by Laura Tanguay
Nuclear energy is often touted as a critical solution to decarbonize our day-to-day lives. Walking through the city of Toronto, you’ll see Ontario Power Generation’s (OPG) posters plastered as part of the “recast nuclear” campaign, which is centered on the premise that the nuclear industry’s bad reputation is a consequence of pop culture, and needs “recasting.” Most recently, for example, HBO historical drama mini-series Chernobyl (2019) highlights the 1986 accident at the nuclear power plant in Chernobyl, Ukraine, and Christopher Nolan’s Oppenheimer (2023) follows the life of an American physicist who was central in developing the first nuclear weapons used during World War II. While these widely watched programs are jarring, they are not entirely fictional.
The reality of my research is the less-than-cinematic; while catastrophic events such as nuclear bombs or nuclear meltdowns are real concerns permeating from the nuclear industry, I focus on the potential of slow violence[1] that can result from all stages of the nuclear fuel chain. I am particularly interested in the procedural equity in operationalizing radioactive waste disposal, especially when ensuring safety and justice for future generations beyond our collective imagination. In my research project, I question why one permanent radioactive waste infrastructure, the near-surface disposal facility (NSDF), does not seek community consent, but another, the deep geological repository (DGR) does, via the ‘willing host model.’ Instead of requiring community willingness, licensing approval for the NSDF follows the minimum requirement of the Crown’s ‘duty to consult.’
The duty to consult and, when necessary, accommodate Indigenous peoples mandates that federal and provincial governments engage in discussions with Indigenous groups regarding proposed government actions or decisions that could adversely affect Aboriginal and treaty rights recognized and reaffirmed in Section 35 of the Constitution Act. The objective is to consider the perspectives and concerns of the affected Indigenous communities and adjust the action or decision to prevent any unlawful infringement on those rights.[2] In various extractive contexts, the duty to consult has been criticized for the lack of an acceptable, standardized process. In other cases, the duty to consult has been criticised as an exercise of “ticking a box” to legitimize infrastructural interests of the settler-state rather than meaningful, genuine engagement that requires the consent of Indigenous groups whose treaty rights may be impacted (see Ariss et al., 2017; Ka’nhehsí:io Deer, 2024; Scott, 2020; Bernauer et al., 2023). A key concern with consultation as the baseline legal requirement for Indigenous engagement is that ultimately, the Crown can decide whether an infringement of Section 35 rights is justified for a proposed infrastructure[3].
The proposed NSDF examined in my dissertation is located in Chalk River, Ontario, on unceded Algonquin territory. It is designed as an above-ground mound spanning ten soccer fields only 1.2 kilometres from the Kichi Sibi, otherwise known as the Ottawa River. The site will effectively extinguish the Algonquin Nation’s right to access the 37 hectares of land it will be situated on[4]. Meanwhile, the regulator, the Canadian Nuclear Safety Commission, has claimed that this infrastructure will have “no new impacts on any potential or established Aboriginal and/or treaty rights”[5] despite barring access to the site in perpetuity. During the public licensing hearing for the NSDF in 2022, Kebaowek First Nation and Kitigan Zibi Anishinabeg successfully argued that they were not adequately consulted and were granted a procedural direction by the Canadian Nuclear Safety Commission, which provided additional time to complete their Indigenous-led Assessment and provide additional oral testimony to the commission. Moreover, requiring only the duty to consult in the licensing process for the NSDF fails to meet the international guidelines in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) on radioactive waste disposal; Article 29(2), for example, states: “States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent (FPIC).” While the majority of Algonquin Nations made clear through the courts, media campaigns, and public rallies that FPIC had not been secured, Canadian law has made clear that FPIC is not a legal requirement and that, per their interpretation, the minimum constitutional requirement of consultation has been met.
OPG’s new PR campaign is timely, given the intersection of growing concerns about climate change and the anticipation of a site selection for a deep-geological repository (DGR) to house radioactive waste in early fall 2024. The proposed DGR will permanently house high-level radioactive waste in the form of used nuclear fuel bundles underground and is not without local public and Indigenous opposition. As mentioned, the siting proposal for this type of radioactive waste has a unique commitment from the Nuclear Waste Management Organization (NWMO) —they promise to find a “willing host” community for the repository. Siting processes for waste with low and intermediate levels of radioactivity have no such mechanism for communities who will “host” the waste to provide or withhold their consent or “willingness.” The DGR project raises interesting questions about who is included in the characterization of “community” and how “willingness” is defined.
As an extension of this research, I am interested in examining whether Indigenous-led impact assessments, which have been increasing in recent years, can create more just processes and outcomes. Consultation can be critiqued as a tool of colonial law and a recognition exercise that functions to acknowledge Indigenous rights but ultimately subsumes Indigenous legal orders in favour of settler colonial law and interests[6]. Indigenous scholars Audra Simpson[7] and Glen Coulthard[8] have critically challenged the moral and political framework of the politics of recognition, contending that such practices have not alleviated the harmful impacts of colonialism but reproduce them. The state can remedy its interpretation of the United Nations Declaration on the Rights of Indigenous Peoples Act and embed free, prior, and informed consent on any development that might impact a First Nation’s treaty rights. With a genuine commitment to do so, the study of consent mechanisms and operationalizing equitable procedures for energy infrastructure siting has meaningful potential.
[1] Dayna Scott and Andrée Boisselle, “If There Can Only Be ‘One Law’, It Must Be Treaty Law. Learning From Kanawayandan D’aaki” (2019), Articles & Book Chapters. 2745, online, https://digitalcommons.osgoode.yorku.ca/scholarly_works/2745
[2] Audra Simpson, “Mohawk Interrupts: Political Life Across the Borders of Settler States”(2014), Duke University Press, online: https://www.dukeupress.edu/mohawk-interruptus
[3] Glen Coulthard, Red Skin, White Masks Rejecting the Colonial Politics of Recognition (2014), University of Minnesota Press, online: https://www.upress.umn.edu/9780816679652/red-skin-white-masks/
[4] T-227-24 KEBAOWEK FIRST NATION v. CANADIAN NUCLEAR LABORATORIES, (10-11 July 2024)
[5] Canadian Nuclear Safety Commission, “Record of Decision DEC 22-H7” (8 January 2024), para 331, online: https://www.canada.ca/content/dam/cnsc-ccsn/documents/NSDF_-_Record_of_Decision_.pdf
[6] Slow violence is a term coined by Rob Nixon’s 2013 book, Slow Violence and the Environmentalism of the Poor. Slow violence describes the often invisible threats faced by communities impacted by climate change, persistent toxins, pollution, and displacement that often occur as a result of resource-seeking industrial development. Oil spills, deforestation, and other land-use disturbances are exacerbated by intensifying capitalism and as a result of systemic environmental racism, the impacts disproportionately affect poor and marginalized groups.
[7] Isabelle Brideau, “The Duty to Consult Indigenous Peoples.” (12 June 2019) Library of Parliament, online: https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/201917E
[8] Ibid.
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Laura Tanguay is a PhD candidate in the Faculty of Environmental and Urban Change at York University researching consent mechanisms in nuclear waste siting processes in the Canadian landscape. She works to support Indigenous communities who are confronted with settler land-use and water-use propositions in regulatory, scholastic and grassroots settings, and has co-edited a report on Operationalizing Indigenous-led Impact Assessments with Dayna Scott and Jennifer Sankey. She recently published two opinion articles in the National Observer and The Hilltimes and made a case presentation with Mark Winfield at the Environment North Annual General Meeting in April 2024.