Two months after an appeals court hearing on the future of the Near Surface Disposal Facility at Chalk River, the lawyer for the First Nation community fighting the site wants to reopen the case.
Robert Janes of Toronto’s JFK Law LLP represents the Kebaowek First Nation, a community based on Lake Kipawa, about 15 km northeast of Temiscaming, Quebec.
Janes wrote to the Federal Court of Appeal last week, “respectfully” asking for the opportunity to submit “brief written submissions” on a new decision by the British Columbia Court of Appeal involving mining claims in the province.
Both the BC case and the NSDF appeal are based on the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and its place in Canadian law.
In a decision first released last February, Federal Court Justice Julie Blackhawk ordered Canadian Nuclear Laboratories and the Canadian Nuclear Safety Commission to resume consultations on the NSDF with Kebaowek.
Blackhawk ruled that the consultations must take place under the principles of UNDRIP and its standard of “free, prior and informed consent” (FPIC).
But speaking for CNL at the appeal hearing in October, lawyer Thomas Isaac of Cassels, Brock & Blackwell LLP, said Blackhawk “erred in law” in her ruling earlier this year.
Isaac argued that in her decision, Blackhawk “improperly applied the principles relating to the Crown’s constitutional duty” to consult Indigenous peoples.
Isaac suggested the “duty to consult” is established in Canada’s Constitution, and that even a law passed by Parliament – in this case the UNDRIP Act – can’t “amend any part of the Constitution.”
Isaac said UNDRIP is a “non-binding international instrument” that may have “some interpretive value in Canadian law.”
“What it cannot do is change the Constitution,” he said…
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