Near Surface Disposal Facility (NSDF) Judicial Review Appeal & Intervenor Hearings on Oct 8, 2025

COMMUNITY UPDATE #5

Near Surface Disposal Facility (NSDF) Judicial Review

Appeal & Intervenor Hearings on Oct 8, 2025

Kebaowek First Nation (Appellant) vs Canadian Nuclear Laboratories (Respondent) & AOPFN (Intervener)

History on the proposed Near Surface Disposal Facility (NSDF):

· The NSDF is a proposed nuclear waste disposal facility designed to safely and properly store low-level radioactive waste (LLW), in a single, modern, safe facility with a water treatment plant and it is proposed to be built at the Chalk River Labs (CRL) in Chalk River, within AOPFN’s traditional territory. Note that LLW is the least impactful of radioactive waste types, and that most of the waste would be from past, existing and future operations at CRL.

· The NSDF project began development in 2016, and construction was supposed to begin in the fall of 2024.

· Consultation on this project started in 2019, between AOPFN, AECL and CNL.

· In 2023 and as part of the signing of the Long-Term Relationship Agreement (LTRA) between AOPFN, CNL & AECL, AOPFN provided its free, prior and informed consent for the NSDF to be built. Based on the consultation process up until that point, AOPFN decided that the NSDF would help to protect the lands and waters within AOPFN’s Territory and in addition, AOPFN’s consent was provided in exchange for a meaningful role in the future monitoring, management and planning of activities at the Chalk River Labs, among other benefits to the AOPFN membership.

Background on the NSDF Judicial Review - KFN vs CNL:

· In Jan 2024, the Canadian Nuclear Safety Commission (CNSC) approved the NSDF project.

· KFN filed a Judicial Review of the CNSC's decision to approve construction of the NSDF project, and a Federal Court hearing took place in the summer of 2024, in which both KFN and CNL spoke at.

· In Feb 2025, Justice Blackhawk of the Federal Court decided that the CNSC erred in not considering the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), Canada’s United Nations Declaration on the Rights of Indigenous Peoples Act (UNDA), and KFN’s right to free, prior and informed consent (FPIC) in its decision that the duty to consult was met in relation to the NSDF. Justice Blackhawk ordered CNL and the CNSC to resume consultation with KFN, to be completed by the fall of 2026.

· In Mar 2025, CNL filed an appeal of Justice Blackhawk’s decision at the Federal Court of Appeal.

· While there was no impact on the LTRA from CNL's appeal above, AOPFN decided to intervene in the appeal, to address the lower court’s incorrect interpretation of UNDRIP in the Commission’s decision making. AOPFN’s request to Intervene was granted by the Federal Court of Appeal in Jun 2025.

Most Recent Update:

· The NSDF Appeal and Intervenor hearings were held on Oct 8, 2025, at the Federal Court of Appeal in Ottawa.

· The Intervenors were:

­ Algonquins of Pikwàkanagàn First Nation - has always supported FPIC and UNDRIP and in the case of the NSDF project, exercised its right to consent. AOPFN intervened to help the court better understand the importance of UNDRIP and FPIC (free, prior and informed consent) and how FPIC and the duty to consult work together. AOPFN did not intervene in support or against KFN or CNL..

­ Mining Association of Canada (MAC) and the Canadian Nuclear Association (CNA) - they intervened together to support CNL

­ Saugeen Ojibway Nation (SON) - intervened to support KFN

· The case’s main question was: "was Kebaowek (KFN) adequately consulted about a planned landfill for radioactive waste at the Chalk River facility, before the project was approved?”

­ KFN contends that CNL did not consider all provisions of the UNDRIP act when consulting with their Nation, and since Judge Blackhawk's decision back in Feb 2025 did not overturn the NSDF approval entirely (she ordered more consultation between CNL & KFN instead), KFN cross-appealed her decision and wanted the Court of Appeal to cancel the approval altogether. KFN is prepared to fight all the way to the Supreme Court of Canada, if needed.

­ CNL contends that the Crown's Duty to Consult with KFN had been satisfied over an 8-year period and is seeking more clarification on the interpretation and implementation requirements of UNDRIP.

Next Steps:

· The Court has not yet made a decision and will likely release its decision in the next year.

· There are a few options for what the Court could decide.

­ The Court could dismiss the appeal and uphold the Federal Court’s decision.

­ Or the Court could allow the appeal, and either decide the matter or send the matter back to be redetermined by the Commission.

­ The Court may or may not comment on UNDRIP’s status in Canadian law.

­ It is not clear at this stage what the Court will decide, since the Court questioned both CNL and KFN extensively.

· Once the Court has released its decision, CNL or KFN may decide to seek leave to appeal to the Supreme Court. They will have 60 days to seek leave to appeal.

· If the Supreme Court decides to hear the appeal, AOPFN will likely automatically have status to intervene, because of AOPFN’s intervention at the Federal Court of Appeal.

Closing:

· AOPFN does not, and never has, claimed to speak for all Algonquins on this or any other matter and we respect the rights of other Algonquin nations, Canada’s duty to consult, and Canada’s responsibility to uphold the United Nations Declaration on the Rights of Indigenous Peoples and Indigenous Rights to free, prior, and informed consent.

· Protection of the lands, waters and wildlife is always our top concern. The AOPFN will continue to inform proponents in respect to our Consultation & Engagement Protocols & Requirements in relation to projects in AOPFN’s unceded traditional territory.