The Canadian Nuclear Industry:

Regulation Forever


by Andrew Orkin

Administrative Law Journal, 1987


The author thanks
Suzanne Birks and Gordon Edwards
for their Comments.

Responsibility for errors, omissions and opinions
remains the author's alone.


Synopsis

Introduction

I. The Nuclear Fuel Cycle

II. Nuclear Canada: a Disguised Major Player

III. The Canadian Players

IV. A Nuclear Technocracy?

Conclusion: Regulation Forever

Footnotes


INTRODUCTION

If we'd been as active in regulatory control as we should have been, this wouldn't have happened. [1]

As reactors proliferate, salesmen outrun engineers, investment companies conquer caution, routine dulls commitment, boredom replaces novelty, and less-skilled technicians take over. [2]

Fission energy is safe only if a number of critical devices work as they should, if a number of people in key positions follow all their instructions, if there is no sabotage, no hijacking of transports, if no reactor fuel processing plant or repository anywhere in the world is situated in a region of riots or guerrilla activity, and no revolution or war -- even a "conventional one" -- takes place in these regions. The enormous quantities of dangerous material must not get into the hands of dangerous people or desperadoes. No acts of god may be permitted. [3]

Recent events at Chernobyl and in Brazil are sharp reminders of the realities of the nuclear age. A nuclear reactor, built and operated by a technologically refined society, exploded with drastic and long-term international consequences; [4] a vial of highly radioactive cesium-130 was abandoned inside a hunk of scrap machinery and found its way into ignorant hands with tragic results [5] There are over 400 nuclear reactors installed in 28 countries. [6] No one knows how many abandoned vials of radio-isotopes litter the globe.

Reactors and radio-isotopes are both parts of the nuclear fuel cycle. This cycle starts, at its "front end", with the mining of uranium and ends with the possession of millions of tons of radioactive waste that must -- to varying degrees and for varying periods -- be isolated from the human environment.

Canada has been a nuclear state since the earliest days of the technology. Canadian reactors at Chalk River have had two significant accidents; houses and schools were built on radioactive fill at Port Hope, Ontario; Canadian uranium miners have suffered significantly elevated levels of fatal lung cancers. In addition to these local consequences, Canadian reactor technology and fissile material has been hawked internationally, with consequences for the proliferation of nuclear weapons in at least one volatile region of the world. [7]

A nuclear industry is an expensive undertaking of immense technical sophistication and unprecedented destructive potential. It has commensurate economic, political, and environmental implications, even under predicted, optimal operating conditions. When less-than-optimal circumstances are considered, the consequences of the technology, as we are reminded by Chernobyl, can be catastrophic. The regulation of such an undertaking is therefore a question of importance.

The world's nuclear states have adopted various approaches to the operation and regulation of their nuclear industries. [8] The Canadian nuclear industry has since the outset been a public or Crown undertaking, regulated from its earliest stages by a single-purpose board under the control of the Cabinet.

Three phases have been identified in the development of a Canadian nuclear industry. [9] The first, a strategic phase, was born out of the quest for an atomic bomb during World War II. Canada worked with the United States and Great Britain on the development of the first nuclear weapons, and provided the fuel for the first operational bombs. This work was obviously of the highest strategic significance, and remained so after the war and into the early 1960's. The second was a commercial phase during which the technology appeared to be blossoming world-wide, and in which the Canadian nuclear establishment reduced its research commitment proportionally to an increasingly commercial thrust. The third phase is one in which the industry has sought to consolidate and protect itself in the face of declining opportunity and confidence.

The nuclear industry has been directly owned by the Canadian Government from the outset, largely because the technology was perceived as a national policy imperative in a global climate of "extraordinary hope and faith" [10] about its potential, first as a military tool and then as a great commercial force and energy source. This attitude, and the secrecy that characterized the first phase, have (though both can be said to have declined) left an imprint on the structure and modus operandi of the industry in Canada through its three phases:

[T]he regulatory processes in use had become well established in the era of military secrecy and these early but strong influences from the infancy of nuclear power development have bedeviled the nuclear industry to this day. [11]

This imprint has led to criticism about capture of the regulatory apparatus by the industry it purports to regulate.

This paper will examine the origins and development of the industry in Canada, and the factors involved in a consideration of regulatory capture in the Canadian nuclear industry. It will be argued that "capture" implies regulation that is initially independent and vigorous that is then subdued and taken over, and that this is not the case with the Canadian nuclear regulatory apparatus, which was born in captivity. This occurred much less by design or conspiracy than because of the inherent nature of the nuclear fuel cycle and the political economy of its establishment and operation. It is necessary, then, to undertake a brief examination of the nuclear fuel cycle in technological terms, and the nature of the regulatory problems it poses. This is followed by a look at the components of the Canadian nuclear industry, both regulator and regulatees, that are a part of this cycle, and then at their interrelationship. Some conclusions are then drawn about the nature of that interrelationship. past, present and future.


I. THE NUCLEAR FUEL CYCLE


A. The Myth of the Peaceful Atom

The global nuclear industry has two inter-linked components: the design and construction of weapons and reactors, and the provision of fissile material or fuel for reactors and weapons. Together they constitute the nuclear fuel cycle. Considerable effort has been made since World War two to keep the peaceful and military uses of the atom separate, if not in reality, at least in the public mind. This distinction is difficult to maintain as the two pursuits are inseparably linked in the nuclear fuel cycle. [12]

All energy forms require fuel, nuclear energy included. Nuclear fuel follows a cycle because in the process of being "burnt" new fuel is created, which can itself then be used, and so on, in a cycle. Nuclear energy is created by the fissioning or splitting of uranium isotopes. Natural uranium consists of less than 1 percent of uranium 235 and the balance of uranium-238. The latter is relatively stable and therefore non-fissile. When uranium-235 is deliberately bombarded with neutrons, however, the uranium-235 atoms become highly .. unstable atoms of uranium-236 for less than one one-millionth of a second and [ then they split, or "fission", releasing energy, as ] each gives off two or three neutrons. If sufficient uranium is physically lumped in what is called a critical mass, a chain reaction occurs when departing neutrons collide with the nuclei of adjacent atoms of uranium-235.

In an atomic bomb [ made from uranium ], two non-critical masses of uranium-235 are brought together rapidly to form a critical mass that then releases enormous quantities of energy in a rapid chain reaction. In a nuclear reactor, sub-critical fuel bundles are placed adjacent to one another. They are surrounded by a moderator substance such as graphite, as at Chernobyl; or heavy water, as in Canada's CANDU reactors; or ordinary water, as in most U.S. reactors. The moderator slows the loose neutrons to a velocity at which the uranium-235 atoms are able to absorb them, and a chain reaction is encouraged. The chain reaction can be controlled in a reactor by the insertion of control rods containing a substance that absorbs neutrons. The atoms of uranium-238 also absorb neutrons without fissioning but in so doing slowly become [ atoms of ] plutonium, which is a highly fissionable -- and strategic -- by-product of uranium fission.

The uranium fuel cycle begins with the mining -- from open pits or underground -- of uranium, a naturally-occurring element found in low concentrations in the earth's crust. The mined ore is milled to produce "yellowcake", which is refined and enriched if necessary. (Graphite and heavy water reactors, with their higher moderation capacity, are able to use natural concentrations of uranium-235; other reactors require uranium enriched to 3-4 percent uranium-235; uranium bombs [ typically ] require 95 percent uranium-235.) This uranium is converted into uranium dioxide, ready for use as fuel.

After three to four years of giving off heat in a reactor, the "spent" fuel bundles are removed. Only one percent or so of the fuel has been consumed, but the buildup of fission products, other radioactive gases and solid isotopes including plutonium, begin to retard the nuclear. reaction by competing for neutrons. The bundles are slowly cooled to allow complete plutonium-329 conversion and then stored as waste, or transported to reprocessing plants, where the plutonium and unused uranium can be extracted and recycled, for weapon or further reactor-to-reactor use. There fissile materials are highly dangerous, and must be isolated from the environment with no possibility of leakage, in some cases for tens of thousands of years.

