist, are our moral equals and entitled to the same level of safety. It could have supported the argument that future persons should be brought into our risk

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assessments because they will have moral capacities similar to ours that should not be fettered by our policy decisions. Unlike utilitarianism, a deontological approach would have required not only that the interests of future persons be considered, but more explicitly that their basic rights, freedoms, and opportunities be protected to the same extent as ours. Another apparent strength of modern deontological theories is their conceptions of the good. In deontological theories, while the right is generally prior to the good, the right itself is premised on axioms related to the moral equality and dignity of persons. It is only with assumptions about these ultimate values that we can articulate principles of right that speak to how they should be secured. But, as Rawls states, since these assumptions must not ‘jeopardize the prior place of the concept of right, the theory of the good used in arguing for the principles of justice is restricted to the bare essentials.’56 For Rawls, these essentials include what persons need to carry out their ‘plans of life,’ such as liberty and opportunity, wealth and income, self-respect and ‘a sure confidence in the sense of [their] own worth.’57 In Barry’s writings on transgenerational justice, we see an attempt to articulate a thin conception of the good comprising three theorems of fundamental moral equality.58 The first is equal rights. This theorem maintains that each person, regardless of when and where she exists, has a moral claim to equal rights. Barry argues that existing generations are able to affect the ‘likelihood that there will be equal rights in the future.’59 The more environmental degradation and pollution we leave our successors, for example, the poorer their prospects for a range of rights equal to ours. The second theorem relates to the responsibility of individual choice. For Barry, individual choice, insofar as it takes place within the context of a just system of legal rights, resources, and opportunities, justifies inequalities of outcome. He writes that, since people in the future cannot be held responsible for the physical conditions that they inherit, it would be unjust if they were ‘worse off in this respect than we are.’60 As a corollary to this second theorem, Barry develops the principle of compensation, which holds that unjust inequalities must be mitigated by ensuring equal opportunities for future generations. Where this is not possible, members of future generations should be compensated for the loss of these opportunities. For example, we owe compensation to future generations ‘for our reducing their access to easily extracted and conveniently located natural resources’ in terms

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of replacing ‘the productive opportunities we have destroyed by the creation of alternative ones.’61 Barry’s third theorem articulates what he intends as an uncontroversial list of vital interests. For Barry, we are obligated to provide members of future generations the opportunity to lead lives according to their own fuller conceptions of the good. He claims that, although we cannot imagine with much detail what future generations will think is a good life, we can be quite confident that it will not include the violation of vital interests. If humans exist, they will surely have vital interests in ‘certain objective requirements for human beings to be able to live healthy lives, raise families, work at full capacity, and take a part in social and political life.’62 His list of vital interests thus includes ‘adequate nutrition, clean drinking-water, clothing and housing, health care and education.’ Although similar to welfare utilitarianism’s list of interests and resources, Barry’s understanding of this thin conception of the good could have ensured that decisions in the case of nuclear waste management would not arbitrarily serve the interests of one generation over another. From his perspective, an assessment of a nuclear waste management facility would have to incorporate, on par with ours, the claims of future generations to equal rights and opportunities for a good life as they define it. An assessment would have to incorporate, on par with ours, their claims to the basic necessities of life, including a certain level of capital accumulation as well as clean water and air, sufficient biodiversity, and healthy ecosystems. This implies that assessors would be unjustified in distributing higher burdens of debt or risk to future generations than we would be willing to accept, even if doing so were to maximize the overall utility. The fundamental difference between deontological and utilitarian understandings of the good is that the latter is ultimately prone to distributive patterns that infringe upon the rights and opportunities of existing and future generations. The former provides greater assurance that distributive patterns are based on the principle of moral equality and do not result in such arbitrary infringements. The deontological theories discussed here thus provide a sounder account of justice than utilitarian theories. Deontological conceptions of justice would minimize transferral of risks to future generations by seeking to uphold the axiom of fundamental moral equality throughout the decision-making process. Deontologists such as Rawls or Barry would not discount the interests of future generations insofar as

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doing so would be a violation of their moral equality. There may be ways of discounting that make it more palatable to deontologists (although they might find setting even a very low rate to be inappropriate for the time frame involved in nuclear waste management), but deontologists would resist discounting that resulted in a justification for transferring our burdens to future generations in a way that sacrifices their fundamental or vital interests. Rawls would argue that, as opposed to discounting, we should save for future generations so that they can ensure the continuation of just institutions.63 Transferring our debt to them could unduly limit their rights to justice. Barry would argue that where we do transfer debt to future generations, we should provide concrete and commensurate compensation to them so as not to limit their prospects for good lives. This compensation could involve, for example, a trust fund for posterity, supported by investments in the research and development of alternative forms of energy generation. We also see in these deontological theories a concern for legitimacy. We can infer from the writings of Rawls and Barry that justice and stability are two components of legitimacy. In order for principles of justice to be legitimate, persons have to be persuaded by the moral properties of those principles, but they have also to be morally committed to abiding by those principles. Principles of justice have to withstand the ‘strains of commitment.’64 This conception of legitimacy calls for principles that not only contain moral properties specific to justice but that also derive from a certain agreement among affected parties. In the case of Rawls, this agreement is hypothetical, taking place in his ‘original position.’ For Barry, it appears as an ideal to be approximated in policy contexts. Barry articulates certain ideal procedural conditions for a free and informed decision, by morally equal persons, on fundamental principles of cooperative collective existence. His decision-making construct, based on the writings of T.M. Scanlon,65 is similar to the original position in that it is designed to uphold the moral equality of persons.66 However, unlike parties in the original position, the parties in this ideal are aware of their identities and hence of their values and interests. Moreover, they are not motivated simply by the wish to advance their interests, but also by ‘the desire for reasonable agreement.’ According to Barry, principles yielded in his ideal would be just because they would be based on the impartial consideration of the

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interests of all affected parties, and they would be stable because they would be based on knowledge about the life prospects and considered convictions of all affected parties. This deontological approach would have required that the conflict around the policy framework of 1996 be resolved in terms of an ideal agreement. Such an agreement could have provided a rationale to bring actors other than representatives of the nuclear utilities and broader nuclear industry into deliberations on the policy framework. It could have provided NRCan a rationale to include members from both coalitions in these deliberations as moral equals with claims to participate in rendering decisions that will affect them. Members from both sides could have deliberated upon the importance of including in the policy framework the values not only of economy and efficiency, but also of inclusion, accountability, and transparency – values that participants in the Seaborn hearings, as well as those in the parliamentary committee hearings, identified as particularly important. Members from both coalitions could have engaged in discussions about the optimal financial and institutional arrangements for all subsequent nuclear waste management policy. This approach to decision making could have resulted in a policy framework and, ultimately, a Nuclear Fuel Waste Act less partial to the interests of the industry. It could have provided all policy actors involved in nuclear waste management with better moral reasons to support the policy framework and the act, and thus could have provided the policy with greater legitimacy. The deontological theories covered here have a number of apparent strengths beyond those of utilitarianism. Deontological conceptions of moral standing and fundamental interests tend to be more determinate. Deontological conceptions of justice tend to be more comprehensive. Moreover, their conceptions of legitimacy include hypothetical or ideal decision-making processes. Together, these strengths constitute a more robust basis from which to respond to concerns in cases such as nuclear waste management. While deontological theories make certain gains on utilitarian theories, they ultimately suffer the same limitations as utilitarian theories. They no more adequately respond to the uncertainty, and no more justifiably resolve the conflict, that characterizes the case of nuclear waste management. Like welfare utilitarianism, modern deontology contains philosophical elements that require further definition and determina-

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tion in actual policy contexts. Deontological moral standing, vital interests, and legitimacy-conferring processes ultimately remain too abstract to be instructive in actual policy contexts. Indeed, deontological claims for the moral standing of future beings are as contentious as utilitarian claims. The challenge to granting future generations moral standing in terms of rights, liberties, and opportunities rests on the premise that only actual beings, and not possible beings, can have such claims. All future people, according to this view, are necessarily merely possible and cannot therefore have such claims. For example, Ruth Macklin argues that fundamental interests are not a priori but are specific to persons existing within a particular context.67 She argues that it is the fundamental interests of actual persons in fulfilling their specific capacities, within a specific socio-historical setting, that constitute the basis for ascribing rights. Without reference to the existence of actual persons, it is epistemologically impossible to determine the form and substance of their interests and corresponding rights. From a slightly different angle, Hillel Steiner argues that future people cannot have rights because they cannot exercise them.68 Steiner argues that the formal features of rights are ‘implied in our speaking of rights, like abilities, as being exercised.’69 His argument is that rights give us powers to demand that others fulfil correlative duties and to waive the compliance of others with these duties. A future person is both physically and logically unable to exercise his or her rights, and unable to demand or waive fulfilment of the duties of a present person. Steiner thus holds that he or she cannot be understood to have rights. Like Macklin and Steiner, Richard de George holds that only once a being exists does it have rights.70 Moreover, he insists that a being cannot have a reasonable claim to what is neither possible nor available at the time of its conception.71 His claim is twofold: not only does it not make sense to ascribe rights to members of future generations, but also it does not make sense to ascribe rights to certain kinds of treatment and resources that will be either impossible for or unavailable to future generations when they come into existence. These arguments against ascribing rights to members of future generations are forceful. If we ground rights in the rational capacities of persons, it becomes very difficult for us to hold that future beings currently have rights that should be upheld in our policy decisions. Framing the matter in terms of capacities that must be fully realized

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as a person is tenuous when applied to future people, and becomes more tenuous when applied to distant future people. Future people could have capacities recognized as morally significant that are radically different from ours. Given the inevitability of social, political, ethical, and conceptual change, we cannot know what their morally relevant capacities and corresponding fundamental interests will be and, therefore, cannot with much justification attribute specific rights to them. Like utilitarians, deontologists face persistent questions about the moral status of future persons. Both deontologists and utilitarians find themselves confronting the counter-intuitive conclusion that we may not be able, logically and practically, to grant moral standing to future generations and hence may not have obligations to them. Again, we should be willing to bracket this conclusion. Indeed, our obligations to future generations are increasingly recognized in policy statements at both the domestic and international levels. However, even if deontologists accept obligations to future generations, they still confront problems. As we have seen, Barry’s theory is appealing insofar as it articulates a set of vital interests necessary for the realization of conceptions of the good, whatever these conceptions might be. Barry’s understanding of vital interests is attractive because it provides us with a moral orientation not too loaded with unjustifiable assumptions. It tells us what ultimately should be sought and protected in public decisions with consequences for both existing and future persons. However, like utilitarian notions of the good, these vital interests inevitably tend to be too abstract. While deontological theories take certain human interests as settled, and thus can resist counter-intuitive distributive patterns, they face their own challenges of indeterminacy. As the case of nuclear waste management reveals, policy actors often find themselves in heated contention about the definition of values and interests that should be upheld or protected. During the Seaborn panel hearings, members from environmental and religious organizations spoke of the deep green value of nature and of the rights of non-human animals and ecosystems. This perspective on the natural environment was at fundamental odds with the instrumental view of nature taken by members of the dominant coalition. Aboriginal representatives had yet another perspective. Aboriginal peoples often noted that their basic interests, based on traditional spir-

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itual and cultural values and defined in large part by relationships to their lands, were not well protected by the major policy statements in Canadian nuclear waste management. As Grand Chief Matthew Coon Come stated to the Commons committee, ‘sustainability, environmental protection, and recognition of aboriginal and treaty rights must be uppermost in the minds of the [government] when it makes its decision on the management of nuclear fuel wastes.’72 Taken seriously, this perspective would have yielded a distinctive approach to the impact assessment of a waste management system, incorporating the spiritual and cultural interests of aboriginal peoples as they define them. This approach would have been ‘holistic, environmentally sound, and sustainable,’ focusing on the totality of impacts on societies, cultures, human health, and the natural environment. We should anticipate similar differences of perspective among generations, especially given the time scale associated with radioactive decay. What generations five hundred, one thousand, or five thousand years from now take as vital interests could be fundamentally different from what we take as vital interests. There is too much uncertainty stemming from the inevitable social, cultural, and moral (not to mention genetic) changes that will take place over the course of such time frames. The fact of this uncertainty means that we can never know in precise terms what will constitute, let alone how to protect, the vital interests of those who could be affected by our public policies. The modern deontological theories covered here do not provide means for resolving conflicts about vital interests, and how to protect them, with legitimacy and determinacy. Again, for Rawls, the legitimacy-conferring device is his original position. The problem, as Barry has pointed out, is that the original position is a thought experiment conducted by a single individual.73 Barry’s response, as I’ve touched upon above, is a Scanlonian agreement. Diverging from Rawls, Barry’s aim is to realize these ideal deliberative conditions in actual forums of public decision making. However, Barry has not developed these ideas in any substantive detail. To the extent that his justificatory device remains hypothetical, it could reduce to a monological thought experiment, and it is no more helpful than Rawls’s original position. Thus, the question for deontologists remains: how would policy makers decide upon the ethical content of policy while assuring that it is legitimate from the perspectives of both existing and future generations?

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Deliberative Democracy Many political theorists extol the virtues of deliberative or discursive democracy74 as a regulative ideal, arguing that it best articulates requirements for the social and environmental justice and democratic legitimacy of our public decisions.75 These theorists and practitioners take the ideal of the informed and uncoerced dialogue of all those who could be bound or affected by policy (or their accountable representatives)76 as an appropriately high standard of justice and legitimacy. They argue that agreements reached in this dialogue more likely uphold the fundamental values and interests of all those who could be affected and are thus more likely to be just.77 Moreover, they claim, such agreements better express the reasoned acceptability of all those who could be affected and are thus more likely to be legitimate. The crucial element of this ideal is that these justificatory agreements derive from dialogue in which all those potentially affected by the outcomes freely draw from their experiences and expertise, mutually exchange their perspectives, and ultimately exercise their decisional agency. The essence of deliberative democracy is that persons freely decide the substantive terms of the public policy and institutions that bind or affect them. The ideal of deliberative democracy is an inclusive process of dialogue that facilitates mutual understanding and informed agreement, in which participants are free from coercion, manipulation, bargaining, and bribery and are free to express their genuine views such that only the ‘forceless force of the better argument prevails.’78 According to this ideal, each participant should be equal in terms of the procedures of deliberation, i.e., in terms of putting forth ideas, asking and responding to questions, and so on.79 Each, moreover, should have equal access to the epistemological resources needed for informed and effective public deliberation.80 Finally, as deliberative democratic theorists tend to agree, each participant should be equal in more substantive terms. Without material equality, participants are less likely to be procedurally and epistemically equal and thus less likely to be free in their dialogical exchanges.81 There is more disagreement around the kind of reason that dialogical participants should employ. For example, some have criticized conceptions of deliberative democracy that rely on Rawlsian public reason.82 As conceived by Rawls, public reason applies in the context

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of basic justice and expresses an acknowledgement of the moral freedom and equality of all citizens of a constitutional democracy despite their cultural and religious differences.83 His public reason is a form of reciprocity requiring that, when deliberators propose what they take as the most reasonable terms of fair social cooperation, they must also think it is reasonable for others to accept them, as free and equal citizens of a pluralistic liberal democracy. Reasonable citizens understand and accept, in light of the diversity among them, that their entitlement to live according to their comprehensive doctrines is limited by a public conception of justice guaranteeing equally the basic rights and liberties of all citizens. In this context, democratic citizens should put forth public reasons – reasons that are formed independently of their comprehensive doctrines. These are, in the words of Rawls, ‘plain truths now widely accepted, or available, to citizens generally’ and ‘presently accepted general beliefs and forms of reasoning found in common sense, and the methods and conclusions of science when these are not controversial.’84 The intended purpose of Rawls’s public reason and reasonableness is a consensus that serves the purposes of justification. But at what cost? The price paid may be exclusion, since deliberators may have different and sometimes competing conceptions of public reason and reasonableness.85 A strong Rawlsian requirement would have deliberators abandon not only their comprehensive doctrines, but also their conceptions of public reason and reasonableness, insofar as they do not conform to those defined by ‘plain truths,’ ‘generally accepted values,’ ‘common sense,’ and ‘non-controversial conclusions of science.’ To the extent that they cannot do so, they would be excluded from engaging in the formation of collective decisions on the fundamentals of justice. Amy Gutmann and Dennis Thompson employ a broader form of public reason and reciprocity.86 Their understanding of reciprocity departs from Rawlsian public reason by not being confined to basic justice. Instead, all contentious moral issues characterizing policy decisions are open for public deliberation. Moreover, the idea is not to retreat from comprehensive doctrines, but to try to engage with them and put forth reasons acceptable from within them. In light of the possibility of entrenched moral disaccord, Gutmann and Thompson seek generally acceptable reasons that provide a basis for a provisionally justified agreement – that is, an agreement that can be deliberatively revisited. While moving away from Rawlsian public reason, Gutmann

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and Thompson nonetheless require that participants put forth claims that are consistent with ‘relatively reliable methods of inquiry.’ As they write, ‘claims need not be completely verifiable, but they should not conflict with claims that have been confirmed by the most reliable of available methods.’87 They thus tend to hang on to certain norms that may exclude perspectives more critical of mainstream modes of inquiry. Concerned with the exclusionary possibilities of Rawlsian public reason, discursive theorists such as Iris Marion Young, Simone Chambers, and John Dryzek put forth an even more expansive understanding of the kind of reasoning that should inform collective decisions.88 From their perspectives, it is neither contested notions of moral truth nor claims lacking the support of established methods and conclusions of science that should be excluded. These would exclude many who espouse non-secular norms and challenge the priority of positivist approaches to reasoning and knowledge, which could serve to perpetuate a number of forms of discrimination and injustice. For these theorists, it is non-discursive forms of communication, such as ‘manipulation, indoctrination, propaganda, deception, expressions of mere self-interest, threats, and attempts to impose ideological conformity,’ that should be excluded.89 Their overarching criterion is that ‘communication induce reflection upon preferences in a non-coercive fashion’ and that ‘reflective preferences influence collective outcomes.’90 Discursive theorists argue that diverse forms of communication should be admitted so long as they conform to the standard of ‘communicative rationality,’ i.e., the standard embedded in the inclusive, informed, and uncoerced dialogical exchange, of free and equal persons, towards mutual understanding and agreement.91 Implicit in these calls for non-coercive dialogue are a similar kind of reciprocity and sense of respect and accommodation that we find in Gutmann and Thompson’s deliberative democracy. To engage in noncoercive deliberation, as opposed to strategic bargaining or other kinds of purely self-interested exchange, is to attempt genuinely to understand the perspectives of those with whom one is deliberating and to want to reach agreement with them. All deliberators have to want to understand each other and seek agreement on terms generally acceptable to all of them. Both discursive and deliberative theorists recognize that cultural, ethnic, gender, and class differences may make achieving this reciprocity difficult, and specifically advance measures to ensure the inclusion of all those who could be affected. From the discursive

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perspective, however, we see a picture that more carefully defines the imperatives of inclusion by specifying that the ruled ‘out of bounds’ is neither non-commonsensical nor non-scientific forms of reasoning, but rather coercion that thwarts the ends of reflection, persuasion, and provisionally justified agreement. Aside from debates about forms of reason, there is also debate about the kind of agreement essential to deliberative democracy. Joshua Cohen, Jürgen Habermas, and John Rawls emphasize the importance of consensus in their contributions to deliberative and discursive democracy – an emphasis that has troubled a number of theorists and practitioners.92 Critics point out that achieving consensus tends to require that all deliberators support decisions for essentially the same reasons. All deliberators have not only to accept all reasons but also accept them in the same way. They must share, as Valadez puts it, ‘basic epistemic beliefs and moral convictions in relation to which these reasons make sense.’93 Consensus is, in some ways, a superior form of agreement grounded more deeply in the structure of the core beliefs of those who are party to it. Consensus can be salutary for society and government, providing strong assurance that the policy decisions it supports are just and legitimate. But it can also be problematic, particularly in pluralistic societies whose members may espouse a diversity of comprehensive doctrines and adhere to a diverse range of modes of reasoning. These members may feel a certain pressure to conform and support the ‘consensus.’ Thus, for many theorists, consensus is not fundamental to the ideal of deliberative or discursive democracy. For example, Gutmann and Thompson desire but do not require consensus. What they take as essential, especially in light of persistent reasonable disagreement, is that deliberators engage in reciprocal reason-giving in a way that is accommodating and respecting of their differences until they reach a provisionally justified agreement.94 These ideas of accommodation, mutual respect, and continuous deliberation are also found in the writings of Valadez.95 Valadez, however, lets go of the ideal of consensus altogether. Drawing from James Bohman, Valadez argues that in culturally pluralistic societies, a deliberative outcome is successful insofar as participants have sufficiently contributed to it and are willing to abide by it even when they disagree with it. What is important is that participants be motivated to accept and adhere to the outcome because they have sufficiently engaged, freely and equally, in the processes that have yielded it. What is important is that participants engage in

