Federal Court of Appeal upholds interpretation of nuclear safety regulations as reasonable

The Federal Court of Appeal had dismissed an appeal of a woman who had challenged the Canadian Nuclear Safety Commission’s (CNSC) rejection of her request to test her property for the source of radon gas and remove that source. 

In Speck v. Canada (Attorney General), 2026 FCA 37, the appellant and others issued the request to CNSC in connection with their residential properties. The appellant focused her request on waste rock from a uranium mine used for construction purposes on her property in the Elliot Lake region. 

In June 2023, the CNSC refused the request. It found that the waste rock fell beyond its regulatory authority due to an exemption in s. 10 of the General Nuclear Safety and Control Regulations, S.O.R./2000-202 (General Regulations), under the Nuclear Safety and Control Act, 1997 (NSCA). 

The CNSC determined that the waste rock was: 

• not “associated with the development, production or use of nuclear energy” 
• a naturally occurring nuclear substance under s. 10 
• naturally radioactive at levels consistent with the region, and no more radioactive than other rocks in the region 
• never chemically processed, but simply broken up and transferred a short distance 
• not subjected to any of the nuclear fuel cycle processes 
• simply in the way of the uranium ore, which was to be extracted and was meant to be subject to its regulatory authority 
• The CNSC added that the exceptions in paragraphs (a) and (b) did not apply. 

The appellant applied for a judicial review. On Dec. 17, 2024, the Federal Court dismissed her application and deemed the CNSC decision justiciable. The court acknowledged evidence supporting that the Elliot Lake region had high background radiation from the ground’s uranium deposits. 

On appeal, the appellant alleged that the CNSC unreasonably interpreted s. 10 of the General Regulations and undermined the NSCA’s broad remedial purpose to tackle radioactive contamination through its conclusion that waste rock removed from a uranium mine in its efforts to reach uranium ore was not “associated with the development, production or use of nuclear energy.” 

The appellant also argued that: 

• One could not access uranium ore in the ground without generating waste rock 
• The waste rock’s removal was the nexus between the mine and her property 
• Excluding the waste rock from substances that “are or have been associated with the development, production or use of nuclear energy” left no meaning for the term “associated with” and effectively made the chemical treatment of the naturally occurring nuclear substance a requirement before CNSC would exercise its regulatory authority 

The appellant asserted that the Federal Court made a palpable and overriding factual error in attributing her property’s radiation to high background radiation, absent evidence to support this finding. 

Canada’s attorney general, as the respondent in this case, contended that the Federal Court erroneously found the CNSC decision justiciable and that the Federal Court of Appeal should dismiss the appeal since the CNSC decision was inappropriate for a judicial review. 

Interpretation found reasonable

Denying the appeal, the Federal Court of Appeal found CNSC’s decision – including its interpretation of the phrase “associated with the development, production or use of nuclear energy” in s. 10 of the General Regulations – reasonable. 

The appeal court stepped into the Federal Court’s shoes and focused its analysis on the CNSC’s administrative decision, rather than the Federal Court’s findings. 

The appeal court ruled that the CNSC reasonably concluded that: 

• Its authority did not extend to normal rocks simply because they had once been in a uranium mine 
• The waste rock’s radioactivity levels were consistent with levels in the region 

The appeal court saw no inconsistency between: 

• the NSCA’s purposes and the CNSC’s focus on rocks with elevated radioactivity or with chemical processing as part of the nuclear fuel cycle 
• the CNSC’s refusal to regulate the waste rock and its regulation of mine tailings and contaminated rock 

Given its conclusion that the CNSC’s decision was reasonable, the appeal court deemed it unnecessary to consider justiciability. The appeal court stressed that its silence on the justiciability issue did not mean it agreed with the Federal Court. 

Lastly, the appeal court awarded no costs, as the parties had agreed.