Monday, March 24, 2025

On February 19, 2025, the Federal Court released its decision in Kebaowek First Nation v Canadian Nuclear Laboratories, 2025 FC 319. This decision is an important victory for Indigenous groups seeking to assert that the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) should inform the duty to consult, while raising new questions about how UNDRIP should be applied, now that there seems to be growing judicial consensus about whether it should be applied. The Court held that UNDRIP is part of Canadian law and must be used to interpret Canadian law, including section 35 and the duty to consult, and that interpreting the duty to consult in light of UNDRIP requires robust, deep consultation that accounts for the Indigenous groups’ laws and aims to obtain consent. At the same time, the Court’s decision leaves some questions unanswered, which are ripe for future cases to address.

What is the case about?

Canadian Nuclear Laboratories (“CNL”) operates a nuclear research facility in Deep River, Ontario (the “Site”). Over the past 75 years, the Site has generated radioactive waste. CNL applied for regulatory approval to develop a Near Surface Disposal Facility (“Facility”) to permanently dispose of nuclear waste in what CNL says is a safe and secure manner. The Canadian Nuclear Safety Commission (the “Commission” when referring to the Tribunal, “CNSC” when referring to the organization) granted approval to the proposed Facility.

Kebaowek First Nation (“Kebaowek”) applied to judicially review and quash the Commission’s decision. Kebaowek argued that UNDRIP has been adopted into Canadian law through the federal United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14 (“UNDA”). As such, Kebaowek said:

• the Commission should have applied or considered UNDRIP when assessing whether the duty to consult and accommodate was met; and
• Kebaowek’s consent was required, based on UNDRIP, before the Commission could approve the Facility.

Kebaowek also argued it was unreasonable for the Commission to decide the proposed Facility was not likely to cause significant adverse environmental effects.

What did the Federal Court decide?

The Federal Court agreed with Kebaowek that the Commission should have determined if UNDRIP or the UNDA applied to the duty to consult.[1] By failing to do so – in particular, failing to consider the UNDRIP principle of free, prior and informed consent (“FPIC”) – the Commission erred in its duty to consult assessment.[2] This issue was remitted to the Commission with a specific instruction to consider UNDRIP and FPIC.[3] However, the Court found the Commission decision on the Facility’s impacts – that the Facility is not likely to cause significant adverse effects – was reasonable.[4]

Key parts of the decision

1.    UNDRIP is part of Canadian law, attracts the presumption of conformity, and should be used to interpret Canadian law, including section 35

The Court made helpful rulings about the application of UNDRIP in Canada, building on several recent decisions from other Canadian courts.

First, the Federal Court followed the Supreme Court of Canada’s decision in Reference Re An Act respecting First Nations, Inuit and Metis children, youth and families, 2024 SCC 5, in which the Supreme Court confirmed that the UNDA incorporates UNDRIP into Canadian law.[5] The Federal Court held that this means UNDRIP can be used to interpret Canadian law – as the Supreme Court recently did in Dickson v Vuntut Gwitchin First Nation.[6]

Notably, the Federal Court rejected the Commission’s argument that the UNDA only provides a framework for the implementation of UNDRIP, since neither the work to ensure consistency of laws, nor the development of an action plan (which are the primary substantive provisions of the UNDA), “are intended to delay the implementation of the UNDRIP into Canadian law”.[7] UNDRIP is part of Canadian law notwithstanding the fact that Canada may continue to work on ensuring consistency between legislation and UNDRIP.

The finding that UNDRIP is part of Canadian law, and nothing further is required to make it so, is an important development.

Second, the Court held that section 35 should be interpreted in a manner consistent with UNDRIP.[8] The Court held that the presumption of conformity applies to section 35, so that section 35 is presumed to conform with Canada’s international obligations, including UNDRIP.[9] That means that section 35 should be interpreted consistently with UNDRIP.

