In Kebaowek First Nation v. Canadian Nuclear Laboratories, 2025 FC 319 (“Kebaowek”), Kebaowek First Nation challenged the Canadian Nuclear Safety Commission’s (the “Commission”) decision to allow Canadian Nuclear Laboratories Ltd.’s (“CNL”) application to amend their operating licence for the Chalk River Laboratories site to authorize the construction of a near surface disposal facility on the site.
The site is located within Kebaowek’s traditional territory. Among other reasons, Kebaowek asked the court to quash the Commission’s decision because the Commission erred in law by declining to apply the United Nations Declaration on the Right of Indigenous Peoples (“UNDRIP”) to the decision or consider UNDRIP as a factor informing the Commission’s duty to consult and accommodation obligations.
Kebaowek argued that the United Nations Declaration on the Rights of Indigenous Peoples Act, S.C. 2021, c. 14 (“UNDA”) adopted UNDRIP into domestic law. As a result, Kebaowek submitted to the Court that the Commission was required to obtain Kebaowek’s free, prior and informed (“FPIC”) consent pursuant to UNDRIP prior to allowing the construction of the waste facility, and to consult Kebaowek at a deep level, as informed by UNDRIP and UNDA, in order for the Commission to fulfill its duty to consult and accommodation obligations. Kebaowek asked the court to quash and remit the matter to the Commission for further consultation and consideration.
CNL argued that the Commission had considered the application of UNDRIP and UNDA, but ultimately found that it did not have the authority to determine how to implement UNDRIP in Canadian law. As such, in determining the scope and content of the duty to consult applicable in this case, the Commission found that it had to apply the legal framework developed in the common law. The Commission concluded that the proposed amendment to NCL’s licence to allow the construction of a nuclear waste facility would not adversely impact any of Kebaowek’s asserted or established section 35 rights, and that the duty to consult owed to Kebaowek had been fulfilled.
This is the first time the Federal Court of Canada has interpreted the role of UNDRIP and UNDA within the duty to consult and accommodation framework. Justice Blackstock first noted that Kebaowek’s application tested “our commitment as Canadians to reconciliation” and Canada’s “commitments to implement the principles set out in” UNDRIP, including FPIC. Then, Justice Blackstock offered the following guidance on the application of UNDRIP in Canadian law:
- UNDRIP can be relied on to interpret Canadian law and to determine if the Crown has fulfilled its legal obligations, but it does not create new law or statutory obligations;
- as the Supreme Court of Canada noted in Reference re An Act respecting First Nations, Inuit and Metis children, youth and families, 2024 SCC 5, UNDA is the legislative measure that provides a framework for the implementation of UNDRIP but is not a source of rights;
- decision makers must consider how UNDRIP may impact the interpretation of Canadian laws, including the fulfillment of the duty to consult;
- the well-established principle that Canadian law is presumed to conform with international law applies so that the interpretation of section 35 of the Constitution Act, 1982 must be done in a manner that conforms with international law, including UNDRIP;
- the duty to consult and accommodate must be informed by UNDRIP and the principles of FPIC, “which require robust consultation that is informed by Indigenous perspectives, laws, knowledge, and practices”;
- with the adoption of UNDRIP into Canadian law, the Crown’s duty to consult requires more than what was required under the common law; and
- FPIC is a right to a robust process, but it is not a veto or a right to a particular outcome.
Ultimately, the Court concluded that the Commission had incorrectly determined that it had no jurisdiction to determine if UNDRIP or UNDA applied to the duty to consult and accommodate. Because of this incorrect finding, the Commission erred in its assessment of the content of the duty to consult and accommodate Kebaowek in respect of the proposed decision. Justice Blackstock remitted the matter to the Commission, with directions to consider UNDRIP and FPIC.
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