1. Introduction

On June 20^th 2018, Bill C-69 received its introduction and first reading in Canada’s Senate. Bill C-69 aims to enact the Impact Assessment Act (the “IAA”).² The IAA repeals the current Canadian Environmental Assessment Act (the “CEAA”),³ and implements broad changes to the Canadian environmental assessment process. One significant change that has received little exposure is the removal of the Canadian Nuclear Safety Commission’s (the “CNSC”) authority to conduct environmental impact assessments of nuclear activities. Under the IAA, impact assessments of nuclear activities are referred to a review panel composed of members appointed by the Minister of the Environment (the “Minister”).⁴

The CNSC is established by the Nuclear Safety and Control Act (the “NSCA”) to develop regulations and oversee nuclear activities within Canada.⁵ The CNSC maintains unique expertise and knowledge of the nuclear field to effectively regulate in accordance with the environmental and safety objectives of the NSCA. The following discussion demonstrates how the CNSC’s limited participation in impact assessments interferes with their ability to carry out these objectives and impairs their ability to impart important knowledge conducive to the impact assessments of nuclear activities. These limitations will have significant impacts on Canada’s nuclear industry and will pose unique challenges for the progression of industry and the consideration of novel and innovative nuclear technologies such as small modular reactors and other advanced reactors.

2. Appointment of Review Panels

The IAA eliminates the responsibility of the CNSC to perform impact assessments of nuclear activities previously held under the CEAA and prescribes that those assessments be delegated to a review panel made up of members appointed by the Minister. The IAA attempts to balance this shift by compelling the Impact Assessment Agency of Canada (the “Agency”) and the Minister to offer consultation with the CNSC. However, the success of this consultation is precarious as the scope and effectiveness of the measures are placed at the discretion of the Agency and Minister.

The establishment of a review panel to perform impact assessments of nuclear activities occurs as follows. Section 43(a) of the IAA requires the Minister to refer the impact assessment of physical activities regulated under the NSCA to a review panel.⁶ When referring assessments to a review panel, the Minister must establish the terms of reference of the panel, and appoint a chairperson and at least two other members to form the panel.⁷ When appointing members, the Minister is to choose at least one person from a roster consisting of members of the CNSC.⁸ This change is in response to the public concern that government agencies such as the CNSC lack competency and consistency in their application of the law during impact assessments.⁹ Notwithstanding the validity of these concerns, this approach neglects the importance and significance of the CNSC’s expertise and knowledge for the performance of impact assessments.

The IAA attempts to fulfill the need of expert knowledge in the process by providing the CNSC the opportunity to be consulted by the Agency and the Minister, but falls short as the act fails to provide scope and meaningful influence within those measures. Prior to the performance of the impact assessment, the Agency is required to offer consultation with the CNSC when preparing for a possible impact assessment under s. 12 of the IAA.¹⁰ This consultation, in part, is to be used by the Agency to determine and inform the proponent of a summary of issues that it finds relevant to the project.¹¹ However, any meaningful influence the CNSC derives from this measure is limited by the discretion of the Agency. Section 14(1) obligates the Agency to relay to the proponent, at their discretion, “a summary of issues with respect to that project that it considers relevant, including issues that are raised by … [the CNSC].”¹² Additionally, the IAA is silent as to the exact content and scope of this consultation, thus placing such aspects within the responsibility of the Agency. As a result, consultation with the Agency provides the CNSC with a precarious influence in the pre-assessment steps of defining and raising important issues for impact assessments.

The IAA obligates the Minister to offer consultation with the CNSC to determine factors to be addressed by prospective impact assessments, but fails to provide the CNSC with any actual meaningful participation. Section 21(a) of the IAA provides that the Minister must offer to consult and cooperate with the CNSC with respect to impact assessments.¹³ This consultation may include determining the scope of factors that must be considered.¹⁴ However, like the pre-assessment consultation discussed above, the content of the consultation between the CNSC and the Minster is ambiguous. The IAA does not directly define what the CNSC can or must be consulted on. Thus, the utility and influence of this consultation is at the discretion of the Minister. Again, this requirement to offer consultation provides the CNSC with a precarious and limited participatory role in the impact assessment process.

The IAA has replaced the responsibility of the CNSC to perform environmental assessments with an uncertain consultative role within the impact assessment process. By failing to address the scope and content of the Minister and Agency’s obligation to consult with the CNSC, the IAA entrusts the utility of these obligations to the discretion of the Agency and the Minister. Not only does this limit the CNSC’s influence and expertise within impact assessments, but there is a danger that this obligation may become perfunctory as requirements of these consultations are minimal. Insignificant consultation with the CNSC may impair impact assessments as the CNSC is the only government agency with the requisite technical expertise to effectively evaluate the full scope of the nuclear activities.

