Appeal court dismisses CNL appeal, sends Chalk River nuclear waste permit back to Ottawa
Tashi Farmilo
Kebaowek First Nation and three environmental groups have won another round in their long fight against a radioactive waste site on the Ottawa River, after the Federal Court of Appeal dismissed Canadian Nuclear Laboratories' appeal on May 28 and ordered the federal government to reconsider a permit that would let the company harm endangered species to build it.
The unanimous decision (2026 FCA 106) sends the permit back to Environment and Climate Change Canada, which must now justify, or rethink, its approval of the Near Surface Disposal Facility at Chalk River, about a kilometre from the river that supplies drinking water to millions of people. The court found that the minister who issued the permit never adequately explained why endangered species could be harmed for the project.
Writing for a three-judge panel, Justice Monica Biringer reached the same result as a 2025 Federal Court ruling that had set aside the permit, but on narrower grounds. She found the minister's reasons contained no interpretation of the relevant section of the Species at Risk Act and fell short of the required standards of transparency, intelligibility and justification. The court was careful to say it was not ruling Chalk River out, noting the site "may well be a defensible location," but said explaining that choice is the minister's job, not the court's.
The law requires the minister to be satisfied that all reasonable alternatives were considered and the best solution chosen. The court found the reasons did not make clear which sites were treated as reasonable alternatives or why Chalk River was selected. In the underlying case, Justice Russel Zinn had faulted CNL for limiting its search to four sites owned by Atomic Energy of Canada Limited. CNL's application said it picked Chalk River because "operating costs would be much lower" than at two other company sites that were slated to close.
The facility would be an engineered mound holding roughly one million cubic metres of low-level radioactive waste. The permit covered three listed species: the Blanding's turtle, the little brown myotis and the northern myotis. The groups say the wider site, a mix of mature forest, wetlands and streams, is home to other species at risk, including the Eastern Wolf, recently reclassified as threatened, which Kebaowek says it has documented denning near the site.
"The Federal Court of Appeal has confirmed that Environment Canada must go back and do its job properly," said Kebaowek Chief Lance Haymond. He added that the First Nation would keep working to protect the river, which Algonquin people call the Kichi Sibi, and the drinking water it provides across both provinces.
Nicholas Pope of Hameed Law in Ottawa, who represented the groups, said the ruling was a sound application of the law and that the minister had failed to properly justify the permit. He said he hopes the reconsideration will account for the Eastern Wolf and the monarch.
Lynn Jones of the Concerned Citizens of Renfrew County and Area said she wants the company to run a proper site selection process this time. She noted that more than 150 municipalities downstream, including the Pontiac MRC, have passed resolutions raising concerns, and said building the facility would mean clearing the forest and blasting the hillside flat, reducing 37 hectares of woodland to roughly half a million tonnes of rubble.
Gordon Edwards, president of the Canadian Coalition for Nuclear Responsibility, framed the case around the communities downstream. "We who live downstream from Chalk River are also living things, and we do not deserve to become endangered by the heedless siting of a radioactive dump so close to the source of our own drinking water," he said.
Ole Hendrickson, a spokesperson for the Concerned Citizens, called the original Federal Court ruling "a wake-up call" for Ottawa to find a responsible way to manage decades of accumulated radioactive waste.
Environment and Climate Change Canada, which issued the permit and must now reconsider it, said it was reviewing the ruling and its implications carefully and would determine next steps as appropriate. The Canadian Nuclear Safety Commission, which approved an amendment to CNL's licence for the site in 2024, said it was aware of the decision but was neither a party nor an intervener in the case.
CNL said it respects the court's decision and is taking time to evaluate it before deciding on next steps. The company said it had appealed to seek clarity in a complex regulatory environment as it works to address Canada's legacy nuclear waste, and that protecting the environment and species at risk is central to its work, pointing to nearly a decade of study, regulatory review and engagement with Indigenous communities and the public behind its proposal. It did not say whether it would seek leave to appeal to the Supreme Court of Canada, which is granted in only a small number of cases.