nuclearsafety.gc.ca e-Docs # Update to CNLO on Litigation of Interest to the CNSC Jacques Lavoie Senior General Counsel CNSC 24 June 2013

2 Canadian Nuclear Safety Commission Judicial Review of CNSC decisions Recent Applications for Judicial Review: 1.Fond du Lac 2.Steam Generators 3.Darlington New-Build EA 4.Darlington New-Build Licensing 5.Darlington Refurbishment and Continued Operation EA

3 Canadian Nuclear Safety Commission 1. Fond du Lac Fond du Lac Denesuline First Nation v Canada (Attorney General) 2011 FCA 226 Applicants - 7 First Nation and Métis Groups – collectively the self-styled “Athabasca Regional Government” Respondents - A.G. Canada and AREVA Interveners - CNSC and A.G. Saskatchewan This was an application for judicial review of the Commission’s decision to renew AREVA’s mining and milling licence for its McLean Lake operations, and to consolidate activities at AREVA’s Midwest site into the McLean Lake licence.

4 Canadian Nuclear Safety Commission Fond du Lac Main Issue - Duty to Consult This appeal can be decided on relatively narrow grounds. First, we agree that before exercising its licensing powers the Commission had implicit jurisdiction to determine whether the Appellants had an Aboriginal right to be consulted on the licence renewal and if they did, whether it had been satisfied. Parliament should not be taken to have authorized the Commission to renew AREVA’s licence if the First Nations’ constitutional right to be consulted had not been satisfied. … A duty to consult only arises when there is evidence of a possibility that the proposed action may harm an Aboriginal or Treaty right. The Commission found no such evidence in this case and, like the Judge, we can see no error in this conclusion…. Per Evans J.A. for the Court

5 Canadian Nuclear Safety Commission 2. Steam Generators Canadian Environmental Law Association v Attorney General (Canada) T and T Applicants – CELA and Sierra Club Respondents – A.G. (Canada), Minister of Transport, and Bruce Power The CNSC issued two licences to Bruce Power allowing it to transport and export 16 steam generators from the Bruce site, through the Great Lakes and St. Lawrence Seaway, to a private Swedish facility for recycling. The judicial review applications challenged the legality of the permits on the basis of non- compliance with the Canadian Environmental Assessment Act, failure to follow the rules of natural justice in the case of the export licence, and the inadequacy of the CNSC’s reasons for its decisions.

6 Canadian Nuclear Safety Commission Steam Generators The CNSC was denied leave to intervene. On August 15, 2012, the Applicants withdrew their application for judicial review of the CNSC’s licensing decisions, made without an EA under the former CEA Act. In fact, the repeal of the CEA Act and enactment of the CEA Act, 2012 in Bill C-38 rendered the issues in this case moot.

7 Canadian Nuclear Safety Commission 3. Darlington New-Build EA Challenge Greenpeace v Attorney General (Canada) T Applicants – Greenpeace, Lake Ontario Waterkeeper, Northwatch, and CELA Respondents – A.G. Canada, Minister of the Environment, Minister of Fisheries and Oceans, Minister of Transport, CNSC, and OPG This application is in relation to a Joint Panel EA Report on the Darlington new nuclear power plant project.

8 Canadian Nuclear Safety Commission Darlington New-Build EA Challenge Main Issue Did the Panel comply with the CEA Act? Failures are alleged in relation to: -the assessment of the mandatory factors found in s.16(1) and (2) of the CEA Act -the assessment of the environmental effects of all components over the project lifecycle -the use of a bounding approach (also known as the “plant parameter envelope” approach) This application has been scheduled for a two-day hearing on November 12 th and 13 th, 2013.

9 Canadian Nuclear Safety Commission 4. Darlington New-Build Licensing Challenge Greenpeace v Attorney General (Canada) T Applicants – Greenpeace and CELA Respondents – A.G. Canada and OPG This application is largely a duplication of T (the EA challenge) as it argues that owing to the same failures in relation to the CEA Act, the Commission had no authority to issue a licence to construct site. Both T and T have been scheduled/ordered to be heard over the same two days, by the same judge, and with evidence heard on one application applying to the other.

10 Canadian Nuclear Safety Commission 5. Darlington Refurbishment and Continued Operation EA Challenge Greenpeace v Attorney General (Canada) T Applicants – Greenpeace, CELA, Lake Ontario Waterkeeper, and Northwatch Respondents – A.G. Canada, Minister of Fisheries and Oceans, and OPG Again another application alleging failures to comply with the CEA Act: 23. The statutory condition precedent for the issuance of an amendment to OPG’s operating licence, and for the issuance of a section 32 authorization under the Fisheries Act, is the completion of an EA in full compliance will applicable requirements of the CEAA … [various alleged failures particularized]. As the application was issued only in April 2013, a decision is not likely until sometime later in 2014.