Chief Lance Haymond of Kebaowek First Nation says a Federal Court ruling on the proposed new disposal facility at Chalk River 'moves the yardstick' on the requirement to ensure that Indigenous voices are fully considered. Mr. Haymond speaks at a press conference in Ottawa on Aug. 10, 2023.Sean Kilpatrick/The Canadian Press
A First Nation in Quebec that mounted a court challenge to plans for a nuclear-waste storage site near the Ottawa River has succeeded in forcing fresh consultations on the green-lit project, after a federal judge ruled it had not been properly consulted.
Kebaowek First Nation said the ruling in Federal Court on Wednesday set a historic precedent that Indigenous communities should be fully consulted not as a “checkbox exercise” but in keeping with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which the Canadian government has adopted.
The court partially granted Kebaowek First Nation’s application for judicial review of a decision by the Canadian Nuclear Safety Commission to authorize Canadian Nuclear Laboratories to build the nuclear-waste storage facility at its Chalk River Laboratories site.
The planned containment mound, to be built at ground surface level, will hold up to one million cubic metres of radioactive low-level nuclear waste.
Kebaowek First Nation was awarded costs after the court ruled the commission had breached a duty to consult fully the Algonquin community.
Kebaowek Chief Lance Haymond said the ruling “moves the yardstick” when it comes to the requirement to ensure that Indigenous voices are fully considered, and not just “late in the game.”
Mr. Haymond said although the nuclear-waste disposal project had been planned since 2015, in his view it was only in 2023 that Algonquin communities were properly consulted. He said preparations for the site need to be halted while the fresh consultations take place.
“The decision confirms what we have been saying all along – consultation must be more than checkbox exercise. It must be real, meaningful and grounded in the principles of free, prior and informed consent,” Mr. Haymond said.
“For too long, our rights have been ignored in decisions that directly impact our lands, waters and communities. This ruling sends a strong message that the federal government and industry cannot sideline Indigenous voices.”
The Kebaowek are one of 10 First Nations in Quebec and Ontario opposed to the proposed Chalk River Near Surface Disposal Facility, which is a little more than a kilometre from the Ottawa River. It is also opposed by conservationists, the Bloc Québécois and Green parties.
The ruling by Justice Julie Blackhawk means that the Canadian Nuclear Safety Commission, which approved construction of the nuclear waste storage facility last year, and Canadian Nuclear Laboratories (CNL), which wants to build it, must restart consultations with the Kebaowek and work toward reaching an agreement by Sept. 30, 2026.
In her judgment, Justice Blackhawk said the court challenge was a test of “our commitment as Canadians to reconciliation and what is truly required to move toward achieving these objectives. This application also tests Canada’s commitments to implement the principles set out in the UNDRIP, in particular the standard of ‘free, prior and informed consent (FPIC).’”
She directed the commission and CNL to “resume consultation with Kebaowek with a view to implementing the UNDRIP FPIC standard in a robust manner, by adapting its processes to address Indigenous laws, knowledge and processes and to develop a process that is aimed at reaching an agreement.”
Canadian Nuclear Laboratories said in a statement that it respects the ruling “and is taking time to review and assess the decision and to determine the next steps.”
It said the low-level nuclear waste at Chalk River Laboratories, which has been there for some time, is currently in temporary storage, where it is routinely monitored.
“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,” it added.
Conservationists have argued that the site, in Ontario’s Renfrew County, is too near the Ottawa River and that the waste storage should be located elsewhere.
A separate Federal Court challenge failed on Thursday. It was mounted by the Concerned Citizens of Renfrew County and Area as well as the Canadian Coalition for Nuclear Responsibility, which alleged there were gaps in the decision to approve the site, including measures to protect the habitat of the rare Eastern wolf.
Dr. Edith Gardell, a campaigner concerned about situating the site close to the Ottawa River, which supplies drinking water to the nation’s capital, described the Algonquin community’s court challenge as “a David against Goliath encounter.”
“To observe the small Kebaowek First Nation stand up, on behalf of the Algonquin people, against the approval by the Canadian Nuclear Safety Commission to build a nuclear-waste disposal site close to the river has been a humbling experience,” she said. “This Federal Court decision is precedent-setting and confirms their legal right to free prior informed consent and adequate consultation before any changes to their lands can take place.”
Braeson Holland, a spokesperson for the Canadian Nuclear Safety Commission, said it was committed to its responsibilities under UNDRIP and “to continuous improvement.”
He said the commission would “carefully review this decision and the direction to continue consultation with Kebaowek First Nation … in a robust manner.”
Editor’s note: This article has been updated to correct the surname of Dr. Edith Gardell.