Local Journalism Initiative

Nuclear lab challenges ruling on Indigenous consultation

Tashi Farmilo

OTTAWA - Canadian Nuclear Laboratories (CNL) was before the Federal Court of Appeal on October 8 seeking to overturn a February Federal Court decision that found Kebaowek First Nation was not properly consulted on the Near Surface Disposal Facility (NSDF) proposed at Chalk River, about one kilometre from the Ottawa River. Outside the Ottawa courthouse, dozens of supporters rallied in solidarity with the Kebaowek.

In the February 19 ruling, Justice Julie Blackhawk held the Canadian Nuclear Safety Commission (CNSC) erred by failing to consider the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) when assessing whether the Crown’s duty to consult was met, and ordered the consultation process renewed. CNL has appealed that decision.

A second Federal Court decision in March overturned a Species at Risk Act (SARA) permit related to the project; CNL has also appealed that ruling. Species at risk cited around the site include Blanding’s turtle and endangered bat species. A hearing on the SARA appeal is expected in mid-November.

Legal experts are closely watching the case, describing it as the first major test of Canada’s UNDRIP legislation in a federal regulatory setting. If the court upholds the earlier rulings, it could strengthen the duty to consult Indigenous communities and reshape how large infrastructure projects are reviewed across the country. If the appeal succeeds, it may limit the influence of UNDRIP and the principle of free, prior and informed consent (FPIC) in future decisions.

Kebaowek’s leadership frames the litigation as a defence of Algonquin rights and the Ottawa River, a source of drinking water for communities in Quebec and Ontario. “We are not only defending the rights of our Nation, we are defending the right of millions of people to safe drinking water, biodiversity, and a democratic process that respects Indigenous consent,” Chief Lance Haymond has said.

CNL says it remains committed to reconciliation and has engaged with Indigenous communities throughout the project, arguing in court that consultation was adequate and that the commission was not required to apply UNDRIP as a binding standard.

A decision date from the Federal Court of Appeal has not been announced.