In addition to energy, the nuclear fuel cycle produces tremendous quantities of radioactive waste. [13] There are already over 100 million tons of radioactive waste in Canada, all in temporary storage. Small fractions of the radioactive material present is claimed from the ore at the mining stage; the balance must be isolated from the environment for periods ranging from centuries to indefinitely. The operation of reactors themselves create relatively smaller quantities of waste, but these are highly radioactive and will require absolute containment for "tens or hundreds of thousands of years" [14] (as will the reactor components themselves at the end of a life of a few decades). Finally, reprocessing creates quantities of extremely radioactive waste. The technology for effective waste disposal or even long-term storage is not yet demonstrated. [15]

B. Regulation Forever

There are no nuclear states that maintain self-sufficient nuclear fuel cycles, and only a few that could if they chose. [16] The global fuel cycle is thus an inter-connected network of capabilities that crosses national, political and ideological boundaries. A typical uranium atom may thus follow the following path: mined and refined to yellowcake near Darwin, Australia, in Saskatchewan or in Namibia; shipped to Montreal and trucked to Port Hope, Ontario for refinement into uranium hexafluoride; shipped via Montreal to Riga in the Soviet Republic of Latvia for enrichment; shipped to Richmond, Washington State for fabrication into fuel; shipped anywhere, but say to Tokyo, for use in a reactor; removed. cooled, and shipped to Windscale, England, for reprocessing; shipped to the United States and manufactured into breeder-reactor fuel, and so on, or into warheads. This amazing, typical cycle covers 30.000 miles in four years. [17]

The regulation of this global network of nuclear installations and transportation routes is of obvious concern given nuclear proliferation, transnational radio-pollution, and the potential for (or probability of) catastrophe. Local fuel cycles such as Canada's are a component of this global network, but also pose significant local problems. Mines, mills, reactors, and transportation systems must be operated in a manner that does not harm the environment or pose an unacceptable threat to the general population or nuclear workers. And whether current strategies of storage are translated into permanent waste disposal or not, or whether the production of millions of tons of waste continues or tails off, nuclear wastes will have to be guarded for thousands of years.

The nuclear fuel cycle -- the creature to be regulated -- is a dangerous one of great size and complexity. Its operation requires high levels of expertise and financing, security and safeguards, centralization and control. Finally, its life-span poses a regulatory challenge that mankind must deal with effectively forever. An examination of our response to the challenge to date gives "little basis to inspire confidence." [18]


II. NUCLEAR CANADA: Disguised Major Player


A. Three's Company: Canada's Nuclear History

[I]t would not be expected that Canada, a country with a small population, geographically remote from the scientific centres of Europe and concerned with the practicalities of developing its natural resources rather than understanding the theories of nature, would play a significant part in its early development. Unexpectedly, this was not so. [19]

Ernest Rutherford suggested in the 19th century that the atom might be splittable. He and Fred Soddy, though not Canadians, did much of their work as two of the fathers of modern nuclear physics at McGill University at the turn of the century. This early work in Montreal was the start of a Canadian nuclear industry.

Theoretical research continued in Canada and elsewhere in the world on the nucleus of the atom, reaching a peak at the start of World War II. Canada had since 1933 operated a radium mine at Port Radium, N.W.T. It produced uranium as well, but only as a waste product. In 1940 George Laurence, Rutherford's student, began to build an atomic pile at the National Research Council in Ottawa. He had half a ton of uranium from Eldorado Gold Mines Ltd. and some relatively pure graphite; it has been claimed that had his materials been purer he might have achieved the world's first chain reaction before Enrico Fermi in Chicago in 1942. [20]

Meanwhile, the competition between the U.S. and Great Britain had led to separate research thrusts in those two countries, that was to draw Canada into the "big league' in a manner that would otherwise not have occurred. The French were, until the German occupation, leaders in the field. The British then obtained the patents for chain reactions from French scientists who had fled to England. In 1941 Churchill established and gave top priority to "Tube Alloys", an atomic bomb project.

The American asked that the project be a joint one; the British refused, citing U.S. neutrality and security concerns. The U.S. established its own nuclear programme and soon overtook the British; the tables turned, the British now sought American cooperation, but the Americans had in the interim recognized the military and economic potential of the technology, and refused. The British decided to "play their Canadian card against the Americans." [21]

Canada was geographically secure and a large producer of uranium; it was close to the U.S. for hoped-for information exchanges; and was the site of the U.S. heavy water plant. Hans von Halban, a French scientist, moved this team from Cambridge to Canada. Montreal was chosen as the site of the British/Canadian team.

The British had little trouble in co-opting Prime Minister Mackenzie King, who placed the project under the charge of his Minister of Defence and Supply, C.D. Howe, and the President of the National Research Council of Canada, C.J. Mackenzie. The latter wrote that

Canada has a unique opportunity to become intimately involved in a project which is not only of the greatest immediate military importance but which may revolutionize the future world in the same way as did the invention of the steam engine and the discovery of electricity. It is an opportunity that Canada as a nation cannot afford to turn down. [22]

The effort was hampered by the U.S.-British rivalry from the start. The Canadian/British effort was heavy-water dependent, but the entire output of the Trail, B.C. heavy water plant had been contracted to the U.S. Neither was there an assured supply of uranium oxide for the same reason: the Americans also had the rights to all uranium produced at Port Radium, NWT. The Americans' pressure had the desired effect, and Churchill signed an agreement with Roosevelt at Quebec in 1943, to collaborate -- along with Canada -- to produce a bomb. There would be a Combined Policy Committee of six, one of whom -- C.D. Howe -- was a Canadian. Canada had become "an intimate nuclear partner with the United States and the United Kingdom''. [23]

The Americans, however, still had little technical respect for the work that had been done in Canada, and felt that the U.S. graphite reactors could produce the plutonium for a bomb sooner than the Canadian heavy-water process. It was decided to continue the Canadian work, however, because of its post-war industrial and military plutonium potential. Research was done on plutonium extraction from irradiated natural uranium and reactor construction. The "dust had scarcely settled over Hiroshima and Nagasaki" [24] when the first reactor outside the U.S. -- the Zero Energy Experimental Pile (ZEEP) at the new Chalk River, Ontario laboratory -- was "fired up" in 1945, and work was begun on the National Research X-perimental (NRX) reactor.

U.S.-Great Britain rivalry did not end with the war -- it got worse. The U.S. sought a military nuclear monopoly, and objected to Britain's insistence on continuing to build its own bomb. The British simply removed key personnel from Canada without consulting Canada or the U.S. Howe, who had hoped for a post-war Nuclear British Empire, terminated Canada's nuclear relationship with the British. The British, however, feared Canada would join the U.S. nuclear programme, and in order to prevent this, committed themselves to a staged withdrawal and exchange of information and fissile material.

In 1945 the United Nations established an Atomic Energy Commission to try to control this awesome new technology. Canada was, in addition to the "Big Five" (U.S., U.K., U.S.S.R., China and France) appointed to the Commission. Through its Atomic Energy Act of 1946, the U.S. placed an embargo on the export of nuclear materials and information, but compromised with Britain in exchange for guarantees of uranium from the Belgian Congo. Canada began to tire of the strife, and look towards nuclear independence. It enacted the Atomic Energy Control Act, 1946, [25] and thereby established the Atomic Energy Control Board (AECB). [26] The AECB took control of the Chalk River (ZEEP and NRX) reactors from the National Research Council (NRC).

In 1949 the U.S. proposed to Britain -- without consulting Canada -- that Britain stockpile nuclear weapons in Canada. Canada reacted immediately, declaring its nuclear independence and confirming Canada's non-military nuclear role. The then-advanced NRX reactor had been "fired up" in 1947 and had reached maximum output in 1948. The country, it seemed, had a viable nuclear infrastructure. "Canada had emerged from the war as a leading nuclear country." [27]

The fruitless efforts of the United Nations to achieve international control were abandoned in 1948. In 1949. U.S. domination in the military sphere ended when the Russians exploded a nuclear bomb, followed by the British in 1952. The nuclear arms race was underway. Canada, however, was free to pursue the purportedly peaceful, and hopefully profitable, power of the atom.

Work began in 1951 on the NRU (National Research Universal) reactor, and the AECB began to collaborate with Ontario Hydro. Ontario had major uranium reserves, and was projecting an exponential growth in electricity demand. In 1952, the Government of Canada announced the formation of Atomic Energy of Canada Limited (AECL) [28] which was to promote and develop commercial nuclear energy. AECL soon acquired Eldorado Nuclear Limited, which marketed fissionable material mined at Port Hope, Ontario internationally. [29] This trade was not new to Canada; right from the outset, Canada had sold its reactor plutonium to the United States and Great Britain for their weapons programmes, as well as much of its uranium production:

"[T]hroughout the 1950s Canada was a major supplier of weapons-grade plutonium -- the essential, deadly element in atomic bombs -- to both the British and U.S. military programmes... Official estimates of the AECB are that about $10-million a year of plutonium was being exported to the United States by 1957. The sale of uranium to the United States was also bringing in about $300-million a year." [30]

The income from these sales was to be very useful in 1952, when a more ominous symptom of Canada's "big-league" nuclear status occurred. There was a major explosion at the NRX reactor, the first of the world's serious nuclear accidents. [31] A million gallons of radioactive fluids required a costly cleanup, and the reactor had to be completely dismantled and rebuilt.

