Lawyers for Canadian Nuclear Laboratories argued last week for the Federal Court of Appeal to overturn a previous decision blocking construction of the Near Surface Disposal Facility (NSDF) at Chalk River.
Speaking for CNL, lawyer Thomas Isaac of Cassels, Brock & Blackwell LLP, said Federal Court Justice Julie Blackhawk “erred in law” in her ruling earlier this year.
In a decision released last February, Justice Blackhawk ordered CNL and the Canadian Nuclear Safety Commission to resume consultations on the NSDF with the Kebaowek First Nation.
Blackhawk ruled that the consultations must take place under the principles of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and its standard of “free, prior and informed consent” (FPIC).
But Isaac argued that in her decision, Blackhawk “improperly applied the principles relating to the Crown’s constitutional duty to consult” Indigenous peoples.
Isaac said Blackhawk focused on the CNSC’s “assessment” of its duty to consult, “rather than the actual consultation that occurred.”
“And this, ultimately, we say at law, is and ought to be the only question at issue.”
Isaac argued that Blackhawk also found “incorrectly” that the duty to consult “persists even where no adverse effects to Aboriginal rights could be identified.”
“We respectfully submit that, in the end, there’s only one reasonable conclusion available, and that was that the consultation conducted was reasonable and consistent with the Crown’s obligation to act honourably after eight years of robust consultation”…
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