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processes that facilitate a compromise justifying policies. These moral compromises are similar to what Cass Sunstein has identified as ‘incompletely theorized agreements.’96 In many areas of public policy, it may be necessary or desirable only to reach agreement on the reasons sufficient for rendering a particular decision. For instance, deliberators ‘may agree that a rule – forbidding discrimination on the basis of sex, protecting endangered species, allowing workers to unionize – makes sense without agreeing on the foundations of their belief.’97 Again, what is ultimately important is that the resolution is reached through inclusive, informed, and uncoerced deliberative processes. A strength of deliberative theories is that they contain a cogent argument for the moral standing of both existing and future persons. The argument runs as follows: all persons who could be bound or affected by a public decision have a crucial role in making claims for its justice and providing for its legitimacy. For moral reasons, all persons have the right to deliberate in the formulation and implementation of the decisions that could bind or affect them. These reasons are based on the recognition that, while persons are morally equal, with equal claims to freedom, they are necessarily subject to binding laws that are sometimes associated with pervasive effects. Perhaps the most serious effects are environmental, since the conditions of our freedom and autonomy remain fundamentally dependent on the provisions of the natural environment and its capacity to absorb the wastes we create and restore imbalances we cause. The moral reasoning underscoring the deliberative ideal is to justify public policies by upholding, in their formulation and implementation, the decisional agency of all those who could be bound or affected by them. In addition, there are practical reasons for widely inclusive deliberation on important policy issues. These practical reasons derive from the immediate understanding that a diversity of actors has of the values, interests, and needs at stake in policy areas and of how these might either be violated or upheld by specific policy decisions. As Melissa Williams writes, the presence of a ‘plurality of points of view’ in deliberative processes ‘allows decisions to be more complete.’98 Such a presence allows decision makers to comprehend a greater array of social, political, and environmental possibilities and to foresee a greater number of social, political, and environmental consequences of our decisions. For example, during the Seaborn panel hearings, representatives of aboriginal and local communities and members of reli-

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gious and environmental organizations enriched debates about the adequacy of probabilistic risk assessment in determining the safety of nuclear waste management options. Aboriginal traditional knowledge, and the principle of ‘seven generations,’ provided a fuller account of the values and interests at stake in nuclear waste management. Members of nuclear host communities, moreover, expressed a fuller account of the financial and social burdens potentially associated with nuclear waste management facilities. A deliberative approach would have provided both moral and practical justification to incorporate into policy processes the perspectives not only of aboriginal peoples and members of nuclear host communities, but also of a range of actors with diverse experiences and expertise pertinent to the case at hand. In the case of nuclear waste management, ‘experts’ include those from nuclear science, technology, and engineering as well as from resource management, conservation, and ecology. In addition, they include experts from the humanities and social sciences to elucidate the moral, social, and political dimensions of nuclear waste management. There may be concerns that expert views should be weighted more heavily than ‘non-expert’ views. But these are misplaced. As we have seen in Canadian nuclear waste management, views generally understood as non-expert are not less informed. They are, instead, differently informed: they are informed by life experiences, cultural practices, orally transmitted knowledge, and so on. Moreover, the idea of deliberation is not to weigh unreflectively one perspective against another but to consider the reasons for and against perspectives and to seek an agreement based on this reasoning. Expert perspectives are fallible and in need of public scrutiny and deliberation as much as other forms of knowledge, especially insofar as they inform publicly binding decisions. A deliberative conception of moral standing extends to future persons in a way that is less problematic than for both utilitarian and deontological conceptions. To be sure, all three ways of conceptualizing moral standing face challenges in that they are based, at some level, on features of moral personality – features that are difficult, if not impossible, to attribute to future people. However, utilitarian and deontological conceptions tend to build up from these features a schedule of either interests or rights that is as long as thick and is therefore in need of interpretation when applied to specific policy contexts.

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The essential problem with these views of moral standing is that they contain substantive assertions about the values, interests, and rights of persons without providing a way to justify their interpretation and application to specific policy areas. This problem is exacerbated in the context of policy with far-reaching but uncertain consequences for future generations. Although we might reasonably be able to predict a range of values, interests, and needs that future generations within the next several hundred years may have, these will remain indeterminate since we cannot know precisely how future generations will want to uphold them in public decisions. Moreover, our forecasts become increasingly uncertain the farther into the future we cast our sights. There is mounting uncertainty about what may be important to future generations, what principles they may want to bring to bear on the policies that affect them, and how specifically they may want to interpret and apply these principles. What we take to be sound normative foundations for public policy and just and legitimate public policy may not be taken as such by future generations. Deliberative democracy’s conception of moral standing is an improvement over the deontological and utilitarian in that it is restricted to the rights of persons, existing and future, to participate deliberative-democratically in the rendering of decisions that bind or affect them. All other rights are left to be justifiably determined by participants in deliberative democratic institutions and processes of the present or future. Deliberative democracy contains, of course, a conception of the good. But here again, it confines its substantive assertions about the good to those that directly concern the decision-making institutions and processes necessary to ensure the agency of persons who could be affected by ensuing decisions. It takes as universal basic interests in the autonomous existence of morally free and equal persons within the context of the necessary constraints of public institutions and policy. It expresses these basic interests in terms of processes of inclusive, informed, and well-reasoned deliberation towards a mutually justifiable agreement. Towards the end of mutually justifiable agreements among both existing and future persons, the deliberative ideal implies the long-term maintenance of these processes so that future persons will have the option to deliberate on the policies that constrain them. Where our policies extend into the future, these processes would have to be upheld so that members of future generations, as they come into existence, are able to deliberate on and, if necessary,

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revise policies made in the past but that bind or affect them in their present. Ideally, participants in these future discourses would be guaranteed more than the maintenance of procedural equality in institutions and processes of deliberative democracy. They would have a certain epistemological equality, i.e., equality of access to well-balanced, comprehensive information. They would also have a degree of social and material equality, having equal access to the basics of life, clean water, fresh air, sufficient biodiversity, including arable land, reliable sources of electricity, and so on, not only amongst themselves but also with us. Thus, the ideal implies certain imperatives for environmental sustainability, i.e., the use and management of the natural environment in a way that is not detrimental to the fulfilling of basic needs of future generations.99 It also implies certain imperatives for conservation, i.e., the maintenance of ecosystems and ecospheres necessary for the continuing evolution of a diversity of forms of life.100 We have seen that utilitarian and deontological theorists identify welfare resources and vital interests that should be sustained over the course of time. Some welfare utilitarians make convincing arguments for the sustainability of social, economic, and environmental resources. Some modern deontologists call for the upholding of certain social, economic, and environmental provisions so that members of future generations will have rights and opportunities equal to ours. Like these deontologists, deliberative theorists include a certain schedule of rights and opportunities ultimately based on the moral equality of persons. However, their arguments for certain rights are not based on abstract aspects of moral personality that may or may not obtain for future persons. While these theorists include certain rights, they do so because their conceptions of democracy require protection from encroachments on persons’ claims to procedural, epistemic, and substantive equality. Deliberative theories provide justification for maintaining institutions and processes necessary for public deliberation on collectively binding laws, which surely contribute to the conditions necessary for a life of moral equality, freedom, and autonomy. Given the relationship between our policy decisions and these conditions, the deliberative ideal counsels careful consideration of the substance of decisions and the impacts they could have. The substance of our policy decisions, especially those associated with serious social and environmental risks, can contribute to the presence of factors that coercively affect basic conditions for the freedom and autonomy of

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persons. For example, constructing a nuclear waste management facility with containment materials that submit over the passage of time to the corrosive effects of ground water and that therefore leak radioactivity into the environment could result in the creation of widespread hazards for the health of humans, societies, and cultures for generations to come. These hazards could serve, among other things, to increase the number of cancer-related ailments and thus increase pressures on public health care systems, social welfare services, and basic material conditions of well-being. Insofar as they affect aboriginal lands, moreover, these hazards could jeopardize a way of life and source of traditional knowledge for aboriginal peoples existing and future. The deliberative ideal thus calls for a kind of public reasoning that acknowledges the fundamental interests of existing and future generations in maintaining the conditions for their moral equality, freedom, and autonomy and that defines the acceptability of reasons with reference to the long-term maintenance of these conditions. Public reasoning in the transgenerational context assumes a form different from this kind of reasoning among contemporaries, since reasons cannot be reciprocally exchanged between existing and future persons. For Gutmann and Thompson, reciprocity in this context involves contemporaries asking themselves questions concerning what would be justifiable to future people.101 More specifically, I believe that it involves contemporaries enlarging their moral compass to justify their decisions to future generations on terms the latter would accept defined with reference to upholding their basic conditions of deliberation. Contemporaries would have to make earnest and wellresearched attempts to forecast the impacts of their decisions on these conditions. They would have to draw from a range of epistemological sources, such as the natural sciences, social sciences, engineering, and humanities, to identify and predict comprehensively the impacts of their activities and technologies. But reference to the empirical demands of reciprocity in this context raises some very challenging questions. Given the often very lengthy time frames associated with policies such as nuclear waste management, we cannot verify or validate our projections. Moreover, given these time frames, risk assessments are often so riddled with uncertainty that we cannot take confidence in their findings. It is therefore very possible that we could unknowingly make decisions that cause serious harm to the social and environmental conditions of the future, no matter how earnestly we apply ourselves to detailing possible future scenarios and estimating

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their probable occurrence. In light of the limits of our methods of forecasting and prediction, it is ethically responsible to modify our decision-making reasoning so that it is more precautionary vis à vis the basic requirements of deliberative democracy for future generations. Thus, in the transgenerational context, the deliberative ideal would entail exercising precaution in our public reasoning to avoid or minimize seriously detrimental impacts on the conditions necessary for future persons to engage in informed and uncoerced dialogue about the policy that affects them. While we cannot know what all of the consequences of our decisions will be, we do know that certain decisions will result, acutely, cumulatively, or stochastically, in serious and irreversible social and environmental hazards, and we do know that refraining from these decisions will enable us to avoid these hazards. We know, for example, that the destruction of aboriginal burial lands will perpetuate injustices against aboriginal peoples; we know that large-scale deforestation will exacerbate global warming and environmental, economic, social, and political instability; we know that the nuclear generation of electricity creates materials that remain highly radioactive and that present health and environmental risks for centuries to come. Even where there is no strong scientific proof of cause and effect, refraining from certain activities and technologies should be considered because of the possibility of their causing such serious far-reaching hazards. If we care about maintaining the decisional agency of future persons, and have reason to believe that some of our decisions may be to the detriment of their agency, we should take precautions to try to steer clear of such consequences. From this perspective, precaution is a fundamental component of ideal democratic processes for policy decisions associated with serious risk for both existing and future generations. But what more specifically does precaution entail in policy decisions? In the 1970s, calls to ‘play it safe’ and ‘exercise caution’ in policy contexts emerged as a response to deficiencies in the predictive capability of approaches to risk assessment and risk-cost-benefit analysis.102 The so-called precautionary principle has since been incorporated into numerous international agreements, including the Montreal Protocol on Substances That Deplete the Ozone Layer (1987), Rio Declaration on Environment and Development (1992), Treaty on European Union (1992), Cartagena Protocol on Biosafety (2000), and Stockholm Convention on Persistent Organic Pollutants (2001). One of its most important expressions is found in the non-binding Rio Declaration, which states:

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In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.103

A stronger, more controversial, articulation entails shifting the burden of proof from opponents to proponents of given activities or technologies that may be associated with serious risk.104 Policy makers are to shift the burden of proof from those who challenge the safety of an activity or technology to those who advance it. Historically, members of the public have carried the burden of proving that a particular activity or technology is dangerous, while those undertaking the activity or technology have been given the benefit of the doubt that their proposals are safe based on risk assessments conducted by themselves, regulators, or both. According to Tim O’Riordan, James Cameron, and Andrew Jordan, in the past all the proponent had to do ‘was to show that no likelihood of unreasonable harm would ensue from a particular course of action.’105 As such, various courses of action having possible consequences seriously detrimental to the wellbeing of persons or integrity of the natural environment were seen as acceptable until the high probability and magnitude of their possible hazards were scientifically established and deemed an unacceptable risk. Developments giving rise to air and water pollution, for example, were acceptable until studies documented a causal relationship to detrimental health, social, or environmental effects. Even today, the predominant approach is to manage risks, not necessarily to attempt to avoid them, and to intervene only after significant proof of harm is established. The precautionary principle presented here holds, conversely, that those who are in a position to make decisions that could cause grave social and environmental harm should bear the responsibility of avoiding it. Accordingly, proponents must clearly demonstrate that their proposal will not cause serious or irreversible harm before they proceed. The proposal must be safe in terms of an acceptable level of risk determined with reference not merely to analogous levels of risks for other activities, but also with reference to extensive studies involving the input and insights of a range of stakeholders among whom the most vulnerable are well represented. This understanding of precaution entails not only responsible research on the part of proponents; it

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also entails deliberation among proponents and those who could be directly affected by their proposals. The precautionary principle calls for the democratic consideration of all possible means to avoid or reduce social and environmental risk.106 Among possible means, of course, is either modifying a proposed activity or technology or forgoing it in favour of a less risky alternative. Proposed alternatives must be scrutinized as stringently as that which they may replace. However, because we cannot be certain of the impact of activities and technologies, we should be prepared to forgo certain activities in order to leave intact as much of the natural environment as possible.107 The idea here is to preserve the integrity of as many species and ecosystems as best we can. This principle would have existing generations seriously reconsider the full range of practices involving the development and exploitation of the natural environment. There is, needless to say, much controversy around the precautionary principle. Some claim that it leads to perverse decision making,108 others that it leads to no decision making at all.109 According to Sunstein, proponents of the precautionary principle often neglect the probabilities of a harm occurring, focusing instead on its magnitude. He writes that they often neglect the wider system of consequences, tradeoffs, and countervailing risks. As Sunstein points out, employing the precautionary principle may result in the creation of new risks of equal or greater probability and magnitude. He thus argues that any ‘effort to be universally precautionary will be paralyzing, forbidding every imaginable step, including no step at all.’110 But it is important to point out that Sunstein’s criticism is not so much directed at the precautionary principle per se as at its employment. What he focuses on is its uncritical use in all cases of social and environmental risk. He in fact notes that when the principle is applied to low-probability catastrophes, or cases of very serious and irreversible risks, and when tradeoffs and countervailing risks are carefully examined, weighed, and balanced, it is ‘entirely unobjectionable.’111 Despite the controversy, there is no doubt that the essence of this principle is ethically salutary and serves to protect against serious risks to the conditions for freedom and autonomy of both existing and future generations. Public reason informed by the maxims of shifting the burden of proof, considering alternative options, and leaving intact ecological systems would seek to avoid or minimize serious risks to

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existing and future persons and to protect their health, societies, and environment. Running throughout this understanding of ‘precaution’ are strong currents towards the pluralization and democratization of risk assessments. In light of the uncertainty that can characterize such assessments – particularly long-term assessments – precautionary public reason would steer us towards the pluralization of decision-making processes to forge the most comprehensive assessments of possible future scenarios. Again, long-term impact assessments are notoriously variable since there is uncertainty built into each stage of analysis. It is not merely that more perspectives on developing worst-case scenarios and addressing modelling problems would result in a better assessment outcome. Rather, the more inclusive, informed, and uncoerced is deliberation in impact assessments, the better is the outcome. ‘Better’ is defined by the extent to which the knowledge basis of a decision is a robust synthesis of scientific expertise, common interpretation of cause-and-effect relationships, and shared understanding of important values, interests, and needs to be upheld by policy. Pluralizing decision-making processes so that assessors can deliberate among themselves to find areas of methodological and substantive agreement and disagreement and to explore reasons for persistent disagreement would be helpful in rendering the best decisions possible. Moreover, this understanding of ‘precaution’ would call for the democratization of decision-making processes in order to find justifiable ways of avoiding or reducing serious risks. Precautionary public reasoning recognizes that the average citizen – let alone the most vulnerable – does not typically have a say in the making of policy decisions that could detrimentally affect her. Precautionary public reason thus seeks to incorporate a broad range of actors into decision-making processes so that they can articulate specific conceptions of harms and ways of avoiding or reducing them. Where they conclude that an option is associated with unacceptable risks, they could seek continued research and development until an acceptable option is found. This understanding of ‘precaution’ is an expression of respect for the agency of both existing and future generations who have rightful claims on the justice and legitimacy of the policy that will bind or affect them. ‘Precaution,’ from this angle, expresses the idea that our decisions should avoid causing serious harms for the health of humans, their societies, and the environment, in the present and

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future, for the freedom and autonomy of existing and future generations. It suggests that it would be unjust and illegitimate for existing persons to impose social and environmental risks upon future generations, not only because they could be harmful to future generations, but more specifically because they could limit the ability of future persons to make decisions as to how best to realize their individual and collective ends. Precautionary public reasoning is founded on a recognition that basic social and environmental conditions need to obtain in order for humans, existing both in the present and the future, to be free and autonomous. Precautionary public reasoning could figure in utilitarian and deontological frameworks for policy analysis. But a deliberative framework is distinguished by a combination of two features related to precautionary reasoning. Firstly, precautionary reasoning is necessarily implicit in the deliberative ideal. If we accept the deliberative claim for inclusion, then we have to accept claims for precaution, sustainability, and conservation. How else would we bring future generations into policy deliberations if not by seeking to pass on to them the social and environmental conditions that enable them justifiably to formulate and implement their policies and to realize their individual and collective freedom and autonomy? Secondly, precautionary reasoning is justifiably specified within deliberative decision-making processes by policy actors themselves. In other words, the focus of precautionary reasoning and the content of claims for sustainability and conservation are justifiably specified in deliberative democratic processes. Reasoning is to be geared towards maintaining the basic conditions of deliberative democracy. But the precise way in which these conditions are maintained is itself to be a result of deliberative exchanges. The central challenges in the case of nuclear waste management in Canada centre on the status of future generations, understanding of safety and risk, conceptions of distributive burdens, requirements of inclusion and empowerment, and specifics of accountability and oversight. These challenges are set in the context of risk, uncertainty, and futurity. Neither the utilitarian nor the deontological theories considered here are quite up to the task of fully addressing them. Deliberative theories are the most promising, providing us with (1) a principle of moral standing that does not depend on identifying indeterminate aspects of moral personality or population sets; (2) an understanding of the good as individual and collective freedom and autonomy, speaking directly to the social and environmental conditions necessary

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for realizing and sustaining inclusive, informed, and uncoerced public decision making; and (3) principles of inclusion, equality, reciprocity, precaution, and provisionally justified agreement that serve in establishing a direct relationship between those who make public policy and those bound or affected by it. Aiming to uphold individual and collective agency in policy processes, these principles thus serve the ends of just and legitimate public policy. These features of deliberative democracy extend to both existing and future generations. Deliberative democracy distinguishes itself from utilitarianism and deontology by providing a framework in which actors can deliberate, in a way that is inclusive, informed, and uncoerced, on normative principles with direct reference to a given policy context. The ultimate aim of deliberative principles is to ensure that persons, whenever they may exist, are not unjustifiably bound or affected by policies and to ensure that, where they are, they can engage in deliberative processes to revise them. It may be helpful to conceptualize this framework in two tiers: the first provides policy makers a platform on which to seek initial provisional justification for their decisions, and the second provides a basis on which members of future generations can revise or reaffirm this justification. The first facilitates discursive practices towards a provisionally justified agreement among participants, all of whom employ reciprocal and precautionary reasoning. These exchanges enable the realization of the second, which involves recursive practices of future generations to amend policy that turns out to run against their fundamental values, interests, and needs. Critics might argue that ‘by then, it’s too late. The damage will have already been caused.’ The intention behind this framework is to ensure that detrimental impacts on existing and future generations are minimized and that irreversible damage is avoided. Whether this intention is fulfilled would involve numerous factors but, as a baseline, would involve the extent to which policy makers apply, and participants adhere to, this framework. The deliberative ideal provides us with principles to inform a framework for the justifiable determination of interests at stake in a policy area and resolution of conflicts about how justly and legitimately to uphold these interests. Moreover, it provides us with specific criteria with which to evaluate policy decision-making processes. With reference to policies associated with risk, uncertainty, and futurity, deliberative democracy boils down to principles of inclusion, equality, reciprocity, precaution, and provisionally justified agreement.

