On October 16, 2026, the Federal Court of Appeal released its decision in Canadian Nuclear Laboratories Ltd. v. Kebaowek First Nation, 2026 FCA 174. The Court allowed Canadian Nuclear Laboratories’ appeal of a Federal Court judicial review decision, effectively upholding a 2024 Canadian Nuclear Safety Commission decision to approve the construction of a nuclear waste landfill on the Chalk River Laboratories site, a nuclear research facility in Deep River, Ontario. Kebaowek First Nation challenged the approval by way of a judicial review in the Federal Court. The site lies within Kebaowek’s traditional territory and is next to its Aboriginal title claim area.
This decision reverses a 2025 Federal Court ruling that had been widely seen as a major step forward for the application of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Canadian law. The Federal Court held that courts and other decision makers must consider UNDRIP when assessing whether the Crown has met its duty to consult and accommodate. Our previous Insight provides additional details on the Federal Court’s decision.
In reversing the 2025 Federal Court decision, the Federal Court of Appeal ruled that the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDA) does not immediately implement UNDRIP’s articles into Canadian law. Rather, the Court determined that UNDA provides a framework for the future implementation of UNDRIP. The Court also determined that the Commission did not have responsibility for ensuring the consistency of Federal laws with UNDRIP in deciding whether to approve the project. This obligation falls on the Federal government, rather than on individual tribunals making regulatory decisions. While regulatory tribunals may still need to consider whether the Crown has fulfilled its duty to consult and accommodate Indigenous Peoples before making approval decisions, the Federal Court of Appeal’s decision indicates that UNDRIP is not a factor in the analysis of whether the duty to consult is met.
The issue of UNDRIP’s application in Canada is currently before the Supreme Court of Canada following an appeal of the BC Court of Appeal’s decision in Gitxaala v. British Columbia (Chief Gold Commissioner) (Gitxaala), which ruled that the Declaration on the Rights of Indigenous Peoples Act (DRIPA) incorporates UNDRIP into the positive law of British Columbia with immediate legal effect. The appeal is likely to be heard in 2027 and will provide the Supreme Court with an opportunity to provide further clarity on the status of UNDRIP and its implementation in Canadian law. Kebaowek has been granted leave to intervene in the Gitxaala appeal.
MLT Aikins is continuing to monitor developments related to the implementation of UNDRIP in Canada. If you would like to discuss the impacts of this decision on you and your organization, please contact a member of our Indigenous practice group.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.
Share
