Algonquin community wins part of court challenge over nuclear waste dump near Ottawa River

An Algonquin community in Quebec is declaring victory after a judge upheld part of its court challenge to a proposed radioactive waste dump to be built about a kilometre away from the Ottawa River.

The Canadian Nuclear Safety Commission approved the project in January 2024, greenlighting Canadian Nuclear Laboratories (CNL) to build the "near-surface disposal facility" at the Chalk River research campus near Deep River, Ont., 150 kilometres northwest of Ottawa.

But according to Federal Court Justice Julie Blackhawk, the regulatory body failed to consider internationally recognized Indigenous rights and how they apply in Canadian law when consulting with Kebaowek, rendering the approval decision both unreasonable and incorrect.

"The consultation process in this matter was not adequate," Blackhawk wrote in a decision released Wednesday.

The judge ordered the commission and CNL to resume consultations with Kebaowek "in a robust manner," while properly considering the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) and its standard of free, prior and informed consent.

The consultation must be adapted to address Indigenous laws, knowledge and be aimed at reaching an agreement, to be completed by Sept. 30, 2026, Blackhawk ruled.

Kebaowek had asked the court to quash the commission's approval entirely, requiring CNL to restart the process altogether. But Blackhawk declined, calling that impractical, sending the matter back to the commission to correct the process instead.

Nevertheless, community leaders are ecstatic, said Chief Lance Haymond.

"It's clear that when Canada adopted UNDRIP, the provisions of UNDRIP had to be applied in Canadian law from the beginning, not in some time in the future," said Haymond, whose community is 300 kilometres northwest of Ottawa.

"I think that's a win for Kebaowek, and that's a win for First Nations across this country."

Haymond hailed the decision as one with far-reaching implications for industry and project proponents, meaning he expects it will be appealed. 

The community wasn't entirely successful. The judge found it was reasonable for the commission to conclude the project is unlikely to cause significant environmental harm, contrary to Kebaowek's argument.

In a statement, CNL, a private-sector consortium under contract to the federal government, said it respects the decision and will take some time to review it before determining its 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," the organization said.

A novel argument

The facility would contain up to one million cubic metres, or about 400 Olympic-sized swimming pools worth, of low-level radioactive waste from the Second World War-era Chalk River site in a specially designed mound.

Kebaowek has raised concerns about the project's potential impact on drinking water, wildlife and Indigenous rights.

In the judicial review, the community raised novel legal arguments, centring on the commission's obligations under the United Nations Declaration on the Rights of Indigenous Peoples Act, federal legislation passed in 2021.

The law requires Canada to harmonize federal laws with UNDRIP, an international instrument outlining minimum standards for the protection of Indigenous peoples' rights around the world. 

Kebaowek argued the nuclear regulator, in light of the relatively new legislation, needed to apply UNDRIP during its decision-making, particularly the article that prohibits states from disposing hazardous materials on Indigenous peoples' lands without their consent.

The commission concluded it had no power nor jurisdiction to do so, amid a lack of judicial interpretation of the new law, and declared it had met its duty to consult the community.

Blackhawk rejected that, and Kebaowek's legal counsel echoed the chief about the precedent being set in a Thursday news release.

"The court has made it clear that respecting Canada's commitments under UNDRIP cannot be delayed to some far distant date," said Robert Janes, a partner at JFK Law in Toronto, in the release.

"Canada must respect these commitments now."

At the same time, Blackhawk said the duty to consult, which stems from a 2004 Supreme Court ruling, "is a right to a process, not a particular outcome," and doesn't afford Indigenous nations a veto power.

In a statement on Thursday, the nuclear commission said it too would carefully review the decision and direction, saying the regulator remains committed to continuous improvement and its responsibilities under the UNDRIP Act.

Haymond declined to speculate on what the new consultation round will look like but expressed hope it will go beyond "lip service" and enable the First Nation to make a properly informed decision.

He called the ruling a win for the two million people who rely on the Ottawa River for drinking water as well, and was eager to thank Kebaowek's numerous backers, which include community groups, non-profit organizations, the Bloc Québécois and the RAVEN Trust legal fundraising charity.