Nuclear dump: final legal challenge hits Federal Court
Cathy Fox
Local Journalism Initiative
Published February 12, 2025.
OTTAWA – The final legal challenge against the proposed Near Surface Disposal Facility (NSDF) at Chalk River was heard in Federal Court on February 5 and 6. Kebaowek First Nation, Concerned Citizens of Renfrew County and Area, the Canadian Coalition for Nuclear Responsibility, and Sierra Club Canada argue the project violates the Species at Risk Act (SARA).
The applicants seek a judicial review to determine whether Canadian Nuclear Laboratories (CNL) was improperly granted a permit to harm endangered species and destroy their
habitats. The case was argued by Ottawa-based lawyer Nicholas Pope of Hameed Law, while CNL and the Federal government were represented by Cassels, Brock & Blackwell, a Calgary firm and local counsel for the Attorney General of Canada. Justice Russel Zinn presided.
Challenge to permit approval
The applicants contend the federal environment minister failed to meet SARA’s legal requirements when approving the permit. They argue CNL did not fully consider alternative NSDF locations, restricting its considerations to sites it already owned. Of the three locations studied, the selected site poses the greatest risk to endangered species.
They further claim the minister failed to justify the proposed mitigation measures and ignored the monarch butterfly, which was newly classified as endangered during the application process. Additionally, they argue the destruction of off-season bat nesting sites was dismissed without proper consideration, despite SARA’s strict conditions for
permitting exemptions.
Court examines site selection criteria
During the hearing, Justice Zinn questioned whether additional alternative sites should have been considered, given that transportation risks were not the primary concern
under SARA.
CNL’s site selection criteria
1. The site had to be on land supervised by
Atomic Energy of Canada Ltd. (AECL) to meet international regulatory standards.
2. It had to be close to existing nuclear waste to reduce transportation costs, as 90% of the material is already at Chalk River.
3. It had to be large enough to accommodate the NSDF, which would occupy approximately 1% of the property.
CNL justified its choice based on operational cost savings rather than minimizing harm to species at risk, which was the focus of the SARA permit application.
Debate over environmental impact
The respondents argued that Trent University studies addressed concerns about mitigation measures. They also claimed Blanding’s turtles face greater risks from highways than from the NSDF site and that there was no evidence monarch butterfly nests in the area.
The applicants countered that CNL had not properly explored reasonable alternatives to minimize harm to at-risk species. They pointed out that transporting 50,000 truckloads of waste poses risks to turtles regardless of the site’s location and that mitigation measures—such as crossings, driver
education, and safe handling—have not significantly reduced the threat. They argued that transportation distance should not be the primary factor in site selection when the goal is to minimize ecological harm.
Awaiting a decision
This case underscores the ongoing efforts of environmental and Indigenous groups to protect ecosystems from the long-term impacts of nuclear waste. While nuclear energy has provided economic and technological benefits, opponents warn that future generations will bear the environmental costs.
Justice Zinn stated that his decision will be based solely on the evidence presented in court. He requested updates on the outcomes of two related legal challenges, should their rulings be issued before he reaches a verdict. He also asked how this case could impact the
NSDF project and was told that, if successful, it could lead to modifications in the
permit conditions.