B. Uranium Saudis

Canada's membership of the nuclear club was not limited to technical expertise. Canada is one of the world's largest suppliers and processors of uranium, with 20 to 30 percent of the world's economically recoverable known reserves. [32] While this international trade has suffered many ups and downs, the uranium industry has been first a major factor in Canada's recent strategic history, and then a major source of short-term income.

The industry, as we have seen. was born when the government nationalized Eldorado Gold Mines Ltd. (ENL) to meet weapons programme needs in World War II. By 1959 Canada was exporting 16,000 tonnes -- $300 million worth -- of uranium per annum, and the export industry was Canada's fourth largest after newsprint, wheat and lumber. This first boom, however, soon turned to bust when U.S. and British demand dropped off when those countries developed other sources of supply. Canadian production declined to 3,500 tonnes in 1965. At this point, however, over sixty orders were placed in the U.S. alone for commercial reactors, and the Canadian uranium industry responded in anticipation of another boom. Protectionist policies in the U.S. prevented this, however, and uranium prices dropped to an all-time low.

The government intervened to protect the industry with stockpiling policies over three periods, and by participating in the establishment of an international cartel of uranium producers in 1972. [33] This controversial and questionably legal move, bolstered by the passage of secrecy regulations [34] to prevent discussion of the matter in Canada, saw the prices of uranium rise from $4 [ per pound ] in 1972 to $40 per pound in 1976. By the end of the 1970's, uranium exploration by over a hundred multinational mining companies was underway all over Canada. Deposits estimated at 30 percent of Canadian reserves were opened in Saskatchewan.

Canadian export policy requires that uranium exported be refined in Canada first. ENL has the monopoly of refining at its Port Hope plant, with additional capacity planned or underway elsewhere in Ontario and in Saskatchewan. Annual uranium production in 1979 was 8,000 tons, and was expected to rise to 15,500 tons by the end of the 1980's. [35]

[The] direct and sustained intervention of the Canadian State shows that it saw the importance of the uranium mining industry and wanted to expand it under national control... Canada became for a period the world' biggest and most stable uranium exporter. The stability of Canadian supply allowed it to take near-control of the world uranium market. [36]

The darker side of a buoyant uranium industry is, as will be further discussed below, its production of great quantities of radioactive mine tailing and refinery wastes. As a world-class producer of uranium, Canada is also [ a ] world-class nuclear waste repository. There are already over 100 million tonnes of such waste in Canada, and it is predicted that this figure will triple by the year 2000. [37] No solution to its long-term management has yet been found. [38] A solution, if found, will not be cheap, [39] and is not presently reflected on the uranium or the nuclear industry balance-sheets.

C. CANDU at Home and Abroad

The commercial applications of nuclear power had been envisaged from the earliest moments of the technology. Canada's infrastructure was in place -- it had a research establishment, a fuel industry, and the AECB and AECL. In 1953 Eisenhower announced to the world that the U.S. was committed to "Atoms for Peace". Canada joined to found the International Atomic Energy Agency (IAEA), which would be committed to the promotion of nuclear energy globally.

AECL decided in 1953 to proceed with the construction of a 5 megawatts (5 MW) commercial reactor prototype, the Nuclear Power Demonstration (NPD) reactor near Chalk River. The CANadian reactor, predictably, was to be heavy water (Deuterium) moderated and fueled by natural Uranium -- hence CANDU. AECL provided the expertise and design, Canadian General Electric (CGE) the nuclear components, Hydro the site and electrical equipment. The reactor was completed in 1962, four years late and $19.3 million over its original budget of $13.5 million. Trial and error characterized the project, and the design was modified as construction proceeded to conform with the ability of Canadian industry to build the components.

In 1958, while NPD was only half-built, AECL began planning a 100 MW prototype, which then grew to 200 MW. Construction of this reactor began in 1959 at Douglas Point, Ontario, this time without private sector participation, except for component sub-contracting. This policy change was part of the Canadianization that had emerged during the construction of the NPD : Ontario Hydro and AECL were reluctant to be dependent on CGE or Westinghouse, branch-plants of U.S. corporations involved in the development and sale of different, competing reactor designs. From this time on, the Canadian nuclear industry has been almost totally centralized and purely publicly owned.

The inexperience and trial and error that characterized the building of NPD was evident at Douglas Point. This second reactor became operational only in 1969. [40] But to compound the process, construction began in 1964 -- before Douglas Point was finished -- on four CANDU 500 MW reactors at Pickering, Ontario, and planning began in 1966 for a 250 MW CANDU called Gentilly-l in Quebec. [41]

CANDU was not just staying home. In 1956, Canada gave India a $10 million NRX-type research reactor (CIRUS) as part of the Colombo foreign aid plan. It then sold India two further 200 MW reactors, RAPP-I and RAPP-2, in 1963 and 1967, with $33 million in loans to finance the deals. In 1959, CGE made its only export sale (with concessional financing from the Canadian government) to Pakistan of the 125 MW KANUPP reactor. Pakistan gave assurances, on which the sale was conditional, that the reactor would be used for peaceful purposes only.

India became a nuclear weapons power in 1974, having built a bomb with Canadian technology. Public opinion in Canada was outraged, and the government responded with an export "safeguards" regime that was stricter than the weak IAEA regime in effect at the time. This safeguards policy, that insists that Canada's nuclear trading partners have ratified the 1968 Treaty on the Non-proliferation of Nuclear Weapons (NPT), [42] has since been criticized by the industry as an impediment to Canada's ability to market CANDU's abroad. [43] Canada immediately suspended nuclear cooperation with India, but India by then had the capacity to "go it alone", and went on to build four CANDU type reactors without Canadian assistance.

Spurred by India's capability, neighbouring Pakistan predictably declared in 1972 that it too wished to become a nuclear power. Major power cooperation in denying certain technology to Pakistan has succeeded in slowing this project, but not stopping it; Pakistan was gauged by 1983 to be capable of becoming a nuclear weapons power, with Canadian technology having played a central role. [44] Canada tried, at the same time, to sell CANDUs to other countries in this tense region, but without success. [45]

In 1969, Taiwan bought an NRX-type research reactor, having given assurances about its non-military use. Taiwan then ordered a plutonium separation facility from France, the next necessary step on the weapons path, but the U.S. forced France to cancel the sale. In 1973 AECL sold a 600 MW CANDU (EMBALSE) reactor to Argentina. Already in possession of plutonium separation facilities bought from Germany, Argentina now had, as CANDU salesmen boast, [46] a reactor with an excellent capability for ongoing plutonium production. [47] In the same year, Canada began negotiations for a 600 MW CANDU sale to South Korea, which was finalized in 1975. Korea had also been trying to obtain a fuel reprocessing plant.

Both the Korean and Argentinean sales were controversial in Canada, not only because of weapons proliferation concerns (they occurred at the time of the Indian explosion) but also for financial reasons. Over $20 million in agents' fees and kickbacks were paid to third party agents, and over $100 million was lost on the Argentinean deal due to inflation and under-pricing. Export overtures have since been made at great expense -- more than $1 million per deal -- to Romania, Australia, the United Kingdom, Mexico, Greece, Italy, Denmark, China, Venezuela, Yugoslavia, Indonesia, Ireland and others. One new customer was obtained -- Romania.

The Romanian deal is a study of exporter behaviour in a buyers' market. In 1975 the Romanians expressed an interest in buying a 600 MW CANDU reactor and the licence to the technology. On the strength of initialled letters of intent and at AECL's request, the Canadian Export Development Corporation (EDC) made a $1 billion (50 percent U.S. dollars) line of credit -- the largest ever Canadian export subsidy -- available to Romania in 1979. [48] Romania subsequently succeeded in obtaining counter-trade terms, whereby payments on the sale would be made in Romanian goods (including textiles and jam).

Three years later, in spite of the fact that no components had yet been ordered for the first reactor -- an agreement was initialled for the purchase of a second. The Romanians, whose use of the technology was supposed to be long-term, are now building much of these reactors (and others) themselves. Only a third of the EDC loan was spent in Canada. One third was then spent elsewhere, before EDC cancelled disbursements.

