Ottawa

Sophie Kuijper Dickson, LJI Journalist

A federal court has upheld a second legal challenge filed by the Algonquin community of Kebaowek First Nation against the nuclear waste disposal facility proposed for Chalk River.

In a decision published Mar. 14, Justice Russel Zinn approved Kebaowek’s application for judicial review of the federal environment ministry’s decision to grant a species at risk permit to the proponent, Canadian Nuclear Laboratories (CNL), for the construction of the facility, which it would use to dispose of decades of what it claims is low-level nuclear waste that has accumulated at the Chalk River site, a claim that former nuclear waste management employees have refuted. 

In March 2024, Environment and Climate Change Canada determined Canadian Nuclear Laboratories had done enough to mitigate harm to three separate species found on the proposed site that are considered to be at risk, according to the federal species at risk act – the Blanding’s turtle and two species of bats. 

CNL was granted a permit under section 73 of the act, seven years after it had first applied for it, authorizing incidental harm of any listed species or their residences caused by the construction and use of the facility.

Less than a month later, Kebaowek First Nation, along with the Concerned Citizens of Renfrew County and Area, the Canadian Coalition for Nuclear Responsibility, and the Sierra Club Canada Foundation, filed a legal challengerequesting the federal court review this decision on the grounds the proponent did not choose the site with the smallest impact on the species at risk.

On Friday, Justice Russel Zinn upheld this challenge, ruling CNL had not adequately considered alternative sites for the waste facility, concluding the environment ministry had erred in its granting of the permit, and sent the file back to the ministry for reevaluation.

“The record shows that CNL restricted its site selection to [Atomic Energy of Canada Ltd.] properties, artificially narrowing the scope of ‘reasonable alternatives’ as required by the Act,” Justice Zinn’s ruling reads.

“Despite this self-imposed restriction, the Minister approved CNL’s approach without explaining how it satisfied the statutory requirement to assess all viable alternatives capable of reducing harm to protected species.”

CNL initially considered two different AECL-owned properties in Ontario, at Chalk River and at the Nuclear Power Demonstration Site in Rolphton, Ont., as well as one at Whiteshell Laboratories in Manitoba. The decision states that from a purely ecological perspective, the non-Chalk River locations offered better protection for species at risk, but that factors such as cost, proximity, existing infrastructure, and the location of the facilities currently storing the waste led CNL to choose the Chalk River site.

THE EQUITY reached out to Environment and Climate Change Canada for comment but did hear back before this week’s publication deadline.

CNL did not respond directly to THE EQUITY’s questions about how this decision would impact construction timelines for the waste facility, but emailed the same media statement it had provided weeks earlier in response to Kebaowek’s first successful court challenge, in which a judge ruled CNL and the Canadian Nuclear Safety Commission not sufficiently consulted Kebaowek regarding the waste facility and ordered both the proponent and the commission to consult further.

“CNL respects the decisions rendered by the Court and is taking time to review and assess the decisions and to determine the next steps,” CNL said in this statement, reaffirming its confidence in the science behind the waste facility proposal.

Site selection ‘flawed from the start’

In a press release celebrating the news of this second court victory, Kebaowek Chief Lance Haymond suggested otherwise.

“This ruling is a resounding affirmation of what we have been saying all along: CNL’s choice of site was flawed from the start,” he said.

“The court recognized that alternative locations, including Whiteshell and NPD, posed fewer risks to at-risk species, yet CNL dismissed these options without proper justification. This decision is a crucial step toward ensuring that environmental laws are upheld and that our voices as stewards of the land are heard.”

Ole Hendrickson, founder of Concerned Citizens of Renfrew County and Area, one of the groups that filed the court challenge with Kebaowek, said he was not entirely surprised the case was successful.

“It seemed pretty clear-cut that the Chalk River site is much richer in biodiversity than the two other Atomic Energy of Canada Limited sites, and that was all that Canadian Nuclear Laboratories looked at,” he said.

“The proximity to the river is what everyone thinks makes this project crazy, however we never really found a way to challenge that aspect in court. But lawfully, this decision really should lead to consideration of non-AECL sites.”

*Update: Mar. 20, 2025 This article was updated to reflect differing opinions of what level of nuclear waste will be disposed of in the facility.

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.”