Petition Summary on the website of the Auditor General of Canada: https://www.oag-bvg.gc.ca/internet/English/pet_443_e_43602.html

May 12, 2020 

Office of the Auditor General of Canada 

Commissioner of the Environment and Sustainable Development Attention: Petitions 

240 Sparks Street 

Ottawa, ON K1A 0G6 

Via e-mail: petitions@oag-bvg.gc.ca 

Reporting Relationship of the Canadian Nuclear Safety Commission This petition is being submitted to the Office of the Auditor General of Cana da in accordance with section 22 of the Auditor General Act by Concerned Citizens of Renfrew County and Area and the Canadian Environmental Law Association. 

Background 

The Canadian Nuclear Safety Commission is the federal nuclear regulatory body in Canada. The CNSC currently reports to Parliament through the Min ister of Natural Resources, and its President reports directly to the same Min ister. Having the Canadian Nuclear Safety Commission (CNSC) report to Par liament through the Minister of Natural Resources — the Minister charged with producing (and promoting) nuclear energy under the Nuclear Energy Act — is not consistent with International Atomic Energy Agency (IAEA) guidance on “independence”, and places the Minister in an actual or perceived conflict of interest position. 

The reporting relationship of the CNSC to the Minister of Natural Resources may have adverse effects on several aspects of sustainable development. It may lead to prioritization of nuclear industry needs over protection of the health of Canadians, the needs of future generations, the respect for nature, the protection of ecosystems, and the prevention of pollution. To better meet the needs of current and future generations of Canadians and protect the ecosys tems on which we depend, the reporting relationship could be changed and the actual or perceived conflict of interest avoided. 

The IAEA requires the nuclear regulatory body to be independent from other government agencies that promote nuclear technologies  The IAEA’s General Safety Requirements, Part 1 state that:

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2.8. To be effectively independent from undue influences on its deci sion making, the regulatory body… (d) Shall be free from any pressures associated with political circumstances or economic conditions, or pres sures from government departments, authorized parties or other organi zations;¹ 

The IAEA’s General Safety Guide GSG-12 says: 

2.3 …the credibility of the regulatory body with the general public de pends on whether the regulatory body is regarded as being independent from the organizations it regulates, as well as independent from other 

government agencies or industry groups that promote nuclear technologies.²(emphasis added) 

However, the IAEA notes that the regulatory body’s “independence” is not ab solute: 

2.4. It is recognized that a regulatory body functions within the national legal and budgetary framework of the State, and therefore cannot be ab solutely independent in all respects of other parts of government. Nev ertheless, effective independence of the regulatory body to make deci sions in respect of radiation protection of people and the environment, without external pressures or influence, will contribute to its effective ness and credibility.³ 

Currently in Canada, the CNSC’s President reports to the Minister of Natural Resources 

The Nuclear Safety and Control Act says 

12(4) …the President shall make such reports to the Minister as the Min ister may require concerning the general administration and manage ment of the affairs of the Commission… 

¹Governmental, Legal and Regulatory Framework for Safety. General Safety Requirements No. GSR Part 1 (Rev. 1). International Atomic Energy Agency Vienna, 2016. p. 7. 

²Organization, Management and Staffing of the Regulatory Body for Safety. IAEA General Safety Guide No. GSG-12. International Atomic Energy Agency, Vienna, 2018. p. 4. 

³Organization, Management and Staffing of the Regulatory Body for Safety. IAEA General Safety Guide No. GSG-12. International Atomic Energy Agency, Vienna, 2018. p. 6.

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The Commission also reports to Parliament through the Minister of Natural Resources. The Nuclear Safety and Control Act says: 

Annual report 

72 The Commission shall, within four months after the end of each fis cal year, submit to the Minister a report of the activities of the Commis sion under this Act for that fiscal year, and the Minister shall cause the report to be laid before each House of Parliament on any of the first fif teen days on which that House is sitting after receiving it. 