3. Powers of the Review Panel and the Minister

The IAA charges the review panel and the Minister with a broad set of powers that eliminates the necessity for CNSC participation and impacts the issuance of nuclear licenses. The IAA charges the review panel with the powers granted to the CNSC under the NSCA and provides the Minister with the power to ascribe conditions to the licenses issued by the CNSC. This conveyance of powers removes any reliance on the CNSC for performing impact assessments, while maintaining the responsibility of the CNSC to monitor and enforce licensing conditions ascribed by the Minister. As a result, impact assessments may be carried out autonomously of the CNSC and diminishes any need to include them within impact assessments.

Review panels are embodied with the powers of the CNSC so long as those powers are exercised in accordance with their duties in conducting impact assessments.¹⁵ The duties of the review panel are dictated by the Minister’s terms of reference¹⁶ and by the duties listed within s. 51 of the IAA.¹⁷ The IAA does not limit the scope of the powers conveyed to the review panel and thus confer the full suite of powers given to the CSNC under the NSCA. This broad set of powers include the holding of meetings of the CNSC,¹⁸ operating as a court of record,¹⁹ calling and examining witnesses,²⁰ and more. The IAA therefore establishes review panels as a complete analog of the CNSC in the context of impact assessments, thus eliminating any operational need for the CNSC in performing the assessment.

The IAA empowers the Minister with ability to ascribe the conditions contained in his or her decision statement to the licenses issued by the CNSC under s. 24 of the NSCA.²¹ A decision statement informs the proponent of the determinations resulting from the assessment, and may include licensing conditions.²² This is in contrast with the approach taken by the CEAA, which does not provide the Minister with such abilities. This has three important implications for the CNSC and licensed nuclear activities. First, the Minister may impose conditions on the licenses issued, renewed or amended by the CNSC. Second, the CNSC is responsible for ensuring that those conditions are being maintained by the proponent. Third, any contravention of those conditions is a breach punishable under the NSCA. This is significant as the NSCA provides a larger fine for licensing breaches than does the IAA and provides the possibility of imprisonment for the licensee.²³ The ability of the Minister to ascribe environmental conditions to nuclear licenses thereby removes any reliance on the CNSC for such operation while maintaining the responsibility of the CNSC to enforce those conditions under the NSCA.

The IAA equips the Minister and the review panel with the necessary tools to perform impact assessments and effectively removes any operational need for the CNSC within the process. The powers conferred to the review panel allow them to carry out impact assessments autonomously and completely independent of the CNSC. Additionally, the Minister’s ability to dictate licensing conditions for nuclear activities exploits the CNSC’s license enforcement duties under the NSCA while affording them no authoritative or influential role within the process. The conveyance of these powers to the review panel and the Minister assures their autonomy and effectively eliminates any need to include the CNSC in impact assessments.

4. Conflict with the safety objectives of the CNSC

The exclusion of the CNSC from impact assessments frustrates their ability to discharge their objective to prevent unreasonable risk to the environment as prescribed by the NSCA.²⁴ The environmental safety objective is developed within the regulations established by the CNSC and acts complementary to their primary objective of preventing unreasonable risk.²⁵ The exclusion of the CNSC from impact assessments forces the regulator to rely on potentially incomplete, inaccurate, misguided or otherwise inadequate assessments and determinations made by the review panel and the Minister for the assurance that their environmental safety objective is met. This frustrates the CNSC’s ability to discharge their environmental safety objective and ultimately impacts their primary objective of ensuring that the risks of the activity are reasonable.

The environmental protection safety objective requires two things. First, that reactor facilities be “designed to ensure that during normal operation, anticipated operational occurrences and design basis accidents, there are no detrimental significant adverse effects on the environment as required by the Canadian Environmental Assessment Act.”²⁶ Second, that “[t]he design shall also provide for the mitigation of the environmental consequences of beyond design basis accidents, to the extent practicable.” Historically, these two criteria are met by the performance of an impact assessment by the CNSC in accordance with the CEAA. Though the prevention of detrimental significant adverse effects and the mitigation of consequences are continued within the IAA, the satisfaction of this criteria is no longer at the discretion of the CNSC.²⁷ The question arises as to whether the CNSC has sufficient input in impact assessments to effectively ensure their safety objectives are met and whether they may rely on the assessments of the review panel for the satisfaction of this safety objective.