The Court’s finding on this point is consistent with existing law. The Supreme Court has used UNDRIP to interpret the Charter.[10] Further, UNDRIP – though not an international treaty[11] – enshrines pre-existing rights that have the status of customary international law and convention law.[12] Such customary international law and convention law norms attract the presumption of conformity.[13] Although the presumption of conformity has thus far only been applied to legislation and the Charter,[14] there is no principled reason not to extend the presumption to section 35, as Quebec courts have recognized.[15] Section 35 is a “sister provision” to the Charter.[16] Thus, section 35 should be presumed to confirm with UNDRIP.

The Court concluded that the Commission has authority to determine whether the duty to consult has been fulfilled, which includes consideration of UNDRIP. The Commission erred in finding that it did not have the jurisdiction to determine and apply UNDRIP.[17] This is a welcome confirmation that UNDRIP should be considered when Aboriginal or Treaty rights are at stake in Canada. While tribunals like the Commission have long had the power to assess whether the duty to consult and accommodate has been fulfilled when making their decisions, many of these tribunals have treated UNDRIP as an optional or inapplicable consideration. Going forward, this case will likely put that practice to rest, as it makes clear that tribunals with the authority to determine the adequacy of consultation will now have to ensure that UNDRIP and UNDRIP rights are considered as part of the s. 35 analysis.

Having said this, the Court here only considered UNDRIP as an interpretive tool, and found that UNDRIP does not create new law or statutory obligations.[18] This conclusion seems broader than was necessary to resolve the questions before the Court. Other courts may find that UNDRIP can create new law or statutory obligations. Indeed, the Supreme Court’s finding that UNDRIP has been “incorporated into” and “brought into” Canadian law suggests that UNDRIP can do something more substantial than only act as an interpretive tool.[19]

Further, the Federal Court’s conclusion does not address how certain UNDRIP rights have been recognized as customary international law norms, including peremptory norms (the highest form of customary international law), as discussed above. The Supreme Court of Canada has recognized that a breach of customary international law norms in other circumstances may ground a standalone claim.[20] The intersection of UNDRIP as implemented by the UNDA, and the status of certain UNDRIP rights as customary international law, remains to be worked out in future cases. It is not clear to us why pre-existing customary international law norms which UNDRIP recognizes and applies to Indigenous peoples should be subject to a different standard of implementation relative to other customary international law norms.

2.    UNDRIP and FPIC inform the scope and content of the duty to consult, and require deep consultation informed by the Indigenous group’s perspectives, traditions and laws, with the aim of consent 

The Court held that the duty to consult and accommodate must be informed by UNDRIP and FPIC, which require “robust consultation that is informed by Indigenous perspectives, laws, knowledge, and practices” and is “directed toward finding mutual agreement.”[21]

Here, the project fell within the scope of UNDRIP Art. 29(2), which requires that no storage or disposal of hazardous materials take place on Indigenous lands without FPIC.[22]

It is helpful to note that there are two different types of FPIC Articles in UNDRIP.

• First, there are permissive Articles, which provide that statues must consult with Indigenous groups in good faith “in order to obtain their free, prior and informed consent”.[23]
• Second, there are mandatory Articles, which provide in certain circumstances that states cannot engage in the conduct in question “without the free, prior and informed consent” of the Indigenous group.[24] These mandatory Articles require consent and do not even mention consultation. Article 29(2) is a mandatory Article, and directly applicable here, as it requires consent before storage or disposal of hazardous materials takes place in Indigenous lands.[25]

The Court explained that the duty to consult must always be interpreted in light of the state’s obligation to seek FPIC.[26] This is consistent with UNDRIP Art. 19, which was not at issue in this case. This Article requires the state to consult to obtain consent before implementing legislative or administrative measures that may affect Indigenous peoples.[27] Such broad wording conceivably captures all Crown conduct that would trigger the duty to consult. Thus, while the Court’s decision on this issue likely misinterpreted the mandatory obligations of Art. 29(2), it helpfully provided an expansive interpretation of Art. 19, which ought to inform how all Crown governments approach their duty to consult and accommodate going forward.

