Two First Nations in the Ottawa area have concluded they do not consent to the construction of a facility for disposing of low-level radioactive waste at the Chalk River nuclear research station, on unceded Algonquin territory.

Kebaowek First Nation and Kitigan Zibi Anishinabeg First Nation submitted their conclusions to the Canadian Nuclear Safety Commission (CNSC) on June 6.

Their final report is the product of almost a year of studying the plans for the proposed facility to evaluate what impacts it would have on the environment and their constitutionally protected aboriginal and treaty rights.

“We’ve definitely been able to take a big collective breath. It was a huge undertaking. But the work is . . .

not yet done,” said Justin Roy, councillor and economic development officer with Kebaowek First Nation. He coordinates consultation files for the community.

Kebaowek and Kitigan Zibi Anishinabeg First Nation were granted this consultation period after intervening in the CNSC’s final licensing hearings for the project in June 2022.

They and other Algonquin communities argued they had not been properly consulted and that any approval of the project should be withheld until full consultation had been completed.

In response, the Commission granted the two First Nations six months, which was extended in December, to conduct their own assessments of the proposed facility.

After 10 months of extensive field studies and review of previous environmental assessments, the Nations rejected the proposal for the facility on several grounds.

Their report states proponents of the project have still failed to fulfill the duty to consult, and that it will only be fulfilled once the Commission has considered “which rights of all communities in the Algonquin Nation will be negatively impacted.”

These include the First Nations’ rights to harvest, to govern and protect their territory, and to maintain a cultural and spiritual relationship with the territory, among others.

The submission also states the consultation process began too late in the development of this facility, and that proponents failed to consult First Nations during critical early decisions around site selection, facility design, and priorities for environmental impact assessments.

Proposed construction would violate UNDRIP

Beyond concerns surrounding the duty to consult, the First Nations have also said if CNSC approves a license for constructing this facility it will be violating the United Nations Declaration on the Rights of Indigenous People (UNDRIP).

Article 29.2 of UNDRIP says “states shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of Indigenous peoples without their free, prior, and informed consent.”

UNDRIP is not currently legally binding in Canada, but the federal government is on track to adopting it as law.

The “near surface” disposal facility in question would be a large, covered pit, a kilometer from the Ottawa River, and just across the river from the upper Pontiac.

It would be used to hold up to a million tonnes of radioactive and hazardous waste including items like mops, rags, and clothing that have been exposed to low levels of radiation during maintenance of the site over the years, as well as contaminated soils and debris from demolished buildings.

Crown corporation Atomic Energy of Canada Ltd. owns the waste.

A private consortium of companies which includes SNC Lavalin was hired by the federal government in 2015 to manage the Chalk River site, including the waste.

Proponents and many nuclear experts say the proposed near-surface facility is the safest way to deal with the nuclear waste, which is currently sitting in shipping containers above ground at Chalk River.

Consultation not necessarily a veto says AECL

In CNSC’s June 2022 licensing hearings, president of Atomic Energy of Canada Ltd., Fred Demarker, said his corporation believes consultation is about process and not consent.

“We will consult early, and we need to get better at that, but consultation does not necessarily mean a veto. And so, consultation is part of the process,” Demarker said.

The crown corporation is not ultimately responsible for deciding what to do with the First Nations conclusions.

CNSC, as the country’s nuclear regulator, will make the final decision as to whether to grant the licence to Canadian Nuclear Laboratories to build the disposal facility.

The organization declined a request for interview for this article as the matter is currently before Commission but directed THE EQUITY to previous submissions CNSC staff have made to the Commission for comment on its approach to consultation.

A submission from February 2022 stated, “Commission proceedings are mindful of the principles articulated in UNDRIP, including FPIC, and [its] approach aims to advance to the extent possible, the framework for reconciliation.”

“With CNSC being the crown regulator for all things nuclear, and having to kind of follow what Canada is doing in terms of reconciliation, I would hope that they would reject the NSDF, as it is currently proposed, and recommend we go back to the drawing board,” Roy said.

The oral hearings of the final submissions will be held virtually on August 10.

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