Finally, over 200,000 tons of Romanian steel plate has been sold on the Canadian market under the counter-trade agreement, much to the ire of the Canadian steel industry.

"With seven nuclear powers (including India and Israel) and at least twelve "threshold powers" not subject to IAEA inspections. Canada played a leading role in weapons proliferation under the double guise of selling peaceful energy for moral purposes. On ... March 8, 1976, Flora MacDonald (PC - Kingston and the Islands) told the Commons that we "are willfully and knowingly" contributing to the increased likelihood of a world catastrophe." [49]

Domestically, the CANDU picture has recently picked up, with the (suspended) construction of a brace of four 750 MW reactors at Darlington, Ontario -- "despite the fact that it may be unnecessary." [50] Outside Ontario, only Quebec and New Brunswick have reactors (Gentilly-l, Gentilly-2 and Point Lepreau respectively). The industry, however, cannot be said to be out of the doldrums, as no new orders for reactors have been placed since 1979, and sales of new technologies are not yet assured.

D. Nuclear Waste: A Growth Industry

The large quantities of nuclear waste produced by the nuclear fuel cycle in Canada are going to have to be put somewhere. The Canadian approach to high-level waste management centres on deep disposal in the geological granite of the Canadian shield. [51] Sites are being explored in Ontario and in Manitoba, where AECL has established an Underground Research Laboratory at Lac du Bonnet near Whiteshell. AECL has entered into joint research agreement with agencies of other governments, including the U.S. Department of Energy (DOE). This raises the obvious question, given the expanse of geological granite in the Canadian shield, of whether Canada plans to accept foreign nuclear wastes or whether others hope that Canada will. In either case the work, as has been noted, will have to be done, geologically if the method is feasible or in other ways. The techniques do not yet exist, but when they do, they will likely spawn a Canadian industry larger and more expensive than the nuclear effort to date.


ADMINISTRATIVE LAW JOURNAL.
VOL. 4. NO. 1

The Canadian Nuclear Industry:

Regulation Forever

Part II


by Andrew Orkin.


III. THE CANADIAN PLAYERS


A. The Federal Government

The role of the government in Canada's development as a nuclear power has been central. The nuclear fuel cycle provides many points ... from the mining, mining, fabricating and refining stages to the manufacture of heavy water, power generation and spent fuel disposal (or possible recycling) stages, where governments have intervened and technological and policy controversies have emerged.... At virtually all points along the cycle there are economic benefits at stake as well as socio-economic costs inherent in the management of such problems as waste, environmental safety and health. [52]

The term "intervention" requires clarification. Classic regulation is only one form of intervention; others are management, subsidy, ownership, taxation and -- very importantly -- neglect, deliberate or otherwise. [53] The Canadian government plays or has played all of these roles with regard to the Canadian nuclear industry. The Canadian government, as in most nuclear states, was the nuclear industry. Its funding, as will be discussed has been essential throughout. So that the legislative and regulatory climate it has created [54] can only be described as highly favourable. "It is fair to say that without such intervention, Canada would probably not have a nuclear industry...." [55]

The highly-charged climate of World War II was the one in which Canada's nuclear industry was born. The establishment of a nuclear industry was a national strategic imperative, and the Atomic Energy Control Act [56] (AECA) of 1946 reflects this origin. The Act established the AECB, [57] which is responsible to the Minister of Energy, Mines and Resources, and gave it wide powers to regulate and control nuclear energy and to promote nuclear energy research. [58] The Minister has broad powers under the Act to engage in research, create Crown corporations, and obtain or expropriate mines or minerals containing substances within the jurisdiction of the Act.

The powers given to the Cabinet and the Minister under the Act are "extraordinary when compared with the arsenals of other federal regulatory agencies." [59] The security-conscious climate of the time, Sims notes, led "members [ of Parliament ] to engage in little constructive or critical debate" [60] of the Act during its passage:

Most members preferred to rhapsodize on the future benefits of atomic power and to congratulate themselves that Canada had an important role to play in its development. The absence of criticism may be surprising in view of the very restrictive nature of the legislation ... but with the memories of atomic destruction fresh in their minds parliamentarians had little difficulty in approving a Bill which, if applied to a less potentially dangerous subject matter, would probably have been considered contrary to democratic traditions. [61]

Sims continues, without substantiation: "it was necessary that the Act should continue to impose the wartime type of [emergency] controls on this one limited area of atomic energy...." [62]

The controls enacted are formidable. All information under the Act is secret unless the Minister of the AECB approves its release. Severe penalties are attached to breach of secrecy provisions: up to five years in prison or $10,000 fine, or both. Sims notes that the breadth of powers under the Act "could be seen as heralding a 'police state' but in the event, the application of the powers while providing minor nuisances to some, had little direct effect on the population." In fact, the entire Canadian population was affected by the passage in 1976 of the Uranium Information Security Regulations [63] that forbade, for a period, any discussion or release of any information relating to the "production, import, export, transportation, refining, possession, ownership, use or sale" of uranium or derivatives without the Minister's permission. The regulation has since been amended to apply only to employees of the Crown, but has not been repealed. In addition, the Act requires an oath of secrecy of AECB employees.

The Act was passed under the government's declaratory power under ss. 91(29) and 92(10) (c) of the British North America Act of 1867. By declaring that it was

essential in the national interest to make provision for the control and supervision of the development, application and use of atomic energy, and to enable Canada to participate effectively in measures of international control of atomic energy.... [64]

the Federal government succeeded in bringing certain provincial concerns, including certain aspects of mines, resources and health at nuclear related facilities, under its jurisdiction. [65]

The nuclear legislative climate is not limited to the Atomic Energy Control Act. The Nuclear Liability Act [66] was enacted in 1976. This Act Limits the liability of a nuclear operator such as Ontario Hydro to an insured $75 million, exonerates all other parties such as architects, designers, suppliers and contractors, and provides for the establishment of a Nuclear Damage Claims Commission to compensate damage over $75 million. "The Act is designed to encourage participation in the nuclear industry...", as is baldly noted in a Department of Finance paper. [67] A more proportionate assessment is that it would be absolutely impossible for the industry to exist without this statutory protection: "The potential harm to public, property, and the environment from a major nuclear accident at a nuclear power plant is so high that the risk is uninsurable." [68] The Nuclear Liability Act has also been criticized as removing incentives for reactor accident prevention by government, the operator Hydro corporations, or insurance companies. [69]

Financial intervention in the industry is thus both direct and indirect. Estimates vary as to the cumulative federal government investment in the Canadian nuclear programme since its inception. An AECB estimate is around $1.5 billion. [70] Wallace estimates $3.5 billion, including realized savings on financing obtained from the government. [71] Doern, however, estimates (for the period 1965-1977 alone) $5.6 billion in 1980 dollars, or $8.4 billion in 1977 dollars. [72] Whichever figure is the closest is immaterial to the conclusion that large sums of public money have been invested in the nuclear industry in Canada, and that the government has, as a result, "an enormous stake and vested interest in the Canadian nuclear enterprise -- in nuclear energy as a future energy source." [73]

The Federal government wears two nuclear hats, that of regulator and promoter: a Crown agency -- AECB -- regulates the industry, and Crown corporations -- AECL, ENL, and Uranium Canada Ltd., dominate that industry. This confluence is accentuated by the fact that the AECB, AECL, ENL and Uranium Canada all report to the Minister of Energy, Mines, and Resources, who is thus ultimately responsible for both the promotion of the industry and its regulation. This is important in any consideration of political support for the industry in periods of public unpopularity. The industry started off in Canada with the enthusiastic support of Canada's ruling establishment and its full financial and legislative backing. This climate has however declined to one that is "hostile and uncertain... [ There is enhanced public concern about the safety of nuclear power and the legacy of AECL's international activities...."] [74] that has increased after Chernobyl. Neither a Liberal nor a Conservative government is likely to give warm support to the industry, but it is clear that neither is likely, for some time yet, to abandon it. [75] The New Democratic Party has a cautiously anti-nuclear policy that has since Chernobyl been under review.

B. The Atomic Energy Control Board. [76]

The major creation of the Atomic Energy Control Act of 1946 was the AECB, a Crown agent authorized under the Act to

regulate and control atomic energy materials in the interest of safety and physical welfare, to control atomic energy materials, equipment and information in the interests of national and international security and to promote atomic energy research. [77]

The Board consists of five government-appointed members, one full-time and the other four part-time. The Board meets six times a year for one day. All Board meetings are held in camera, as are the meeting of its advisory committees. These consist of specialists appointed by the AECB.

