Intervenor: Vol 25. No 1 January - March 2000

CELA Legal Opinion Argues That Flights of MOX Fuel Were Illegal

CELA released a legal opinion on February 22, 2000 in Ottawa, on behalf of the Campaign for Nuclear Phaseout and several other groups about the legality of the federal government decision to fly MOX fuel from Sault Ste. Marie to Ottawa.

Last fall, the federal government, through Transport Canada, carried out public consultation about the adequacy of a proposed Emergency Response Assistance Plan for the shipment of Mixed Oxide Fuel from U.S. and Russian origins to AECL's Chalk River laboratories. There was widespread concern about the project as a whole, but the consultation was limited to a particular aspect of the transportation plan, namely the emergency response. The government consultation described the shipments as being by road only, and any other mode of transport, including air, was expressly ruled out.

When Transport Canada approved the shipment in November, 1999, their accompanying report stated five times that the MOX fuel would not be flown. However, the government secretly changed its approval and allowed the first shipment of MOX, originating in Los Alamos laboratories in the U.S. to be flown from Sault Ste. Marie, Ontario, across much of Ontario, to the Chalk River laboratories. No public notice of the possibility of the amendment to the emergency response plans was provided. No opportunity was allowed for the public or for well-informed and concerned groups to express their views to the government about the hazards of flying MOX. Only after the MOX had been flown did the government reveal the change in plans.

CELA was among the many groups who commented on the proposal in the fall of 1999. At the request of a large number of groups and First Nations, CELA prepared a legal opinion which found that the government's decision to amend the transportation plan to allow flight breached important principles of administrative law. In particular, CELA's published legal opinion states that the government acted unreasonably in law in allowing the flights. There was no justifiable basis for the amendment. Furthermore, CELA's opinion states that the government breached the administrative law principle of legitimate expectations, a branch of the law governing due process in government decision making.

Having consulted the public on the emergency response plan, and having expressly stated that only road transport would be allowed, the government was not legally allowed to change the approval to permit flight of MOX without returning to consult the public.

There are two remaining shipments of MOX fuel from the US which have been approved. No date for their shipments is known at present. There are also three shipments of MOX fuel from Russia which have been approved to arrive in Canada by ship; they are to be transported from Cornwall to Chalk River by road.

There are serious concerns as to whether any of these future shipments will also be flown. No official has ruled out that possibility despite questions from parliamentarians in the House of Commons, questions from concerned groups and questions by the media. It is a serious breach of public confidence for Transport Canada to have carried out a purported consultation and report stating clearly that there will be no MOX flights and then to have them amend their approvals in secret.

Mixed Oxide fuel (MOX) is derived from dismantled weapons grade plutonium. The government of Canada is carrying out a project called the "Parallex Project" in which MOX fuel from the U.S. and MOX fuel from Russia will be burned in a CANDU reactor at Chalk River in what amounts to a performance test. CELA shares the concerns of Campaign for Nuclear Phaseout (of which CELA has been a member since its inception), and many other environmental and peace organizations in Canada that pursuing the MOX option will increase the threat of nuclear proliferation globally, and, in its transportation, will pose significant environmental and health hazards.

Although Ontario Hydro (now Ontario Power Generation) has stated that it is no longer interested in the project, the very real possibility of the sale of the Bruce Nuclear Generating Station to a private consortium of some description raises the alarming possibility of a MOX fuel economy in Ontario. A private consortium may well be interested in MOX fuel to run its reactors.

Theresa McClenaghan is a lawyer at CELA

For more information:

Canadian Coalition for Nuclear Responsibility -
Cp 236 Station Snowdon Montreal
QC H3X 3T4 ph: 514-489-5118
fax: 514-489-5118

or Campaign for Nuclear Phaseout -
1200 - 1 Nicholas St. Ottawa ON
K1N 7B7 ph: 613-789-3634
fax: 613-241-2292