Canadian Nuclear Safety Commission
Fact Sheets
Uranium Mining – A Federal Responsibility
Uranium mining is a federal responsibility in light of the division of powers set out in the Constitution Act (1867).
A series of court decisions (such as Ontario Hydro v. Ontario, 1993, and Energy Probe v. Canada, 1994) confirmed Parliament’s jurisdiction over nuclear energy, which includes uranium mining. The courts’ reasoning indicates that nuclear energy comes under exclusive federal authority mainly for two reasons:
(1) it is considered a matter of national importance and therefore covered by the federal “basket clause” found in section 91 of the Constitution Act (1867) to make laws for the peace order and good government of Canada (POGG); and
(2) it becomes federal when specified in legislation that declares certain “works and undertakings” to be “for the general advantage of Canada”.
Section 71 of the Nuclear Safety and Control Act (NSCA) is the declaratory provision for nuclear works and undertakings:
| 71. Any work or undertaking constructed for the development, production or use of nuclear energy or for the mining, production, refinement, conversion, enrichment, processing, reprocessing, possession or use of a nuclear substance or for the production, possession or use of prescribed equipment or prescribed information is declared to be a work or undertaking for the general advantage of Canada. | 71. Sont déclarés à l’avantage général du Canada les ouvrages et entreprises construits en vue du développement, de la production ou de l’utilisation de l’énergie nucléaire, ceux destinés à la production, à la conversion, à l’enrichissement, au traitement, au retraitement, au raffinage, à la possession, à l’utilisation ou à l’extraction minière d’une substance nucléaire et ceux destinés à la production, à la possession et à l’utilisation de l’équipement réglementé et des enseignements réglementés. |
Accordingly, any of the activities and facilities licensed pursuant to the NSCA unequivocally fall under federal jurisdiction, more specifically the CNSC’s jurisdiction.This includes, as noted above, uranium mining. In consequence, any provincial legislation that purported to affect the nuclear aspect of such a facility or activity could not legally apply to the activity or facility.
For example, the CNSC has entered a Memorandum of Understanding with the Province of Saskatchewan (PDF) in 2003, concerning uranium mining, to ensure cooperation and reduce any duplication of effort, while acknowledging provincial legislation and interests in such areas as environment and labour. The document specifies that “pursuant to section 71 of the Nuclear Safety and Control Act (NSC Act) the Government of Canada has declared uranium mines and mills to be works or undertakings for the general advantage of Canada.“
As far as the CNSC is concerned, the licensing process for new uranium mines is initiated following the exploration stage to identify a potential ore body, and before specific physical activities to evaluate the best approaches for mining, ore processing, and milling for the ore body are carried out.
The mandate of the CNSC does not include approving or overseeing prospecting or exploration. These activities are not regulated by the Commission and the NSCA. The specific information required for obtaining a licence to prepare a site and construct a uranium mine or mill site is listed in Sections 3, 4 and 5 of the Uranium Mines and Mills Regulations (external link to legal text).
The CNSC is open to discussions where mining is proposed (as opposed to prospecting), for the same purpose, in other jurisdictions.
