Kebaowek First Nation is considering legal action now that the Canadian Nuclear Safety Commission has given the go ahead to Canadian Nuclear Laboratories (CNL) to construct a Near Surface Disposal Facility (NSDF) for solid low-level radioactive waste at its Chalk River Laboratories site on traditional unceded Algonquin territory.

“The big thing being discussed right now is pushing for a judicial review of the project. Just based on all of our environmental findings and the impacts that could be shown, we strongly believe we'd have a good case for this,” said Kebaowek First Nation Councillor Justin Roy.

Next steps will be decided once the legal team has fully reviewed the 169-page decision from the commission, which was released Jan. 9, he says.

The commission ruled it was confident that the NSDF project, an engineered containment mound for up to a million tonnes of radioactive and hazardous waste, was “not likely to cause significant adverse effects with respect to Aboriginal peoples.”

The containment mound is to be located 1.1 km from the Ottawa River on a bedrock ridge. The Kichi Sibi (Ottawa River) is sacred to the Algonquin people. The Chalk River site is also close to the sacred Algonquin sites of Oiseau Rock and Baptism Point.

The commission concluded “the design of the NSDF project is robust, supported by a strong safety case, able to meet its required design life, and sufficient to withstand severe weather events, seismic activity, and the effects of climate change.”

Roy calls the decision a “gut punch” but admits he is not surprised.

What does surprise him, however, is that the decision states that CNL adequately undertook a duty to consult with First Nations.

“I find that hard to believe when you have 10 of 11 Algonquin communities in direct opposition to the project. After everything that we've done over the last number of years and everything that we presented at last year's hearing and then even in the hearing this last August, we’re just falling on deaf ears once again,” said Roy.

On June 9, the Algonquins of Pikwakanagan signed a long-term relationship agreement with CNL and Atomic Energy of Canada Limited, another nuclear organization. The agreement establishes a working group with representatives from all three parties.

The commission held that the disposal facility was also “not likely to cause significant adverse effects” when it came to fish and fish habitat, aquatic species at risk, migratory birds, or federal lands.

“We have inherent rights to our unceded Algonquin territory and that means we need to protect everything that encompasses that territory, from the environment, the trees, the land, the air, the water and all the living species that make up our Algonquin territory,” said Roy.

Algonquin people are on the ground, he said, hunting, fishing and picking berries and “were able to show that there are going to be plenty of environmental impacts and, especially, species at risk that are going to be affected by this.”

In a number of sections in the decision, the commission encouraged continued consultation as the project moved forward through various phases beyond the application for a license to authorize the construction of the NSDF.

Roy says he has no confidence that further consultation will be any more effective. He adds that consultation should have begun prior to 2016 when CNL was first considering the disposal facility.

CNL made its application to the commission in March 2017. In July 2017, the Assembly of First Nations passed a resolution stating, in part, “that free, prior and informed consent is required to ensure that no storage or disposal of hazardous materials shall take place in First Nations lands and territories.”

Prior to the passage of the AFN resolution, the Anishinabek Nation and Chiefs of Ontario passed resolutions in 2015, 2016 and 2017 in opposition to nuclear waste storage within the Anishinabek Nation territory.

The Algonquins are part of the Anishinaabe.

In 2017, the Anishinabek Nation and Iroquois Caucus of the Union of Ontario Indians made a Radioactive Waste Joint Declaration outlining their position on concerns about the transportation, storage, and abandonment of radioactive waste within their territories. They stated long-term management of radioactive waste had to be away from major water bodies and no nuclear waste could be transported over public roads or bridges without “case-by-case” consultation.

Roy says he is particularly concerned that CNL is confident that the liner system will only start to decay after the NSDF’s 550-year design life.

“How could they sit there and tell us that they have everything figured out for the next 550 years?” he said. “As good as they are today, computer modeling and software and (artificial intelligence), it is still not perfect. You cannot predict 550 years into the future.”

He points to August 2023 when the commission in Ottawa hosted a virtual public hearing. That very day, a massive rainfall saw more than 300 million litres of untreated water flow into the Ottawa River after a $232 million sewage tunnel was filled.

“So how can we say (CNL) has everything accounted for at the end of the day?” said Roy, noting that the containment mound is adjacent to the Perch Creek which flows into the Perch Lake which flows into the Ottawa River. “You cannot sit there and tell me that over the next 550 years nothing is going to leach out of this mound and get in and make its way into the surrounding environment and waterways.”

As for transportation of radioactive waste to the site, the commission noted that fell outside its purview for the hearings and its decision.

CNL says that the Chalk River operation is the location of 90 per cent of the waste and so transportation of offsite waste would be limited.

Roy questions whether the radioactive waste will all be low level, saying CNL “was very tight lipped on what makes up that other 10 per cent.”

A May 2023 submission by James Walker, a nuclear waste expert and former director of safety engineering and licensing at Atomic Energy of Canada Limited, questioned the waste acceptance criteria and went as far as to say the material did not qualify as low-level waste but was more accurately intermediate level radioactive waste.

Roy said trying to work with the commission and CNL was “like pulling teeth,” adding he dreaded meetings “because they were so awkward to be on because you have two different sides that are asking for different things and they never line up.”

Along with considering legal action, Roy says that as the project still needs a permit from Environment and Climate Change Canada (EEEC), Kebaowek First Nation will be reaching out to EEEC Minister Stephen Guilbeault.

“If we're able to present Minister Guilbeault and EEEC all of our findings about the adverse impacts that are going to be had on the environment and all the number of species at risk that his ministry is directly involved in protecting, what is he going to do at the end of the day?” said Roy.

The EEEC permit was awaiting the commission’s decision.