Sophie Kuijper Dickson, LJI Journalist
Plans to build a nuclear waste disposal facility one kilometre from the Ottawa River hit a speed bump last week after a federal court decided both the facility’s proponent and Canada’s nuclear safety regulator failed to adequately consult an Algonquin community upstream of the site.
Last January, the Canadian Nuclear Safety Commission (CNSC) approved an application from proponent Canadian Nuclear Laboratories (CNL) to construct what it calls a “near surface disposal facility” at the Chalk River nuclear research station, across the river from Sheenboro.
About a month later, Kebaowek First Nation filed for judicial review of CNSC’s decision, arguing, as it has for years, that neither the federal regulator nor the proponent had conducted sufficient consultations, as outlined in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
The declaration is not currently legally binding in Canada, but in 2021 the federal government passed legislation announcing its intention to adopt it as law, and is slowly working towards doing so.
The CNSC’s final decision claimed that because UNDRIP is not yet law, the commission was not in a position to determine how to implement it and must instead be guided by current consultation law, which does not mandate free, prior, and informed consent (FPIC).
But Federal Court Justice Julie Blackhawk rejected this claim, and in her decision published Wednesday ordered both CNL and CNSC to resume further consultations with Kebaowek First Nation.
“Canadian Nuclear and CNSC staff are directed to continue to consult with Kebaowek in a manner that promotes reconciliation and aligns with the principles articulated in the UNDRIP, including the FPIC standard,” she ruled, noting the process is to be completed by Sept. 30, 2026.
“Article 29(2) [of UNDRIP] highlights that FPIC is required for the disposal of hazardous materials in the lands or territories of Indigenous peoples. The proposed NSDF will be designed to permanently contain [low level waste], which will take several centuries to decompose to a safe level. Consultation in the context of such hazardous materials must consider the added context of the UNDRIP and the FPIC standard.”
On Friday, Kebaowek Chief Lance Haymond said while he anticipates CNL will appeal the decision, the court’s ruling was still a major win for his community, which has been working tirelessly, with support from allies across the Ottawa River watershed, to oppose construction of the waste facility because of concerns for the environment and Indigenous rights.
“There were days where we felt like we were trying to punch our way out of a wet paper bag and we’re not getting anywhere and we’re all alone,” Haymond told THE EQUITY.
“We recognize it’s a collective win for fauna, the environment, and for those animals and creatures that don’t have a voice. We are that voice and we’re going to continue to be that voice.”
In a statement to THE EQUITY, a spokesperson for CNSC said the commission “will carefully review this decision and the direction to continue consultation with Kebaowek First Nation to further implement the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDA), specifically the Prior and Informed Consent (FPIC) standard, in a robust manner.”
CNL declined an interview request but said it respects the decision and is taking time to determine next steps.
“We firmly believe in the science that is behind our proposal, which is the culmination of almost a decade of study, federal and provincial review, and engagement with Indigenous communities, the public and other interested parties,” its statement says.
The court’s decision was only a partial victory for the First Nation. The second component of its application for judicial review argued CNSC was wrong to conclude the NSDF was not likely to cause significant environmental harm, a claim Justice Blackhawk did not uphold.
Further, the court’s decision did not grant Kebaowek any veto power, but did emphasize the need that both proponent and regulator work to “incorporate Kebaowek law, knowledge, and practices into their processes, and to work towards achieving an agreement.”
Haymond refrained from speculation as to what this decision might mean for the future of the waste facility, but emphasizes the significance of the ruling for consultation protocol going forward.
“[This decision] tells government and proponents that you can’t hold off on doing deep and meaningful consultation, under the articles of UNDRIP, because Canada adopted that in 2021 [ . . . ] It’s going to give us a voice that CNSC and CNL and others have tried to keep silent.”