Indigenous Rights and DGR Assessments

Why are Section 35 rights important to Impact Assessments (IA)?

Section 35 of the Constitution Act, 1982, provides the constitutional framework for the recognition and affirmation of existing Aboriginal and Treaty rights. In the context of Impact Assessments (IA), Section 35 is not merely a procedural hurdle but a substantive legal requirement. It mandates that the Crown and its proponents, such as the Nuclear Waste Management Organization (NWMO), engage in a process that respects the inherent authority of Indigenous Nations to manage their traditional territories [Comment Ref: 705]. When a project like the Deep Geological Repository (DGR) is proposed, the IA process must evaluate how the project intersects with these constitutionally protected rights, including the right to hunt, fish, gather, and maintain cultural practices [Comment Ref: 660]. Failure to adequately address these rights can lead to legal challenges, as seen in the ongoing mobilization against the project [Ref: 627, 214].

Key Concerns Raised by Indigenous Peoples

Indigenous Nations, particularly the Grand Council Treaty #3 (GCT3), have raised profound concerns regarding the NWMO’s approach to the DGR project. These concerns are categorized into three primary areas:

• Jurisdictional Authority and Laws: Indigenous organizations assert that the NWMO has largely ignored traditional governance structures and laws, such as the Manito Aki Inaakonigewin (MAI). They argue that the proponent’s process is unilateral and fails to harmonize with Indigenous legal orders [Comment Ref: 705, 660].
• Scope of Assessment: A major red flag identified is the exclusion of nuclear waste transportation from the federal impact assessment. Indigenous groups argue that the movement of radioactive material across thousands of kilometers of Treaty territory is an ‘incidental activity’ that poses significant risks to their lands, waters, and harvesting rights [Ref: 485, 517].
• Free, Prior, and Informed Consent (FPIC): There is a strong consensus among opposing Indigenous groups that the NWMO has treated FPIC as a generic consultation outcome rather than a mandatory decision-making standard. They demand that consent be ongoing, revocable, and distinction-based, rather than a one-time municipal agreement [Ref: 627, 587].

Technical Deficiencies & Gaps

Internal technical reviews have identified several gaps in the proponent’s handling of Indigenous rights:

• Baseline Data Deficiencies: The NWMO’s own documents admit that data regarding Indigenous identity and on-reserve conditions are incomplete [Analysis: Section 15.5]. This renders conclusions about ‘low environmental risk’ premature and unsupported by the legal realities of the territory.
• Project Splitting: By attempting to scope out transportation, the proponent avoids a comprehensive assessment of cumulative impacts across multiple Treaty territories, which is a direct violation of the spirit of the Impact Assessment Act [Analysis: Section 19.2.3].

Recommendations & Mandates

We strongly recommend that the NWMO immediately establish an Independent Indigenous Oversight Body. This body must have the authority to co-author the ‘Safety Case’ and trigger ‘stop-work’ orders if environmental or cultural thresholds are breached. This moves the project from a consultative model to a co-management model, which is essential for upholding the Honour of the Crown.

Furthermore, we strongly recommend that the NWMO conduct a comprehensive, Indigenous-led cumulative effects study that includes the entire transportation corridor. This study must be funded by the proponent but controlled by the affected Nations to ensure data sovereignty and the inclusion of traditional ecological knowledge in the final impact statement.

Conclusion

The path forward requires a fundamental shift from ‘engagement’ to ‘partnership.’ The NWMO must recognize that the DGR project is not just a technical challenge but a constitutional one. Without addressing the fundamental issues of jurisdiction, law, and safety through a Nation-to-Nation framework, the project lacks the necessary authorization to proceed within Treaty #3 territory [Comment Ref: 660].

About the Author

Art Borups Corners

Administrator

Art Borup’s Corners is a northern arts incubator based in Melgund Township, Northwestern Ontario, where community-led creativity, land-based practice, and digital innovation come together. Rooted in the cultural rhythms of the boreal forest and shaped by years of grassroots organizing across Ontario, Manitoba, Nunavut, and Minnesota, Borup’s Corners supports artists, youth, and community members through participatory storytelling, climate-focused projects, and creative entrepreneurship. From wild blueberry walks to immersive exhibitions and applied AI research, our seasonal programs and artist residencies foster connection, skill-building, and self-determined expression—all grounded in place, culture, and care.

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