An Algonquin community 300 kilometres upstream of Shawville on the Ottawa River pulled off a precedent-setting win in federal court last week.
As reported in our front page story, Kebaowek First Nation succeeded at convincing a judge that Canada’s nuclear safety regulator was wrong to have granted Canadian Nuclear Laboratories (CNL) permission to bury one million cubic metres of supposedly low-level nuclear waste in a mound on unceded Algonquin territory, one kilometre from the Ottawa River, at the Chalk River nuclear research station.
Kebaowek’s win wasn’t on environmental grounds – the judge concluded the regulator rightfully assessed environmental impacts of the project to be negligible – but on the grounds that neither the regulator nor CNL had done enough to consult the First Nation, to understand and accommodate its concerns.
The First Nation has been building resistance to the proposed waste dump for nearly a decade, rallying support from allies up and down the river, spending days testifying in commission licensing hearings, and doing its own environmental impact assessment to determine for itself how the waste facility might affect important species on the site.
Once the facility was approved last January, a decision most would take as final, Kebaowek filed court challenges, making the case, over and over again, that the proposed nuclear waste mound would harm the environment, and that those pushing it through had not done enough to engage in meaningful consultation, as they are legally obligated to do.
All of this an attempt to make its voice heard, when the odds were stacked against this happening. In a phone call on Friday, Kebaowek’s Chief Lance Haymond admitted as much.
“I think we knew it was a crapshoot,” he said of Kebaowek’s decision to file for judicial review last winter. “We were realistic in the fact that we were going into a colonial court system not necessarily designed to move beyond the straight black and white of the law.”
The legal duty to consult is in a grey zone in Canada right now. Canada enshrined the United Nations Declaration on the Rights of Indigenous People (UNDRIP) in law four years ago. This declaration offers very clear directives around how and when Indigenous communities need to be consulted about projects happening on their land. When it comes to the disposal of hazardous materials on the lands or territories of Indigenous peoples, it says, free, prior, and informed consent must be obtained.
The challenge is, the government is taking its time to set out regulations that determine how exactly the declaration should be interpreted by Canadian lawmakers. And this is the loophole the nuclear regulator used to weasel out of having to conduct consultation, as defined by UNDRIP, claiming it was not empowered to interpret the declaration before official regulations were provided.
But the judge didn’t buy it. Her decision ordered CNL and the regulator to go back to Kebaowek for further consultations, this time in a way that aligns with UNDRIP, that promotes reconciliation, and incorporates Kebaowek’s laws, knowledge, and practices into the consultation process.
When the nuclear regulator and the proponent tried to shake accountability in relation to the people on whose land they were hoping to build a nuclear waste dump by evading the responsibility of interpreting and applying Canadian law, Federal Court Justice Julie Blackhawk’s decision put that responsibility squarely back in their lap.
Regardless of what happens next, Justice Blackhawk’s decision to uphold UNDRIP as legally binding before the bureaucrats have figured out exactly what that means is precedent-setting. It shows other courts that Canada’s adoption of UNDRIP, designed to protect the rights of Indigenous people, is more than just a symbolic gesture.
But beyond this, her decision is a reminder that we, as thinking, feeling human beings, are all personally accountable to the people with whom we share a community. Evading this accountability by hiding behind regulations or standards of practice we claim we cannot change is weak. So thank you to those who are thinking critically about how the world works and advocating for changes to the status quo, even when bringing about change might seem to be a crapshoot.