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Employing a deliberative framework for policy analysis would have us systematize these principles and seek more rigorously to make and evaluate decisions in the policy cycle with reference to them. Such frameworks have begun to take hold in areas of contemporary public policy, including nuclear waste management in Canada. In the next chapter, I explore the promises and pitfalls of applying this kind of framework to Canadian nuclear waste management.

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6 The Promises and Pitfalls of Deliberative Democratic Policy Analysis

In various areas of public policy (e.g., urban and environmental planning, natural resources management, energy generation, and health care), Western industrialized governments have sought to realize principles of deliberative democracy.1 These endeavours are particularly noteworthy in policy processes historically dominated by industry interests and scientific experts. As we’ve seen in the case of nuclear fuel waste management in Canada, a coalition of industry and government has tended to dominate decision making. Very recently, however, a more deliberative democratic consultation process, involving actors previously excluded, has played an important role in shaping in this policy. I suggested earlier that this more democratic approach was brought on by a discursive coalition of actors from environmental, religious, and aboriginal organizations, forged during the Seaborn panel’s environmental assessment of AECL’s concept for deep geological disposal. This coalition was able to influence and, subsequently, take advantage of certain institutional and financial changes in the implementation of nuclear waste management policy. While actors responsible for the formulation of the policy framework of 1996 and Nuclear Fuel Waste Act of 2002 (primarily senior bureaucrats at NRCan and executives at the nuclear corporations) were able to resist arguments of this increasingly strong coalition, actors responsible for the implementation of the policy (staff at the newly established NWMO) could not. Over the course of this environmental assessment, actors who would staff the NWMO had become sensitive to the demands for democracy and the importance of addressing these for the sake of the stability and effectiveness of the policy. With the institutional autonomy and financial

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resources of the new implementing organization, NWMO staff would respond to these pressures by launching a national consultation process informed by principles of deliberative democracy towards the end of identifying and implementing a safe, environmentally sound, and publicly acceptable waste management system. In this final chapter, I examine more closely this consultation process in order to get a better sense of the possibilities as well as limitations of applying a deliberative democratic framework to a real-life policy context. Specifically, I apply a deliberative democratic framework in an evaluation of the NWMO’s most important consultative dialogues. I argue that, despite notable designs, these dialogues fall short. Nonetheless, this evaluation shows us that deliberative democratic decision-making processes can contribute to the justice and legitimacy of policies by revealing underlying issues, identifying areas of agreement and disagreement, and highlighting prospects for a justifiable resolution of conflicts. Moreover, this evaluation elucidates the relative importance of individual actors over coalitions and institutions. Even granted a strong pro-deliberative democracy coalition and favourable institutional context, realizing deliberative democracy in policy processes is fundamentally contingent on the will of actors. Unless actors from both sides (but from the dominant, in particular) are willing to adhere to principles of deliberative democracy, they are likely to maintain their entrenched positions. Where dominant actors are not willing to adhere to these principles, they are thus likely to perpetuate pre-existing power structures. Realizing deliberative democratic policy processes is both desirable and possible, under certain institutionalized conditions and given adequate funding, but their success is ultimately limited by the will of actors – especially dominant ones. The NWMO’s National Consultation Process Evaluated As we saw earlier, 2002 brought a surprising democratization of the implementation of nuclear waste management policy. In the fall of that year, the newly established NWMO launched its national consultation process that would lead to a recommendation to the federal government on a nuclear waste management plan. In June 2007, the federal government officially accepted the NWMO’s recommendation for adaptive phased management. This approach is essentially an amalgam of on-site storage, centralized storage, and deep geological

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disposal. In principle, it provides flexibility in the construction and implementation of the waste management system by incorporating a step-by-step decision-making process, ongoing monitoring, and retrievability. The consultation process comprised more than twenty sets of dialogues, most of which were organized by independent firms or organizations specializing in public consultation and citizen engagement. These dialogues aimed to incorporate the values, interests, and principles held by randomly selected Canadians, experts in various aspects of nuclear waste management, and individuals, organizations, and aboriginal nations with a publicly articulated interest in nuclear waste management policy.2 The three-year process was designed iteratively over four phases, during each of which the NWMO focused dialogues on a key decision. This process may have been the most serious effort to realize principles of deliberative democracy in public policy decision making in Canada. But how serious? By evaluating its most important dialogues with reference to the framework sketched in the previous chapter, we get a clearer picture of the successes and failures of deliberative democracy in this area. Again, the central components of this framework are inclusion, equality, reciprocity, precaution, and agreement. Inclusion The NWMO began its consultation process by recognizing that all citizens are stakeholders in this policy but that not all citizens can or want to participate in its formulation and implementation.3 In an attempt to include a very broad spectrum of citizens, the NWMO designed its process to comprise a range of dialogues. For example, it commissioned the Canadian Policy Research Networks (CPRN) to facilitate a series of exchanges among a statistically representative sample of the Canadian adult populace.4 Taking place across the country, these dialogues brought together a total of 462 individuals with views on nuclear energy generally consistent with those of the broader adult population. In addition, the NWMO commissioned round tables for specific interests. Thus, it commissioned DPRA Canada to hold dialogues with a variety of individuals and organizations with a public record of interest in Canada’s long-term nuclear waste management.5 To ensure that participants reflected the array of interests at stake in this area, it identified participants in terms of spe-

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cific categories (i.e., local/municipal, education/academic, cultural/ faith, industry/economic, professional societies, labour, consumer, environment, health, youth, and emergency preparedness). A year later, Hardy Stevenson reconvened many of these stakeholders.6 Where they were unable to include the same stakeholders, they employed DPRA’s template to ensure the general reflectiveness of the group. In the summer of 2005, Stratos also employed this template for its stakeholder dialogues.7 The NWMO also organized numerous roundtables to solicit sustained reflections from different epistemological perspectives. In September 2003, it appointed an ethics round table including individuals from diverse professional and academic backgrounds in ethics, morality, and public life.8 The round table included not only academics in the disciplines of philosophy, medicine, business, and political science, but also public figures with perspectives informed by aboriginal traditional knowledge and Christianity. The NWMO also commissioned a workshop with experts in the technical aspects of nuclear waste management,9 another with experts from business, industry, nongovernmental organizations, and the public sector,10 and another with academics, aboriginals, environmentalists, nuclear workers, and members of religious organizations.11 The NWMO also collaborated with aboriginal organizations. In light of its fiduciary responsibilities, NRCan entered into an agreement with national aboriginal organizations to carry out dialogues on issues related to nuclear waste management. The NWMO then made collaborative arrangements with the Assembly of First Nations (AFN), the Congress of Aboriginal Peoples (CAP), the Inuit Tapirrit Kanatami (ITK), the Métis National Council, the Native Women’s Association of Canada (NWAC), and the Pauktuutit Inuit Women’s Association. The objectives of these dialogues included improving the capacity of aboriginal peoples to participate in nuclear waste management policy and building more effective working relationships between national aboriginal organizations and the NWMO.12 They also included better understanding aboriginal perspectives on the NWMO’s study of technical options and ensuring that aboriginal perspectives contribute to the development of the NWMO’s recommendation.13 Aside from dialogues among invited participants, the NWMO commissioned DPRA Canada to organize public information and discussion sessions in locations across Canada.14 The NWMO held more than

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a hundred of these sessions, involving approximately nine hundred participants in thirty-four locations throughout Canada. To encourage community participation, the NWMO advertised these sessions in local papers and on local radio. The NWMO also contacted mayors, as well as provincial MPPs/MLAs and federal MPs representing these communities. Each session was followed by a facilitated discussion, in which participants could express their views. These information sessions served primarily an educative function, providing opportunities for the general public to learn about the NWMO’s work. Also serving primarily a public educative function were several electronic dialogues that the NWMO commissioned.15 Facilitated by Ann Dale, Royal Roads University conducted four Internet-based dialogues. These included dialogues with experts in nuclear waste management, youth groups from across the country, and members of the general public. While a number of both participants and observers believed that the process was, on the whole, inclusive of actors, interests, and perspectives,16 others felt that it was not as inclusive as it should have been. For example, a nuclear industry spokesperson felt that, because many of the dialogues were by invitation only, they excluded some individuals and organizations.17 Non-governmental organizations18 and independent observers echoed this position.19 Perhaps the most serious challenge to inclusiveness was the narrow focus of the process. Mary Lou Harley, who has a long history in this policy area representing the United Church of Canada, writes that topics concerning the impacts of different waste management options for the future of nuclear energy were excluded ‘despite the fact that they were repeatedly introduced by different participants at different exercises.’20 Topics concerning whether options would contribute to either the promotion or phasing out of nuclear energy were excluded, despite their importance. This concern was raised consistently by participants in and commentators on the NWMO’s consultation process.21 Equality The organizers of the NWMO’s consultation process generally attempted to realize principles of procedural and informational equality.22 As noted above, the NWMO commissioned firms and organizations specializing in public consultations, citizen engagement, and

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participatory decision making. The NWMO instructed these firms to run dialogues in a way that would allow for the voicing of perspectives on ‘a level playing field.’ Many of the dialogues were explicitly premised on principles of respect for the equality of each other and of each other’s views.23 Moreover, dialogue participants had access to the wealth of well-balanced information posted on the NWMO’s website. Where they could not access the Internet, they could request hard copies. In addition, the NWMO brought in specialists to provide overviews of the technical, social, and ethical issues characterizing nuclear waste management. The CPRN went so far as to ask Blair Seaborn to review the information materials that it developed for its dialogues.24 But the NWMO had limited success in achieving procedural and epistemological equality. On the one hand, the CPRN reports that 91 per cent of their participants agreed there was sufficient opportunity to contribute and participate.25 Harley, who participated in a number of dialogues, states that ‘good facilitators countered the problem [of inequalities among participants] by making a point of valuing the input of each person ...; they made an effort to draw back into discussion anyone who seemed intimidated and together they generally kept the discussion moving over the bumps.’26 Dave Hardy, principal at Hardy Stevenson and Associates, who has worked for more than two decades on the social and ethical dimensions of Canadian nuclear waste management, also speaks of the efforts of facilitators to ensure that participants had an equal voice in the dialogues.27 On the other hand, there is evidence to suggest that the perspectives of participants were not weighted equally. There are numerous accounts of how views – especially views critical of nuclear energy and nuclear waste management policy in Canada – were dismissed or excluded from the NWMO’s assessment framework and recommendation.28 With respect to equal access to balanced information, the assessment is equally mixed. For example, the CPRN found that 85 per cent of its participants agreed that its workbook was clear and contained relevant and useful information.29 According to Hardy, the information his firm used in its dialogues was well balanced.30 Thomas Berger, commenting on the process as a whole, claims that the information materials used were generally well-balanced.31 A member of the NWMO’s advisory council also commented on the quality of materials used in the process.32 Nonetheless, there were criticisms. Harley notes that ‘at most dialogues, the presentation of the hazards of the waste

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was minimal and sometimes misrepresented.’33 Generally, it is argued, the NWMO presented a fairly favourable take on its work, nuclear waste management, and the nuclear energy industry. Anna Stanley, Richard Kuhn, and Brenda Murphy echo these more critical views on the NWMO’s bias in information presentations.34 Aboriginal nations participating in the NWMO’s consultation process were particularly critical. Although national and regional aboriginal organizations designed and ran their own dialogues, they expressly noted that these dialogues did not constitute formal aboriginal consultations.35 In the dialogues, aboriginals nations were not provided with the opportunity of engaging with the Canadian government, let alone engaging on equal footing. Nor were they given sufficient time and funding to engage with the NWMO as equals. Aboriginal participants also noted that the information on the website was largely inaccessible to them both logistically and linguistically.36 Many aboriginal peoples either do not have access to the Internet or do not speak English (the vast majority of information materials were published only in English). In these respects, the NWMO’s process did not treat aboriginals as equal participants. .

Reciprocity On the whole, the NWMO strove to realize a kind of deliberative reasoning or reciprocity in its consultation process. Numerous dialogues were explicitly premised on principles of ‘meaningful participation,’ speaking to this kind of reasoning or reciprocity.37 The deliberative democratic aims of the CPRN’s dialogues were especially notable.38 The CPRN designed its dialogues to enable participants to work through initial opinions towards broader and deeper understandings of nuclear waste management options. The initial stage of each dialogue session involved a pre-deliberation questionnaire to rate levels of agreement with certain waste management scenarios. Participants then reviewed with facilitators the rules of dialogue, which were distinguished from those of debate. They then formed smaller, ‘break-out’ groups. In these groups, participants deliberated among themselves on the characteristics that they would most want to see in a waste management system. Participants then reconvened in plenary, where each group reported on the results of its discussion. Supported by facilitators, the plenary deliberated to identify the similarities and differences among the break-

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out groups. The same process was again initiated, with the groups expanding on their earlier thoughts in terms of the trade-offs they would be prepared to make in the implementation of their desired option. The plenary then reconvened to identify overarching commonalities and develop a collective scenario. At the end of the day, facilitators asked participants to rate their level of agreement with their collectively developed scenario. While reciprocity was sought in the NWMO’s consultation, it was neither fully nor consistently achieved. There are accounts that participants attempted to reason with each other and sought to achieve mutual understanding.39 There are other accounts that participants maintained their historically entrenched positions and, from there, launched boisterous attacks on opposing positions.40 According to Len Simpson, mayor of Pinawa, Manitoba, which is home to AECL’s research laboratories, there were reciprocal exchanges among participants who sought it but not among those who did not.41 Even if reciprocity was achieved, it is unclear as to its significance. As Hardy notes, although their views may have changed over the course of their deliberations, participants may have walked away with their fundamental positions unchanged.42 Nonetheless, the fuller significance of reciprocity is related to the exercise of precautionary reasoning and achievement of agreement in the NWMO’s consultation process. Precaution Throughout the consultation process, participants spoke about our responsibilities to future generations and especially about our responsibilities not to harm or burden them.43 Participants spoke generally about the importance of taking precautions vis à vis the interests of future generations in their social, environmental, and economic wellbeing. However, there was no agreement among participants on the specific content of these responsibilities. Some participants argued that responsibilities include guaranteeing the safety of current waste storage systems, understanding and assessing the full range of waste management options, and ensuring the funds exist to accommodate any future long-term plan. As stated by the NWMO, for these participants, ‘our responsibility is to ensure that the conditions are in place to accommodate any future decision without placing future generations at risk from a safety or a financial perspective.’44 These participants

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articulated responsibilities to future generations in terms of the continued on-site or centralized storage of Canada’s existing nuclear waste. For other participants, our responsibilities to future generations include drawing from our knowledge and expertise and making a final decision to manage and dispose of our nuclear waste. From this perspective, ‘our responsibility is to ensure that we resolve this matter and not leave it as a burden for future generations.’45 There was, however, general agreement among dialogue participants on the importance of adaptability in either a waste storage or disposal system. Participants generally agreed on the importance of ensuring that Canada’s long-term waste management system be adaptable to advances in information and technologies and, of course, developments in energy needs.46 These views are reflected in the NWMO’s proposed adaptive phased management approach. Moreover, this phased management approach involves a certain degree of democratic decision making that extends to future generations. These processes are intended to facilitate incremental decision making that enables existing generations to start developing a waste management system while also enabling future generations either to continue or to shift the direction of this system. Adaptive phased management is intended to empower and enfranchise future generations in the development and implementation of nuclear waste management policy. However, as critics argue, not being based on a broader discussion of the implications of nuclear energy and waste, it sanctions certain irreversible decisions that will bind future generations.47 In this sense, the consultation process involved only a limited precautionary reasoning and gave rise to only a limited precautionary aspect in the NWMO’s proposed waste management system. Nonetheless, the proposed system garnered a fair degree of agreement. Agreement Given the history of polarized views on nuclear waste management, the NWMO did not set out to find agreement. Instead, it sought to identify common ground and range of views among participants in its consultation process. Nonetheless, a number of dialogues yielded significant measures of agreement. There was general agreement, for example, among participants in the workshop on the technical aspects of nuclear fuel waste management. They generally agreed on the

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inevitability of on-site storage for the next fifty years even if government were to opt for centralized permanent disposal.48 Participants also agreed that storage and disposal are not necessarily distinct but rather stages of an approach to permanent disposal allowing for flexibility and retrievability.49 Apart from general agreement among technical experts participating in the NWMO’s consultation process, there were also measures of agreement among participants in the CPRN’s dialogues. These participants generally agreed that safety for both existing and future generations is paramount and that it is the responsibility of existing generations to ensure that safety is attained. Participants also agreed on the merits of an adaptable and flexible management approach that would incorporate new knowledge and technologies. In addition, they agreed on the importance of accountability and transparency. They argued that there ‘must be real engagement of experts, citizens, communities, and other stakeholders before any decision is made.’50 These shared perspectives were reinforced by post-dialogue questionnaires, with 77 per cent of participants agreeing to a waste management scenario that incorporated them. Measures of agreement in these areas also emerged in national and regional stakeholders’ dialogues. In particular, there was agreement that used nuclear fuel represents a significant risk to human health and natural environment, and that it needs to be safely managed for a very long period.51 There was also agreement on the importance of a ‘neutral third party to oversee the development and implementation of the management approach.’52 Participants generally agreed, moreover, that the chosen waste management option must be socially acceptable and that there should be opportunities for any interested Canadian to participate in its selection and implementation.53 After the release of the NWMO’s Draft Study Report, which contained its proposed adaptive phased management system, the NWMO commissioned a nation-wide telephone survey of twenty-six hundred Canadians. This survey found very high measures of support for the proposal. Indeed, 95 per cent of respondents agreed that any location chosen for the centralized facility must meet scientific and technical criteria, 92 per cent that the system must be adaptable to new developments in science and technology, 91 per cent that decisions about the site must be made in collaboration with the community that will be directly affected by it, 90 per cent that the site must meet social and

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ethical requirements, 90 per cent that we must provide future generations with genuine choice in how the approach is implemented, and 87 per cent that it is important to involve the public at each step of the implementation process.54 Generally, observers expressed support for the NWMO’s consultation process and its recommendation, claiming that the organization captured and addressed primary concerns articulated by participants.55 According to Stratos, a ‘large majority’ of its participants expressed ‘comfort with the recommendation.’56 Stratos claims that participants were ‘nearly universal’ in their support for continuous monitoring over extended periods of time.57 Participants also supported sustained citizen engagement, public education, and community decision making.58 They supported the NWMO’s recommendation that any deep geological repository be ‘sited only in a willing host community.’59 Despite these high levels of agreement, the NWMO’s consultation process highlights very deep-seated divisions among stakeholders. In particular, it reveals serious divisions about the place of nuclear within Canada’s energy policy.60 Many participants argued that the existing used fuel and the used fuel projected over the remaining lifespan of Canada’s reactors define, or should define, the extent of the waste management problem. Others argued that the existing and projected waste represent only the known volume requiring management. The former position called for the end of nuclear generation; the latter implied the continuation of nuclear generation. Between these two strongly opposed views there was no agreement and no prospect for agreement. Moreover, there was vociferous opposition to the NWMO’s recommendation. According to Dave Martin and Brennain Lloyd of Nuclear Waste Watch, the recommendation represents ‘the worst of all worlds.’61 Most of the participants in a round table organized by the Trudeau Foundation and Sierra Club of Canada did not support it.62 Similarly, members of Nuclear Waste Watch expressed a lack of support,63 while members of the United Church of Canada identified a number of cautions and articulated a number of concerns.64 These actors argued instead for on-site storage or centralized storage pending a public debate on the role of nuclear energy. From their perspective, important concerns related to the future of nuclear in Canadian energy policy were not included in the NWMO’s recommenda-

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tion. Indeed, according to Stanley, Kuhn, and Murphy, the NWMO was unjustifiably selective of views expressed in the consultation process. As they write: Without clear justification by the NWMO on how they sifted through the vast amount of material they collected over the past two and a half years, and by what criteria they filtered that material, the role of the public in the process may be questioned, particularly by those who did not fully endorse the NWMO’s conclusions.65

Aboriginal nations and organizations were particularly critical of the NWMO’s consultation process and its recommendation. The Congress of Aboriginal Peoples notes that the ‘Aboriginal concerns, priorities, and values’ in the NWMO’s recommendation are merely ‘interpretations.’66 As a staff member of the Assembly of First Nations notes, the NWMO drew from its dialogues with aboriginal peoples only what supports its recommendation.67 Moreover, it is argued, it failed to understand much of this information.68 For example, the NWMO misconstrued the precept of thinking ‘seven generations hence,’ which if properly understood would rule out the nuclear generation of electricity.69 Generally, the Inuit, Métis, and First Nations argue that they did not participate in real consultation, that their aboriginal and treaty rights were not upheld, and that their cultures and languages were not respected in either the NWMO’s process or its recommendation.70 Thus, from the perspectives of aboriginal peoples and of environmental organizations and independent observers, the NWMO’s process was problematic and its proposal unacceptable. Lessons from Canadian Nuclear Waste Management While the NWMO’s consultation process was notable for its deliberative democratic designs, when systematically evaluated against the criteria of inclusion, equality, reciprocity, precaution, and agreement it falls short. Although the dialogues were designed to include representative samples of the Canadian adult population, individuals and organizations with a history of environmental activism in this policy area, representatives of the nuclear energy industry, specialists in the technical, social, and ethical dimensions of nuclear waste management, and members of local communities and aboriginal nations, they

