On February 19, 2025, the Federal Court released its decision in Kebaowek First Nation v Canadian Nuclear Laboratories (Kebaowek). Their decision provides a clear example of how the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is being integrated into Canadian law and decision-making processes.
Although the federal government passed the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDRIP Act) in 2021, there has been little judicial commentary about how exactly UNDRIP interacts with Canadian law until now.
Background
Kebaowek involved an application for judicial review of a Canadian Nuclear Safety Commission (CNSC) decision authorizing the construction of a Near Surface Disposal Facility (NSDF). The disposal facility was designed to store up to one million cubic meters of low-level nuclear waste at Canadian Nuclear Laboratories’ (CNL) existing Chalk River nuclear facility.
Kebaowek First Nation (Kebaowek) is one of 11 recognized Algonquin Anishinabeg Nations. In 2016, CNL began consultations with Kebaowek and the Algonquin Anishinabeg Nation Tribal Council (AANTC) regarding the NSDF. Kebaowek expressed concerns about both the consultation process and the adequacy of the environmental assessment process for the NSDF. Specifically, there was concerns about the lack of opportunities for meaningful consultation on how the NSDF would impact the environment and Kebaowek’s constitutionally protected Aboriginal and Treaty rights. Kebaowek was also concerned with their permanent exclusion from the CNL site.
The decision
This decision expands on existing case law regarding the duty to consult in an important way: courts and other decision makers must consider UNDRIP when assessing whether the Crown has met its duty to consult and accommodate Indigenous groups. The Court’s decision clarifies that UNDRIP requires more than simply maintaining the current status quo in Indigenous consultation.
The Court explained that the requirement to obtain free, prior and informed consent (FPIC) can be characterized as a right to a robust process, but emphasized that consultations must be informed by Indigenous perspectives and that decision makers need to respond to requests for procedural accommodations.
In this case, the Court found the CNSC erred by not considering UNDRIP when assessing whether the duty to consult and accommodate Kebaowek was met. The Near Surface Disposal Facility engaged Article 29.2 of UNDRIP, which states that hazardous materials should not be stored or disposed of on the lands and territories of Indigenous peoples without their free, prior and informed consent.
While the Court noted that UNDRIP does not provide a veto over decisions, it does provide added context to the duty to consult. The Court also emphasized that Treaty and Aboriginal rights must be interpreted in a broad and purposive manner and consultation needs to be meaningful and responsive to Indigenous perspectives.
The Court remitted the matter back to the CNSC for reconsideration in accordance with the Court’s reasons.
Key takeaways
The decision is clear that UNDRIP must be considered in assessing the adequacy of consultation, but what that means in practice is still up in the air. It will likely depend on the circumstance of each case and the impacts on the Aboriginal and Treaty rights at stake. It’s still the case that the level of consultation required in any given case is proportionate to the strength of the claim and the limitations of the claimed section 35 rights, which leaves open exactly where and how the articles of UNDRIP will be implemented in practice.
This decision opens the door for broader consideration and discussions about free, prior and informed consent, especially in the context of projects that affect the lands, territories, or other resources of Indigenous peoples. However, it is still the case that FPIC is not a veto over project approvals, since FPIC is subject to limitations in other articles of UNDRIP.
This decision also contrasts with the 2023 decision in Gitxaala v British Columbia (Chief Gold Commissioner), where the BC Supreme Court determined that UNDRIP was a non-binding instrument and did not create any substantive rights. See our previous article for more details. The Gitxaala decision is currently under appeal and the issues surrounding the implementation of UNDRIP will likely continue to make their way through the courts.
Going forward, decision-makers and the Crown will likely need to turn their minds toward FPIC standards, with emphasis on the need to be responsive to procedural requests and accommodations.
If you have questions about Treaty claims or 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.
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