Until the late 1970's the members of the Board were mainly drawn from the industry itself and AECL in particular. Until 1974 the Board included presidents of both AECL and ENL. Of the six presidents since the Board's inception, only one has not had direct career links with AECL. A Senate committee expressed shock

upon learning that the majority of the members of this control board are representatives of the aforementioned government bodies rather than the general public, when the Board's principal task is to protect the public against the dangers of radiation. [78]

An illustrative controversy erupted over a recent Board appointment. The Minister of Energy wrote to Ursula Franklin, a scientist and noted nuclear critic, appointing her to the Board. Franklin requested clarification of the oath of secrecy, but her appointment had by then been vetoed by the Cabinet. [79] "It seemed she had this strange idea that a pubic regulator should operate in public view. 'The board is a regulatory agency and the business of the board is the business of the public,' she said, explaining that she felt it would be pointless for her to serve if she was going to be muzzled." [80] The recruitment patterns of the Board's staff -- now over 200 -- reflect a dependence on the industry as well, with "approaches and relationships that condition the agency's independence." [81]

The Board's priorities as mirrored in its budget allocations "contributed greatly to the agency's historic image as a quasi-promoter of the industry". [82] About eighty percent of its financed resources until 1975 went to research grants for nuclear development. In 1975 the rising tide of public concern prompted a reorganization of the AECB, the appointment of a new President who was not a nuclear specialist and who had no career links with AECL. Dr. A.T. Prince, a geologist, came from senior positions in Energy, Mines and Resources. His appointment was seen as signalling a greater involvement of the Minister in nuclear regulation, [83] and a greater accent on the possibilities of geological disposal of nuclear wastes in the Canadian shield. The other 1975 reform was the transfer of the research-granting function of the AECB to the NRCC. The President of the NRCC, however, remains an ex officio member of the Board, prompting comment that the reforms amount to "camouflage". [84]

The board is statutorily empowered to intervene in every aspect of the nuclear fuel cycle. It has, however, no research facilities of its own, and must rely on its clients to undertake the work of standard setting and protection of the public interest. The numbers of AECB personnel are clearly inadequate to the task, given its size and grave importance. They are also largely drawn from the industry purportedly being regulated.

With the AECB so highly dependent on its client, they basically regulate themselves. In the absence of other control mechanisms -- public participation, for example, or private sector funding -- the Canadian nuclear industry can determine its development to suit its own tastes. This leaves the AECB occasionally correcting the headstrong excesses of the nuclear industry, but more often simply granting the industry its institutionalized blessing. [85]

C. The Nuclear Industry -- AECB's Clientele

The regulatees of the AECB include the Crown corporations that comprise the nuclear industry; private sector contractors; licensed manufacturers, vendors and users of controlled radioactive substances; the universities and other research establishments; IAEA; and public interest groups and the media; and, largely without its knowledge, the population of Canada and the US that occupy the ecosphere. The discussion on the development of the industry has already introduced most of this constituency. Some additional features will be noted at this point.

The AECL was created in 1952 through the Atomic Energy Act, as a rational response to the growing commercialization of the nuclear industry. It took control at that time of Eldorado Nuclear Limited, and of plutonium exports from Canadian reactor by-products to the U.S. and U.K. weapons programmes. AECL now has major facilities and/or installations at Chalk River, Whiteshell (Manitoba), Ottawa, Toronto, Montreal, Glace Bay, Douglas Point and Gentilly (Quebec).

AECL's chief pursuit until the end of the 1960's was, as has been seen, research and development, but then as the CANDU emerged in its present form the company moved into a marketing and promotional phase. The AECL has been able to marshal extraordinary political, economic and legislative resources in its effort to persuade Canadian provinces and other countries to "go CANDU". The Romanian sale is an example of this; Babin notes that the technology exchange in the deal "may well represent the transition to more flexible export safeguard policies" [86] that the industry has called for and that are part of the favourable policy and statutory environment the industry will require to survive.

It has been noted that for the great part of the life of the industry in Canada, AECL has been the primary source of trained personnel for the industry; and that until 1975, many AECL facilities, including reactors, were actually exempt from AECB regulation. AECL has a clientele in turn. These include the provincial utilities in Ontario, Quebec and New Brunswick. AECL has provided important personnel to these utilities as new facilities are installed. The AECL relationship with Ontario Hydro is stronger still; they have been referred to as "partners".

This exchange of personnel and client closeness leads to a closed shop that has subverted the ability of the AECB to regulate the industry. The AECB, for managerial and practical reasons, has adopted a "front-line" approach to standard-setting, which places the burden and onus on the utilities to show that standards are being developed and followed. Doern notes two consequences of this strategy. Firstly, that the regulator becomes dependent on the regulatees' expertise and the standards developed by them [87] and secondly that the regulator's terms of reference are thereby narrowed from the "whether, and then how" of the nuclear debate, to just "the how" -- the whether having been decided by the utility itself. This circularity has important implications for a public wishing to see the "whether" fully discussed.

AECL is, in short, the pioneer and core of the nuclear industry in Canada. It is not a giant as some corporations go, but is of "considerable strategic and economic importance in the resources it utilizes and the government funding it requires." [88] It employs nine-thousand of the industry's thirty thousand employees, and has assets that exceed $2 billion. [89] Its power, however, is clearly disproportionate to its size; for example, Doern and Sims note that the company "has disobeyed and/or altered [ministerial policy)". [90] While this may not be unique to the nuclear industry or even to Crown corporations, it is of importance in view of the potential danger to public safety that regulatory short-cuts could pose.

Despite its separation on the nuclear fuel cycle charts, the uranium industry is an inter-linked component that has been both the cart and the horse of the nuclear industry. Government policies have intervened to link the sale of CANDU's in Canada and abroad to uranium production by requiring stockpiling of uranium for given portions of the life commissioned reactors (up to 80 per cent of the 30 year fuel requirements of reactors). The government guarantees a monopoly in uranium mining and refining through ENL and Uranium Canada Limited (a Crown corporation set up in 1971).

While Canada's nuclear industry is dominated by the Crown, a large privately owned component and support industry has emerged. The private sector is largely engaged in the profitable aspects of the industry. The approximately 250 firms in this area are grouped together in the Canadian Nuclear Association (CNA). The CNA's close ties with the public industry include the presence of the Presidents of AECL and Ontario Hydro on its board of directors. Some of the biggest companies in the CNA are branch-plants of large multi-nationals. 58 per cent of the purchase price of an average reactor goes to the private sector. The CNA has been an especially effective lobby group [91] at the government level in favour of nuclear development.

The universities and the research establishment have been recipients of considerable funding. Doern observes that this could have the effect of "co-opting one pool of nuclear expertise... capable of criticizing the state-owned industry centered on AECL... but who else can undertake research and development for AECB but the very industry it regulates?" [92] This co-option is not a theoretical concern; a large number of AECB members and AECB committee members have been, and are, representatives of the university nuclear community. [93]

The relationship, however, between the AECB and critical public interest groups [94] can most easily be characterized as mutually suspicious and hostile. The latter view the former, with at least historically good reason, as secretive and lacking in independence. The AECB, however, seems to "fear" [95] public involvement. Its view of the public interest groups has lacked understanding of, or denies, many of the important issues that the nuclear fuel cycle poses to society. Efforts have been made in recent years to expand the openness of the informational function of the AECB. The structural, procedural and statutory features of the AECB and its relationship with its industry clients are periodically reorganized, but not changed to deal with the concerns that public interest groups, and others such as the Law Reform Commission [96] have raised.


IV. A NUCLEAR TECHNOCRACY?


The nuclear fuel cycle produces plenty of heat in reactors, an abundance of fissile material for nuclear weapons, and an over-abundance of radioactive waste. Technologies do not, however, exist in a vacuum, and the nuclear fuel cycle has other features. Some of these have emerged from the discussion above: the fuel cycle is large and centralized, internationally interdependent, and extremely complex, costly and risky. The implications of these features will be now briefly examined.

The original development of nuclear fission required the combined effort and resources of the worlds most technologically advanced countries, on an unprecedented scale, in the middle of this century. The effort at the time was undertaken at a joint Cabinet level. In most nuclear states, including Canada, the United States, the United Kingdom and France, full control and ownership has been retained at that level. The technology itself is highly complex and involves large numbers of highly skilled technicians, engineers and trades people. It also requires considerable financial resources.

