Another setback for the proposed Near Surface Disposal Facility at the Chalk River Laboratories.
The Federal Court of Appeal has dismissed an application by Canadian Nuclear Laboratories to overturn a previous decision by Justice Russel Zinn that CNL failed to consider “all reasonable alternatives” in siting the NSDF.
In doing so, he said, it failed to prove that the NSDF is the “best solution” to protect bats and turtles listed under the Species At Risk Act (SARA).
As a result, Justice Zinn overturned a decision by the Ministry of Environment and Climate Change Canada (ECCC) to issue a permit for the NSDF project, and sent the issue back for reconsideration.
In a ruling released last Thursday and written by Justice Monica Biringer, the Federal Court of Appeal agreed with Zinn’s ruling, but on different grounds.
Justice Zinn said the Ministry’s decision was unreasonable “due to fatal flaws in the interpretation and application of key elements” of SARA.
In particular, “the record shows that CNL restricted its site selection to AECL-owned properties, artificially narrowing the scope of ‘reasonable alternatives’ as required by the Act,” Zinn wrote in his decision.
But in her ruling, Justice Biringer said she would not agree with Zinn’s “proposed interpretation” of SARA, focusing instead on ECCC’s reasons for issuing its permit.
“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,” she wrote.
“There is no interpretation of the operative provisions of the SARA in the Minister’s reasons, and there is no explanation as to how the selection process for the Chalk River site aligned with the statutory requirements.”
In that case, she said, “I would dismiss the appeal and remit the matter to the Minister for redetermination in accordance with these reasons.”
The case was first brought to court by the Kebaowek First Nation, Concerned Citizens of Renfrew County and Area, the Canadian Coalition for Nuclear Responsibility, and the Sierra Club Canada Foundation.
Kebaowek Chief Lance Haymond welcomed last week’s ruling as “another important legal milestone in the ongoing efforts to protect species at risk, uphold environmental laws, and ensure accountability in decision-making surrounding the proposed NSDF.”
“The Federal Court of Appeal has confirmed that Environment Canada must go back and do its job properly,” he said in a statement…
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