Executive Summary: Key Legal and Evidentiary Issues

• At issue was whether the Minister of Environment and Climate Change Canada reasonably issued a permit under the Species at Risk Act (SARA) authorizing construction of a near-surface radioactive waste disposal facility at Chalk River.
• Central to the appeal was paragraph 73(3)(a) of the SARA, which requires the Minister to be of the opinion that all reasonable alternatives that would reduce impact on the species were considered and the best solution adopted.
• Applying the reasonableness standard and the "reasons first" approach from Vavilov, the Court examined whether the Minister's reasons met the standards of transparency, intelligibility and justification.
• Missing from the Minister's reasons was any statutory interpretation of paragraph 73(3)(a) or an analytical framework explaining how "reasonable alternatives" were identified or why the East Mattawa Road site was the "best solution."
• The Wren affidavit setting out the department's interpretation could not be used to supplement the Minister's reasons, as doing so would amount to impermissible "bootstrapping."
• Deficiencies in the public notice further undermined the decision, since it merely repeated the statutory criteria without explaining how the pre-conditions were satisfied.

Facts of the case

Chalk River Laboratories is a nuclear research and development facility located in Renfrew County, Ontario. It is owned by Atomic Energy of Canada Ltd. (AECL), a Crown corporation, and managed by the appellant, Canadian Nuclear Laboratories Ltd. (CNL). For many decades, activities at the Chalk River site have generated radioactive waste, and previous storage practices there are inconsistent with modern environmentally sensitive waste management principles. In 2017, CNL started the approval process for construction of a near-surface low-level radioactive waste disposal facility at the site. Building the facility would require clearing grasslands and forested habitats, grubbing the cleared area, rock blasting, and construction, and would increase vehicle traffic. These activities were expected to affect species listed for protection under the Species at Risk Act, particularly the Blanding's Turtle, the Little Brown Myotis (bat) and the Northern Myotis (bat), and their habitats. Accordingly, CNL applied to the Minister of Environment and Climate Change Canada for a permit under subsection 73(1) of the SARA.

The permit was one aspect of a complex approval process. As part of the environmental assessment under the Canadian Environmental Assessment Act, 2012 (CEAA 2012), CNL submitted a site report explaining that four AECL-owned sites were considered feasible: two "on-site" options at Chalk River (the East Mattawa Road site and the alternate site), and two "off-site" options, one at Whiteshell Laboratories in Pinawa, Manitoba, and the second at the Nuclear Power Demonstration site in Rolphton, Ontario. On January 8, 2024, the Canadian Nuclear Safety Commission issued its decision, concluding that the project was not likely to cause significant adverse environmental effects provided specified mitigation and monitoring measures were implemented. On March 8, 2024, the Minister issued the permit under paragraph 73(2)(c) on the basis that affecting the species at risk was incidental to carrying out the activities, subject to mitigation and monitoring measures. On judicial review, the Federal Court (per Zinn J.) found the Minister's decision unreasonable and quashed the permit (2025 FC 472). CNL appealed.

Statutory provisions at issue

The dispute turned on the pre-conditions in subsection 73(3) of the SARA, and specifically paragraph 73(3)(a), which provides that a permit may be issued only if the competent minister is of the opinion that "all reasonable alternatives to the activity that would reduce the impact on the species have been considered and the best solution has been adopted." The Court noted that the French version lacks an equivalent to the English word "reasonable," but the respondents did not rely on this difference, so the Court did not address it further. The Court also noted the related obligations to include necessary terms and conditions in the permit (s. 73(6)) and to publish on the public registry an explanation of why the permit was issued, taking into account the matters in subsection 73(3) (s. 73(3.1)). At the relevant time, section 79 of the SARA required authorities making determinations about designated projects under the CEAA 2012 to consider effects on listed wildlife species. An affidavit sworn by Sarah Wren of the Species at Risk Implementation Division at ECCC set out the division's interpretation of paragraph 73(3)(a): all reasonable alternatives must first be considered, and then the solution that best advances conservation of species at risk must be adopted. All parties agreed this was the proper interpretation.

Reasoning and analysis

The Court, per Biringer J.A., confirmed that on appeal from a judicial review it steps into the shoes of the Federal Court and examines the administrative decision afresh, giving no deference to the Federal Court, and that the standard of review for the Minister's decision is reasonableness. Following the "reasons first" approach mandated by Vavilov, the Court declined to endorse the Federal Court's proposed interpretation of paragraph 73(3)(a) and focused instead on the Minister's reasons. Because no formal reasons accompanied the permit, the science review, the decision memorandum, the permit with its accompanying letter, and the public notice together comprised the Minister's reasons.

The Court found that the Minister's reasons contained no statutory interpretation of paragraph 73(3)(a) at all. Although the parties agreed on the correct interpretation, the Minister's failure to justify its own interpretation rendered the decision unreasonable, because without an analytical framework it was difficult to discern the Minister's chain of logic. The Court held that it could not rely on the Wren affidavit to supplement the reasons, as permitting such supplementary reasons would amount to "bootstrapping" and undermine the duty to adequately justify administrative decisions. On the "reasonable alternatives" requirement, the Court found that the Minister's reasons left many important questions unanswered — including whether the off-site locations were considered reasonable alternatives or only the two Chalk River sites, and how the CEAA 2012 environmental assessment process related to the SARA analysis. The Minister reduced the sites under consideration from four to two to one, but the basis for doing so was, in the Court's words, "a mystery."

On the "best solution" requirement, the Court noted the debate between the parties: the respondents argued the Chalk River site was chosen because operating costs would be lower, while the appellant argued the East Mattawa Road site was selected to minimize impact on the most sensitive species present, the Blanding's Turtle. This disagreement itself reflected a lack of clarity in the Minister's reasons. While one section of the science review appeared to support the choice being consistent with past practice, the Court found the reasons on adopting the "best solution" to be lacking. The Court also commented on the public notice, finding that it merely repeated the statutory requirements and lacked any meaningful explanation of how the pre-conditions were satisfied, defeating the transparency purpose of the public registry.

Ruling and outcome

The Federal Court of Appeal concluded that the Minister's decision was unreasonable, though on somewhat different grounds than the Federal Court. Writing for a unanimous panel (with Rennie and Pamel JJ.A. concurring), Biringer J.A. dismissed the appeal and remitted the matter to the Minister for redetermination in accordance with the reasons. The successful parties were the responding parties who had challenged the permit — Kebaowek First Nation, Concerned Citizens of Renfrew County and Area, the Canadian Coalition for Nuclear Responsibility, and the Sierra Club Canada Foundation. Because no party sought costs, the Court awarded none, so no monetary amount was ordered or granted in this decision.