Membership in the "nuclear club" -- participation in one or more aspects of the nuclear fuel cycle -- has been identified since the outset with national prestige. For example, CANDU exports "helped demonstrate the effectiveness of Canadian technology, which could only add to Canada's prestige among the other nations of the world. [97] Canada had eschewed nuclear weapons, but in the cases of other (especially Third World) countries, they have been seen as an especially desirable symbol of twentieth century nationhood, development and power. Over fifty nations now participate in the nuclear fuel cycle at one or more level. [98] The cycle constitutes a complex and interdependent trades of technology and fissile materiel. Competition on the commercial level has been fierce, especially in the realm of reactor development, and now sale. Portions of the nuclear fuel cycle have been very profitable in the short term. This is especially so in the case of uranium sales, and reactor contracting. Hopes for the future are now pinned on a third generation of nuclear technology in the form of "village-sized" Slowpoke CANDU reactors and food irradiation equipment.

These factors -- prestige, competition and profitability -- combined with the fact that the requirements of nuclear military programmes (especially those of the major nuclear powers, both for technological capability and for enriched fuels) had and have to be urgently met, churned up a nuclear storm from 1940 on. Canada was, as has been shown, at the eye of the storm from the outset, and was typically affected by the convergence of all of these factors. In staying in business as a nuclear power, Canada has evolved a particular, and it will be submitted, worrisome, nuclear industrial structure and modus operandi.

Canada's nuclear industry [99] has been aptly referred to as a "closed shop". [100] To some extent this is an obvious necessity in the development phase of a new technology. But as it enters a stage of maturity with an accompanying awareness of its larger implications this should no longer be the case. There are strong, entrenched internecine links between Government, the AECB, AECL, NRCC, CNA and its members, and the universities. The industry shuns public or critical professional participation.

The work the industry does is complex. It has the benefit of the momentum of a massive commitment of effort and resources over four decades. In addition, one of its products is energy, which during the energy crisis of the 1970's gave nuclear proponents an important policy role, and the industry's members emerged as a "nuclear priesthood". [101]

The industry has received a disproportionate share of research expenditure in the scientific and energy field. An unusual [102] statutory climate was enacted to enable the industry to develop, largely in secrecy, at very great public expense. Its reactor development programme, as has been shown, was characterized by an attitude of technological "leapfrogging" [103] in which the next bigger and better step was proceeded to before the last was completed or even fully out of the design stage. Sectors of the mining industry were nationalized to fuel Canadian and foreign nuclear programmes. It has been "full steam ahead", [104] all the way.

The regulator of the industry, the AECB, is dependent on the industry it regulates for manpower and expertise, and through a conscious policy choice, for the regulatory agenda itself. For example

in the uranium miners case... the regulators' operating assumption that the mining companies bore the "front line responsibility" to propose plans for health and safety. This meant that the regulator was essentially a reactive agent in the process. [105]

Safety and standards regulations themselves have been reactive and enacted in deference to international standards: [106]

"[In] 1978 ICRP [International Combined on Radiological Protection] Publication 26 a recommendation was made to raise the levels of radiation permitted to humans for man-made sources of radiation... It is difficult to understand how this conclusion was reached when so much new research is available documenting human illness associated with present permissible exposure levels... [The AECB] promptly implemented ICRP Publication 26 by increasing allowable radium levels in drinking water, thus reducing the cleanup costs for uranium mining companies." [107]

The regulations are then enforced by provincial agencies of an informal basis or not at all:

"The Atomic Energy Control Board has relied primarily on provincial officials to conduct inspections on its behalf... Evidence before the Inquiry also suggests that the Atomic energy Control Board was uncertain as to how often or even if their provincial inspectors visited the mine sites." [108]

The nuclear fuel cycle is in fact not regulated, in the true sense of the word, at all; it is managed, by itself.

"The media and special interest groups have loudly trumpeted the allegation that regulatory agencies become the captive[s] of their' licensees." [109] This captive state, even if trumpeted, is very real, as is apparent from the preceding discussion. "Capture", however, implies a regulatory independence that is then somehow ended. This is not so with the Canadian nuclear industry, which was born in captivity. The distinction is important, because the implication that capture is a process obscures the possibility that the nuclear industry is necessarily self-regulated. The industry emerged during World War II, and this fact is frequently used to explain the centralized nature of its control. [110] This control, however, survived World War II, and has evolved into a climate that encourages the further development of nuclear technology protected from scrutiny and criticism, and isolated from economic reality. A major reason is that nuclear technology is inescapably and structurally linked, within a unitary global fuel cycles, to the nuclear weapons programmes of the weapons states. This link is a much a fact of the nuclear fuel cycle as it is of international politics. The imperatives of these post-war and Cold War weapons programmes demand, for the foreseeable future, that the industry survive. The President of the U.S. Nuclear Regulatory Commission told a Senate hearing recently that, in his view, nothing short of a cataclysmic event at a North American reactor would close it down. [111]

The nuclear industry is one that manufactures and traffics in strategic materials, mere kilograms of which destroyed Hiroshima and Nagasaki. The ongoing need for this level of centralized control is immediately apparent:

When plutonium is flown into Mirabel or Toronto airports from Europe, even the AECB does not know what plane it will be on until the last moment. Stringent security also applies to shipments of highly enriched uranium, travelling by truck from Tennessee to Chalk River, since each shipment contains enough weapons-grade uranium for one or two atomic bombs. [112]

The industry consists, at its molecular level, of the people who design and operate it. They are highly skilled group of technologists, who with great skill and achievement, have succeeded in inventing and developing a technology based on the most fundamental energy of the universe. To do so -- and the Canadian nuclear industry is a good example of this -- took a marshaling of the best efforts of the fathers of modern industrial Canada such as C.D. Howe. Scientists and technologists play a central role in the nuclear industry:

The incorporation of the scientific and technological community into nuclear planning, dictated by the very nature of the project, was intended to take advantage of the prestige and respectability enjoyed by these professional groups in advanced industrial society. [113]

This incorporation is not limited to the nuclear industry, but is a feature of advanced industrial society, characterized as it is by large-scale technology and economic concentration. With them, technologists bring not only knowledge, but the legitimacy of "expertise" and also, (increasingly, in the era of Chernobyl and Challenger) the reassurance that our existing order, one of economic expansion based on technology, will work. Nuclear scientists and technologists proceed to assure their public that permanent, safe waste disposal is Just Around The Corner, that our reactors are safe (even if theirs are not!) and that there is no immediate danger [114] from this or that -- minor! -- release of radioactivity. They also promise that nuclear power is an unlimited source of inexpensive [115] electric power .

The Canadian nuclear industry has been referred to as a nuclear technocracy, [116] a sophisticated technical enterprise that has succeeded in marshalling all of the necessary societal elements in its interests. The observer's position on one or other side of the nuclear fence is likely to determine his or her sympathy to this view. The forgoing discussion shows, however, that the Canadian nuclear industry -- whether technocracy or not -- has succeeded, to date, in maintaining a very favoured status on the Canadian government-industry landscape. While other nuclear societies may have been more irradiated and warped by their nuclear status, Canada's cannot be said to have gone unscathed, politically, economically or physically.


Conclusion: Regulation Forever


Nuclear proponents frequently complain that the nuclear debate is "used by certain individuals as yet another opportunity to engage in a life-style debate." [117] This sentiment is actually central to the issue. From the perspective of the industry, the questions posed by nuclear development are purely technical, and ultimately solvable. These "certain individuals" do not deny that this is a "lifestyle question", but do deny the unimportance or irrelevance of their concerns that use of the term implies. They do not share the faith of the industry, insulated from public opinion and market forces, that the nuclear fuel cycle is a necessary inevitability. From their perspective, the nuclear fuel cycle poses fundamental political, social, economical and ethical questions that demand consideration as a whole.

The implications of such a critique are not lost on leading nuclear advocates, such as a Westinghouse executive who said:

To those who challenge our current social and political institutions, and the economic system upon which they rest, nuclear power has become the foremost symbol and almost obsessional target of their opposition, the visible antithesis of their sociopolitical ideals. For nuclear power represents to them the ultimate symbol of economic power, military power, all the word that technocracy connotes, and it is in the hands of the established institutions -- the electric utilities, the large corporations, government agencies. [118]

This remark is undoubtedly true about many of those who doubt the wisdom of the nuclear fuel cycle. Many more, however, base their doubt not a priori on a rejection of the entire socio-political fabric of western society, but on the inherent characteristics of the nuclear fuel cycle itself, and the very real dangers it has exhibited. [119]

The threat of nuclear war has been identified as the most acute and urgent task of the present day. [120] Nuclear weapons are one product of the nuclear fuel cycle, to which the Canadian contribution has been great. Fifteen major nuclear installations in Canada [121] and many more around the globe are another, as are the thousands of tons of waste awaiting discovery of a means of managing them on geological time scale.