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were at times exclusive. Ostensibly treating all citizens as stakeholders, by establishing in advance who would participate and what they would discuss, in fact the NWMO effectively excluded certain parties and perspectives. The NWMO could have addressed concerns related to the narrow scope of its mandate, which were raised consistently by participants in and observers of the process, by pressing for an amendment of the Nuclear Fuel Waste Act. Based on the early findings of its consultation, it could have validly argued that a socially acceptable waste management option requires more than a narrowly defined three-year consultation process – that it requires a broader public discussion of nuclear energy policy. The evaluation also reveals that the NWMO made certain attempts to realize procedural equality. It commissioned firms specializing in public consultation and citizen engagement in an endeavour to grant the consultation process a degree of independence and provide assurance that dialogues would take place according to principles of procedural equality. However, there are mixed reports concerning the equal consideration and integration of views in the NWMO’s recommendation. The NWMO also sought a degree of epistemological equality by commissioning independent scholars to write background papers that would be posted on its website. But again its success was limited. These materials were not always accessible. Aboriginal nations and organizations were especially critical, citing a lack of time for translation and analysis. Other participants, moreover, felt that materials presented by the NWMO were not balanced. In addition, while participants generally felt that the dialogues were even-handed and well reasoned, some noted a lingering animosity between certain actors and persistent polarization between their respective perspectives. Although participants expressed responsibilities to future generations in terms of taking certain precautions in either the storage or disposal of nuclear waste, these views were not fully incorporated into the NWMO’s recommendation for adaptive phased management. Finally, while there were measures of agreement on the importance of safety, long-term management, and democratic engagement, there were persistent disagreements between anti-nuclear activists and pro-nuclear industry representatives on the role of nuclear in future energy policy and, consequently, on the acceptability of any of the proposed waste management systems. The results of this evaluation have implications for the development and application of deliberative democracy in policy areas of risk,

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uncertainty, and futurity. The NWMO’s consultation process demonstrates how to involve the perspectives of the general public as well as those of more specialized stakeholders, experts, aboriginal peoples, and local communities. A long-standing challenge to the deliberative ideal has been precisely how to involve actors with different interest affiliations, professional backgrounds, and life experiences that bear, or that ought to bear, on a public decision. The process demonstrates how to involve these actors by employing a range of forums, some including representatives of the general public, others including individuals broadly reflective of different interest areas and epistemological perspectives, and others still including members of a single interest or expertise, all organized in an iterative process extended over a period of time. The NWMO’s process also suggests that it is the combination of the range of sequential dialogues and range of dialogue topics that creates conditions of inclusion. Topics persisting over a long history of a given policy area should be up for deliberation. The contentious nature of topics is not a reason to exclude them, but rather to include them and to deliberate on them towards a provisionally justified agreement. The NWMO’s process, moreover, provides insight into the prospects and limitations of using a website as a source of information. It is important to keep in mind that the Internet may be exclusionary. Many individuals, especially those who have been historically marginalized, either do not have access to or cannot make use of the Internet. The process also sheds light on the importance of materials developed and written by independent scholars or practitioners and reviewed by peers, especially in areas as ideologically and politically charged as nuclear energy and nuclear waste management. This material needs to be culturally and linguistically appropriate. The process also lends insight into ways of achieving degrees of procedural equality by employing independent parties specializing in deliberation and mediation. Achieving procedural equality in deliberation has been another long-standing challenge to deliberative democracy, given the psychological and socio-economic idiosyncrasies of participants may inhibit their ability to participate as equals. Professional mediators can do much to address these systemic inequalities and level the playing field. Indeed, professional mediators may be crucial in realizing reciprocal and precautionary reasoning, reminding deliberators about the importance of putting forth reasons that are, or could be, generally acceptable to others, existing and future. The

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process also suggests that unaffiliated participants are generally more willing and better able to reason towards a shared interest and seek agreement on that basis. Participants with a history of activism or with direct stakes in a given policy area may have more difficultly reasoning towards common interests and seeking agreement. They may require more time to deliberate collectively on core values and specific interests that divide them and on ways of addressing these , and closer, more sustained, mediation by specialists in public deliberation and citizen engagement. Although the NWMO’s process did not achieve agreement on key aspects of the recommendation, it enabled the NWMO to identify persistent concerns and conflicts for future consideration. In doing so, it highlighted the need for future public deliberation in these areas. This finding suggests that, while deliberative democratic dialogues may not always result in agreement, they play other very important roles. In this case, we see that a strength of deliberative democratic processes is their tendency to reveal the magnitude of risk, extent of uncertainty, and nature of complexities characterizing a range of nuclear waste management issues. These processes can highlight areas of agreement and disagreement, identify issues in need of more dialogue, and reveal prospects for, at least, a provisionally justified resolution. They can highlight the importance of a more discursive approach to decision making, where future generations can revisit provisionally justified resolutions about the policies that bind or affect them. However, this evaluation suggests that the promise of deliberative democratic decision making is ultimately contingent on the will of actors from both coalitions. A pro-deliberative democracy coalition, institutional autonomy, and financial resources, while contributing to a certain deliberative democratic turn, are not sufficient to realize deliberative democratic policy processes. Actors from both coalitions have to be committed to achieving deliberative democratic principles and realizing deliberative democracy. This is especially true of actors from the dominant coalition. The NWMO was, at times, dismissive of important perspectives, excluding them from both its consultation process and recommendation. In this way, it upheld the pre-existing power structure between the dominant and critical coalitions and served to promote the interests of the former. Although breaking away from the dominant coalition in introducing principles of deliberative democracy to this policy area, the NWMO, by not ensuring that its

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consultation process was fully inclusive and respectful of the diversity of pertinent views, upheld industry interests in its recommendation for adaptive phased management. We thus see in this case that the ultimate success of deliberative democratic policy processes is determined by actors themselves, and especially actors in positions of institutional and financial dominance. Conclusion I have treated Canadian nuclear waste management as representative of challenges that proponents of ethical policy analysis – and, in particular, of deliberative policy analysis – will likely confront in other areas associated with risk, uncertainty, and futurity. In this case, we see an array of very complex technical, social, and ethical problems, contextualized by great uncertainty related to the performance of nuclear waste management systems. We also see uncertainty related to the evolution of human beings, their societies, and the natural environment over the course of tens, if not hundreds, of thousands of years. Moreover, we see very high-magnitude risks, involving possible acute, cumulative, and stochastic hazards for humans, non-human species, and ecosystems, existing and future. All of this gives rise to vociferous conflict among participants in this important policy area. Nuclear waste management shares these characteristics with numerous other cases, including large-scale energy generation, natural resources management, and genomics and proteomics research and commercialization, all of which raise very challenging ethical questions. As we saw in earlier chapters, an interpretive study of Canadian nuclear waste management policy highlights two coalitions of actors voicing competing perspectives on safety, future generations, burdens and benefits, inclusion and empowerment, and transparency and oversight. These debates reveal a need for a framework for ethical policy analysis equipped with certain conceptual resources. Those resources include a coherent justification for the moral standing of both existing and future persons. Another essential resource is a conception of the good. Ideally, this conception speaks coherently to the values and interests that should be embodied in public decisions for the sake of existing and future generations. Such a conception would help in understanding safety and risk by enabling us to make justifiable judgments about the ethical significance of the values and interests in the safety assessment of a policy option. It would also instruct us in identifying obligations of justice

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to both existing and future generations by providing a sense of the moral significance of values and interests more broadly in the decisions throughout a policy cycle. Finally, an adequate framework for ethical policy analysis contains a conception of the legitimacy-conferring relationship between those who make policy and those bound or affected by it. This case forces us to rethink legitimating relationships in light of scientific and ethical complexities, competing and entrenched interests, and far-reaching consequences for existing and future generations, all of which make realizing the reasonable acceptance of public policy even more challenging. The basic argument of this book is that deliberative policy analysis and deliberative policy processes provide us with the resources necessary to address important ethical issues in cases such as nuclear waste management. Unlike utilitarianism and deontology, deliberative democracy yields ethical principles with which to justifiably resolve these issues. Deliberative principles constitute a framework in which policy actors can fairly work through their different perspectives on the values, interests, and needs at stake. Where policy makers seek better to define these values, interests, and needs and to specify how to uphold or distribute them, they can employ this framework to render justified, or provisionally justified, decisions. In either case, these decisions will be more justifiable than those rendered according to a utilitarian or deontological framework. My evaluative interpretation of this case reveals that applying principles of deliberative democracy is not only worthy but also possible. However, it also reveals that fulfilling these principles is ultimately contingent on the will of dominant actors. Of course, the problem of will and dominance confronts all endeavours to realize ethical decision making, and especially ethical decision making in a public context. If this problem can be addressed, deliberative democracy has resources far beyond utilitarianism and deontology with which to yield justifiable and determinate policy prescriptions. In the context of many of today’s policies – policies concerning genomic applications, biotechnology, nanotechnology, large-scale generation of electricity, and the management of hazardous waste, all of which could have serious, even catastrophic, social and environmental hazards for the present and future – these kinds of prescriptions are ethically imperative. In light of risk, uncertainty, and futurity, our policies must be publicly and ethically justifiable. Deliberative democracy holds the most promise for the realization of this end.

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Notes

1 Introduction 1 I understand policy analysis as the activity of examining, interpreting, and evaluating decisions made in the policy cycle, i.e., policy formulation, implementation, and evaluation. For a discussion of policy cycles, see Michael Howlett and M. Ramesh, Studying Public Policy: Policy Cycles and Policy Subsystems (Toronto: Oxford University Press, 1996). My perspective on policy analysis calls for the examination, interpretation, and evaluation of both the substance and processes of policy decision making. This is a particularly broad understanding but nonetheless well grounded in the contemporary literature on policy analysis. See Bruce Jennings, ‘Interpretive Social Science and Policy Analysis,’ Ethics, the Social Sciences, and Policy Analysis, ed. Daniel Callahan and Bruce Jennings (New York: Hastings Center, 1983), 3–35. See also Douglas Torgerson, ‘Power and Insight in Policy Discourse: Post-Positivism and Problem Definition,’ Policy Studies in Canada: The State of the Art, ed. Laurent Dobuzinskis, Michael Howlett, and David Laycock (Toronto: University of Toronto Press, 1996), 266–98 and idem; ‘Between Knowledge and Politics: Three Faces of Policy Analysis,’ Policy Sciences 19, no. 1 (1986): 33–59. For a more narrow conception of policy analysis, focusing on assessing decisions with reference to ideals embodied in cost-benefit analysis, see Michael Munger, Analyzing Policy: Choice Conflicts and Practices (New York: W.W. Norton, 2000); Guy Peters, American Public Policy: Promise and Performance, 5th ed. (New York: Chatham House, 1999), chapter 15; and David Weimer and Aidan Vining, Policy Analysis: Concepts and Practice, 3rd ed. (Englewood Cliffs, NJ: Prentice Hall, 1999). For a simplified typology of approaches to policy analysis see Leslie Pal, Beyond Policy Analysis:

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Public Issue Management in Turbulent Times, 2nd ed. (Scarborough, ON: Nelson, 2001). 2 ‘Moral equality,’ throughout this book, refers to the axiom that humans are of equal and absolute moral worth. This axiom is perhaps most famously articulated by Emmanuel Kant. As he writes, ‘Now I say that the human being and in general every rational being exists as an end in itself, not merely as a means to be used by this or that will at its discretion; instead he must in all his actions, whether directed to himself or also to other rational beings, always be regarded at the same time as an end.’ See Groundwork of the Metaphysics of Morals, ed. Mary Gregor (Cambridge: Cambridge University Press, 1998), 37. Moral freedom, in this volume, refers to exercising one’s ability for self-determination – i.e., one’s ability to make and follow independently one’s conception of the good. Closely related, ‘autonomy’ refers to realizing one’s capacity to self-master or, more specifically, master one’s desires or passions and attain rational goals. See Isaiah Berlin, ‘Two Concepts of Liberty,’ Liberalism and Its Critics, ed. Michael J. Sandel (New York: New York University Press, 1984), 15–36. See also John Stuart Mill, ‘On Liberty,’ On Liberty and Other Essays, ed. John Gray (Oxford: Oxford University Press, 1991), 5–128. 3 The Canadian nuclear community recognizes two classifications of radioactive waste: high and low level. High-level radioactive wastes consist of the used fuel from reactors, while low-level wastes include medical and industrial radioisotopes and items contaminated at nuclear reactor sites. 2 Ethical Policy Analysis and Its Importance 1 For a better understanding of risk and risk controversies, see Sally L. Benjamin and David A. Belluck, eds., A Practical Guide to Understanding, Managing, and Reviewing Environmental Risk Assessment Reports (Boca Raton, FL: CRC Lewis, 2001); Timothy McDaniels and Mitchell J. Small, eds., Risk Analysis and Society: An Interdisciplinary Characterization of the Field (Cambridge: Cambridge University Press, 2004); and Michael Newman and Carl Strojan, eds., Risk Assessment: Logic and Measurement (Chelsea, MI: Ann Arbor Press, 1998). See also Ulrich Beck, Risk Society: Towards a New Modernity, trans. Mark Ritter (London: Sage, 2000); C. Richard Cothern, ed., Handbook for Environmental Risk Decision Making: Values, Perceptions, and Ethics (Boca Raton, FL: CRC Lewis, 1996); Daniel J. Fiorino, ‘Citizen Participation and Environmental Risk: A Survey of Institutional Mechanisms,’ Science, Technology, and Human Values 15 (Spring

Notes to pages 8–9

2

3

4 5 6 7 8

9

10 11

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1990): 226–43; Kathryn Harrison and George Hoberg, Risk, Science, and Politics: Regulating Toxic Substances in Canada and the United States (Montreal: McGill-Queen’s University Press, 1994); William Leiss, In the Chamber of Risks: Understanding Risk Controversies (Montreal: McGillQueen’s University Press, 2001); Richard A. Posner, Catastrophe: Risk and Response (Oxford: Oxford University Press, 2004); Cass R. Sunstein, Risk and Reason: Safety, Law, and the Environment (Cambridge: Cambridge University Press, 2002); Leslie Paul Thiele, ‘Limiting Risks: Environmental Ethics as a Policy Primer,’ Policy Studies Journal 28, no. 3 (2000): 540–57; Sylvia N. Tesh, ‘Citizen Experts in Environmental Risk,’ Policy Sciences 32, no. 1 (1999): 39–58; and Marvin Waterstone, ed., Risk and Society: The Interaction of Science, Technology, and Public Policy (Dordrecht: Kluwer, 1992). For discussions of scientific uncertainty, see Silvio Funtowicz and Jerome Ravetz, Uncertainty and Quality in Science for Policy (Dordrecht: Kluwer, 1990); John Lemons, ed., Scientific Uncertainty and Environmental Problem Solving (Cambridge, MA: Blackwell Science, 1996); and Brian Wynne, ‘Technology, Risk, and Participation: On the Social Treatment of Uncertainty,’ Society, Technology, and Risk Assessment, ed. J. Conrad (London: Academic Press, 1980). Shrader-Frechette, ‘Methodological Rules for Four Classes of Scientific Uncertainty,’ Scientific Uncertainty and Environmental Problem Solving, ed. John Lemons (Cambridge, MA: Blackwell Science, 1996), 12–39. See also Shrader-Frechette, Risk and Uncertainty in Nuclear Waste Management, NWMO Background Papers (Toronto: NWMO, 2003). Shrader-Frechette, ‘Methodological Rules,’ 13–15. Ibid., 16–20. Ibid., 21–3. Ibid., 23–34. Michael Jacobs writes that ‘futurity’ refers to an ‘explicit concern about the impacts of current activities on future generations’ (26). See his ‘Sustainable Development as a Contested Concept,’ Fairness and Futurity: Essays on Environmental Sustainability and Social Justice, ed. Andrew Dobson (Oxford: Oxford University Press, 1999), 21–45. Gregory Kavka, ‘The Futurity Problem,’ Obligations to Future Generations, ed. Richard Sikora and Brian Barry (Philadelphia: Temple University Press, 1978), 180–203. Ibid., 187. See, for example, Bruce Edward Auerbach, Unto the Thousandth Generation: Conceptualizing Intergenerational Justice (New York: Peter Lang, 1995);

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Notes to pages 10–11 Andrew Dobson, ed., Fairness and Futurity: Essays on Environmental Sustainability and Social Justice (Oxford: Oxford University Press, 1999); Avner de-Shalit, Why Posterity Matters: Environmental Policies and Future Generations (London: Routledge, 1995); Ernest Partridge, ed., Responsibilities to Future Generations: Environmental Ethics (Buffalo, NY: Prometheus Books, 1981); and Richard Sikora and Brian Barry, eds., Obligations to Future Generations (Philadelphia: Temple University Press, 1978). See Derek Parfit, Reasons and Persons (Oxford: Clarendon Press, 1983), and Parfit, ‘Energy Policy and the Further Future: The Social Discount Rate,’ Energy and the Future, ed. Douglas MacLean and Peter G. Brown (Totowa, NJ: Rowman and Littlefield, 1983), 31–7. See Parfit, Reasons and Persons, chap. 16. The term ‘intergenerational’ is more commonly used in the literature on obligations and responsibilities to members of future generations. It refers to what we owe to members of existing and future generations. Theoretically, it also refers to what we owe past generations, although writings on these kinds of obligations constitute only a small part of the literature. See Bob Brecher, ‘Our Obligation to the Dead,’ Journal of Applied Philosophy 19, no. 2 (2002): 109–19. I prefer the term ‘transgenerational.’ Transgenerational responsibilities or obligations convey a better sense of existing generations having responsibilities to or being morally bound to future generations. Moreover, the term better expresses the potentially great distances in time that can characterize obligations to future generations in certain policy areas. You might say that intergenerational ethics is a broader category, while transgenerational ethics is a more narrow reference to our responsibilities and obligations to future generations. See, for a related discussion, Conrad Brunk, Lawrence Haworth, and Brenda Lee, Value Assumptions in Risk Assessment: A Case Study of the Alachlor Controversy (Waterloo: Wilfrid Laurier University Press, 1991); Conrad Brunk, ‘Technological Risk and the Nuclear Safety Debate,’ paper presented at the Environmental Ethics Workshop, Institute for Research on Environment and Economy (Ottawa: University of Ottawa, 1–2 October 1992); Vincent Covello, ‘The Perception of Technological Risks: A Literature Review,’ Technological Forecasting and Social Change 23, no. 4 (1983): 285–97; Kristin Shrader-Frechette, Risk and Rationality: Philosophical Foundations for Populist Reforms (Berkeley: University of California Press, 1991); idem, ‘Value Judgments in Verifying and Validating Risk Assessment Models,’ Handbook for Environmental Risk Decision Making, 291–307; Paul Slovic, ‘Perceptions of Risk,’ Science 236, no. 4799 (1987): 280–5;

Notes to pages 11–14

16

17 18 19 20 21 22 23 24 25

26

27 28

29 30 31 32 33 34

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idem, ‘Perceived Risk, Trust, and Democracy,’ Risk Analysis 13, no. 6 (1993): 675–82; Sunstein, Risk and Reason; and Tesh, ‘Citizen Experts,’ 1999. For a concise overview of positivism, critiques of positivism, and postpositivism in policy analysis, see Peter deLeon, ‘Reinventing the Policy Sciences: Three Steps Back to the Future,’ Policy Sciences 27, no. 1 (1994): 77–95; Frank Fischer, ‘Beyond Empiricism: Policy Inquiry in Postpositivist Perspective,’ Policy Studies Journal 26, no. 1 (1998): 127–52; M.E. Hawkesworth, ‘Epistemology and Policy Analysis,’ Policy Studies Review Annual: Advances in Policy Studies since 1950 10, ed. William N. Dunn and Rita Mae Kelly (New Brunswick, NJ: Transaction, 1992), 295–329; and Torgerson, ‘Between Knowledge and Politics.’ See H. Martineau, The Positive Philosophy of Auguste Comte (London: Chapman, 1853). Hawkesworth, ‘Epistemology and Policy Analysis.’ Ibid., 297. Ibid., 297–8. See Karl Popper, The Logic of Scientific Discovery (New York: Basic Books, 1959). Hawkesworth, ‘Epistemology and Policy Analysis,’ 300. Ibid., 304. Frank Fischer, ‘Beyond Empiricism.’ Dan Durning, ‘The Transition from Traditional to Postpositivist Policy Analysis: A Role for Q-Methodology,’ Journal of Policy Analysis and Management 18, no. 3 (1999): 394. Flores and Kraft, ‘Controversies in Risk Analysis in Public Management,’ Ethics, Government, and Public Policy: A Reference Guide, ed. James Bowman and Frederick Elliston (New York: Greenwood, 1988), 105. Hawkesworth, ‘Epistemology and Policy Analysis,’ 296. See Herbert A. Simon, ‘A Behavioral Model of Rational Choice,’ Quarterly Journal of Economics 69, no. 1 (1955): 99–118. See Pal, Beyond Policy Analysis, 18–20, for a discussion of the rational model in policy analysis. Pal, Beyond Policy Analysis, 18. Weimer and Aidan Vining, Policy Analysis, 58. Peters, American Public Policy, 421. Munger, Analyzing Policy, 352. Pal, Beyond Policy Analysis, 291–5. See deLeon, ‘Reinventing the Policy Sciences.’ See also idem, Advice and Consent: The Development of the Policy Sciences (New York: Russell Sage Foundation, 1988), chap. 2.