The CNSC’s funding requests to Parliament are also channeled through the Minister of Natural Resources. The section on the CNSC in the 2019-20 Main Estimates states that “The Minister of Natural Resources is responsible for this organization.”⁴ However, the IAEA General Safety Guide GSG-12 says: 

2.14. An open and transparent system of governance and auditing of the regulatory body’s funding should be put in place. Review and approval of the regulatory body’s budget should be performed only by govern mental agencies that are effectively neutral in respect of the develop ment, promotion or operation of facilities and conduct of activities. Such an approach provides additional assurance of the independence of the regulatory body.⁵ 

The Minister of Natural Resources is not neutral in respect of promotion of nuclear technologies 

Far from being neutral in respect of nuclear activities, the Minister of Natural Resources is responsible for producing and promoting nuclear energy under the Nuclear Energy Act. 

The Powers of Minister under the Nuclear Energy Act are: 

10 (1) The Minister may 

(a) undertake or cause to be undertaken research and investigations with respect to nuclear energy; 

(b) with the approval of the Governor in Council, utilize, cause to be   

⁴2019-20 Main Estimates, p. II-38. 

⁵Organization, Management and Staffing of the Regulatory Body for Safety. IAEA General Safety Guide No. GSG-12. International Atomic Energy Agency, Vienna, 2018. p. 8.

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utilized and prepare for the utilization of nuclear energy; 

(c) with the approval of the Governor in Council, lease or, by purchase, requisition or expropriation, acquire or cause to be acquired nuclear substances and any mines, deposits or claims of nuclear substances and patent rights or certificates of supplementary protection issued under the Patent Act relating to nuclear energy and any works or property for production or preparation for production of, or for research or investiga tions with respect to, nuclear energy 

The Minister of Natural Resources is responsible for Atomic Energy of Cana da Limited (AECL), a federal crown corporation with a mandate to enable nu clear science and technology and to transfer nuclear technology for the benefit of private industry. He also appoints AECL’s Board of Directors.⁶  

In recent years, the Minister of Natural Resources has been Canada’s promoter of new nuclear technologies such as “small modular reactors” (SMRs). This role is illustrated in an excerpt from a keynote address given by the Minister to the Canadian Nuclear Energy Association on February 27, 2020: 

… We are placing nuclear energy front and centre. Something that had never been done before. 

The United Kingdom was so impressed by our approach that it plans, and I’m quoting, “to echo and amplify” that nuclear message when it hosts COP 26 later this year, in Glasgow. 

Of course, nowhere is the potential of nuclear greater than with respect to small modular reactors. To generate electricity. And power resource extraction in distant places. To Desalinate water. And replace coal. And to offer a clean, alternative source of light and heat in rural and remote communities. 

Canada is perfectly positioned to be among the leaders in SMRs. 

In 2018, Canada hosted its first-ever international conference on Small Modular Reactors, where we launched the S-M-R Roadmap. A 

⁶Organization Profile – Atomic Energy of Canada Limited 

(https://appointments.gc.ca/prflOrg.asp?OrgID=AECL&lang=eng&wbdisable=true)

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roadmap that outlines over 50 actions that governments, industry and stakeholders can take to position Canada as the world leader in the next wave of nuclear innovation. 

The Minister’s role as promoter of nuclear energy under the Nuclear Energy Act could create pressure on the CNSC to also promote these new technolo gies. Both the CNSC and Natural Resources Canada participated actively in 

workshops leading to release of the SMR Roadmap. The CNSC is mentioned in four of its recommendations (e.g., “The CNSC should revise the Nuclear Security Regulations… to remove prescriptive requirements.”)⁷ The CNSC lobbied for exemption of SMRs from provisions of the Impact Assessment Act (as reported by the Globe and Mail on November 6, 2018 “Federal nuclear regulator urges Liberals to exempt smaller reactors from full panel review.”)⁸ 

The Minister in charge of development and promotion of nuclear energy over sees the regulatory body whose purpose is to protect Canadians and the envi ronment. This creates the perception of a conflict of interest that could com promise the independence of the regulatory body. 