Canada's contribution to the nuclear fuel cycle has been qualitatively and quantitatively significant. Three phases of this contribution have been identified. This writer proposes a fourth, to be begun immediately, before "Pickering", "Gentilly" or "Point Lepreau" become synonyms of "Chernobyl". [122] This could be termed a conservatory phase, in which the enormous hazards and problems of Canada's existing nuclear industry are really regulated, and then hopefully wound down and solved. The existing industry and its regulatory apparatus requires urgent review in light of recent developments. Then, the current thrust towards the development and marketing of new technologies requires public evaluation: are Slowpokes and food irradiation a worthwhile and economically visible response to real needs, or rather -- a view shared by this writer -- solutions in search of a problem, a use for nuclear waste, and a way to keep an industry alive? [123]

Finally, steps must taken towards the inevitable, a withdrawal from the nuclear fuel cycle. There are contracts for the peddling [124] of plutonium to be broken, reactors to be shut down and decommissioned, and millions of tons of waste to be managed. Although this would require study, all of the skilled nuclear technologists, miners and other nuclear employees could surely be employed in creating a Canadian decommissioning and waste management technology that could be exported to the world and in exploring possibilities for other energy technologies.

Managing and regulating Canada's nuclear fuel cycle-become-legacy would be a monumental task, even without further proliferation or multiplication. It will require high levels of social and political stability and vigilance, effectively forever -- even if the atom can be brought and kept under control, and peaceful.


FOOTNOTES

  1. R. Blackburn of the Atomic Energy Control Board of Canada. referring in June 1976 to the construction of homes and schools on radioactive fill at Port Hope, Ontario; quoted in Knelman. Nuclear Energy [:] The Unforgiving Technology (Edmonton : Hurtig, 1976) 139.

  2. A. Lovins, quoted in Knelman, supra, note 1 at 113.

  3. H. Alven, (1976) 28 Bull. Atom. Scientists 6 (May).

  4. "The nuclear disaster at Chernobyl emitted as much ionizing radiation into the world's air, topsoil and water as all the nuclear tests and bombs ever exploded, according to a new study of the ... accident." S. Diamond, "Reactor fallout is said to match past world total", The New York Times (23 September 1986) Al.

  5. "Radiation victims die in Brazil". [Montreal] Gazette (24 October 1987) H3.

  6. SIPRI. The Nuclear Age (Cambridge: MIT Press, 1974) at 45.

  7. See G. Edwards, "Canada's Nuclear Industry and the Myth of the Peaceful Atom" in E. Regehr and S. Rosenblum, eds. Canada and the Nuclear Arms Race (Toronto: Lorimer, 1983) at 132-136.

  8. For a brief review of the relationship between the state and nuclear industry in the major nuclear states, see J.A. Camilleri, The State and Nuclear Power [:] Conflict and Control in the Western World (Seattle: University of Washington 1984) at 20-26.

  9. G.B. Doern & G. Sims. "Atomic Energy of Canada Limited" in A. Tupper & G.B. Doern, eds. Public Corporations and Public Policy in Canada (Montreal: Institute for Research on Public Policy, 1981) at 61-63.

  10. A. Tupper & G.B. Doern. "Public Corporations and Public Policy in Canada" in Tupper & Doern, supra, note 9.

  11. A. Wyatt. "The Development of Nuclear Controls and Licensing in Canada". in G.B. Doern & R.W. Morrison, eds. Canadian Nuclear Policies (Montreal: Institute for Research on Public Policy. 1980) at 181.

  12. See Edwards, supra, note 7, and J.P. Holdren, "Nuclear power and nuclear weapons: the connection is dangerous" (1983) 39 Bull. Atom. Scientists 40-45 (January).

  13. Energy, Mines and Resources Canada, "Radioactive Waste Management and Disposal" in Nuclear Policy Review Background Papers (Ottawa: Supply and Services Canada, 1981) [hereinafter Background Papers] at 228.

  14. D. Brooks, "Commentaries on the Political Economy of Canadian Nuclear Policy" in Doern & Morrison, supra, note 11 at 85. See also SIPRI, supra, note 6 at 56-58.

  15. Opinions on the prospects for effective nuclear waste disposal or waste disposal technology range from optimistic to skeptical. Examples on this spectrum are:
    • A.M. Aikin, "Nuclear Waste Management" in Doern & Morrison, supra, note 11 at 205-217;
    • R. Hare, The Management of Canada's Nuclear Wastes (The Hare Report) (Ottawa: Supply and Services Canada 1977);
    • Energy, Mines and Resources Canada, supra note 13 at 219-233;
    • G. Prins, ed., Defended to Death (Middlesex : Penguin, 1983) at 246 ff.;
    • D. Bates, "Occupational and Environmental Health" in Doern & Morrison, supra, note 11 at 224-227;
    • Knelman, supra, note 1 at 27-29;
    • R. Bertell, No immediate Danger? (Toronto, Women's Educational Press. 1985) at 111-113.

  16. U.S., U.S.S.R., France. SIPRI, supra, note 6 at 76-77.

  17. See C. Aikenhead & D. Mulhall, Breaking the Nuclear Chain (Film) (London : Greenpeace, 1984).

  18. Bates, supra, note 15 at 224.

  19. G.H.E. Sims, A History of the Atomic Energy Control Board (Hull: Ministry of Supply and Services Canada 1981) at 5-6.

  20. J.A.L. Robertson, "Nuclear Energy" in J.H. Marsh, The Canadian Encyclopedia (Edmonton: Hurtig, 1985) at 1299.

  21. R. Babin, The Nuclear Power Game (Montreal : Black Rose, 1985) at 31.

  22. Sims, supra, note 19 at 12.

  23. Doern & Sims, supra, note 9 at 52.

  24. G. Edwards, supra, note 7 at 123.

  25. Atomic Energy Control Act, S.C. 1946, c-37.

  26. See infra text accompanying note 74 and following (Part II, 4 Admin. L.J.).

  27. Sims, supra. note 19 at 14.

  28. Sec infra text accompanying note 86 and following (Part II, 4 Admin. L.J.).

  29. See infra text accompanying note 32 and following.

  30. K. Cox & D. Davidson, "Canada's Secret Weapon", The Globe and Mail (29 November 1986) D1, D8. See also Edwards, supra, note 7 at 125-126.

  31. See W.B. Lewis, An Accident to the NRX Reactor on December 12, 1952 (Chalk River: AECL, 1953); D.G. Hurst, An Accident to the NRX Reactor, Part II (Chalk River: AECL, 1953). Knelman, supra, note 1 at 61-62; Bertell, supra, note 15 at 170-171.

  32. SIPRI, supra, note 6 at 48-50; and see Energy, Mines and Resources Canada, "The Structure of Canada's Uranium Industry and Its Future Market Prospects" in Background Papers, supra, note 13 at 277-300.

  33. Sims, supra, note 19 at 101-104; Edwards, supra note 7 at 152; Energy, Mines and Resources Canada, supra, note 13 at 290.

  34. See infra text accompanying note 63 (Part II, 4 Admin. L.J.).

  35. Energy, Mines and Resources Canada, supra, note 13 at 286.

  36. Babin, supra, note 21 at 65-66.

  37. Aikin, supra, note 15 at 209.

  38. Ibid.

  39. Brooks, supra, note 14 at 85 and sources cited therein.

  40. The reactor was supposed to be bought by Ontario Hydro, but as its efficiency was not demonstrated it never was, and still belongs to AECL. It was closed down in 1984. Babin, supra, note at 20-47.

  41. "Only the Pickering plant was due to become a commercial success. All the others... were subsequently plagued with poor performance records and serious design problems." Edwards, supra, note 7 at 127.

  42. Treaty on the Non-proliferation of Nuclear Weapons, 1 July 1968, 21 U.S.T. 483, T.I.A.S. 6839, 729 U.N.T.S. 161 (entered into force 5 March 1970). See Department of External Affairs, Canada, "The International Non-Proliferation Regime: An Historical Overview" (1980). in Background Papers 331, supra note 13 at 342-346.

