Executive Summary: Key Legal and Evidentiary Issues

• Lisa Speck challenged the CNSC's refusal to have her residential property and those of others tested for the source of radon gas and to remove that source, arguing the waste rock from a uranium mine fell within the Commission's regulatory authority.

• Central to the dispute is the interpretation of section 10 of the General Nuclear Safety and Control Regulations, specifically whether the waste rock qualifies as a substance "associated with the development, production or use of nuclear energy."

• The CNSC determined the waste rock was a naturally occurring nuclear substance exempt from regulation, as it was never chemically processed, was naturally radioactive at levels consistent with the region, and was not subjected to any processes of the nuclear fuel cycle.

• Reasonableness was the acknowledged standard of review, with the appellant arguing the CNSC's interpretation was unreasonable and undermined what she described as the broad remedial purpose of the Nuclear Safety and Control Act.

• An ancillary issue arose regarding whether the CNSC's decision was even justiciable, though the Federal Court of Appeal declined to address this given its finding on the merits.

• No costs were awarded, as the parties agreed there should be none.

Background and the request regarding uranium mine waste rock

Lisa Speck and others requested that the Canadian Nuclear Safety Commission (CNSC) have their residential properties tested for the source of radon gas and to remove that source. The focus of Ms. Speck's request was waste rock from a uranium mine that had been used on her property for construction purposes. By letter dated June 20, 2023, the CNSC refused this request, concluding that the waste rock in question fell outside its regulatory authority.

The CNSC's reliance on the section 10 exemption

The CNSC grounded its refusal in section 10 of the General Nuclear Safety and Control Regulations, S.O.R./2000-202, enacted under the Nuclear Safety and Control Act, S.C. 1997, c. 9 (NSCA). Section 10 provides that naturally occurring nuclear substances, other than those that are or have been associated with the development, production or use of nuclear energy, are exempt from the application of all provisions of the Act and the regulations made under the Act, except provisions governing the transport of nuclear substances and, in certain cases, provisions governing the import and export of nuclear substances. The CNSC concluded that the waste rock was a naturally occurring nuclear substance and that it was not "associated with the development, production or use of nuclear energy." The CNSC based this conclusion on its observations that the waste rock was (i) never chemically processed, but simply broken up and moved a short distance, (ii) naturally radioactive at levels consistent with the region, and (iii) not subjected to any of the processes of the nuclear fuel cycle. Ms. Speck acknowledged that the exceptions under paragraphs (a) and (b) of section 10 did not apply to her situation.

Ms. Speck's arguments on appeal

Ms. Speck brought an application for judicial review before the Federal Court, which was dismissed (2024 FC 2046). She then appealed to the Federal Court of Appeal. Her primary argument was that the CNSC's interpretation of section 10 was unreasonable because excluding the waste rock from substances "associated with the development, production or use of nuclear energy" leaves no meaning for the term "associated with" and effectively adds a requirement that the naturally occurring nuclear substance be chemically treated before the CNSC will exercise its regulatory authority. She argued that uranium ore in the ground cannot be accessed without generating waste rock, and that it was the removal of this waste rock, later used on her property, that provides the nexus between the mine and her property. In her view, the CNSC's conclusion undermines the broad remedial purpose of the NSCA, which she contended is to address radioactive contamination. She further argued that the Federal Court made a palpable and overriding error of fact in concluding that the radiation on her property was due to high background radiation, asserting there was no evidence to support this conclusion.

The standard of review and the Court's analysis

The parties acknowledged that, on appeal of a Federal Court decision on an application for judicial review, the Federal Court of Appeal is to determine whether the Federal Court selected the correct standard of review and, if so, whether it correctly applied that standard, following the framework in Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36. Effectively, the Court steps into the shoes of the Federal Court and focuses on the administrative decision. Ms. Speck acknowledged that the Federal Court correctly selected reasonableness as the standard of review of the CNSC's decision. The Court noted that while Ms. Speck asserts what may be a reasonable interpretation of section 10 of the General Regulations, the focus was on whether the CNSC's interpretation was unreasonable, and Ms. Speck had not convinced the Court that it was. The CNSC focused on the facts that the waste rock in question was (i) no more radioactive than other rocks in the region, and (ii) was simply in the way of the uranium ore that was to be extracted and was intended to be subject to its regulatory authority. The Court found it was not unreasonable for the CNSC to conclude that its authority did not extend to normal rocks simply because they had once been located in a uranium mine. The Court saw no inconsistency between the purposes of the NSCA and the CNSC's focus on rocks that have elevated radioactivity or that have been chemically processed as part of the nuclear fuel cycle, noting that the CNSC's decision not to regulate the waste rock in issue in this case is not inconsistent with its regulation of mine tailings and contaminated rock. Regarding the alleged factual error, the Court emphasized that its focus was on the CNSC's conclusions rather than those of the Federal Court. The CNSC had concluded that the levels of radioactivity in the waste rock on Ms. Speck's property were consistent with levels in the region, and the Court was not convinced that this conclusion was not reasonably open to the CNSC. The Federal Court had noted evidence from Patrick Burton to the effect that the Elliot Lake region where Ms. Speck's property is located has high background radiation from uranium deposits in the ground.

Justiciability and the outcome

The Attorney General of Canada argued that the Federal Court's conclusion that the CNSC's decision was justiciable was erroneous, and that the appeal should be dismissed on the basis that the CNSC's decision was not susceptible to judicial review. The Federal Court of Appeal found it unnecessary to consider the issue of justiciability in view of its conclusion that the CNSC's decision was reasonable, but noted that its silence in this regard should not be understood as agreement with the Federal Court. The Federal Court of Appeal dismissed Ms. Speck's appeal, finding in favor of the respondent, the Attorney General of Canada. Since the parties agreed that there should be no costs, none were awarded. No specific monetary amount was at issue in this case, as the relief sought was regulatory action — testing for the source of radon gas and removal of that source — rather than a financial award.