As discussed earlier, the measures taken by the IAA to include the consultation of the CNSC in the assessment process are insufficient to ensure any meaningful participation, influence or conveyance of expertise within the impact assessment process. In their role as a nuclear regulator, it is the ultimate responsibility of the CNSC to ensure that the objectives of the NSCA are met. Therefore, to satisfy this objective, the CNSC require adequate participation in the process to ensure that the full scope of their environmental protection safety objective is satisfied. This cannot be done within the prescribed regime of the IAA.

Moving forward, the CNSC has few options other than to rely on the determinations and assessments made by the Minister and the review panel. However, concerns arise as to the adequacy of such assessments without meaningful consultation with the CNSC. Another option may be for the CNSC to review the report prepared by the review panel and the decision statement of the Minister to determine whether their environmental protection safety objective is met. This option will allow the CNSC to ensure that their regulatory objectives are satisfied. However, it may be uneconomical for the CNSC to provide an in-depth analysis for every assessment. Additionally, it may increase costs, licensing times and redundancy, while also being frustrating for the proponent. Thus, the CNSC must rely on the determinations made by the review panel and Minister.

In sum, the IAA has frustrated the CNSC’s ability to discharge their environmental protection safety objective and, ultimately, their primary objective of preventing unreasonable risk, in accordance with the mandate of the NSCA. The IAA forces the CNSC to rely on the assessment performed by the review panel and the determinations made by the Minister for the fulfillment of their regulatory objectives, which may be ill-advised for areas that require expertise unique to the CNSC. This concern has been raised by members of industry who question the review panel’s lack of experience regarding radiation exposure and Canada’s international obligations.

5. Expertise and International agreements

At the Standing Committee on Environment and Sustainable Development (ENVI) concern was raised regarding radiation exposures and the international commitments that Canada has made.²⁸ It was argued that a review panel does not have the adequate expertise to ensure the protection from radiation exposure and that Canada’s international commitments on safeguards and non-proliferation will be  maintained.²⁹ The CNSC is the only agency with the requisite expertise and position to perform an assessment that satisfies these criteria efficiently and effectively. Not only do these two criteria require technical and scientific expertise, but they are woven throughout the regulatory framework developed by the CNSC.

The CNSC has developed their regulations regarding radiation protection and acceptance safety objectives to be in accordance with the objectives mandated within the NSCA and Canada’s international commitments. These regulations provide that the exposure of radiation within the reactor facility during anticipated operational occurrences, or any planned release of radiation, be kept as low as reasonably achievable (ALARA).³⁰ The satisfaction of this objective is achieved through different control processes and planning.³¹ ALARA is an aspirational goal common to nuclear regulation that is revealed through experience and practice over several years.³² Thus, the CNSC is in the best position to ensure that nuclear activities have sufficient measures to ensure that radiation is ALARA when performing impact assessments.

Canada’s international obligations provide imperative regulatory requirements for the applicant. Canada has ratified many treaties and conventions, most of them arising out of agreements of safeguards and measures entered into with the International Atomic Energy Association (the “IAEA”) and the Nuclear Energy Agency (the “NEA”). These agreements and other international commitments are expressed and developed within the regulations created by the CNSC. Thus, the CNSC has in-depth experience in the administration of these objectives.

A review panel does not have the requisite experience to assess radiation protection measures and to ensure that Canada’s international commitments are maintained. The CNSC has years of practice and experience with the administration of these requirements. Radiation exposure objectives employ a qualitative goal that requires referential experience to evaluate. Not only would a review panel not have this requisite experience, but the establishment of a new panel for each assessment prohibits the accumulation of such requisite experience for the accurate evaluation of this safety objective and others.

6. Conclusion

The impact assessment regime proposed under the IAA removes the CNSC from regulating nuclear activities mandated to them under the NSCA. Drafters of the IAA attempt to balance their removal by creating opportunities for them to be consulted at two stages within the assessment process. However, the effectiveness of this approach is hindered by the lack of direction and scope of the consultation, and, instead, the IAA entrusts the utility of the consultation to the discretion of the Agency or the Minister. Not only does this change frustrate the CNSC’s responsibility to ensure the safety of the environment and maintain Canada’s international obligations, but it also places the impact assessment of technical and complex nuclear activities at the discretion of a review panel that lack experience and expertise. This change has broad impacts for Canadians and the nuclear industry.

Removal of the CNSC from impact assessments may result in inadequate impact assessments which jeopardize the safety of Canadians and the welfare of Canada’s nuclear industry. Inadequate assessments of nuclear activities put the safety of the environment and Canadians at risk as the review panel may neglect or inadequately assess important factors or considerations. Furthermore, this regime may negatively impact the nuclear industry as proponents may be dissuaded by the regulatory uncertainties created by the lack of expertise of the review panel and variation of impact assessments caused by the review panel’s impermanency. This is particularly pertinent for proponents of advanced nuclear reactors and small modular reactors who attempt to deploy first of a kind technology and thus face critical economic hurdles.