  43. See AECL, Annual Report, 1979-1980 3. See also G.T. Leaist & E.F. Morisette, "The Structure of the Nuclear Industry" (1980), in Background Papers, supra, note 13 at 266, 274.

  44. Edwards, supra, note 7 at 135; see also S. Courteix. "Le controle de la proliferation des armes nucléaires" (1983) 28 McGill Law J. 591 at 602.

  45. Edwards, ibid.

  46. Ibid.

  47. Ibid.

  48. Babin, supra, note 21 at 62, and sources cited therein.

  49. Knelman, supra, note 1 at 159.

  50. R. Bott, "Power at Cost", 101 Saturday Night (12)41 (December 1986).

  51. See text accompanying notes 13, 14. and 15, supra, and works cited therein.

  52. G.B. Doern, Government Intervention in the Canadian Nuclear Industry (Montreal: Institute for Research on Public Policy, 1980) at 8.

  53. See Doern, ibid. at 9-11.

  54. Doern, ibid. at 193.

  55. Doern, ibid. at 193. For further detailed comment on the regulation of the nuclear industry in Canada and the issues of this climate, sec J. Swaigen & E.D. Boyden, "Federal Regulation on Nuclear Facilities in Canada: Better Safe than Sorry" (1981) 45 Sask. L. Rev. 53 and sources cited therein.

  56. Atomic Energy Control Act, S.C. 1946, c.37 (now R.S.C. 1970, c.A-19).

  57. Ibid. s. 7.

  58. Ibid. s. 9.

  59. G.B. Doern, The Atomic Energy Control Board (Ottawa: Law Reform Commission of Canada, 1977) at 5.

  60. Sims, supra, note 19 and 23.

  61. Ibid.

  62. Ibid. at 25.

  63. S.O.R./76-644, s. 2(a).

  64. Supra, note 56, Preamble.

  65. The Act was upheld in Pronto Uranium Mines Ltd. and Algom (Uranium Mines Ltd. v. Ontario Labour Relations Board et al 5 D.L.R. (2d) 342, (1956) D.L.R. (3d) 419. It should be noted that in 1976, as a result of rising antinuclear activity in Canada and calls for reform of the AECA, the government proposed Bill C-14 in 1976. The Bill would have facilitated greater public involvement and a more open regulatory process, but was never enacted. This was largely due to provincial government objections to enactment of intrusions into the uranium-as-natural-resource arena, but "contributed to the view that there is a total governmental reluctance to seek reform and that all the major governments, because of their ownership or major revenue stake in the nuclear and uranium industry, oppose more openness." Doern, supra, note 52 at 196. For a detailed analysis of Bill C-14, see Swaigen and Boyden, supra, note 55 at 62-81.

  66. Nuclear Liability Act, N-23, R.S.C., c. 29 (1st Supp.).

  67. T.W. Wallace, "An Overview of Federal Government Financial Involvement in the Canadian Nuclear Programme" (1980) in Background Papers, supra, note 13 at 318.

  68. Swaigen & Boyden, supra, note 55 at 53.

  69. See D. Poch. "Why industry faces little liability for nuclear mishaps", [Montreal] Gazette (l7 January 1987) B4.

  70. Conversation with Public Information Office, AECB; November 1986. See also Doern, supra, note 52 at 26.

  71. Wallace, supra, note 67 at 330.

  72. Doern, supra, note 52 at 31.

  73. Doern, supra, note 52 at 194.

  74. Tupper and Doern, supra, note 10 at 45.

  75. Doern & Sims, supra, note 9 at 52.

  76. Except where otherwise noted, the following description draws heavily on AECB, Annual Report 1985-86; Doern, supra, note 52; Sims, supra, note 19.

  77. Supra, note 65 s. 9.

  78. Senate Committee on Science Policy, Goals and Strategies for the 1970's (Lamontagne Report Vol. II) (Ottawa: Information Canada, 1972) at 379.

  79. B. Trumpener, "AECB Reform [:] We're Still Waiting" Nuclear Free Press (Fall 1985) 10. Compare the AECB view:

    "The Franklin affair was a simple foul-up by [ Minister of Energy ] Pat Carney's staff -- the Minister does not appoint members of the AECB, and Franklin was never appointed. There was no evidence at any time that the industry had exerted any pressure.... One might ask in whose pocket would the Board be if it had members like Franklin, who was quoted in the May 8, 1978 Globe and Moil as ... saying "there is no scientific, political or economic argument -- to any sane and rational citizen anywhere in this world -- that justifies the use of nuclear energy to produce electricity." : AECB, "Comments on Typical Polemic re AECB lack of Independence" Release (24 November, 1986).

  80. W. Caragata, "AECB" Canadian Press Newsline (CPN on-line database) (2 may, 1985).

  81. Doern, supra, note 59 at 37.

  82. Ibid. at 39.

  83. Ibid. at 19, 35-36.

  84. Babin, supra, note 21.

  85. Ibid. at 59.

  86. Ibid. at 64-65.

  87. Tupper & Doern, supra, note 10 at 28.

  88. Ibid. at 51. This work is the most recent critical examination of AECL. It contains three illuminating case-studies of the company's activities.

  89. Ibid.

  90. Doern & Sims, supra, note 9 at 84.

  91. Babin, supra, note 21 at 87.

  92. Doern, supra, note 59 at 25-26.

  93. See, for example, AECB Annual Report 1985-6 at 1, 12-14.

  94. See Swaigen & Boyden, supra, note 55 at 55.

  95. Doern, supra, note 52 at 195.

  96. Doern, supra, note 59.

  97. Tupper and Doern, supra, note 10 at 75.

  98. See SIPRI, supra, note 6 at 76-77 and 63-75.

  99. The term "industry" is intended here to apply to all participants in the nuclear fuel cycle, including government, regulator and regulatee.

  100. Doern, supra, note 52 at 133.

  101. Knelman, supra, note 1 at 73.

  102. The legislation is unusual in the wider context of government intervention in state industry in general. Canadian nuclear legislation is typical of such legislation in western nuclear states: see Sims, supra, note 19 at 26; Swaigen & Boyden, supra, note 55 at 53 footnote 1; Camilleri, supra, note 8 at 69-74.

  103. See Doern, supra, note 52 at 110.

  104. Babin, supra, note 21 at 153.

  105. Doern, supra, note 52 at 187.

  106. Ibid. at 62.

  107. Bertell, supra, note 15 at 52-53.

  108. Final Report, Cluff Lake Board of Inquiry (Bayda Report), Regina, Saskatchewan, 1978 at 130. See also Knelman, supra, note 1 at 133.

  109. J. Jennekens, "Nuclear Regulation -- The Canadian Approach" (Address to the International Conference on Radiation Hazards in Mining: Control, Measurement and Medical Aspects; Golden, Colorado. 4 October 1981) (Ottawa: AECB, 1981).

  110. See Sims, supra, note 19 at 25.

  111. Quoted by J. Geiger, Address (Physicians for Social Responsibility, McGill University, Montreal, 5 November 1986).

  112. Edwards, supra, note 7 at 161. See also A.B. Lovins, Non-Nuclear Futures (New York: Harper Colophon, 1975) at 37-39 and sources cited therein.

  113. Camilleri, supra, note 8 at 277.

  114. See generally Bertell, supra, note 15.

  115. The claim, in yet more confident times, used to be that nuclear electricity would be too cheap to meter!

  116. For a discussion of nuclear technocracy in Canada, see Babin, supra, note 21 at 94-106; on the concept and role of technocracy in post-industrial society, see M. Crozier, Strategies for Change (Cambridge, Mass.: MIT, 1982) at 126-130, 219.

  117. N. Ediger, "Commentaries on the Political Economy of Canadian Nuclear Policies" in Doern & Morrison, supra, note 11 at 94.

  118. Quoted in Camilleri, supra, note 8 at 84.

  119. See Camilleri, ibid.; Prins, supra, note 15 at 233-61.

  120. Final Document, 10th Special Session, G.A. Res. S-10/2, 10 (Special) U.N. GAOR, Supp. (No. 4) 3, U.N. Doc. A/S-10/2 (1978).

  121. AECB, Final Report 1985-6 at 32.

  122. See AECB, "The Nature of Reactor Accidents" (1980) in Background Papers, supra, note 13 at 199-233.

  123. See N. Filmore & A. Wordsworth, "The Blast Supper [:] Food Irradiation and the Nuclear Industry" (1987) 21 This Magazine (1)14 (April 1987).

  124. See Cox & Davidson, supra, note 30 at D8.



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