Court dismisses appeal in Elliot Lake case where radioactive waste used as backfill

Court dismisses Lisa Speck's appeal over Elliot Lake homes built on 1960s uranium mine waste.

An appeals court has confirmed a ruling that said a mining company doesn’t have to remove uranium waste used as backfill in the construction of a home in Elliot Lake.

The homeowner, Lisa Speck, was appealing a 2024 decision by the Federal Court of Canada, which ruled the radioactive mine waste does not come under the jurisdiction of the Canadian Nuclear Safety Commission.

Speck and three other homeowners bought their homes in the 1990s without knowing the properties had been backfilled in the 1960s with material taken from a decommissioned mine site.

It turned out to be uranium mine waste that has deteriorated over the decades and released radium and radon, which can cause serious health risks. The four began a legal fight to have the mining company pay to remove the radioactive backfill.

The mine had been previously owned by Rio Algom but is now owned by BHP.

The judge in the 2024 decision sided with a 2023 report from the Canadian Nuclear Safety Commission, which said the radioactive material on the properties was not part of the “nuclear processing cycle” and was therefore outside of its jurisdiction.

Not under its mandate

In denying the cleanup request, the commission said that naturally occurring radiation, even if concentrated and relocated from a mine site, didn’t fall under its mandate.

Only Speck appealed the 2024 court decision, which was before the Federal Court of Appeal on Monday.

Speck’s counsel, including Jacqueline Wilson, argued that the Canadian Nuclear Safety Commission’s tribunal and federal court’s interpretation of Section 10 of the General Nuclear Safety Regulations was “unreasonable.”

Section 10 governs the commission’s mandate to regulate uranium mine waste.

“The volume of mine waste at Ms. Speck’s home is significant,” Wilson said, adding that the Atomic Energy Canada Ltd. totaled 18 truckloads at Speck’s home in Elliot Lake.

Naturally occurring radiation

Because the backfill on the property came from a mine, it should be covered under the CNSC mandate, Wilson argued, regardless of radiation levels.

The CNSC also concluded that the levels of radiation in the waste rock on Speck’s property were consistent with levels in the Elliot Lake region.

After presenting their case for an hour and a half, the three appeal judges returned from the morning break and said they had already rendered a decision and did not need to hear the opposing side.

“Effectively, this court steps into the shoes of the federal court and focuses on the administrative decision,” Justice George Locke read from the decision.

“While Ms. Speck asserts what may be a reasonable interpretation of Section 10 of the general regulations, our focus is on whether the CNSC’s interpretation was unreasonable,” he continued.

“Ms. Speck has not convinced us that it was … In our view, 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 parties had already agreed there would be no costs awarded in the case.

In a statement, the legal team for Speck said they were “disappointed by the decision.”

“The people living near uranium mine sites need to be protected from contaminated waste,” the statement said.

“Public health and safety should be the top priority of the regulator. We are disappointed by the Federal Court of Appeal decision.”