Federal Court of Appeal Ruling Dismisses the Appeal of Canadian Nuclear Laboratories Ltd. in Species at Risk Case (Canadian Nuclear Laboratories Ltd. v. Canada (Attorney General), 2026 FCA 106
By Priyanka Persaud, CELA IPC Placement Law Student
The Federal Court of Appeal (FCA) has upheld a Federal Court ruling that found it was unreasonable for the federal environment minister to have issued a permit under the Species at Risk Act (SARA) to Canadian Nuclear Laboratories (CNL) for a near-surface disposal facility for low-level radioactive waste at Chalk River.
The permit was granted by the minister on the basis that impacts on the species at risk in the area were “incidental” to carrying out construction of the facility. The issuance of the permit was conditional on CNL’s compliance with mitigation measures to protect the Blanding’s turtle, Little Brown Myotis bat, the Northern Myotis bat and their habitats. Building the disposal facility would require clearing of grasslands and forested habitats, rock blasting and construction of the facility.
However, Kebaowek First Nation brought a judicial review application challenging the issuance of the permit on the basis that the Minister had not reasonably determined that “all reasonable alternatives” had been considered for the site of the disposal facility and the “best solution” chosen as required by s. 73(3)a) of SARA. The Federal Court found the Minister’s decision unreasonable and quashed the permit [2025 FC 472] and the FCA came to the same conclusion albeit for different reasons than the lower court.
In particular, the FCA found that 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 as required by the Supreme Court of Canada judgment in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 [Vavilov] at para. 15. The FCA found there was no interpretation of the operative provisions of SARA in the Minister’s reasons, and there was no explanation as to how the selection process for the Chalk River site aligned with the statutory requirements.
The FCA further found that the Minister’s reasons on adopting the “best solution” to be lacking. It was up to the Minister to interpret the meaning of the statutory term “best solution”, including whether the sole basis for this determination was species conservation. According to the FCA, the Minister needed to indicate clearly which of the disposal facility sites were “reasonable alternatives” that would reduce the impact on the species and why the site at Chalk River was the “best solution” among those reasonable alternatives.
The FCA concluded that while one could surmise why the Chalk River site might have been a defensible choice as the “best solution” out of “all reasonable alternatives for the activity that would reduce the impact on the species”, it is not the court’s job to craft coherent reasons for administrative decisions. That is the Minister’s job, and the reasons in this case fell below the standard of justification.
As a result, the FCA dismissed the CNL appeal and remitted the matter to the Minister for redetermination in accordance with the FCA reasons for judgment.
This FCA decision is significant because it shows that reasonableness review continues to be a robust process, as required by Vavilov, as a means of improving administrative decision making in Canada. In this case, several species at risk, and the environment in general, have been the beneficiary of that robustness.
Blog: Federal Court of Appeal Ruling Dismisses the Appeal of Canadian Nuclear Laboratories
Federal Court of Appeal Ruling Dismisses the Appeal of Canadian Nuclear Laboratories Ltd. in Species at Risk Case (Canadian Nuclear Laboratories Ltd. v. Canada (Attorney General), 2026 FCA 106
By Priyanka Persaud, CELA IPC Placement Law Student
The Federal Court of Appeal (FCA) has upheld a Federal Court ruling that found it was unreasonable for the federal environment minister to have issued a permit under the Species at Risk Act (SARA) to Canadian Nuclear Laboratories (CNL) for a near-surface disposal facility for low-level radioactive waste at Chalk River.
The permit was granted by the minister on the basis that impacts on the species at risk in the area were “incidental” to carrying out construction of the facility. The issuance of the permit was conditional on CNL’s compliance with mitigation measures to protect the Blanding’s turtle, Little Brown Myotis bat, the Northern Myotis bat and their habitats. Building the disposal facility would require clearing of grasslands and forested habitats, rock blasting and construction of the facility.
However, Kebaowek First Nation brought a judicial review application challenging the issuance of the permit on the basis that the Minister had not reasonably determined that “all reasonable alternatives” had been considered for the site of the disposal facility and the “best solution” chosen as required by s. 73(3)a) of SARA. The Federal Court found the Minister’s decision unreasonable and quashed the permit [2025 FC 472] and the FCA came to the same conclusion albeit for different reasons than the lower court.
In particular, the FCA found that 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 as required by the Supreme Court of Canada judgment in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 [Vavilov] at para. 15. The FCA found there was no interpretation of the operative provisions of SARA in the Minister’s reasons, and there was no explanation as to how the selection process for the Chalk River site aligned with the statutory requirements.
The FCA further found that the Minister’s reasons on adopting the “best solution” to be lacking. It was up to the Minister to interpret the meaning of the statutory term “best solution”, including whether the sole basis for this determination was species conservation. According to the FCA, the Minister needed to indicate clearly which of the disposal facility sites were “reasonable alternatives” that would reduce the impact on the species and why the site at Chalk River was the “best solution” among those reasonable alternatives.
The FCA concluded that while one could surmise why the Chalk River site might have been a defensible choice as the “best solution” out of “all reasonable alternatives for the activity that would reduce the impact on the species”, it is not the court’s job to craft coherent reasons for administrative decisions. That is the Minister’s job, and the reasons in this case fell below the standard of justification.
As a result, the FCA dismissed the CNL appeal and remitted the matter to the Minister for redetermination in accordance with the FCA reasons for judgment.
This FCA decision is significant because it shows that reasonableness review continues to be a robust process, as required by Vavilov, as a means of improving administrative decision making in Canada. In this case, several species at risk, and the environment in general, have been the beneficiary of that robustness.
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