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Notes to pages 14–15

35 Weimer and Aidan Vining, Policy Analysis, 351. 36 See David A. Belluck and Sally L. Benjamin, ‘Human Health Risk Assessment,’ A Practical Guide to Understanding, Managing, and Reviewing Environmental Risk Assessment Reports, ed. Sally L. Benjamin and David A. Belluck (Boca Raton, FL: CRC Press, 2001), 29–77; Ruth N. Hull and Bradley E. Sample, ‘Ecological Risk Assessment,’ A Practical Guide to Understanding, Managing, and Reviewing Environmental Risk Assessment Reports, ed. Benjamin and Belluck, 79–97; and P. Barry Ryan, ‘Historical Perspective on the Role of Exposure Assessment in Human Risk Assessment,’ Risk Assessment: Logic and Measurement, ed. Michael C. Newman and Carl Strojan (Chelsea, MI: Ann Arbor Press, 1999), 23–43. 37 Flores and Kraft, ‘Controversies in Risk Analysis,’ 114. 38 See Amy Douglas, ‘Can Policy Analysis Be Ethical?’ Confronting Values in Policy Analysis: The Politics of Criteria, ed. Frank Fischer and John Forester (Beverly Hills, CA: Sage, 1987), 45–67, for an overview of the relationship between critiques of positivism, the development of post-positivism, and ethical policy analysis. 39 Lawrence Tribe, ‘Policy Science: Analysis or Ideology,’ The Moral Dimensions of Public Policy Choice, ed. Gillroy and Wade (Pittsburgh: University of Pittsburgh Press, 1992), 121. 40 For non-positivist critiques of cost-benefit analysis, see John Martin Gillroy, ‘The Ethical Poverty of Cost-Benefit Methods: Autonomy, Efficiency, and Public Policy Choice,’ The Moral Dimensions of Public Policy Choice, ed. Gillroy and Wade, 195–216; Steven Kelman, ‘Cost-Benefit Analysis: An Ethical Critique,’ The Moral Dimensions of Public Policy Choice, ed. Gillroy and Wade, 153–64; Mark Sagoff, ‘At the Shrine of Our Lady of Fatima, or Why Political Questions Are Not All Economic,’ The Moral Dimensions of Public Policy Choice, ed. Gillroy and Wade, 371–85. 41 John Rawls, A Theory of Justice (Oxford: Oxford University Press, 1972), 287. 42 For other critiques of social discounting, see Ezra J. Mishan and Talbot Page, ‘The Methodology of Cost-Benefit Analysis, with Particular Reference to the Ozone Problem,’ The Moral Dimensions of Public Policy Choice, ed. Gillroy and Wade, 59–113; Parfit, ‘Energy Policy and the Further Future,’ 31–7; and Parfit and Tyler Cowen, ‘Against the Social Discount Rate,’ Justice between Age Groups and Generations, ed. Peter Laslett and James S. Fishkin (Hew Haven, CT: Yale University Press, 1992), 144–61. In more constructive terms, Talbot Page seeks to combine cost-benefit analysis with intergenerational equity considerations in ‘On the Problem of

Notes to pages 16–20

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46 47 48 49 50 51 52 53 54 55 56 57

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Achieving Efficiency and Equity, Intergenerationally,’ Land Economics 73, no. 4 (November 1997): 580–96. Parfit and Cowen, ‘Against the Social Discount Rate,’ 147. See Durning, ‘The Transition from Traditional.’ For examples of the former, see Daniel Callahan and Bruce Jennings, eds., Ethics, the Social Sciences, and Policy Analysis (New York: Hastings Center, 1983); Frank Fischer, Reframing Public Policy: Discursive Politics and Deliberative Practices (Oxford: Oxford University Press, 2003); Frank Fischer and John Forester, eds., Confronting Values in Policy Analysis: The Politics of Criteria (Newbury Park, CA: Sage, 1989); idem, eds., The Argumentative Turn in Policy Analysis and Planning (Durham, NC: Duke University Press, 1993); John Forester, ed., Critical Theory and Public Life (Cambridge, MA: MIT Press, 1985); and Maarten Hajer and Hendrik Wagenaar, eds., Deliberative Policy Analysis: Understanding Governance in the Network Society (Cambridge: Cambridge University Press, 2003). For examples of the latter, see Brian Barry and Douglas Rae, ‘Political Evaluation,’ Handbook of Political Science 1, ed. Fred Greenstein and Nelson Polsby (Reading, MA: Addison Wesley, 1975); Ralph Ellis, Just Results: Ethical Foundations for Policy Analysis (Washington, DC: Georgetown University Press, 1998); Robert Goodin, Political Theory and Public Policy (Chicago: University of Chicago Press, 1982); John Martin Gillroy and Maurice Wade, eds., The Moral Dimensions of Public Policy Choice: Beyond the Market Paradigm (Pittsburgh: University of Pittsburgh Press, 1992); and Edward Bryan Portis and Michael B. Levy, eds., Handbook of Political Theory and Policy Science (New York: Greenwood, 1988). Sunstein, Risk and Reason, 355. Adam Burgess, Cellular Phones, Public Fears, and a Culture of Precaution (Cambridge: Cambridge University Press, 2004). Posner, Catastrophe: Risk and Response. Rawls, A Theory of Justice, 3. H.L.A. Hart, The Concept of Law (Oxford: Clarendon, 1961), 155–9. Ibid., 155. Rawls, A Theory of Justice, 5. Ibid. Iris Marion Young, Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990). Ibid., 15. See Peter Singer, ‘The Concept of Moral Standing,’ Ethics in Hard Times, ed. Arthur Caplan and Daniel Callahan (New York: Plenum, 1981), 31–45. As William Frankena explains, for ‘the moral quality or value of some-

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59 60 61

62 63 64 65

Notes to pages 20–4 thing to depend on the moral value of whatever it promotes would be circular. Teleological theories, then, make the right, the obligatory, and the morally good dependent on the non-morally good.’ See Frankena, Ethics (Englewood Cliffs, NJ: Prentice-Hall, 1973), 14. Of course, all ethical theories take consequences into account. The basic difference between consequentialist and deontological theories is one of relative emphasis on consequences and other considerations. See Will Kymlicka, ‘Rawls on Teleology and Deontology,’ Philosophy and Public Affairs 17 (Summer 1988): 173–90, for a nuanced critique of Rawls’s distinction between the two schools. Rawls, A Theory of Justice, 395–9. Max Weber, ‘Legitimacy, Politics, and the State,’ Legitimacy and the State, ed. William Connolly (Oxford: Basil Blackwell, 1984), 37. See David Beetham, The Legitimation of Power (London: Macmillan, 1991), chap. 1, for an extended discussion of legal, philosophical, and social-scientific understandings of legitimacy. A. John Simmons, ‘Justification and Legitimacy,’ Ethics 109 (July 1999): 746. Ibid., 769. See Allen Buchanan, ‘Political Legitimacy and Democracy,’ Ethics 112 (July 2002): 691–2. Ibid., 703.

3 Canadian Nuclear Fuel Waste Management Policy: Discourse of Two Coalitions 1 AECL is a crown corporation wholly owned by the Government of Canada. It develops, markets, sells, and builds the Canadian-designed CANDU reactors, MAPLE research reactors, and MACSTOR Waste Storage Facilities. It has expertise in the areas of project management, engineering, and consulting services and in maintenance services and the development of new technologies. See Robert Bothwell, Nucleus: The History of Atomic Energy of Canada Limited (Toronto: University of Toronto Press, 1988) for a historical overview of the corporation. See also Bruce Doern, Arslan Dorman, and Robert Morrison, ‘Transforming AECL into an Export Company: Institutional Challenges and Change,’ Canadian Nuclear Energy Policy: Changing Ideas, Institutions, and Interests, ed. Doern, Dorman, and Morrison (Toronto: University of Toronto Press, 2001), 74–95. 2 Estimates vary depending upon a number of factors, including reactor

Notes to pages 24–5

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capacity as well as refurbishing and decommissioning plans. NWMO, Choosing a Way Forward: The Future Management of Canada’s Used Nuclear Fuel, Final Study Report (NWMO: Toronto, 2005), 15. 3 Paul Sabatier’s Advocacy Coalition Framework (ACF), with its dynamic qualities and contextual dimensions, captures the combative nature of the relationships between the camps of actors seeking to influence nuclear waste management policy. However, it applies only to a certain degree. In this case, we do not see coalitions characterized by a consensus among their members on core normative and policy beliefs. For example, members of one coalition include representatives of both aboriginal nations and Christian organizations. While the two tend to converge on certain policy aims, they diverge on the basic motivating reasons for these aims. Drawing from Maarten Hajar and Frank Fischer, we might better understand these competing groups as discursive coalitions, with emphasis being placed on the shared language, framework, and arguments of their members. As Fischer writes, ‘where the ACF defines policy coalitions in terms of “core beliefs” shared by conspiring actors that coordinate their undertaking, Hajer finds that coalitions are based on the shared usage of a set of storylines’ (107). See Fischer, Reframing Public Policy: Discursive Politics and Deliberative Practices (Oxford: Oxford University Press, 2003). See also Hajer, ‘A Frame in the Fields: Policy Making and the Reinvention of Politics,’ Deliberative Policy Analysis: Understanding Governance in the Network Society, ed. Maarten Hajer and Hendrik Wagenaar (New York: Cambridge University Press, 2003), 88–110; and idem, ‘Discourse Coalitions and the Institutionalization of Practice: The Case of Acid Rain in Great Britain,’ The Argumentative Turn in Policy Analysis and Planning, ed. Frank Fischer and John Forester (Durham, NC: Duke University Press, 1996), 43–76. See also Paul A. Sabatier, ‘An Advocacy Coalition Framework of Policy Change and the Role of Policy-Oriented Learning Therein,’ Policy Sciences 21, no. 2–4 (1988): 129–68; and idem, ‘Policy Change over a Decade or More,’ Policy Change and Learning: An Advocacy Coalition Approach, ed. Paul Sabatier and Hank Jenkins-Smith (Boulder, CO: Westview, 1993), 13–39. 4 The Nuclear Safety and Control Act (NSCA), proclaimed on 31 May 2000, replaces the Atomic Energy Control Act. The NSCA enables the creation of the CNSC, which replaces the AECB. See CNSC, ‘News Release: Canadian Nuclear Safety Commission: New powers to protect health, safety, security and the environment,’ (Ottawa: Government of Canada, 1 June 2000). For a historical overview of the AECB, see Gordon H.E. Sims, A

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9

Notes to pages 25–6 History of the Atomic Energy Control Board (Ottawa: Canadian Government Publishing Centre, 1980). See also David Jackson and John de la Mothe, ‘Nuclear Regulation in Transition: The Atomic Energy Control Board,’ Canadian Nuclear Energy Policy, ed. Doern, Dorman, and Morrison, 96–112. A.M. Aikin, J.M. Harrison, and F.K. Hare, The Management of Canada’s Nuclear Wastes: Report of a Study Prepared under Contract for the Minister of Energy, Mines and Resources Canada (Ottawa: Government of Canada, August 1977). Since the Aikin report, Ontario’s Royal Commission on Electric Power Planning and the Canadian House of Commons Standing Committee on Energy, Mines, and Resources have also expressed support for the land-based geological disposal of Canada’s nuclear waste. See Royal Commission on Electric Power Planning, A Race Against Time: Interim Report on Nuclear Power in Ontario (Toronto: Royal Commission and Queen’s Printer for Ontario, 1979); and House of Commons Standing Committee on Energy, Mines, and Resources, Nuclear Energy: Unmasking the Mystery (Ottawa: Queen’s printer, 1988). There is now a general consensus in the international community of used nuclear fuel waste management experts (including the Nuclear Energy Agency [NEA] of the OECD and the International Atomic Energy Agency) that deep geological disposal in stable rock formations is the best option. As stated by the NEA, ‘It is generally agreed that the best way to achieve long-term isolation is deep underground disposal in stable geological formations.’ (NEA/OECD, Nuclear Energy in a Sustainable Development Perspective [Paris: OECD/NEA, 2000], 42). For a recent discussion of various approaches to long-term waste management options, see NWMO, Choosing a Way Forward. Aikin et al., The Management of Canada’s Nuclear Wastes, 5. Ibid. Canada/Ontario, ‘Joint Statement on Radioactive Waste Management Program,’ Minister of Energy, Mines and Resources Canada and the Ontario Energy Minister (Ottawa and Toronto), 1978. I should make explicit that AECL and Ontario Hydro were directed specifically to develop a concept, that is, a non-site-specific concept, for deep geological disposal. The governments of Canada and Ontario announced in 1981 that no disposal site selection would be undertaken until after the concept had been accepted so that no particular community would feel that it had been pre-selected for a disposal site without proper consultation. See Canada/Ontario, ‘Joint Statement on the Nuclear Fuel Waste Management Program,’ Minister of Energy, Mines

Notes to pages 26–7

10 11

12

13 14

15

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and Resources Canada and the Ontario Energy Minister (Ottawa and Toronto, 1981). For a critical discussion of issues around this non-site-specific concept, see Brenda L. Murphy and Richard Kuhn, ‘Situating Canada’s Approaches to Siting a Nuclear Fuel Waste Management Facility,’ Nuclear Waste Management in Canada: Critical Issues, Critical Perspectives, ed. Darrin Durant and Genevieve Fuji Johnson (Vancouver: UBC Press, forthcoming). In 1992, the Canadian Environment Assessment Agency was established, thus taking over the assessment and review process. For very interesting, critical discussions of the Seaborn Panel Review, see Darrin Durant, ‘Public Consultation as Performative Contradiction: Limiting Discussion in Canada’s Nuclear Waste Management Debate,’ Nuclear Waste Management in Canada, ed. Durant and Johnson; and Ann Stanlely, ‘Representing the Knowledges of Aboriginal Peoples: The “Management” of Diversity in Canada’s Nuclear Fuel Waste,’ Nuclear Waste Management in Canada, ed. Durant and Johnson. CEAA, Nuclear Fuel Waste Management and Disposal Concept: Report of the Nuclear Fuel Waste Management and Disposal Concept (Ottawa: Minister of Public Works and Government Services Canada, February 1998). AECL, Environmental Impact Statement on the Concept for Disposal of Canada’s Nuclear Fuel Waste (Chalk River: AECL, 1994). For an overview of perspectives taken by participants in the Seaborn panel hearings, see Anne Wiles, ‘Participants’ Views on Broad Social Issues Related to Nuclear Fuel Waste Management,’ prepared for the Nuclear Fuel Waste Management and Disposal Concept Environmental Assessment Panel (Hull: CEAA, 1996); and idem, ‘Analysis of Ethical Assumptions underlying Positions of Pro- and Anti-Nuclear Intervenors to EARP Review Scoping Hearings’ (Hull: CEAA, 1994). See also CEAA, Nuclear Fuel Waste Management and Disposal Concept. For a more detailed understanding of these, views see also CNS, ‘Summary of CNS Submissions to the Environmental Assessment Panel’ (Hull: CEAA, CSS.017, 1997); Staff of AECL, interview with author, Chalk River, 14 August 2001; Staff no. 1, CNSC, interview with author, Ottawa, 16 August 2001; Staff no. 2, CNSC, interview with author, Ottawa, 16 August 2001; Staff no. 2, OPG, interview with author, Toronto, 27 August 2001; Staff no. 3, OPG, interview with author, Toronto, 5 September 2001; and Colin Hunt, Director of Policy, CNA, interview with author, Ottawa, 13 August 2001. Again, for an overview see Wiles, ‘Participants’ Views on Broad Social Issues,’ and idem, ‘Analysis of Ethical Assumptions.’ See also CEAA, Nuclear Fuel Waste Management and Disposal Concept. For a more detailed

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23 24

25 26 27 28 29 30 31 32 33 34

Notes to pages 27–32 understanding of these views, see Irene Kock, Sierra Club of Canada, ‘Oral Submission to Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources,’ www.parl.gc.ca/InfoComDoc/37/1/AANR/Meetings/Evidence/aanrev28-e.htm, 2001; CCEER, ‘A Report to the FEARO Panel on the Proposed Nuclear Fuel Waste Disposal Concept’ (Hull: CEAA, PAPUB.043, 1996); Northwatch, 1996; Northumberland Environmental Protection 1996; Norm Rubin, Director of Nuclear Research and Senior Policy Analyst, Energy Probe, interview with author, Toronto, 1 August 2001; and Louis Wilson, interview with author, Toronto, 31 August 2000. See CEAA, Nuclear Fuel Waste Management and Disposal Concept, 64–79. Ibid., 2. Ibid., 64–79. Ibid., 70–1. Ibid., 72–4. Ibid., 68. NRCan, Government of Canada Response to Recommendations of the Nuclear Fuel Waste Management and Disposal Concept Environmental Assessment Panel (Ottawa: Government of Canada, 1998), 12. Ibid., 5. See NRCan, ‘The Development of a Federal Policy Framework for the Disposal of Radioactive Wastes in Canada: The Results of Consultations with Major Stakeholders’ (Ottawa: Government of Canada, 1995); and idem, ‘Discussion Paper on the Development of a Federal Policy Framework’ (Ottawa: Government of Canada, 1995). Parliament of Canada (Thirty-seventh), An Act Respecting the Long-Term Management of Nuclear Fuel Waste (Ottawa, 2002), s. 12[4], 7. Ibid., s. 12[6], 7. Ibid., ss. 9–11, 4–6. Ibid., ss. 27–31. NWMO, Choosing a Way Forward, 59–113. Ibid., 399–420. Ibid., 421–8. Ibid., 399–420. Ibid., 133–44 and 315–23. See Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources, ‘Evidence, recorded by electronic apparatus’ (1 November 2001), www.parl.gc.ca/InfoComDoc/37/1/AANR/Meetings/ Evidence/aanrev27-e/htm; idem, ‘Evidence, recorded by electronic apparatus’ (6 November 2001), www.parl.gc.ca/InfoComDoc/37/1/

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AANR/Meetings/Evidence/aanrev28-e/htm; idem, ‘Evidence, recorded by electronic apparatus’ (8 November 2001), www.parl.gc.ca/InfoComDoc/ 37/1/AANR/Meetings/Evidence/aanrev29-e/htm; idem, ‘Evidence, recorded by electronic apparatus’ (8 November 2001), www.parl.gc.ca/ InfoComDoc/37/1/AANR/Meetings/Evidence/aanrev30-e/htm; idem, ‘Evidence, recorded by electronic apparatus’ (20 November 2001), www.parl.gc.ca/InfoComDoc/37/1/AANR/Meetings/Evidence/aanrev 31-e/htm; and idem, ‘Evidence, recorded by electronic apparatus’ (20 November 2001), 2001) www.parl.gc.ca/InfoComDoc/37/1/AANR/ Meetings/Evidence/aanrev32-e/htm 4 Ethical Issues in Canadian Nuclear Fuel Waste Management Policy 1 NWMO, Choosing a Way Forward: The Future Management of Canada’s Used Nuclear Fuel, Final Study Report (NWMO: Toronto, 2005), 76. 2 Ibid. 3 CEAA, Nuclear Fuel Waste Management and Disposal Concept: Report of the Nuclear Fuel Waste Management and Disposal Concept (Ottawa: Minister of Public Works and Government Services Canada, 1998), 135. For examples of this perspective, see AECL, ‘Closing Statement to the Environmental Assessment Panel Reviewing the Nuclear Fuel Waste Management and Disposal Concept,’ 14 April 1997 (Hull: CEAA, CSS.006); CNS, ‘Summary of CNS Submissions to the Environmental Assessment Panel,’ 17 April 1997 (Hull: CEAA, CSS.017); and OH, ‘Closing Statement,’ 14 April 1997 (Hull: CEAA, CSS.015). See also Anne Wiles, ‘Participants’ Views on Broad Social Issues Related to Nuclear Fuel Waste Management,’ prepared for the Nuclear Fuel Waste Management and Disposal Concept Environmental Assessment Panel (Hull: CEAA, 1996), and idem, ‘Analysis of Ethical Assumptions underlying Positions of Pro-and Anti-Nuclear Intervenors to EARP Review Scoping Hearings’ (Hull: CEAA, 1994). 4 CEAA, Nuclear Fuel Waste Management and Disposal Concept, 135. See also Wiles, ‘Participants’ Views’; and idem, ‘Analysis of Ethical Assumptions.’ 5 AECL, ‘Closing Statement to the Environmental Assessment Panel’; CNS, ‘Summary of CNS Submissions to the Environmental Assessment Panel’; and OH, ‘Closing Statement.’ 6 CEAA, Nuclear Fuel Waste Management and Disposal Concept, 135. 7 Wiles, ‘Participants’ Views,’ 2–3. 8 Ibid., 3. 9 Ibid., 4. 10 Cited in Wiles, ‘Analysis of Ethical Assumptions,’ 37.

