CNSC policy statement on Indigenous consultation and engagement

The Canadian Nuclear Safety Commission (CNSC) has a policy statement that explains how it upholds the duty to consult with Indigenous Nations and communities. The statement ensures Indigenous rights, perspectives and interests are respected through fair, transparent and inclusive regulatory processes.

Commitment and obligations

The CNSC is an agent of the Government of Canada and Canada’s nuclear regulator. It acknowledges the importance of building relationships and consulting with Indigenous Peoples in Canada. The CNSC ensures that all licensing decisions under the Nuclear Safety and Control Act and all environmental assessment decisions under the Canadian Environmental Assessment Act uphold the honour of the Crown and consider the potential or established Indigenous and/or treaty rights of Indigenous Peoples. This is set out in section 35 of the Constitution Act, 1982.

The CNSC recognizes that Indigenous Peoples may have concerns about the nuclear sector. It also recognizes the importance of seeking opportunities to work together to ensure safe and effective regulation of nuclear energy and materials.

The CNSC continues to communicate objective scientific, technical and regulatory information about CNSC activities and the effects of the nuclear industry in Canada. This information meets the objectives of the Nuclear Safety and Control Act.

Approach

The CNSC applies a good governance model to consultation and engagement with Indigenous Peoples. This model is guided by legal principles and best practices and is supported through the following measures.

Good governance

The CNSC strives to meet its commitment to excellence. A good governance approach is used for effective and well-managed Indigenous consultation and engagement processes when Indigenous rights or interests could be impacted. Under this approach, the CNSC emphasizes transparency, accountability, participation and fairness in all consultation and engagement activities.

Guiding principles

The CNSC is aware of its role as a statutory administrative tribunal exercising quasi-judicial powers. This role includes the duty to treat all participants in its proceedings fairly.

The CNSC considers the guiding principles that have emerged from Canada’s case law and best consultation practices. These principles are outlined in federal guidelines for officials on consultation and accommodation from March 2011.

The CNSC builds on the guiding principles to establish project-specific processes for Indigenous consultation and engagement.

These processes provide opportunities for CNSC staff and Indigenous Peoples to meet and discuss issues and to allow for reasonable opportunities for participation in the hearing process before the Commission. All evidence relevant to the rights and interests of Indigenous Peoples – including any potential impacts thereon by Indigenous Peoples, CNSC staff, the licensees, the various federal, provincial and territorial departments and agencies, and other interested parties – is heard and taken into account by the Commission in relation to a project.

These processes are as accessible as reasonably possible to Indigenous Peoples through several measures including:

• organized community meetings, open houses, technical workshops and/or site visits
• other direct consultation with Indigenous Peoples where appropriate
• the CNSC’s public hearings, which are occasionally held in host communities with opportunities for oral or written interventions by Indigenous Peoples
• video-conferencing facilities (in some situations) for intervenors at hearings held in Ottawa
• webcast public hearings and meetings on the CNSC website
• the publication on the CNSC website of hearing transcripts, information on CNSC licensing processes, technical/safety facts and publications about the nuclear industry that the CNSC regulates
• assurance that the licensees and proponents are assisting the CNSC in consulting and engaging with Indigenous Peoples

Scope of consultations

The consultation and engagement activities for a project may change with the circumstances. CNSC staff may work more closely with Indigenous Peoples before a Commission hearing. For example, there may be a possibility of serious potential adverse effects on the rights and interests of Indigenous Peoples resulting from a CNSC licensing decision. In such cases, the CNSC increases the depth and frequency of consultation to understand and address potential impacts. Indigenous Peoples are encouraged to raise their concerns with the Commission.

Accommodation measures

The CNSC recognizes that accommodation measures may be needed for consultation in good faith. These measures may prevent or minimize the impacts that activities involving nuclear substances have on the rights and interests of Indigenous Peoples.

Accommodation can likely flow through licensing requirements on licensees that fall under the CNSC’s authority. Potential accommodation must be made within the statutory mandate of the CNSC.

Accommodation must reflect that the CNSC has a broad mandate that allows for the protection of the environment and for the health, safety and security of all Canadians. The CNSC must also recognize that there are opportunities for reducing potential impacts on rights through the licensing processes.

Coordinated approaches

The CNSC supports a whole-of-government approach to Indigenous consultation and engagement, as part of its statutory functions. This approach has a goal of coordinating consultative efforts, where possible with other federal, provincial and/or territorial regulatory departments and agencies. A one-window approach for environmental assessment and licensing activities is used.

Role of licensees

Licence applicants and existing licensees of nuclear projects do not have the Crown’s legal obligation to consult Indigenous Peoples under section 35 of the Constitution Act, 1982. Licensees are participants in projects that are regulated by the CNSC. Their role in engaging Indigenous Peoples supports the efficiency of the Commission’s decision-making.

The consultation activities of licensees are important and can inform and assist the consultation activities of CNSC staff. The outcome of these activities is also part of the evidence presented by licensees to the Commission. This includes any accommodation measures proposed by licensees.

Participation of Indigenous Peoples

The CNSC encourages Indigenous Peoples to outline the nature and scope of any interests that they feel may be affected by a proposed project or activity that is regulated. It also encourages Indigenous Peoples to discuss outstanding issues and concerns throughout the regulatory process.

Capacity

The CNSC established a Participant Funding Program (PFP) in 2011 and the Indigenous and Stakeholder Capacity Fund (ISCF) in 2023. These programs support Indigenous Nations and communities, the public and interested parties. They can participate meaningfully in regulatory processes related to Commission proceedings and outside Commission proceedings, respectively.

The CNSC is an independent regulator. We make scientific and technical staff available to meet with Indigenous Nations and communities to discuss regulatory or technical issues and to answer questions.