Blog: Day 4 – Consultation and Consent: Indigenous Nations Speak on the Proposal to Place a Near Surface Disposal Facility on their Unceded Territory

Photo: Ottawa River, Ottawa, ON

* This is the fourth in a series of blogs by CELA’s summer law students, Rebecca Waxman and Adam Meadows, live from the CNSC hearing room. Check back every day as they share reflections and reactions from the nuclear licensing hearing. Read the full series here

PEMBROKE, ON – On Day 4  of the Near Surface Disposal Facility (NSDF) environmental assessment and licensing hearing, the Canadian Nuclear Safety Commission (CNSC), heard submissions from First Nation intervenors on the topic of Indigenous Consultation and Engagement. Elder Madam Sarazin of Pikwàkanagàn First Nation led the session with a prayer, followed by a smudging ceremony, led by Don Bilodeau. CNSC staff and Canadian Nuclear Laboratories (CNL) presentations then began their presentations by outlining their wishes to advance reconciliation and provided examples of how they have engaged with First Nations thus far.

In their remarks, the Algonquins of Pikwàkanagàn First Nation (AOPFN) provided several concerns over the current NSDF proposal. They spoke to the importance of the NSDF site along the Kichi Sìbì, a site overlooking the Ottawa River, with sacred importance to Algonquin. They also voiced their concerns about the lack of community engagement by the CNL and CNSC, stressing that the proponent had failed to consider how the NSDF posed significant adverse impacts to Algonquin culture and rights. Amanda Two-Axe Kohoko of the AOPFN outlined how the CNSC claimed there would be no significant detriment to Indigenous rights. However, this conclusion, she clarified, ignored the fact that the project had the potential to cause fear in those who practice traditional medicine making, hunting, and fishing, and anxiety regarding contamination of their land. 

Following the lunch break, the Algonquin community of Kebaowek First Nation addressed the Commission, expressing their concerns that the Algonquin Anishinaabeg had not been consulted about the proposed NSDF, their request for an adjournment of the hearing had been denied by the Commission, and that they ultimately did not consent to the licensing at this time. In advance of Kebaowek First Nation, had also publicly invited members of the public to “join Algonquin First Nation community leaders, environmental and human rights lawyers and our Elders, youth drummers and singers in support of the Algonquin Anishinaabeg Nation collective duty to protect our lands, waters and environment for our present and future generations.” 

In a question posed by Commission member Marcel Lacroix, he opened with the caveat that “I must acknowledge that my knowledge, Indigenous knowledge is zilch, none, nada. I have no knowledge on Indigenous knowledge and this really bothers me in a sense”. In response, Councillor Justin Roy of Kebaowek First Nation shared: “It is up to us to become knowledgeable so that we can learn the truth, and then by learning the truth, we could have true reconciliation because you cannot have one without the other.”

After repeated instances by the CNSC and the CNL to reassure the engagement and consultation measures they have carried out with Indigenous groups, Commission member Maharaj asked Elder Verna McGregor of Kitigan Zibi Anishinabeg whether she believed she has been able to engage adequately with the CNL: “The tour of the site was not consultation. And we appreciate the sharing of information, but it is still not a proper consultation process. A proper consultation process includes not only Kitigan Zibi…there are 10 Algonquin nations.” 

Elder McGregor went on to point out the disconnect caused by the hearing itself, including that the hearing was occurring on Algonquin unceded lands, but in a settler hearing room, and in a forum that felt confrontational. “And our process was the circle,” she noted, “that everybody is in the circle and although it does take more time, but also too as well it’s the ability to also come up with unique solutions and sometimes that’s for everyone”. 

Renée Pelletier, counsel to KFN, reiterated that as agents of the Crown, the CNSC has an obligation to Indigenous peoples. Pelletier pointed out that the Commission’s acknowledgment of their lack of knowledge, including how significant these lands are to Indigenous culture and worldviews, spoke to the lack of adequate consultation and inclusion of Indigenous views in the proposed NSDF project. Without that knowledge, there was an inability to consult meaningfully more time was needed before proceeding.

As attendees, we felt that this day focused on Indigenous consultation and engagement was significantly impactful to who we, as settlers, view and understand this project and the future of the site. The inclusion of ceremonial practices set the tone for the day, juxtaposing days 1-3 of the hearing which were otherwise a Crown-led, proponent-dominated process. Witnessing the significant knowledge divide between the proponents and the First Nations present, underscored the concerted efforts that are still needed by Canada’s nuclear regulator and project proponents, not only related to this project but more generally within their processes and practices, to respect Indigenous cultures, their inherent rights and critically repair the relationship between Indigenous peoples and settler Canada.

Rebecca Waxman is a JD Candidate (2024) at the Schulich School of Law at Dalhousie University. She has a strong interest in environmental and administrative law and is currently Co-Chair of Dalhousie’s Environmental Law Students’ Society. Rebecca’s summer role at CELA is generously funded by the Schulich Academic Excellence Internship program.

Adam Meadows is a JD Candidate (2023) at Osgoode Hall Law School. He has a particular focus in Indigenous and Environmental law, recently completing an Intensive Program in Indigenous Lands, Resources, and Government at Osgoode.