Federal Court of Appeal dismisses McClean Lake Duty to Consult appeal
FOR IMMEDIATE RELEASE
March 8, 2012
On Monday, March 5, 2012 in the matter of Fond du Lac Denesuline First Nation et al. v. the Attorney General of Canada and AREVA Resources Canada Inc. the Federal Court of Appeal, in a decision from the Bench, dismissed the appeal of a number of groups in Northern Saskatchewan who alleged certain breaches of the Crown's duty to consult with Aboriginal peoples in relation to AREVA's 2009 McClean Lake uranium mine licensing hearing to renew its operating licence (PDF).
In its unanimous decision the Court determined that the Canadian Nuclear Safety Commission (CNSC) had the jurisdiction to consider the duty to consult in the course of its hearing process but found, based on the evidence before the Commission, there was no duty to consult. In addition, the Court held that mere speculation that harm would arise from a licensing decision would not suffice to trigger the duty. Both the CNSC and Attorney General for Saskatchewan appeared as interveners in the matter.
This decision supports the CNSC's approach to Aboriginal consultation (PDF) and further serves to remind those involved with licensing matters of the need to bring forward information relating to Aboriginal or treaty rights, and the potential impacts a licensing decision could have on such rights. The CNSC as an agent of her Majesty, and as Canada's nuclear regulator, recognizes and understands the importance of consulting and building relationships with Canada's Aboriginal peoples. The CNSC ensures that all its licensing decisions under the Nuclear Safety and Control Act (NSCA) and environmental assessment decisions under the Canadian Environmental Assessment Act uphold the honour of the Crown and consider Aboriginal peoples' potential or established Aboriginal or treaty rights pursuant to section 35 of The Constitution Act, 1982.
The CNSC regulates the use of nuclear energy and materials to protect the health, safety and security of Canadians and the environment; and to implement Canada's international commitments on the peaceful use of nuclear energy. Responsible for regulating and licensing all existing and future uranium mining and milling operations in Canada, the CNSC's work is undertaken in accordance with the comprehensive requirements of the NSCA and its related regulations, which reflect Canadian and international safety standards.
- October 28, 2010 Supreme Court of Canada decision on the issue of Aboriginal consultation
- Commission Tribunal decision: April 30, 2009 Record of Proceedings - AREVA Resources Canada Inc. - Application to Renew the McClean Lake Operation Uranium Mine Operating Licence and Revoke the Midwest Uranium Mine Site Preparation Licence (PDF)
- Codification of Current Practice: CNSC Commitment to Aboriginal Consultation (PDF)
- Uranium Mines and Mills in Canada
- Fact sheet - Uranium Mining: The Facts on a Well-Regulated Industry