Now there are three court challenges against Ontario nuclear waste disposal facility

Legal challenges against a nuclear waste facility slated for construction near the Ottawa River continue to rise.

On Wednesday, a coalition made up of a First Nation and environmental groups launched a legal challenge against the federal government and Canadian Nuclear Laboratories (CNL) over the issuing of Species at Risk Act (SARA) permits to the company.

The court application argues that Ottawa’s granting of the SARA permits is unreasonable. It disputes CNL’s assertion that it chose the facility location to have the least impact on species at risk and has adopted the best mitigation measures.

The court documents also state the federal government did not adequately address Kebaowek First Nation’s submissions and evidence on the project and failed to include other species at risk, like the monarch butterfly, songbirds and the eastern wolf.

This most recent court challenge follows two others filed since the waste facility was approved by the Canadian nuclear regulator on Jan. 8.

The SARA permits allow for the deforestation and pre-construction work to begin on the facility with some mitigation measures for endangered Blanding’s turtles and two bat species named in the permits. The near-surface disposal facility is designed as a large earthen mound and will have a lifespan of at least 550 years. It will primarily house low-level nuclear waste, such as contaminated mops and protective equipment.

Approval for the preliminary work at the site was granted by the Canadian Wildlife Service, which said CNL successfully demonstrated feasible measures will be taken to minimize the impact of construction on the three species and that construction will not jeopardize their recovery.

Some measures will include identifying turtle and bat hot spots, “creation of turtle-crossing systems,” installation of temporary fencing around construction areas and permanent fencing along roadways, the decision stated.

After the SARA permits were awarded on March 18, Kebaowek Chief Lance Haymond told Canada’s National Observer in an interview the permits amounted to a “kill order.” Kebaowek launched the most recent legal challenge alongside Sierra Club, the Canadian Coalition for Nuclear Responsibility and a local citizens' group.

Previously, Haymond sent a letter to Environment and Climate Change Minister Steven Guilbeault asking him to withhold the permits.

In a written reply dated March 13 and reviewed by Canada’s National Observer, Guilbeault told Kebaowek “the risks and benefits of mitigation measures are considered in the scientific assessment of the proposed activities when a SARA permit application is submitted.

“The scientific assessment considers all species at risk known to be present on or near the proposed site and considers all available information, including Indigenous knowledge,” the letter read.

Kebaowek has already received written notice from CNL about the intention for pre-construction activities at the waste facility site, including surveying, fencing, sampling, environmental monitoring and road improvement, documents shared with Canada’s National Observer show.

Kebaowek will likely seek an injunction against CNL, Haymond said.

CNL told Canada's National Observer that it will take time to review and analyze the filings before determining next steps, while also reaffirming the company's commitment to the local environment.

"CNL will continue to ensure the safe management of these historic waste liabilities and operational wastes now and for the long term," the statement continued.

Other legal battles include Kebaowek’s challenge over the United Nations Declaration Act (UNDA), which enshrined the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into Canadian law. In the judicial review, Kebaowek argues that the Canadian Nuclear Safety Commission (CNSC) did not secure the First Nation’s free, prior and informed consent during the licensing process, as mandated under UNDA.

Around the same time, a separate legal challenge launched by three citizens’ groups on Wednesday challenged the recent decision by the CNSC to approve the nuclear waste facility. The groups asked the Federal Court to review the commission’s failure to consider evidence around radiation dose limits, the types of waste entering the facility and other regulatory exemptions that were granted by the commission.

— With files from Natasha Bulowski

Matteo Cimellaro / Canada’s National Observer / Local Journalism Initiative