Canadian Nuclear Laboratories won a major victory for the proposed Near Surface Disposal Facility at Chalk River last week when the Federal Court of Appeal dismissed a lower court ruling blocking development of the site.
In a decision written by appeals court Justice Wyman Webb and supported by the other two members of the court panel – Justices Siobhan Monaghan and Peter Pamel – the court ruled that the Canadian Nuclear Safety Commission “did not err” in issuing a licence to allow CNL to begin construction of the NSDF in January 2024.
More specifically, the appeals court ruled that the safety commission was right not to consider how the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP) and Canada’s UNDRIP Act (UNDA) applied to the NSDF, relying instead on federal law about the “duty to consult” First Nations communities.
Justice Webb noted that in a previous reference case, the Supreme Court has already ruled that UNDRIP “is not binding as a treaty in Canada” and “therefore, as a UN general assembly resolution, would not be an international obligation to which Canada has agreed.”
“Furthermore, since the UNDA did not immediately implement the articles of UNDRIP into Canadian law and since the commission (CNSC) is not the government of Canada for the purposes of resolving any inconsistency between UNDRIP and the laws of Canada, there is no obligation on the commission to implement UNDRIP in the course of deciding whether to approve the construction of the NSDF.”
“The only issue before the commission,” Webb added, “was whether the CNL’s licence should be amended to authorize the construction of the proposed NSDF project at the (Chalk River) site, which required consultation and accommodation with a limited number of Indigenous Nations and communities”…
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