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Notes to pages 37–8

11 CEAA, Nuclear Fuel Waste Management and Disposal Concept, 135. 12 Wiles, ‘Participants’ Views,’ 4. See also idem, ‘Analysis of Ethical Assumptions.’ 13 NWMO, Choosing a Way Forward, 74. 14 See AECB, Regulatory Objectives, Requirements and Guidelines for the Disposal of Radioactive Wastes: Long-Term Aspects, Regulatory Document R-104 (Ottawa: AECB, June 1987). See also CNSC, ‘Managing Radioactive Waste,’ Regulatory Policy P-290 (Ottawa: CNSC, July 2004). 15 See ICRP, ‘Recommendations of the ICRP,’ Annals of the ICRP 1, 3 (ICRP Publication 26, 1977); IAEA, Safety Principles and Technical Criteria for the Underground Disposal of High Level Radioactive Wastes, IAEA Safety Series, 99 (Vienna: IAEA, 1989); NEA, Objectives, Concepts, and Strategies for the Management of Radioactive Waste Arising from Nuclear Power Programmes (Paris: OECD/NEA, 1977); and idem, Disposal of Radioactive Waste: An Overview of the Principles Involved, Report of a Group of Experts (Paris: OECD/NEA, 1982). 16 AECB, Regulatory Objectives, Requirements and Guidelines for the Disposal of Radioactive Wastes, 8. 17 Ibid., 3–5. 18 See AECL, Environmental Impact Statement, 296–301. See also Scientific Review Group, Advisory to the Panel on Atomic Energy of Canada Limited’s Concept for Disposal of Canada’s Nuclear Fuel Waste, An Evaluation of the ‘Environmental Impact Statement on the Concept for Disposal of Canada’s Nuclear Fuel Waste’ (Hull: CEAA, 1995). 19 Conrad Brunk, ‘Technological Risk and the Nuclear Safety Debate,’ paper presented at the Environmental Ethics Workshop, Institute for Research on Environment and Economy, University of Ottawa, 1–2 October 1992, 7. See also ARC, ‘A Presentation of the Social, Health, and Economic Impact of AECL’s Proposed Geologic Disposal of High Level Nuclear Fuel Waste in the Canadian Shield’ (Ottawa: ARC, 1996); Assembly of Manitoba Chiefs, Assembly of First Nations of Quebec and Labrador, and Grand Council of the Crees (Eenou Estchee), ‘Summary Final Submission to the Environmental Assessment of the Atomic Energy of Canada Limited High Level Nuclear Waste Disposal Concept,’ April 1997 (Hull: CEAA, CSS.036); CCEER, ‘A Report to the FEARO Panel on the Proposed Nuclear Fuel Waste Disposal Concept,’ 29 February 1996 (Hull: CEAA, PAPUB.043); and Clynt King, member of the Mississaugas of the New Credit First Nation Anishinabe Nation, Three Fires Confederacy, ‘Closing Statements’ (Hull: CEAA, CSS.001).

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20 Wiles, ‘Participants’ Views,’ 9. 21 Ibid., 2–3. 22 ARC, ‘A Presentation of the Social, Health, and Economic Impact of AECL’s Proposed Geologic Disposal,’ 13. 23 For additional arguments see, Grand Chief Charles Fox, Nishnawbe-Aski Nation, ‘Presentation,’ 20 November 1996 (Hull: CEAA, PH2PUB.033); Northwatch, ‘Site Characterization and Site Evaluation: Comment on Atomic Energy of Canada Limited’s Nuclear Fuel Waste Management and Disposal Concept,’ 20 June 1996 (Hull: CEAA, PH2PUB.009); Saskatchewan Environmental Society, ‘Environmental Impact Assessment, Nuclear Waste Disposal Concept,’ 10 June 1996 (Hull: CEAA, PH2PUB.006); and United Church of Canada, ‘A Submission from the United Church of Canada Program Unit on Peace, Environment and Rural Life Division of Mission in Canada to the Public Hearings of the Canadian Environmental Assessment Panel Reviewing the Nuclear Fuel Waste Management and Disposal Concept,’ March 1996 (Hull: CEAA, PHPub.124). 24 CEAA, Nuclear Fuel Waste Management and Disposal Concept, 54. 25 Brunk, ‘Technological Risk and the Nuclear Safety Debate,’ 9. 26 Wiles, ‘Participants’ Views,’ 2–3. 27 Ibid., 13–15. 28 Brunk, ‘Technological Risk and the Nuclear Safety Debate,’ 9. 29 See for example AECL, ‘Closing Statement to the Environmental Assessment Panel’; CNS, ‘Summary of CNS Submissions to the Environmental Assessment Panel’; OH, ‘Closing Statement’; and NRCan, ‘Natural Resources Canada’s Submission to the Environmental Assessment Panel,’ 5 June 1996 (Hull: CEAA, PH2GOV.001[9]). 30 See for example Northumberland Environmental Protection, ‘The Prevailing Uncertainty of Nuclear Waste Burial in Rock,’ June 1996 (Hull: CEAA, PH2PUB.010); idem, ‘A Response to AECL’s Environmental Impact Statement,’ July 1996 (Hull: CEAA, PH2PUB.020); and Northwatch, ‘The Social Equity Aspects of Siting: Comment on Atomic Energy of Canada Limited’s Nuclear Fuel Waste Management and Disposal Concept’ (28 June 1996, PH2Tec.031). 31 NWMO, Choosing a Way Forward, 77. 32 Grand Chief Charles Fox, ‘Presentation.’ See also Northwatch, ‘The Social Equity Aspects of Siting.’ 33 Wayne Arthurs, Mayor, City of Pickering, interview with author, Pickering, 18 January 2002; Larry Kraemer, Mayor, Municipality of Kincardine,

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36 37 38 39 40 41

42 43

44

45

46 47 48 49 50 51 52

Notes to pages 41–6 interview with author, Toronto, 2 January 2002; John Mutton, Mayor of Clarington and Chair of Canadian Association of Nuclear Host Communities, interview with author, Clarington, 17 January 2002. Wiles, ‘Participants’ Views,’ 18. Concerned Citizens of Manitoba, ‘The High-Level Radioactive Waste Disposal Concept: Socio-economic Impacts of Disposal Facility: Exploration, Construction, Operation, Transport, Closure, Decommissioning,’ 28 June 1996 (Hull: CEAA, PH2TEC.033), 3. Ibid. Wiles, ‘Participants’ Views,’ 18. ARC, ‘A Presentation of the Social, Health, and Economic Impact of AECL’s Proposed Geologic Disposal,’ 14. Wiles, ‘Participants’ Views,’ 9–10. Grand Chief Charles Fox, ‘Presentation,’ 9. ARC, ‘A Presentation of the Social, Health, and Economic Impact of AECL’s Proposed Geologic Disposal,’ 11. See also Grand Chief Charles Fox, ‘Presentation.’ Northwatch, ‘The Social Equity Aspects of Siting,’ 10. Peter Brown, ‘Presentation to Nuclear Fuel Waste Management and Disposal Concept Environmental Assessment Panel’ (Toronto: CEAA, 21 November 1996). NRCan, ‘The Development of a Federal Policy Framework for the Disposal of Radioactive Wastes in Canada: The Results of Consultations with Major Stakeholders’ (Ottawa: Government of Canada, 1995), 7. NRCan, ‘Press Release: McLellan Announces Policy Framework for Radioactive Waste,’ http://nrnl.nrcan.gc.ca/css/imb/hqlib/9679.htm (Ottawa: Government of Canada, 1996). See NRCan, ‘The Development of a Federal Policy Framework for the Disposal of Radioactive Wastes in Canada.’ Staff no. 3, OPG, interview with author, Toronto, 5 September 2001. CCEER, ‘A Report to the FEARO Panel,’ 10. Norm Rubin, Director of Nuclear Research and Senior Policy Analyst, Energy Probe, interview with author, Toronto, 20 August 2001. Colin Hunt, Director of Policy, Canadian Nuclear Safety Association, interview with author, Ottawa, 13 August 2001. NRCan, ‘The Development of a Federal Policy Framework for the Disposal of Radioactive Wastes in Canada,’ appendix. Peter Brown, ‘Presentation to Nuclear Fuel Waste Management and Disposal Concept Environmental Assessment Panel.’

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53 Louis Wilson, Nuclear Waste: Exploring the Ethical Dilemmas (Toronto: United Church Publishing House, 2000), 74. 54 Peter Brown, ‘Presentation to Nuclear Fuel Waste Management and Disposal Concept Environmental Assessment Panel.’ See also Wilson, Nuclear Waste, 73–5. 55 Brown, ‘Presentation to Nuclear Fuel Waste Management and Disposal Concept Environmental Assessment Panel.’ See also Staff of Natural Resources Canada, interview with author, Ottawa, 16 August 2001; Staff no. 3, OPG, interview with author, Toronto, 5 September 2001; Staff no. 4, OPG, interview with author, Toronto, 5 November 2001. 56 Richard Dicerni, ‘Oral Submission to Standing Senate Committee on Energy, the Environment, and Natural Resources,’ www.parl.gc.ca/ InfoComDoc/37/1/AANR/Meetings/Evidence/aanre28-e.htm, 9 May 2002). 57 Norm Rubin, Director of Nuclear Research and Senior Policy Analyst, Energy Probe, interview with author, Toronto, 1 August 2001; Irene Kock, Sierra Club of Canada, interview with author, Toronto, 7 September 2001; Brennain Lloyd, ‘Oral Submission to Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources hearings on Bill C-27,’ www.parl.gc.ca/InfoComDoc/37/1/AANR/Meetings/Evidence/ aanre28-e.htm, November 2001; Louis Wilson, ‘Oral Submission to Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources hearings on Bill C-27,’ www.parl.gc.ca/InfoComDoc/ 37/1/AANR/Meetings/Evidence/aanre28-e.htm, 6 November 2001. Coon Come called specifically for the establishment of a Crown corporation. See Grand Chief Matthew Coon Come, ‘Oral Submission to Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources hearings on Bill C-27,’ www.parl.gc.ca/InfoComDoc/37/1/AANR/Meetings/Evidence/aanre28-e.htm, 6 November 2001. 58 Such concerns were also expressed during these hearings by the Assembly of First Nations, the Association of Nuclear Host Communities, Northwatch, and the Sierra Club, who called for legislative requirements for the representation of a wide range of interests in the future waste management organization. 59 David Chatters, ‘Oral Submission to Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources Hearings on Bill C-27’ www.parl.gc.ca/InfoComDoc/37/1/AANR/Meetings/Evidence/ aanre28-e.htm, 2001. See also NRCan, ‘Synopsis of Views on Options for Federal Oversight’ (Ottawa: 15 February 1999).

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60 Gerald Keddy, ‘Oral Submission to Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources Hearings on Bill C-27,’ www.parl.gc.ca/InfoComDoc/37/1/AANR/Meetings/Evidence/ aanre28-e.htm, 20 November 2001. 61 Staff no. 4, OPG, interview with author, Toronto, 5 November 2001. 62 Ibid. 63 NRCan, ‘Synopsis of Views on Options for Federal Oversight’ (Ottawa: 9 February 1999). 64 Ibid. 65 Coon Come, ‘Oral Submission to Standing Committee’; Lloyd, ‘Oral Submission to Standing Committee.’ 66 NRCan,’Synopsis of Views on Options for Federal Oversight’ (Ottawa: 15 February 1999); and NRCan, ‘Synopsis of Views on Options for Federal Oversight’ (Ottawa: 17 February 1999). 67 Wilson, ‘Oral Submission to Standing Committee.’ 68 NRCan, ‘Synopsis of Views on Options for Federal Oversight’ (Ottawa: 9 February 1999); NRCan, ‘Synopsis of Views on Options for Federal Oversight’ (Ottawa: 11 February 1999); NRCan, ‘Synopsis of Views on Options for Federal Oversight’ (Ottawa: 17 February). See also Joe Comartin, ‘Oral Submission to Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources hearings on Bill C-27,’ www.parl.gc .ca/InfoComDoc/37/1/AANR/Meetings/Evidence/aanre28- e.htm, 20 November 2001. 69 Wilson, ‘Oral Submission to Standing Committee.’ 70 Keddy, ‘Oral Submission to Standing Committee.’ Bill C-27 was amended so that the ‘Minister shall cause a copy of each report to be laid before each House of Parliament within the first fifteen sitting days of that House after the Minister has received the report.’ 71 Staff no. 4, OPG, interview with author, Toronto, 5 November 2001. 72 Richard Dicerni, ‘Oral Submission to Standing Senate Committee.’ 73 Ibid. 5 Ethical Schools: Welfare Utilitarianism, Modern Deontology, and Deliberative Democracy 1 For an understanding of classical utilitarianism, see Jeremy Bentham, The Principles of Morals and Legislation (Buffalo: Prometheus, 1988); and John Stuart Mill, ‘Utilitarianism,’ On Liberty and Other Essays, ed. John Gray (Oxford: Oxford University Press, 1991), 131–201. See Robert Goodin, Utilitarianism as Public Philosophy (Cambridge: Cambridge University

Notes to pages 56–60

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Press, 1995) for a discussion of the evolution of utilitarianism. For an important critical overview of problems in contemporary utilitarianism, see Amartya Sen and Bernard Williams, eds., Utilitarianism and Beyond (Cambridge: Cambridge University Press, 1982). William Shaw, Contemporary Ethics: Taking Account of Utilitarianism (London: Blackwell, 1999), 10. Goodin, Utilitarianism as Public Philosophy, 13, n. 36. Amartya Sen and Bernard Williams, ‘Introduction,’ Utilitarianism and Beyond, ed. Sen and Williams, 4. See also Shaw, Contemporary Ethics, 11–12. Shaw, Contemporary Ethics, 11. Goodin, Utilitarianism as a Public Philosophy, 10. Peter Singer, ‘The Concept of Moral Standing,’ Ethics in Hard Times, ed. Arthur Caplan and Daniel Callahan (New York: Plenum, 1981), 33. See also Bentham, Principles of Morals and Legislation, esp. 49–50. Peter Singer, How Are We to Live? Ethics in an Age of Self-Interest (New York: Prometheus, 1995), 231. Singer, Practical Ethics (Cambridge: Cambridge University Press, 1979), 27. See Robert Goodin, Political Theory and Public Policy (Chicago: University of Chicago Press, 1982); and idem, ‘Ethical Principles for Environmental Protection,’ The Moral Dimensions of Public Policy Choice, ed. John Martin Gillroy and Maurice Wade (Pittsburgh: University of Pittsburgh Press, 1992), 411–25. Goodin, Political Theory and Public Policy, 73. Ibid., chap. 5, passim. Goodin, ‘Ethical Principles for Environmental Protection,’ 411–25. Ibid., 421. Shaw, Contemporary Ethics, 13. See for example Robin Attfield, The Ethics of Environmental Concern (Athens, GA: University of Georgia Press, 1991); Brian Barry, ‘Justice between Generations,’ Law, Morality and Society (Oxford: Clarendon, 1977), 242–73; idem, ‘Circumstances of Justice and Future Generations,’ Obligations to Future Generations, ed. Richard Sikora and Brian Barry (Philadelphia: Temple University Press, 1978), 204–48; Stephen Bickham, ‘Future Generations and Contemporary Ethical Theory,’ Journal of Value Inquiry 15, no. 2 (1981): 169–77; and L.W.I. Sumner, ‘Classical Utilitarianism and the Population Optimum,’ Obligations to Future Generations, ed. Richard Sikora and Brian Barry (Philadelphia: Temple University Press, 1978), 91–111.

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Notes to pages 60–8

17 Jan Narveson, ‘Utilitarianism and New Generations,’ Mind 76 (1967): 62–72. See also Narveson, ‘Moral Problems of Population,’ The Monist 57 (1973): 62–84. 18 Narveson, ‘Utilitarianism and New Generations,’ 63. 19 Shaw, Contemporary Ethics, 32. 20 Stearns, ‘Ecology and the Indefinite Unborn,’ The Monist 56 (1972): 612–25. 21 Shaw, Contemporary Ethics, 31–32. 22 Ibid., 33. 23 CEAA, Nuclear Fuel Waste Management and Disposal Concept, 54. 24 See Parfit, ‘Energy Policy and the Further Future: The Identity Problem,’ Energy and the Future, ed. Douglas MacLean and Peter Brown (Totowa, NJ: Rowman and Littlefield, 1983), 31–7; and idem, Reasons and Persons, chap. 16. 25 Parfit, Reasons and Persons, 355. 26 For examples of this argument, see Thomas Schwartz, ‘Obligations to Posterity,’ Obligations to Future Generations, eds. Richard Sikora and Brian Barry (Philadelphia: Temple University Press, 1978), 3–13; Richard T. de George, ‘The Environment, Rights, and Future Generations,’ Responsibilities to Future Generations: Environmental Ethics, ed. Ernest Partridge (Buffalo, NY: Prometheus, 1981), 157–65; and Hillel Steiner, ‘The Rights of Future Generations,’ Energy and the Future, ed. Douglas MacLean and Peter Brown (Totowa, NJ: Rowman and Littlefield, 1983), 151–65. 27 See for example IAEA, Safety Principles and Technical Criteria for the Underground Disposal of High Level Radioactive Waste (IAEA Safety Series No. 99, 1989; and OECD/NEA, Objectives, Concepts, and Strategies for the Management of Radioactive Waste Arising from Nuclear Power Programmes, 1977. 28 See Singer, Practical Ethics, 86–7. 29 See Trudy Govier, ‘What Should We Do about Future People,’ American Philosophical Quarterly 16 (1979): 105–13. 30 D.W. Haslett, ‘On Life, Death, and Abortion,’ Utilitas 8, no. 2 (1996): 161. 31 Shaw, Contemporary Ethics, 33–5. 32 Ibid., 33. 33 See Govier, ‘What Should We Do about Future People.’. 34 ‘Open Forum Report: Ethics, Justice, Democracy and the Environment: What Do We Owe Future Generations?’ (Annandale-on-Hudson, NY: Center for Environmental Policy, Bard College, 2000), 9. 35 Rawls, A Theory of Justice, 26. 36 Sen and Williams, ‘Introduction,’ 4. 37 Ibid., 4–5.

