By Laura Tanguay, Water Policy Coordinator
Last summer, CELA reported daily on public hearings (May 30 through June 3, 2022) regarding the proposed Near Surface Disposal Facility (NSDF) for Canadian Nuclear Laboratories’ Chalk River site. Following the five days of hearings in 2022, the Canadian Nuclear Safety Commission (CNSC) decided to adjourn its hearing to allow for further information exchange between the proponent and First Nation communities.
Eventually, the CNSC set a deadline for final written submissions by all of the other Intervenors; and set a date for additional oral submissions by some of the First Nations who intervened in 2022, which occurred on August 10, 2023.
In 2016, the privately-owned Canadian Nuclear Laboratories (CNL) proposed a Near Surface Disposal Facility (NSDF) for their Chalk River site. The NSDF is required to undergo a federal environmental assessment (EA) under the legislation that was in place at the time, specifically the Canadian Environmental Assessment Act, 2012 (CEAA, 2012). The CNSC must issue a decision statement under section 54 of the CEAA, 2012 as to whether the designated project is likely to cause significant adverse environmental effects. The status of the regulatory review, including a detailed timeline, is available here.
CNL plans to utilize the NSDF to address disposal for low-level radioactive waste (which in fact includes some higher activity and longer-lasting waste). The proposed waste mound would have a construction period of 3 years and will afterward remain open for an additional 50 years as waste is added from onsite sources and from external shipments.
In May-June of 2022, CNSC held a five-day public hearing to consider the CNL’s application. CELA made a submission in writing and appeared before the Commission during the hearing.
Presentations from First Nation communities during the May-June 2022 hearings called for extended time to submit documents, given that potential impacts to their rights had not been fully identified in the original Rights Impact Assessment (RIA) per the EA Report.
In June 2022, the Canadian Nuclear Safety Commission (CNSC) confirmed a process for final submissions. Intervenors who made oral submissions at the public hearings were invited to make final written submissions. CELA’s submission is available here.
In July 2022, the CNSC announced that the record would remain open to allow for consultation and engagement with the Kebaowek First Nation and the Kitigan Zibi Anishinabeg, as well as filing of additional information in relation to those consultations. At the time, some intervening Algonquin First Nations, including Kebaowek First Nation stated: “This unprecedented decision is an important step forward in the advancement of the duty to consult and accommodate in the regulatory context.”
Further, select First Nations who made oral interventions at the May 2022 public hearings were invited to make final submissions in writing or orally (or both). Kebaowek First Nation (KFN), Kitigan Zibi Anishinabeg (KZA) and the Mitchikanibikok Inik (the Algonquins of Barriere Lake, ABL) gathered together in Ottawa to make their presentations at the August 2023 virtual hearing.
In advance of the August 2023 hearings, Kebaowek First Nation and Kitigan Zibi Anishinabeg conducted and circulated their Indigenous-led Assessment of the NSDF project.
The hearing agenda on August 10, 2023 allowed time for presentations from KFN, KZA, and ABL. Following an adjournment for lunch, which the First Nations utilized to hold a press conference, CNL presented their final submission to the CNSC.
First Nations and Observers Gather in Ottawa for the Final Submissions
Since the CNSC held the hearings virtually, the Royal Canadian Geographic Society, which incidentally had exhibits on freshwater and an underwater exhibit titled “pressure”, hosted the First Nation presenters and observers at their facilities in Ottawa for this day of hearings. Celine Whiteduck transported two stunning birchbark canoes from KZA to provide an important symbolic setting for the presentations. The day started at 50 Sussex in Ottawa, Ontario with a gathering of community members, Elders, and individual and organizational allies. To begin the day in a good way, the group received an Opening Prayer from Elder Verna McGregor.
The presentation to the CNSC (virtually) began with statements from Chief Haymond, Chief Whiteduck, and their team who went on to discuss the historical impacts that the Chalk River nuclear research site has had on their communities. The intervention highlighted the collaborative effort between KFN and KZA in designing their Indigenous-led impact assessment, and walked through concerns about impacts to community rights such as rights to harvest, rights to a safe and healthy environment, and rights to access and occupy traditional territory.
