The Federal Court of Appeal has upheld a court challenge filed by a Quebec First Nation and three environmental groups that seeks to protect species at risk from possible harm caused by the building of the nuclear waste disposal facility in Chalk River.
In 2024, Kebawoek First Nation, the Concerned Citizens of Renfrew County and Area, the Canadian Coalition for Nuclear Responsibility, and Sierra Club Canada Foundation filed for judicial review of the federal environment ministry’s decision to grant a Species at Risk permit to Canadian Nuclear Laboratories (CNL).
CNL needs the permit to build what it calls a “near-surface disposal facility” about a kilometre from the Ottawa River that it will use to dispose of what it claims is low-level radioactive waste that has accumulated at the Chalk River site.
The groups argued the ministry was wrong to grant CNL the permit as the proponent had not adequately considered other locations for the facility that would have less of an impact on three key species – the Blanding’s turtle and two species of bats.
Last year, the Federal Court upheld this challenge, ruling that in limiting the sites considered to properties already owned by crown corporation Atomic Energy of Canada Ltd., CNL was not properly considering alternative sites, and ordered the ministry to review its granting of this permit.
CNL then appealed this decision, making the case that this limitation brought certain advantages, among them not contaminating another site with radioactive waste.
But on May 28, the Court of Appeal dismissed CNL’s appeal, ruling the environment minister at the time, Steven Guilbeault, had not provided adequate transparency into why he concluded that all reasonable alternatives had been considered.
“While the Chalk River site may well be a defensible location for the disposal facility, the Minister’s reasons for issuing the permit failed to meet the applicable standards of transparency, intelligibility and justification,” writes Justice Monica Biringer in the decision.
“I have concluded that the Minister’s decision is unreasonable. I would therefore dismiss the appeal and remit the matter to the Minister for redetermination in accordance with these reasons.”
Kebaowek First Nation and the three environmental groups behind the challenge are celebrating the ruling.
“This decision reinforces what we have been saying from the beginning: decisions that threaten endangered species, sensitive ecosystems, and our sacred river must be based on a transparent, rigorous, and lawful process,” said Kebaowek chief Lance Haymond.
A joint press release from all four groups noted that beyond the Blanding’s turtle and two species of bat, the proposed site is also home to the Canada Warbler, the Golden-winged Warbler, the Whip-poor-will, the Eastern Wolf, and the Black Ash, all protected under the Species at Risk Act.
“The Court recognized that the public deserves meaningful explanations when decisions are made that could result in the destruction of endangered species and their habitats,” said Ole Hendrickson, spokesperson for Concerned Citizens of Renfrew County and Area. “The ecological value of this site is extraordinary, and it deserves careful consideration before irreversible damage is permitted.”
In a statement, Environment and Climate Change Canada said it is reviewing the decision and its implications carefully and will determine next steps as appropriate.
CNL said it is also taking the time to evaluate the court ruling and determine next steps.
“Through the appeal, CNL sought to obtain clarity in a complex regulatory environment as we work to responsibly address Canada’s legacy nuclear liabilities and minimize their impacts on the environment,” it said in a statement.
CNL says it currently has approximately 50,000 m3 of low-level radioactive waste stored at its site in above-ground storage containers that needs a permanent home, and that this storage system can support CNL’s plans over the next 10 years.
There are, however, many groups that have challenged the claim that only low-level waste will be put in the proposed disposal facility, including the Concerned Citizens of Renfrew County and the Canadian Coalition for Nuclear Responsibility. Former nuclear waste management employees at the site have also said that a lack of previous waste classification systems make it difficult to guarantee that only low-level waste will be put in the facility.
The appeal court’s decision is the first on two appeals made by CNL in response to Federal Court rulings on challenges brought forward against the nuclear waste facility.
Kebaowek also filed for judicial review of the Canadian Nuclear Safety Commission’s 2024 decision to grant CNL a license to build the facility on the grounds that the First Nation had not been adequately consulted. The Federal Court upheld this challenge. The nuclear safety commission renewed consultation efforts with Kebaowek, while CNL appealed the decision. The case is currently before the Federal Court of Appeal.