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38 See Rawls, A Theory of Justice, 286–7. 39 See Frankena. See also Jeremy Waldron, ed., Theories of Rights (Oxford: Oxford University Press, 1984). 40 Rawls, A Theory of Justice, 24. Both Rawls and William Frankena identify utilitarianism as a teleological theory. Teleology is a broad category of approaches that includes not only the various kinds of utilitarianism, but also the eudaimonism of Aristotle and ethical egoism. See Frankena, Ethics, 14–17, for a concise discussion of teleology and deontology. 41 Frankena, Ethics, 14. 42 Rawls, A Theory of Justice, 30. 43 Ibid., 396. 44 See Emmanuel Kant, Groundwork of the Metaphysics of Morals, ed. Mary Gregor (Cambridge: Cambridge University Press, 1998). 45 Joel Feinberg, ‘Duties, Rights, and Claims,’ Rights, Justice, and the Bounds of Liberty: Essays in Social Philosophy (Princeton, NJ: Princeton University Press, 1980), 130–42. 131. 46 Waldron, Theories of Rights, 11. 47 Ibid. 48 Mary Warren, ‘Do Potential People Have Moral Rights?’ Obligations to Future Generations, ed. Richard Sikora and Brian Barry (Philadelphia: Temple University Press, 1978), 14–30. 49 Joel Feinberg, ‘The Rights of Animals and Unborn Generations,’ Responsibilities to Future Generations, ed. Partridge, 143. 50 Joel Feinberg, ed., Rights, Justice, and the Bounds of Liberty: Essays in Social Philosophy (Princeton: Princeton University Press, 1980). 51 Rawls, Political Liberalism (New York: Columbia University Press, 1993), 19. 52 Warren, ‘Do Potential People Have Moral Rights?’ 28. 53 Feinberg, ‘The Rights of Animals and Unborn Generations,’ 148. 54 See also Jane English, ‘Justice between Generations,’ Philosophical Studies 31 (1977): 91–104; David Richards, ‘Contractarian Theory, Intergenerational Justice, and Energy Policy,’ Energy and the Future, ed. Maclean and Brown, 131–50; and Richard Routley and Val Routley, ‘Nuclear Energy and Obligations to the Future,’ Responsibilities to Future Generations, ed. Partridge, 277–301. 55 Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977), 199. 56 Rawls, A Theory of Justice, 396. 57 Ibid. 58 See Rawls, ‘The Ethics of Resource Depletion,’ Liberty and Justice: Essays

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73 74

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Notes to pages 72–9 in Political Theory II (Oxford: Clarendon, 1991); and idem, ‘Sustainability and Intergenerational Justice,’ Fairness and Futurity: Essays on Environmental Sustainability and Social Justice, ed. Andrew Dobson (Oxford: Oxford University Press, 1999), 93–117. Rawls, ‘Sustainability and Intergenerational Justice,’ 98. Ibid. Rawls, ‘The Ethics of Resource Depletion,’ 260. Rawls, ‘Sustainability and Intergenerational Justice,’ 97. Rawls, A Theory of Justice, 284–93. Ibid., 145. T.M. Scanlon, ‘Contractualism and Utilitarianism,’ Utilitarianism and Beyond, ed. Sen and Williams, 103–28. Brian Barry, Justice as Impartiality (Oxford: Clarendon, 1995), 67–72. Ruth Macklin, ‘Can Future Generations Correctly Be Said to Have Rights?’ Responsibilities to Future Generations, ed. Partridge, 151–5. Hillel Steiner, ‘The Rights of Future Generations,’ Energy and the Future, ed. Maclean and Brown, 152. Ibid. Richard T. de George, ‘The Environment, Rights, and Future Generations,’ Responsibilities to Future Generations, ed. Partridge, 157–65. Ibid., 160. Grand Chief Matthew Coon Come, ‘Oral Submission to Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources Hearings on Bill C-27,’ 37th Parliament, www.parl.gc.ca/ InfoComDoc/37/1/AANR/Meetings/Evidence/aanre28- e.htm (6 November 2001). Barry, Justice as Impartiality, 58. John Dryzek distinguishes between discursive and deliberative democracy, with the former referring to ideas of democracy based on the critical theory of Jürgen Habermas and the latter to ideas of democracy developed within the moral framework of liberal constitutionalism. See Dryzek, Deliberative Democracy and Beyond (New York: Oxford University Press, 2000), chap. 1. I prefer the terminology of deliberative democracy, as the theories to which it refers have responded to arguments made by Dryzek and others. It is, furthermore, more commonly used. See Simone Chambers, Reasonable Democracy: Jürgen Habermas and the Politics of Discourse (Ithaca: Cornell University Press, 1996); idem, ‘Deliberative Democratic Theory,’ Annual Review of Political Science 6 (2003): 307–26; Joshua Cohen, ‘Deliberation and Democratic Legitimacy,’ Deliber-

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ative Democracy: Essays on Reason and Politics, ed. James Bohman and William Rehg (Cambridge, MA: MIT Press, 1997), 67–91; idem, ‘Procedure and Substance in Deliberative Democracy,’ Deliberative Democracy, ed. Bohman and Rehg, 407–37; John Dryzek, Discursive Democracy: Politics, Policy and Political Science (Cambridge: Cambridge University Press, 1990); idem, Deliberative Democracy and Beyond; Samuel Freeman, ‘Deliberative Democracy: A Sympathetic Comment,’ Philosophy and Public Affairs 29, no. 4 (October 2000): 371–418; Amy Gutmann and Dennis Thompson, Democracy and Disagreement (Cambridge, MA: Belknap, 1996); idem, ‘Why Deliberative Democracy Is Different,’ Social Philosophy and Policy 17, no. 1 (Winter 2000): 161–80; idem, Why Deliberative Democracy? (Princeton: Princeton University Press, 2004); and Jorge Valadez, Deliberative Democracy, Political Legitimacy, and Self-Determination in Multicultural Societies (Boulder, CO: Westview, 2001). 76 Approximating the deliberative ideal in the policy cycle depends on forms of representation, for not all affected can engage in policy formulation, implementation, and evaluation. In important ways, this need for and desirability of representation further problematizes deliberative democracy. See, for example, Anne Phillips, Democracy and Difference (University Park, PA: Pennsylvania State University Press, 1993); Melissa Williams, ‘The Uneasy Alliance of Group Representation and Deliberative Democracy,’ Citizenship in Diverse Societies, ed. Will Kymlicka and Wayne Norman (Oxford: Oxford University Press, 2000), 124–52; idem, Voice, Trust, and Memory: Marginalized Groups and the Failings of Liberal Representation (Princeton: Princeton University Press, 1998); and Iris Marion Young, ‘Justice, Inclusion, and Deliberative Democracy,’ Deliberative Politics: Essays on Democracy and Disagreement, ed. Stephen Macedo (Oxford: Oxford University Press, 1999), 151–8. 77 As Samuel Freeman writes, ‘because democracy combines equal participation with free and open debate and criticism, the points of view of all sides are expressed, and everyone’s interests are considered. It is less likely then that the basic rights of minorities or individuals will be infringed upon or their fundamental interests ignored, particularly when citizens are called upon to reflect on the common good. Deliberation is also said to contribute to the legitimacy of decisions, because citizens who lose out in the resolution of competing claims are more likely to accept the decision when it is adopted after careful consideration of the relevant merits of competing moral claims for resources’ (‘Deliberative Democracy,’ 383).

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Notes to pages 79–81

78 Chambers, Reasonable Democracy, 99. 79 See Cohen, ‘Deliberation and Democratic Legitimacy,’ 74–5. See also Chambers, Reasonable Democracy, 99–100. 80 Valadez, Deliberative Democracy, 6–7. 81 Freeman, ‘Deliberative Democracy,’ 391. 82 See Chambers, Reasonable Democracy, esp. chap. 5 and Dryzek, Deliberative Democracy and Beyond, esp. chap. 1. 83 See John Rawls, ‘The Idea of Public Reason Revisited,’ John Rawls: Collected Papers, ed. Samuel Freeman (Cambridge, MA: Harvard University Press), 573–615. 84 Rawls, Political Liberalism, 224–5. 85 Valadez, Deliberative Democracy, 58–67; see also James Bohman, Public Deliberation: Pluralism, Complexity, and Democracy (Cambridge: MIT Press, 1996). 86 Gutmann and Thompson, Democracy and Disagreement, esp. chap. 2. 87 Ibid., 56. 88 See Chambers, Reasonable Democracy; Dryzek, Deliberative Democracy and Beyond, esp. chap. 7; Young, ‘Justice, Inclusion, and Deliberative Democracy’; and idem, ‘Activist Challenges to Deliberative Democracy,’ Political Theory 29, no. 5 (2001): 670–90. 89 Dryzek, Deliberative Democracy and Beyond, 2. 90 Ibid. 91 See Jürgen Habermas, Moral Consciousness and Communicative Action (Cambridge: Polity Press, 1995), 86–9. More specifically, communicative rationality is located in three levels of presuppositions of argumentation. This three-tiered set of presuppositions gives rise to a set of procedural principles that, according to Habermas, ‘immunize’ discourse against repression and inequality insofar as discourse accords with them. On each of these levels, we find principles that should apply in the making of collective decisions if those decisions are to be legitimate. The first kind of rule is logical-semantic, which requires that we speak a common natural language. These rules require that no speaker contradict him or herself and each speaker use predicates consistently and the same expression in the same way. The next level or kind of rule is procedural. Here, it is stipulated that every speaker asserts only what he or she sincerely believes. Chambers elaborates, stating that participants are to put forth and defend ‘what they believe to be factually true; what they believe to be right norms; what they know to be their inner dispositions.’ On their side, she states, ‘hearers must respect the intent behind the claims even if they cannot accept the claims themselves.’ The third kind of rule formal-

Notes to pages 82–9

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izes the ideal of communicative discourse by guaranteeing discursive equality, freedom, and fair play. These rules hold that no one with the competency to speak and act is excluded from discourse and that everyone is allowed to question or introduce any assertion. These rules are to be extended to everyone affected or potentially affected by the outcome of deliberation. See Chambers, Reasonable Democracy, 98–101. See also Dryzek, Discursive Democracy, 14–19; and idem, Deliberative Democracy and Beyond, 167–8. See Dryzek, Deliberative Democracy and Beyond, 47–50. See also Valadez, Deliberative Democracy, 58–67. Valadez, Deliberative Democracy, 41. Gutmann and Thompson, Democracy and Disagreement, 93–4. Valadez, Deliberative Democracy, 63. Cass Sunstein, ‘Deliberation, Democracy, Disagreement,’ Justice and Democracy: Cross-Cultural Perspectives, ed. Ron Bontekoe and Marietta Stepaniants (Honulu: University of Hawaii Press, 1997), 96. Ibid. Williams, ‘Uneasy Alliance,’ 132. See Andrew Dobson, Justice and the Environmental: Conceptions of Environmental Sustainability and Dimensions of Social Justice (Oxford: Oxford University Press, 1998). See Paul M. Wood, Rethinking Society and Nature: Biodiversity and Democracy (Vancouver: UBC Press, 2000), for an interesting discussion of the relationship between conservation and democracy. Gutmann and Thompson, Democracy and Disagreement, 155–64. See Tim O’Riordan, James Cameron, and Andrew Jordan, ‘The Evolution of the Precautionary Principle,’ Reinterpreting the Precautionary Principle, ed. O’Riordan, Cameron, and Jordan (London: Cameron May, 2001), 9–33. See also Poul Harremoës et al., eds., The Precautionary Principle in the 20th Century: Late Lessons from Early Warnings (London: Earthscan, 2002); O’Riordan et al., Reinterpreting the Precautionary Principle; J. Tickner, C. Raffensperger, and N. Myers, The Precautionary Principle in Action: A Handbook (Ames, IA: Science and Environmental Health Network, 1999). United Nations, Agenda 21: The UN Programme of Action from Rio (New York: United Nations, 1992), 10. See Harremoës et al., The Precautionary Principle in the 20th Century, 4–5; O’Riordan et al., Reinterpreting the Precautionary Principle, 20; and Tickner et al., The Precautionary Principle in Action, 4–5. O’Riordan et al., Reinterpreting the Precautionary Principle, 20.

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Notes to pages 90–5

106 Harremoës et al., The Precautionary Principle in the 20th Century, 197–8 and Tickner et al., The Precautionary Principle in Action, 4. 107 O’Riordan et al., Reinterpreting the Precautionary Principle, 19. 108 See Frank B. Cross, ‘Paradoxical Perils of the Precautionary Principle,’ Washington and Lee Law Review 53 (1996), 851–925. 109 See Cass R. Sunstein, Risk and Reason: Safety, Law, and the Environment (Cambridge: Cambridge University Press, 2002); and idem, ‘Cost Benefit Analysis and the Environment,’ Ethics 115 no. 2 (2005), 351–85. 110 Ibid., 5. 111 Ibid., 22. 6 The Promises and Pitfalls of Deliberative Democratic Policy Analysis 1 See for example Bruce Ackerman and James Fishkin, ‘Deliberation Day,’ Journal of Political Philosophy 10, no. 2 (2002): 129–52; Vibeke Normann Andersen and Kasper M. Hansen, ‘How Deliberation Makes Better Citizens: The Danish Deliberative Poll on the Euro,’ European Journal of Political Research 46, no. 4 (2007): 531–56; Leonardo Avritzer, ‘New Public Spheres in Brazil: Local Democracy and Deliberative Politics,’ International Journal of Urban and Regional Research 30, no. 3 (September 2006): 623–37; Jason Barabas, ‘How Deliberation Affects Policy Opinions,’ American Political Science Review 98, no. 4 (November 2004): 687–701; Simone Chambers, ‘Deliberative Democratic Theory,’ Annual Review of Political Science 6, no. 1 (2003): 307–26; Michael X. Delli Carpini, Fay Lomax Cook, and Lawrence R. Jacobs, ‘Public Deliberation, Discursive Participation, and Citizen Engagement: A Review of the Empirical Literature,’ Annual Review of Political Science 7, no. 1 (2004): 315–344; Jason Chilvers, ‘Towards Analytic-Deliberative Forms of Risk Governance in the UK? Reflecting on Learning in Radioactive Waste,’ Journal of Risk Research 10, no. 2 (March 2007): 197–222; James Fishkin, The Dialogue of Justice: Toward a Self-reflective Society (New Haven, CT: Yale University Press, 1992); Archon Fung and Erik Olin Wright, eds., Deepening Democracy: Institutional Innovation in Empowered Participatory Governance (London: Verso, 2003); Archon Fung, ‘Associations and Democracy: Between Theories, Hopes, and Realities,’ Annual Review of Sociology 29, no. 1 (2003): 515–39; idem, ‘Survey Article: Recipes for Public Spheres: Eight Institutional Design Choices and the Consequences,’ Journal of Political Philosophy 11, no. 3 (2003): 338–67; Maarten Hajer and Hendrik Wagenaar, eds., Deliberative Policy Analysis: Understanding Governance in the Network Society (Cambridge:

Notes to pages 96–8

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3

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Cambridge University Press, 2003); Patrick W. Hamlett and Michael D. Cobb, ‘Potential Solutions to Public Deliberation Problems: Structured Deliberations and Polarization Cascades,’ Policy Studies Journal 34, no. 4 (2006): 629–48; Amy Lang, ‘But Is It for Real? The British Columbia Citizens’ Assembly as a Model of State-Sponsored Citizen Empowerment,’ Politics and Society 35, no. 1 (March 2007): 35–69; Markku Lehtonen, ‘Deliberative Democracy, Participation, and OECD Peer Reviews of Environmental Policies,’ American Journal of Evaluation 27, no. 2 (June 2006): 185–200; Marcus Andre Melo and Gianpaolo Baiocchi, eds. ‘Symposium: Deliberative Democracy and Local Governance: Towards a New Agenda,’ International Journal of Urban and Regional Research 30, no. 3 (2006): 587–671; Yannis Papadopoulos and Philippe Warin, ‘Are Innovative, Participatory and Deliberative Procedures in Policy Making Democratic and Effective?’ European Journal of Political Research 46 (2007): 445–72; John Parkinson, Deliberating in the Real World: Problems of Legitimacy in Deliberative Democracy (Oxford: Oxford University Press, 2006); Judith Petts and Catherine Brooks, ‘Expert Conceptualisations of the Role of Lay Knowledge in Environmental Decisionmaking: Challenges for Deliberative Democracy,’ Environment and Planning A 38, no. 6 (June 2006): 1045–59; and Hendrik Wagenaar, ‘Democracy and Prostitution: Deliberating the Legalization of Brothels in the Netherlands,’ Administration and Society 38, no. 2 (May 2006): 198–235. Staff, NWMO, interview with author, Toronto, 6 June and 30 September 2005. See also NWMO, Choosing a Way Forward: The Future Management of Canada’s Used Nuclear Fuel: Final Study (Toronto: NWMO, 2005), 59–113, and 399–420. According to the NWMO, more than fifteen thousand Canadian citizens took part in this national consultation process, which included not only deliberative dialogues but also public opinion surveys and public information sessions. Elizabeth Dowdeswell, President, NWMO, interview with author, Toronto, 6 June 2005; Staff of NWMO, interview with author, Toronto, 6 June and 30 September 2005. See Judy Watling, Judith Maxwell, Nandini Saxena, and Suzanne Taschereau, Responsible Action: Citizens’ Dialogue on the Long-Term Management of Used Nuclear Fuel, Research Report P/04, Public Involvement Network (Ottawa: Canadian Policy Research Networks, 2004). See DPRA Canada, Final Report: National Stakeholders and Regional Dialogue Sessions (Toronto: NWMO, 2004). See Hardy Stevenson and Associates Limited, Final Report: National Stakeholders and Regional Dialogue Sessions (Toronto: NWMO, 2005).

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Notes to pages 98–9

7 Stratos, Dialogue on Choosing a Way Forward: The NWMO Draft Study Report: Summary Report (Toronto: NWMO, 2005). 8 NWMO, Ethical and Social Framework, NWMO Background Papers and Workshop Reports (Toronto: NWMO, 2004). 9 David Shoesmith and Les Shemilt, Workshop on the Technical Aspects of Nuclear Fuel Waste Management: Executive Summary, NWMO Background Papers and Workshop Reports (Toronto: NWMO, 2003). 10 Coleman, Bright Associates and Patterson Consulting, Development of the Environmental Component of the NWMO Analytical Framework, NWMO Background Papers and Workshop Reports (Toronto: NWMO, 2003). 11 GBN (Global Business Network), Looking Forward to Learn: Future Scenarios for Testing Different Approaches to Managing Used Nuclear Fuel in Canada, NWMO Background Papers and Workshop Reports (Toronto: NWMO, 2003). 12 NWMO, Choosing a Way Forward, 408–19. 13 See Anna Stanley, ‘Representing the Knowledges of Aboriginal Peoples: The “Management” of Diversity in Canada’s Nuclear Fuel Waste,’ Nuclear Waste Management in Canada, ed. Darrin Durant and Genevieve Fuji Johnson (Vancouver: UBC Press, forthcoming) for a critical review of the NWMO’s treatment of aboriginal peoples and nations in its consultation process. 14 NWMO, Choosing a Way Forward, Consultation Process (Toronto: NWMO), 2005, 402–5 15 Ibid., 401. 16 See for example Thomas Berger, Comments on NWMO’s Consultation Process (Toronto: NWMO, 2005); Andrew Brook, Professor of Philosophy, Carleton University, member of NWMO ethics round table, and participant in NWMO national consultation process, interview with author, Ottawa, 9 May 2005; Member of Advisory Council, telephone interview with author, 5 October 2005; Dave Hardy, Principal, Hardy Stevenson and Associates Limited, interview with author, Toronto, 30 September 2005; John Mutton, Mayor of Clarington and Chair of Canadian Association of Nuclear Host Communities, interview with author, Clarington, 7 June 2005; Norm Rubin, Director of Nuclear Research and Senior Policy Analyst, Energy Probe, 2005, interview with author, Toronto, 1 August 2001; Len Simpson, Mayor of Pinawa, telephone interview with author, 23 September 2005; and David Shoesmith, University of Western Ontario, telephone interview with author, 15 September 2005; see also DPRA Canada, Final Report: National Stakeholders and Regional Dialogue Sessions;

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Hardy Stevenson, Final Report: National Stakeholders and Regional Dialogue Sessions; Stratos, Facilitator’s Report on NWMO Workshop on the Nature of the Hazard of Used Nuclear Fuel (Toronto: NWMO, 2005); and idem, Dialogue on Choosing a Way Forward. Nuclear industry spokesperson, telephone interview with author, 20 October 2005. See for example Kevin Kamps, ‘Submission of Comments to Canadian Nuclear Waste Management Organization Regarding its “Choosing a Way Forward: Draft Study Report” ’ (Washington, DC: Nuclear Information and Resource Service, 2005); Nuclear Waste Watch, Position Statement, (Toronto, 1997), ‘Closing Statement’ (Hull: CEAA, CSS.015, 2004); and United Church of Canada, Justice, Global and Ecumenical Relations Unit, The Response of the United Church of Canada to the Nuclear Waste Management Organization Final Report (Toronto: 2005). Anna Stanley, Richard Kuhn, and Brenda Murphy, Response to NWMO’s Draft Study Report: Choosing a Way Forward, Submission to NWMO national consultation process (Toronto: NWMO, 2005). Mary Lou Harley, member of the Justice, Global and Ecumenical Relations Nuclear Wastes Writing Team, the United Church of Canada, responses to an email questionnaire with author, 4 August 2005. See for example AFN, Nuclear Fuel Waste Dialogue: Phase II Regional Forums Summary Report, submitted to the NWMO (Ottawa: 2005); Gracia Janes, ‘Comments on the NWMO Draft Management Plan for Nuclear Waste,’ National Council of Women of Canada (Ottawa: 2005); Norm Rubin, Director of Nuclear Research and Senior Policy Analyst, Energy Probe, interview with author, Toronto, 1 August 2001; Stanley, Kuhn, and Murphy, Response to NWMO’s Draft Study Report; Nuclear Waste Watch, Position Statement; NWAC, National Consultation on Nuclear Fuel Waste Management (Ottawa: 2005); Trudeau Foundation and Sierra Club of Canada, ‘Roundtable Discussion on Nuclear Waste Management’ (Toronto: 2005); United Church of Canada, Justice, Global and Ecumenical Relations Unit, Submission One: United Church of Canada General Comments on Nuclear Wastes and the Work of the Nuclear Waste Management Organization (Toronto: 2004); idem, Submission Two: Commentary on a United Church of Canada Ethical Lens for Viewing the Problem of Nuclear Wastes (Toronto: 2005); idem, Comments of the United Church of Canada to the Nuclear Waste Management Organization on the Draft Study Report (Toronto: 2005); idem, The Response of the United Church. See also DPRA Canada, Final Report: National Stakeholders and Regional Dialogue Sessions;

