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7.1

A COMPREHENSIVE DESCRIPTION OF THE CANADIAN

LEGISLATIVE AND REGULATORY FRAMEWORK

Canada is a confederation, with ten provinces and two territories administered by the central or federal government. The Canadian Constitution is expressed in the

Constitution Acts of 1867 and 1982.

The provinces are self-governing in the areas of legislative power assigned to them by the Constitution Acts. These areas include:

• local commerce

• working conditions

• education

• direct health care • resources in general

The Constitution Acts give the Parliament of Canada legislative power over works declared by it to be for the general advantage of Canada. The Parliament of Canada used this declaratory power when, in the Atomic Energy Control (AEC) Act of 1946, it declared works and undertakings constructed for the following purposes to be works for the general advantage of Canada and therefore subject to federal legislative control:

• the production, use and application of atomic energy; • the research, or investigation, with respect to atomic energy;

• the production, refinement or treatment of prescribed substances (includes deuterium, fissile and radioactive materials).

The Supreme Court of Canada, in recent decisions, has affirmed federal legislative control based on the declaratory power and the power to legislate for the peace, order, and good government of Canada in matters having a national dimension.

The AEC Act also created the Atomic Energy Control Board (AECB) as the agency responsible for administering the Act. The Act, which was subsequently amended in 1954, was a short document that authorized and defined the powers of the Board2_{. The} Board is composed of five people, one of whom is appointed President and Chief Executive Officer of AECB. Under section 9 of the Act, the Board was empowered to make regulations governing all aspects of the development and application of nuclear energy.

2. The term “Board” is used in this document to refer to the five members appointed by the Govenor-in-Council. The initials “AECB” is used to refer to the agency and its staff.

The 1954 amendment to the Act transferred the responsibility for research and the exploitation of nuclear energy from the AECB to a minister designated by the government. As a result of this transfer of responsibility, Atomic Energy of Canada Limited (AECL), a government-owned company established in 1952, was made directly responsible to the designated minister. The AECB was clearly established as the regulatory agency.

On March 20, 1997, Bill C-23, the Nuclear Safety and Control (NSC) Act (see Article 7.2.1) received Royal Assent. This enactment will replace the AEC Act with a modern statute to provide more explicit and effective regulation of nuclear energy.

The only other legislation enacted by Parliament specifically about nuclear energy is the Nuclear Liability Act. This Act, which entered into force in October 1976, places total responsibility for nuclear damage on the operator of a nuclear installation.

The AEC Act imposed federal jurisdiction on areas involving nuclear energy

applications that would otherwise have been under provincial jurisdiction. Examples of such areas include:

• occupational health and safety

• regulation of boilers and pressure vessels • off-site emergency preparedness

• environmental protection

Under the Canadian Constitution, provincial laws may also apply in these areas if they are not directly related to nuclear energy and do not conflict with federal law. Because both federal and provincial laws may apply in some regulated areas, the approach taken has been to try and avoid duplication by seeking cooperative arrangements between the federal and provincial departments and agencies having responsibilities or expertise in these areas. Although these arrangements have been successful in

achieving industry compliance, there has been a need to give them a firmer legal basis. The new NSC Act deals explicitly with the issues of incorporating provincial laws by reference and delegation of powers to the provinces for administration and

enforcement of those laws.

Using its authority under the AEC Act and its regulations, the AECB maintains regulatory control over:

• power and research reactors

• nuclear research and test establishments • uranium mines and mills

• uranium refining and conversion facilities • fuel fabrication facilities

• heavy water production facilities • particle accelerators

• radioactive waste management facilities • prescribed substances and items

The AECB regulatory regime also includes the control of nuclear materials and other nuclear items for purposes of non-proliferation safeguards. This control provides assurance that Canada’s national policies and international commitments about non- proliferation of nuclear weapons and other nuclear explosive devices are met. This is carried out in cooperation with other federal government departments and the International Atomic Energy Agency.

The AECB regulates nuclear power stations and nuclear materials through a

comprehensive system that issues licences containing conditions that must be met by licensees. Regulatory control is also achieved by setting standards that licensees must meet. Some standards are prepared within the AECB, such as the requirements for special safety systems at nuclear power stations. Others are set by provincial authorities or national standards associations.

The AECB’s licensing system is administered with the cooperation of federal and provincial government departments and agencies in such areas as health, environment, transport, and labour. The concerns and responsibilities of these departments and agencies are taken into account before licences are issued by the AECB if there is no conflict with the provisions of the AEC Act and its regulations.

After a licence is issued, the AECB carries out compliance inspections to ensure that its requirements are continually met. If the compliance inspection and assessment program identifies a noncompliance or an adverse trend that may eventually lead to a noncompliance, there is a range of possible actions that the AECB can take. These range from a recommendation for licensee action (for situations that should be improved but do not involve noncompliance) to prosecutions (for the more serious instances of noncompliance).