Canadian Nuclear Safety Commission Grants Extension to Allow for DTCA in Precedent Setting Decision

OKT LLP was proud to assist Algonquin First Nations, including Kebaowek First Nation, in their interventions before the Canadian Nuclear Safety Commission (CNSC) in its hearing on Canadian Nuclear Laboratories’ licensing application for the construction of a Near Surface Disposal Facility at Chalk River.

On July 5^th, the CNSC released its decision to grant an extension of the proceedings for 7 months to allow for adequate consultation. This unprecedented decision is an important step forward in the advancement of the duty to consult and accommodate in the regulatory context. For this particular project, the information and knowledge that can be collected and presented on impacts to rights during this extension will be critical to the Commission’s ultimate decision.

Kebaowek’s press release on the decision is included below. The CNSC’s decision can be found here.

MEDIA RELEASE

Algonquin Nation’s Interventions in Canadian Nuclear Safety Commission Hearing Leads to 7 Month Extension for Further Consultation

Temiscaming – The Canadian Nuclear Safety Commission (CNSC) has adjourned its regulatory proceedings for the Canadian Nuclear Laboratories’ (CNL) Near Surface Disposal Facility (NSDF) to allow for more time for consultation with Kebaowek First Nation and the Kitigan Zibi Anishinabeg. The project, if approved, would authorize a disposal facility for radioactive waste at the Chalk River Laboratories site.

This precedent setting decision is the direct result of the efforts of Kebaowek First Nation, Kitigan Zibi. Algonquins of Barriere Lake, Wolf Lake, PIwakanagan and other intervening First Nations in advocating for meaningful consultation and accommodation on this major nuclear project being proposed next to Kichi Sipi (the Ottawa River).

On June 2, 2022, Kebaowek First Nation provided oral submissions at part two of the CNSC public hearing on CNL’s application for the amendment of its license for Chalk River Laboratories for the construction of the NSDF. Submissions were given by Councillor Justin Roy, Councillor Verna Polson, advisor, Rosanne Van Schie and legal counsel from Olthuis Kleer and Townshend, Renée Pelletier. Over the five-day hearing, the panel heard a total of 73 submissions by intervenors, including four First Nations and considered written submissions from 165 intervenors, including eight Indigenous Nations and communities.

Through these submissions, Kebaowek First Nation reiterated its position that it has not been consulted by the CNSC or CNL and that the potential impacts of the proposed project on its rights have not been assessed and remain entirely unknown to the Commission. Kebaowek First Nation asked for the proceedings to be put on hold in order that the Crown may fulfill its constitutional duty and make an informed decision on the licensing application that addresses potential impacts to Aboriginal rights.

On July 5, the CNSC released its decision that the proceeding’s record be kept open for an additional 7 months “to accommodate the information that Kebaowek First Nation and the Kitigan Kibi Anishinabeg were not adequately consulted.”

“We fought hard to demonstrate that we were not properly consulted and they agreed,” said Chief Lance Hammond.

Councillor Justin Roy said, “We spoke to the necessity of both truth and reconciliation at the hearing. This 7-month adjournment will allow us to begin working with the CNSC and CNL to acquire and present the requisite knowledge to seek the truth in this case and work towards reconciliation. This is an important first step.”

Renée Pelletier, legal counsel, commented, “I am not aware of another case where the CNSC has granted this kind of an extension after a matter has already gone to hearing. To the extent that signals that the Commission appreciates the importance of addressing impacts to Aboriginal rights, that’s certainly a positive thing.”

“This adjournment will provide Kebaowek, the CNSC and CNL with time to acquire much needed information about the project’s potential impacts to Kebaowek’s rights and to determine whether there are mitigation and accommodation efforts that can be put in place.” added Rosanne Van Schie, advisor to the First Nation.

Kebaowek First Nation looks forward to working with the CNSC and CNL to undertake the necessary studies and community engagement required of meaningful consultation and to present this knowledge to the Commission so it can make an informed decision about the project.

Contact:

Chief Lance Haymond, Kebaowek First Nation
lhaymond@kebaowek.ca, 819-627-3455