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24 25

26

27 28

Notes to pages 99–100 Hardy Stevenson, Final Report: National Stakeholders and Regional Dialogue Sessions; Stratos, Facilitator’s Report on NWMO Workshop; and idem, Dialogue on Choosing a Way Forward. Elizabeth Dowdeswell, interview with author, Toronto, 6 June 2005; and Staff of NWMO, interview with author, Toronto, 6 June and 30 September 2005. See for example Watling et al., Responsible Action: Citizens’ Dialogue; DPRA Canada, Durham Nuclear Health Committee: NWMO Dialogue on the Future of Canada’s Used Nuclear Fuel (Toronto: NWMO, 2004); idem, Nuclear Waste Management Organization: The Future of Canada’s Used Nuclear Fuel: International Youth Nuclear Congress Round Table (Toronto: NWMO, 2004); idem, Final Report: National Stakeholders and Regional Dialogue Sessions; GBN, Looking Forward to Learn: Future Scenarios; Glenn Sigurdson, CSE Consulting Inc., and Barry Stuart, Community Dialogue: A Planning Workshop, NWMO Background Papers and Workshop Reports (Toronto: NWMO, 2003); Hardy Stevenson and Associates, NWMO Community Dialogue Workshop on Discussion Document Two: Final Report (Toronto: NWMO, 2005); and idem, Final Report: National Stakeholders and Regional Dialogue Sessions. Judy Watling, Assistant Director, Public Involvement Network, Canadian Policy Research Networks, interview with author, Ottawa, 9 May 2005. See Watling et al., Responsible Action: Citizens’ Dialogue, 56. Not all third parties running dialogues for the NWMO offered to their participants pre- and post-deliberation surveys on their dialogue experiences. The CPRN was the most comprehensive on this front, which accounts for my reliance on data derived from their surveys. Mary Lou Harley, member of the Justice, Global and Ecumenical Relations Nuclear Wastes Writing Team, the United Church of Canada, responses to email questionnaire sent by author, 4 August 2005. Dave Hardy, Principal, Hardy Stevenson and Associates Limited, interview with author, Toronto, 30 September 2005. See for example CAP, Summary of Key Observations Regarding NWMO Discussion Document 2: Understanding the Choices (Ottawa: 2005); Janes, ‘Comments’; Stanley, Kuhn, and Murphy, Response to NWMO’s Draft Study Report; Staff no. 2, AFN, interview with author, Ottawa, 13 October 2005; Trudeau Foundation and the Sierra Club of Canada, ‘Roundtable Discussion’; United Church of Canada, Justice, Global and Ecumenical Relations Unit, Submission One; idem, Submission Two; idem, Comments of the United Church of Canada to the Nuclear Waste Management Organization on the Draft Study Report; and idem, The Response of the United Church.

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29 See Watling et al., Responsible Action: Citizens’ Dialogue, 56. 30 Dave Hardy, Principal, Hardy Stevenson and Associates Limited, interview with author, Toronto, 30 September 2005. 31 Thomas Berger, Comments on NWMO’s Consultation Process (Toronto: NWMO, 2005). 32 Member of NWMO Advisory Council, telephone interview with author, 5 October 2005. 33 Mary Lou Harley, member of the Justice, Global and Ecumenical Relations Nuclear Wastes Writing Team, the United Church of Canada, response to email questionnaire sent by author, 4 August 2005. 34 Stanley, Kuhn, and Murphy, Response to NWMO’s Draft Study Report. 35 AFN, Nuclear Fuel Waste Dialogue; CAP, Summary of Key Observations; and ITK, Final Report on the National Inuit Specific Dialogues on the Long-Term Management of Nuclear Fuel Waste in Canada (Ottawa: 2005). 36 Soha Kneen, Coordinator of the National Inuit Specific Dialogue, Environment Department, Inuit Tapiriit Kanatami, interview with author, Ottawa, 9 May 2005; Staff no. 2, AFN, interview with author, Ottawa, 13 October 2005. See also AFN, Nuclear Fuel Waste Dialogue. 37 See for example DPRA Canada, Durham Nuclear Health Committee; idem, Nuclear Waste Management Organization; idem, ‘Final Report: National Stakeholders and Regional Dialogue Sessions’; Glenn Sigurdson, CSE Consulting Inc., and Barry Stuart, Community Dialogue: A Planning Workshop; GBN, Looking Forward to Learn: Future Scenarios; Hardy Stevenson and Associates Limited, NWMO Community Dialogue Workshop; idem, ‘Final Report: National Stakeholders and Regional Dialogue Sessions’; and Stratos, Facilitator’s Report on NWMO Workshop. 38 See Watling et al., Responsible Action: Citizens’ Dialogue. 39 For example, Mary Lou Harley, member of the Justice, Global and Ecumenical Relations Nuclear Wastes Writing Team, the United Church of Canada, response to email questionnaire sent by author, 4 August 2005; Dave Hardy, Principal, Hardy Stevenson and Associates Limited, interview with author, Toronto, 30 September 2005; and Watling et al., Responsible Action: Citizens’ Dialogue. 40 For example, David Shoesmith, authority on nuclear waster storage and disposal, University of Western Ontario, telephone interview with author, 15 September 2005. 41 For example, Len Simpson, Mayor of Pinawa, telephone interview with author, 23 September 2005. 42 Dave Hardy, Principal, Hardy Stevenson and Associates Limited, interview with author, Toronto, 30 September 2005.

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56 57 58 59 60

61

62 63 64 65 66 67

Notes to pages 102–6 NWMO, Choosing a Way Forward, 74–8. Ibid., 76. Ibid. Ibid., 75. See for example Stanley, Kuhn, and Murphy, Response to NWMO’s Draft Study Report. Shoesmith and Shemilt, Workshop on the Technical Aspects, 4. Ibid., 5. Watling et al., Responsible Action: Citizens’ Dialogue, x. DPRA, Final Report: National Stakeholders and Regional Dialogue Sessions, 7. See ibid., 24, and Hardy Stevenson, Final Report: National Stakeholders and Regional Dialogue Sessions, 23. Ibid., 35; and Stratos, Dialogue on Choosing a Way Forward, 5–6. NWMO, Choosing a Way Forward, 108. For example, Thomas Berger, Comments on NWMO’s Consultation Process; Andrew Brook, Professor of Philosophy, Carleton University, member of NWMO ethics round table, and participant in NWMO national consultation process, interview with author, Ottawa, 9 May 2005; Dave Hardy, Principal, Hardy Stevenson and Associates Limited, interview with author, Toronto, 30 September 2005; Member of NWMO Advisory Council, telephone interview with author, 5 October 2005; and Len Simpson, Mayor of Pinawa, telephone interview with author, 23 September 2005. Stratos, Dialogue on Choosing a Way Forward, 2–4. Ibid., 5. Ibid. Ibid., 6. See DPRA, Final Report: National Stakeholders and Regional Dialogue Sessions; Hardy Stevenson, Final Report: National Stakeholders and Regional Dialogue Sessions; and Stratos, Dialogue on Choosing a Way Forward. Cited in Stephen Salaff, ‘Native communities refuse nuclear waste,’ www.sevenoaksmag.com, 27 October 2005; and in Murray Campbell, ‘Bury nuclear waste underground, group says,’ The Globe and Mail, 4 November 2005, sec. A, 8. Trudeau Foundation and Sierra Club, ‘Roundtable Discussion.’ Nuclear Waste Watch, Position Statement. United Church of Canada, The Response of the United Church. Stanley, Kuhn, and Murphy, Response to NWMO’s Draft Study Report, 2. CAP, Summary of Key Observations. Staff no. 2, AFN, interview with author, Ottawa, 13 October 2005.

Notes to pages 106–11

145

68 Ibid. 69 Ibid. See also Anna Stanley, post-doctoral fellow, CIEQ, Laval University, interview with author, Toronto, 29 September 2005. 70 See for example AFN, Nuclear Fuel Waste Dialogue; CAP, Summary of Key Observations; Soha Kneen, Coordinator of the National Inuit Specific Dialogue, Environment Department, Inuit Tapiriit Kanatami, interview with author, Ottawa, 9 May 2005; Anna Stanley, interview with author, Toronto, 29 September 2005; Stanley, Kuhn, and Murphy, Response to NWMO’s Draft Study Report; and Staff no. 2, AFN, interview with author, Ottawa, 13 October 2005.

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Index

Aboriginal Rights Coalition (ARC) 39, 42 accountability 5, 34, 47–52, 75, 92, 104 adaptive phased management 32, 103–4 agreement 4–5, 22, 54, 74–85, 91–4, 96, 98, 101–9 Assembly of First Nations (AFN) 27, 48–9, 98, 106, 129 Atomic Energy Control Board (AECB) 25, 27, 38, 45, 121 Atomic Energy of Canada Limited (AECL) 4, 24–31, 33–41, 43, 45, 47, 49, 52, 57, 59, 71, 95, 102, 120, 122 Barry, Brian 65, 72–4, 77–8 Bentham, Jeremy 60 Bill C-27 32, 44, 47–9, 130 Brunk, Conrad 38–40, 116 Canadian Coalition for Ecology, Ethics, and Religion (CCEER) 44 Canadian Nuclear Safety Commission (CNSC) 25, 27, 38, 121 Canadian Policy Research Networks (CPRN) 97, 100–1, 104, 142

CANDU reactors 24, 120 Chambers, Simone 81, 136 coalition: discursive 5, 25–6, 34, 52, 95, 121; critical 5, 27, 30, 34, 36, 38, 41–5, 48–50, 59, 66, 109; dominant 5, 27–8, 34–6, 38, 40–3, 45, 49, 51, 59–60, 66–7, 77, 109 Cohen, Joshua 82 conception of the good 20, 53, 57–8, 65, 70–3, 85, 110, 114 consensus 22, 80, 82, 122 cost-benefit analysis (CBA) 4, 13–17, 52, 68, 88, 113, 118–19 deep geological disposal 28, 32, 35–7, 57, 71, 95–7, 122 deliberative democracy 31, 79–94, 95–7, 107–9, 111, 134–7; policy analysis informed by 95–111, 135 deontology, modern 4–5, 17, 55, 69–70, 75 Department of Natural Resources (NRCan) 24, 27, 29, 32, 39, 45–8, 75, 97–8 discursive democracy 79, 82, 137 Dryzek, John 16, 81, 134

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empowerment 5, 34, 44, 52, 55, 92, 110 equality: 3–4, 19–20, 79, 86, 93, 97, 99, 106, 137; epistemological 79, 86, 93, 100, 107; moral 3–4, 6–7, 18, 20, 69, 72–4, 80, 86–7, 114; procedural 79, 86, 93, 107–8 ethical policy analysis 5–7, 11, 17, 23, 33–4, 53–4, 110–11, 118

justice 5, 6, 11, 17–23, 41–2, 53, 58, 70–4, 79–83, 91, 96, 111; conception of 4–5, 21, 67, 70, 80; concept of 19–20; intergenerational 116; principles of 19, 21, 53, 58, 67, 72, 74; transgenerational 72, 116

Feinberg, Joel 70–1 Frankena, William 20, 119–20, 133 freedom 3, 6–7, 18, 53, 72, 81, 83, 86–8, 90, 92, 114, 137 future 3–6, 9–12, 16, 33, 35, 44, 47, 50, 57, 63–5, 72, 85–8, 99, 105, 109; generations 4–6, 9–10, 15–16, 23, 26, 34, 35–7, 40–4, 52–63, 67–8, 71–8, 85–8, 90–3, 102–4, 107, 109–11, 115–16; persons 3, 5, 9–10, 35, 53, 61, 63–8, 71, 76–7, 84–8, 91, 110 futurity 5–11, 23, 34, 52, 55, 68, 92–3, 108, 110, 115

legitimacy 5–6, 11, 17, 18, 21–3, 47, 53, 54, 74–5, 78–9, 83, 91, 96, 136; conception of 4, 10, 14, 21–2, 53, 74–5, 111; concept of 21

Goodin, Robert 16, 56–9, 67 Gutmann, Amy 80–2, 87 Habermas, Jürgen 82, 136–7 Harley, Mary Lou 99, 100 Hawkesworth, Mary 11–13 Hydro Québec (H-Q) 24, 27–8, 30, 33, 43 inclusion 4–6, 34, 44–5, 52, 55, 75, 82, 92–3, 97–8, 106, 108, 110 International Atomic Energy Agency (IAEA) 63 Inuit Tapirrit Kanatami (ITK) 98

Kavka, Gregory 9 Kuhn, Richard 101, 105, 123

moral standing 5, 20–1, 35, 52–4, 57, 63, 68, 70–1, 75–6, 83–5, 92, 110 Murphy, Brenda 101, 106, 123 New Brunswick Power (NBP) 24, 27–8, 30, 33, 44 non-positivism 11, 16, 118 Nuclear Energy Agency (NEA) 38, 122 Nuclear Fuel Waste Act 28, 30, 32, 44, 47, 66, 75, 95, 107 Nuclear Safety and Control Act 48, 121 nuclear waste 25, 28–30, 36–7, 44, 55, 59, 103, 107, 114, 122; management and disposal options 3–9, 25–44, 51–2, 55, 58–78, 84, 87, 92, 94–7, 100–1, 103, 106, 108–11, 121–2 Nuclear Waste Management Organization (NWMO) 24, 47–52, 95–6, 101–7; National Consultation Process 31–4, 37, 40, 48, 96–109 Ontario Hydro (OH) 24–8, 33, 36, 122

Index Ontario Power Generation (OPG) 24, 30, 33, 43, 48 O’Riordan, Tim 89 oversight 5, 28, 32–4, 43, 47–52, 55, 92, 110 Parfit, Derek 10, 16, 63 policy analysis: deliberative democratic 95–111, 135; ethical 5–7, 11, 17, 23, 33–4, 53–4, 110–11, 118 Policy Framework for Disposal of Radioactive Waste Management 29–34, 43–7, 66, 75, 95 positivism 11–17, 117–18 post-positivism 16, 117, 118 precaution 5, 88, 90–4, 97, 102, 106; precautionary principle 88–90; precautionary reasoning 6, 92–3, 102–3, 108 public: consultation 30, 48–9, 97, 99, 107; participation 26–8, 44, 50–1; reason 79–81, 90–1; reasoning 87–8, 91–2 Rawls, John 15, 18–20, 67–73, 78–82, 133 reciprocity 4, 80–1, 87, 93, 97, 101–2, 106 risk 3–17, 23, 25, 34–45, 52, 55, 59, 65, 68, 73, 87–93, 102, 104, 107, 109–10, 114; risk assessment 8–13, 17, 27, 38–41, 52, 57, 68, 72, 84, 87, 88; risk cost-benefit analysis (RCBA) 14–15, 30, 52, 88

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safety 5, 13, 25–9, 34–41, 43, 52, 55, 59, 62, 65, 71, 84, 89, 92, 102, 104 Seaborn: Blair 26, 100; hearings 26, 29–38, 41, 46, 50–2, 57, 59, 62, 63, 75, 77, 83; panel 25–30, 32, 35–42, 44–5, 95, 123; report (Canadian Environmental Assessment Agency, Nuclear Fuel Waste Management and Disposal Concept) 30, 32, 50 Shrader-Frechette, Kristin 8 Singer, Peter 57–8 Stanley, Anna 101, 106, 140 Thompson, Dennis 80–2, 87 uncertainty 3–11, 16, 23, 33–40, 52, 55, 58, 62, 68, 75, 78, 86, 91–3, 107–10, 114–15 utilitarianism 4–5, 17, 55, 60–75, 111, 130–1, 133; classical 130–1; welfare 55–9, 65–6, 73, 75 Valadez, Jorge 82 Waldron, Jeremy 70 Warren, Mary 70–1 Wiles, Anne 38, 41, 123 Wilson, Lois 46, 50 Young, Iris Marion 19–20, 81

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Studies in Comparative Political Economy and Public Policy 1 The Search for Political Space: Globalization, Social Movements, and the Urban Political Experience / Warren Magnusson 2 Oil, the State, and Federalism: The Rise and Demise of Petro-Canada as a Statist Impulse / John Erik Fossum 3 Defying Conventional Wisdom: Free Trade and the Rise of Popular Sector Politics in Canada / Jeffrey M. Ayres 4 Community, State, and Market on the North Atlantic Rim: Challenges to Modernity in the Fisheries / Richard Apostle, Gene Barrett, Peter Holm, Svein Jentoft, Leigh Mazany, Bonnie McCay, and Knut H. Mikalsen 5 More with Less: Work Reorganization in the Canadian Mining Industry / Bob Russell 6 Visions for Privacy: Policy Approaches for the Digital Age / Edited by Colin J. Bennett and Rebecca Grant 7 New Democracies: Economic and Social Reform in Brazil, Chile, and Mexico / Michel Duquette 8 Poverty, Social Assistance, and the Employability of Mothers: Restructuring Welfare States / Maureen Baker and David Tippin 9 The Left’s Dirty Job: The Politics of Industrial Restructuring in France and Spain / W. Rand Smith 10 Risky Business: Canada’s Changing Science-Based Policy and Regulatory Regime / Edited by G. Bruce Doern and Ted Reed 11 Temporary Work: The Gendered Rise of a Precarious Employment Relationship / Leah Vosko 12 Who Cares? Women’s Work, Childcare, and Welfare State Redesign / Jane Jenson and Mariette Sineau with Franca Bimbi, Anne-Marie Daune-Richard, Vincent Della Sala, Rianne Mahon, Bérengère Marques-Pereira, Olivier Paye, and George Ross 13 Canadian Forest Policy: Adapting to Change / Edited by Michael Howlett 14 Knowledge and Economic Conduct: The Social Foundations of the Modern Economy / Nico Stehr 15 Contingent Work, Disrupted Lives: Labour and Community in the New Rural Economy / Anthony Winson and Belinda Leach 16 The Economic Implications of Social Cohesion / Edited by Lars Osberg 17 Gendered States: Women, Unemployment Insurance, and the Political Economy of the Welfare State in Canada, 1945–1997 / Ann Porter 18 Educational Regimes and Anglo-American Democracy / Ronald Manzer 19 Money in Their Own Name: The Feminist Voice in Poverty Debate in Canada, 1970–1995 / Wendy McKeen

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20 Collective Action and Radicalism in Brazil: Women, Urban Housing, and Rural Movements / Michel Duquette, Maurilio de Lima Galdino, Charmain Levy, Bérengère Marques-Pereira, and Florence Raes 21 Continentalizing Canada: The Politics and Legacy of the Macdonald Royal Commission / Gregory J. Inwood 22 Globalization Unplugged: Sovereignty and the Canadian State in the Twenty-First Century / Peter Urmetzer 23 New Institutionalism: Theory and Analysis / edited by André Lecours 24 Mothers of the Nation: Women, Family, and Nationalism in TwentiethCentury Europe / Patrizia Albanese 25 Partisanship, Globalization, and Canadian Labour Market Policy: Four Provinces in Comparative Perspective / Rodney Haddow and Thomas Klassen 26 Rules, Rules, Rules, Rules: Multi-Level Regulatory Governance / Edited by G. Bruce Doern and Robert Johnson 27 The Illusive Tradeoff: Intellectual Property Rights, Innovation Systems, and Egypt’s Pharmaceutical Industry / Basma Abdelgafar 28 Fair Trade Coffee: The Prospects and Pitfalls of Market-Driven Social Justice / Gavin Fridell 29 Deliberative Democracy for the Future: The Case of Nuclear Waste Management in Canada / Genieve Fuji Johnson