This perceived conflict of interest could be avoided by changing the Min ister to which CNSC reports 

A remedy for this situation would be for the President of the CNSC to report to a Minister other than the Minister of Natural Resources, as provided for by the Nuclear Safety and Control Act: 

Definitions 

2 The definitions in this section apply in this Act… 

Minister means the Minister of Natural Resources or such member of the Queen’s Privy Council for Canada as the Governor in Council may designate as the Minister for the purposes of this Act. 

A Governor in Council decision to designate the Minister of Environment and Climate Change as the Minister for the purposes of the Nuclear Safety and Control Act would be fully consistent with its purpose: 

⁷A Call to Action: A Canadian Roadmap for Small Modular Reactors. Canadian Small Modular Reactor Roadmap Steering Committee, 2018. 

⁸The Globe and Mail November 6, 2018 https://www.theglobeandmail.com/business/article-federal nuclear-regulator-urges-liberals-to-exempt-smaller-reactors/

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Purpose 

3 The purpose of this Act is to provide for (a) the limitation, to a rea sonable level and in a manner that is consistent with Canada’s interna tional obligations, of the risks to national security, the health and safety of persons and the environment that are associated with the develop ment, production and use of nuclear energy… 

Such a designation of the Minister of Environment and Climate Change would give greater weight to limiting the risks of nuclear energy to the health and safety of Canadians and their environment. The CNSC would thereby report to a body that has relevant technical expertise but is neutral in respect of the development of nuclear energy. Lack of independence and neutrality is a ma jor public concern with regard to the activities of the CNSC and the decisions made by its Commission.  

Questions 

For question 1, we seek a response from the Minister of Foreign Affairs, based on his responsibility to oversee Canada’s role as a member state of the IAEA.  For question 2, we seek an interpretation of the Nuclear Safety and Control Act from the Minister of Justice. For question 3, we seek a response from the Minister of Environment and Climate Change. For question 4, we seek re sponses from the Minister of Finance and the President of the Treasury Board, based on their roles to review government spending and to strengthen the oversight of the expenditure of taxpayer dollars. For questions 5 and 6, we seek responses from the Ministers of Natural Resources, and Environment and Climate Change. 

1) What are Canada’s responsibilities to promote and uphold international law with regard to the safety requirements and safety guidance developed by the International Atomic Energy Agency? 

2) Can you confirm that a Governor in Council decision can designate the Minister of Environment and Climate Change as the Minister “for the purpos es of” the Nuclear Safety and Control Act? How would a decision be taken to change the reporting relationship of the CNSC? Which body would make the decision and who would contribute to it?

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3) One of the objects of the CNSC is to “prevent unreasonable risk, to the en vironment”. Does this constitute an argument for having the CNSC report to Environment and Climate Change Canada? 

4) Noting Natural Resources Canada’s mandate to develop and promote nu clear energy, and given the IAEA recommendation that review and approval of the regulatory body’s budget should be performed only by governmental agencies that are effectively neutral with regard to development and promo 

tion of nuclear energy, what mechanisms exist for review and approval of the CNSC’s budget by neutral government agencies? 

5) Do you agree that an actual or perceived conflict of interest is created by the Minister of Natural Resources being responsible for Atomic Energy of Canada Limited and for promotion of nuclear energy under the Nuclear Ener gy Act, while also being responsible for the Canadian Nuclear Safety Com mission?  

6) Please note what you consider to be the advantages and disadvantages of changing the reporting relationship for the CNSC to a department other than Natural Resources Canada. If you were going to change the reporting rela tionship, to which Department would you choose to have the CNSC report?

Names of the groups: 

Concerned Citizens of Renfrew County and Area 

Canadian Environmental Law Association 

We hereby submit this petition to the Auditor General of Canada under sec tion 22 of the Auditor General Act. 

Date: May 12, 2020

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