The First Nations also raised concerns about the lack of a cumulative effects assessment, and the inadequate assessment of species at risk and sustainable forest management. KFN and KZA outlined the difficulties presented by CNL when trying to set up camera traps and wildlife assessment mechanisms on the Chalk River site as part of their Indigenous-led assessment.
KFN and KZA submitted that that the Duty to Consult has not been fulfilled by Canada or its delegates. They also submitted that providing a license to construct the NSDF would backtrack on commitments toward reconciliation, namely with concern to Canada’s commitment toward the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). In addition, the Chiefs reiterated their perspective that the license should not be granted under the provisions of the Nuclear Safety and Control Act.
At the end of KFN’s presentation, Councillor Justin Roy inquired if they would have the opportunity to ask questions to the CNSC, at which President Rumina Velshi stated, “that’s not how this process works,” garnering vocal disapproval from the audience. It should be noted that the CNSC panel had no comments or questions for any of the day’s First Nation intervenors, noting that they had all of the information they needed in written interventions, and that these hearings were merely an opportunity for First Nations to make their remarks orally as requested.
ABL made several specific points to justify their claim that they were not adequately consulted throughout the CNSC’s licensing process. In particular and of significant concern was that during the May 2022 hearings, Elders and intervenors spoke in their language, Anishinaabemowen Eh-shi-gii-sheh-wiin, but translation services were not provided and neither CNL nor the CNSC requested translation after the fact. The transcript simply states “Algonquin spoken.” On August 10th, Chief Ratt was interrupted several times, with two breaks in his presentation, in the CNSC’s attempts to get translation services up and running smoothly. Chief Ratt’s presentation centered on the inadequacy of consultation, and like KFN and KZA, highlighted that he did not know about the project proposal or that the assessment had started, because ABL was engaged so late into the process.
Moreover, the ABL states that their laws were not respected or considered in the NSDF assessment: “We have always relied on these lands [the Kichi Sipi watershed] and waterways in exercising our inherent rights governed by our customary law and governance known as “Ona’ken’age’win”. This law is based on principles of mobility, freedom to hunt and gather, and the sustainable reliance on our territory in stewardship for future generations. ABL has no intention of ever leaving the Kichi Sipi watershed, it is our home and will continue to be for generations to come.” It is ABL’s position that CNL has not provided sufficient evidence in their assessment that the NSDF will not limit their mobility, freedom to hunt and gather, and steward the land for future generations. Chief Ratt offered direction to the CNSC, that they had an opportunity to “do as they’ve done since the arrival of Europeans, or move toward reconciliation.”
ABL called for the CNSC’s attention to the Articles of UNDRIP, particularly as they relate to hazardous waste siting and to developments that require the free, prior, and informed consent (FPIC) of affected Indigenous nations, and suggests that without a cumulative impact assessment of CNL’s activities, the NSDF’s Environmental Impact Statement is insufficient to regulate and predict the impacts to water, land, and species relied on by community for spiritual, cultural, and food sovereignty reasons.
The final presentation was reserved for the proponent, Canadian Nuclear Laboratories (CNL). CNL submits that they have conducted a comprehensive Environmental Assessment (EA) which meets the requirements listed under the CEAA, 2012, and conducted meaningful Indigenous engagement with affected communities for more than seven years. They submitted that their proposal for the NSDF meets the requirements of the Nuclear Safety and Control Act and all applicable regulations.
CNSC staff provided an opinion to the Commission that, if approved, the potential impacts of the NSDF Project on the environment, as well as on Aboriginal and/or treaty rights, have been adequately assessed and that in their view there would be no residual impacts expected to KFN or KZA’s asserted Aboriginal rights due to the NSDF Project.
The CNSC must next issue a decision statement as to whether upon the Commission’s consideration of all of the evidence and the full Environmental Assessment, the proposed project is likely to cause significant adverse environmental effects. If so, then the Governor in Council (i.e. the federal Cabinet) must make a subsequent decision as to whether those effects are justified in the circumstances in order for the CNSC to proceed with the proposed license amendment for construction of the NSDF on the Chalk River site.