OTTAWA – A Federal Court decision has ordered the Canadian Nuclear Safety Commission (CNSC) to revisit its approval of a Near Surface Disposal Facility (NSDF) at the Chalk River Laboratories site, citing errors in its assessment of Indigenous consultation obligations.
The ruling, issued by the Honourable Madam Justice Blackhawk on February 19, 2025, in the case of Kebaowek First Nation v. Canadian Nuclear Laboratories, highlights the importance of adhering to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Canadian law.
The Case at a Glance
The Kebaowek First Nation challenged the CNSC’s decision to grant Canadian Nuclear Laboratories Ltd. (Canadian Nuclear) a license amendment to construct the NSDF, a proposed facility for the permanent storage and disposal of low-level nuclear waste. Kebaowek argued that the CNSC erred by:
- Failing to apply the UNDRIP and the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDA) to its decision-making process regarding the duty to consult and accommodate.
- Concluding that the Crown had fulfilled its duty to consult and accommodate Kebaowek.
- Determining that the NSDF is not likely to cause significant adverse environmental effects.
Court’s Findings
Madam Justice Blackhawk’s decision focused on the CNSC’s handling of Indigenous consultation. Key findings included:
- Jurisdiction to Apply UNDRIP/UNDA: The court found that the CNSC erred in determining it did not have the jurisdiction to consider the application of the UNDRIP and the UNDA to the duty to consult and accommodate.
- Duty to Consult and Accommodate: The court determined that the CNSC’s assessment of whether the Crown had fulfilled its duty to consult and accommodate Kebaowek was flawed due to the failure to consider the UNDRIP and its principle of “free, prior, and informed consent” (FPIC) as an interpretive lens.
- Flawed Consultation Process: The court stated that the consultation process was inadequate, and Canadian Nuclear failed to consult in a manner consistent with the UNDRIP and the FPIC standard.
Remedy and Next Steps
The Federal Court has ordered the matter to be remitted back to the CNSC for reconsideration. The CNSC, or a newly struck commission, is directed to:
- Address the jurisdictional question regarding the application of UNDRIP and the UNDA.
- Re-assess the Crown’s fulfillment of the duty to consult and accommodate, considering the UNDRIP and the FPIC standard.
Canadian Nuclear and CNSC staff are also directed to resume consultation with Kebaowek, aiming to implement the UNDRIP FPIC standard in a robust manner and work towards achieving an agreement. The court has set a target completion date of September 30, 2026, for this renewed consultation process.
Implications
This decision has significant implications for future development projects in Canada that may affect Indigenous rights and interests. It underscores the importance of:
- Properly interpreting and applying the UNDRIP and the UNDA.
- Conducting meaningful and robust consultation with Indigenous communities, consistent with the principles of FPIC.
The ruling emphasizes that consultation processes must be approached from an Indigenous perspective and take into account Indigenous laws, knowledge, and practices.
NetNewsLedger.com will continue to follow this developing story and provide updates.