Impact assessments are most efficiently conducted by the CNSC because of their position as Canada’s nuclear regulator and their expertise in the area.³³ Providing the CNSC with a more meaningful role in the process would abate the majority of the issues raised within this article. An effective solution may be to re-assign the CNSC as the responsible authority for the impact assessment of nuclear activities. To encourage consistent and competent application of Canadian law and assessment requirements, an oversight structure may be implemented. Such a structure may require the CNSC to consult with another impact assessment body, such as the Agency, on the performance of their assessment throughout the process. Alternatively, another approach may be for the CNSC to conduct assessments with one or more members being appointed by the Minister. These two recommendations would encourage public trust within the process while maintaining adequate expertise.

1. Andrew Dusevic is an LL.M. student at the University of Saskatchewan College of Law. He is grateful to the Sylvia Fedoruk Canadian Centre for Nuclear Innovation for providing funding for his graduate studies which allow him to write articles like this.
2. Canada, Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts, 1^st Sess, 42^nd Parl, 2018 [Bill C-69].
3. Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52 [CEAA].
4. Jamie Kneen, “Bill C-69: New Federal Environmental Reviewa Laws Fall Short of Promises” (9 February 2018), Mining Watch Canada (blog), online: <https://miningwatch.ca/blog/2018/2/9/bill-c-69-new-federal-environmental-review-laws-fall-short-promises> [Kneen]; See Bill C-69, supra note 2 at cl 52.
5. Nuclear Safety and Control Act, SC 1997, c 19, s 8(1) [NSCA].
6. Bill C-69, supra note 2 at cl 43.
7. Ibid at cl 44(1).
8. Ibid at cl 44(3).
9. Canada, Minister of Environment and Climate Change, Building Common Ground: A New Vision for Impact Assessment in Canada, by the Expert Panel for the Review of Environmental Assessment Processes, (Ottawa: Canada Environmental Assessment Agency, 2017), online: <https://www.canada.ca/en/services/environment/conservation/assessments/environmental-reviews/environmental-assessment-processes/building-common-ground.html> [Building Common Ground] (the public criticized government agencies such as the CNSC for lacking competency and consistency in their application of the law during impact assessments at 49); See also Kneen, supra note 4.
10. Ibid at cl 12.
11. Ibid at cl 14(1).
12. Ibid.
13. Ibid (the Minister must offer to consult and cooperate with any jurisdiction with respect to impact assessments if that jurisdiction has powers, duties or functions in relation to an assessment of the environmental effects of a designated project) at cl 21(1)(a).
14. See Ibid at cl 22(2)(b).
15. Bill C-69, supra note 2 at cl 46.
16. Ibid, cl 41(1).
17. Ibid, cl 51.
18. NSCA, supra note 5, s 14(2).
19. Ibid at cl 20(1).
20. Ibid at cl 20(2).
21. Ibid at cl 67(1).
22. Ibid at s 64(1), s 65(1).
23. NSCA, supra note 5, s 51(3)(a) – (b).
24. NSCA, supra note 5, s 9(a(1).
25. Canada, Canadian Nuclear Safety Commission, “Design of small reactor facilities”, (Ottawa: CNSC, 2011), online: <http://www.nuclearsafety.gc.ca/pubs_catalogue/uploads/RD-367-Design-of-Small-Reactor-Facilities_e.pdf> at 4.
26. Ibid.
27. See Bill C-69, supra note 2 at cl 6(1)(a) – (n), cl 22(b).
28. Canada, House of Commons, Standing Committee on Environment and Sustainable Development, Committee Meeting: Evidence, 42^nd Parl, 1^st Sess, Meeting No 102, online: <https://www.ourcommons.ca/DocumentViewer/en/42-1/ENVI/meeting-102/evidence> [ENVI].
29. Ibid.
30. Radiation Protection Regulations, SOR/2000-203, s 4(a); See also Packaging and Transport of Nuclear Substances Regulations, 2015, SOR/2015-145 (“keep the amount of exposure to radon progeny and the effective dose and equivalent does received by and committed to a person as low as reasonably achievable, social and economic factors being taken into account”), s 18(1).
31. Ibid.
32. “Nuclear Regulatory Decision Making” (Paris: Organisation for Economic Co-Operation And Development, 2005) at 17.
33. ENVI, supra note 8 at 3.