When the duty to consult is interpreted in light of UNDRIP and FPIC, it requires “robust”, “deep” consultation that is “directed towards finding mutual agreement.”[28] Further, the Crown must consider the Indigenous group’s “perspectives”, “customs, traditions, and laws” in carrying out consultation.[29] The Crown “must make reasonable efforts to alter their processes to build in aspects that respect Indigenous laws, knowledge, and processes.”[30] The Court’s latter finding is an important evolution of the law related to the duty to consult, moving away from decisions where courts have found that the consultation process is largely for the Crown to design.[31]

This is consistent with the Supreme Court’s recent recognition that the Indigenous perspective should guide remedies for breaches of the honour of the Crown.[32] In this case, the Commission and the CNSC’s refusal to modify their consultation processes to respond to Kebaowek’s requests for accommodation, such as by extending time for oral submissions and holding hearings in community, was inconsistent with UNDRIP, inadequate and unreasonable.[33]

This decision is an important explanation of how UNDRIP and FPIC affect the consultation process. Effectively, the consultation owed moves higher up along the Haida spectrum, requires consideration of the Indigenous group’s laws and requires efforts to obtain agreement.

The Court interpreted FPIC as requiring consultation with the aim – but not the requirement – of consent,[34] which is consistent with UNDRIP’s permissive Articles. But this case concerned the storage of hazardous materials. In such cases, the mandatory language in UNDRIP Art. 29(2) requires more: that “no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent”.[35] The Court did not acknowledge that the FPIC requirement in Art. 29(2) requires the actual consent of the affected Indigenous peoples, not just an attempt to obtain that consent. Whether this was an intentional conflation of the two standards, or an interpretive error, remains to be seen.

The Court also explained that “FPIC is not a veto”,[36] but did so without distinguishing between the two FPIC standards in UNDRIP and the mandatory language in Art. 29(2), and without acknowledging the nuances in the s. 35 duty to consult caselaw between consent and veto. The Supreme Court has acknowledged that the s. 35 duty to consult may require consent in some circumstances, while still being clear that the duty to consult does not entail a veto right.[37]

Scholars and international legal commentators have explained that consent and veto are distinct concepts. A veto power is an absolute power to unilaterally prohibit or impede all proposals based on whatever justification or no justification,[38] whereas the choice by Indigenous communities to withhold consent, while always available, is only accompanied by a power to prevent a project from proceeding in very limited circumstances.[39] UNDRIP may protect the latter – a right to consent in limited circumstances – but not the former. Thus, FPIC may not be a veto, but it may require consent in some circumstances. These nuances remain to be worked in future cases.

It remains to be seen what sort of process will be considered adequate against this new UNDRIP-informed consultation standard, if an Indigenous group like Kebaowek does not ultimately agree with the project.

3.    Continued shortfalls in the duty to consult doctrine generally

Despite finding that the “Commission’s approach to consultation was flawed”,[40] the Court still upheld the Commission’s finding that the proposed Facility is not likely to cause significant adverse environmental effects.[41]  In doing so, the Court’s decision reflects two familiar difficulties in duty to consult cases.  

First, the Court confirmed that the Commission may allow a project to go forward, even if key mitigation measures are not yet developed and have not been consulted on. In this case, CNL promised that their forest management plan would offset the deforestation resulting from the Facility’s construction. The forest management plan was still under development and neither Kebaowek nor the Commission had seen a copy of the plan. Yet the Court said it was reasonable for the Commission to rely on CNL’s promise of a forest management plan.[42]

Granting regulatory approvals based on future, unknown mitigation measures seems inconsistent with the purpose and nature of consultation. Consultation requires analyzing a project’s impact on section 35 rights, in order to protect those rights pending settlement. It is also a fundamental principle of the duty to consult that “the consultative inquiry is not properly into environmental effects per se. Rather, it inquires into the impact on the right.”[43] It is difficult to understand how the analysis can be complete when the proponent and the decision maker lack the details of asserted impacts to rights and key mitigation measures to address those impacts.

The Court seemed unconcerned about mitigation measures, in large part because the Site had been restricted and developed over many years.[44] Since Kebaowek cannot physically exercise rights in the Facility area, the Court found it was reasonable for the Commission to conclude the Facility would not adversely impact Kebaowek’s rights. The Court seemed to believe any adverse impacts on Kebaowek’s rights are a result of “the original taking of the lands” in the 1940s, rather than the proposed Facility.[45]

This reflects the second familiar difficulty in duty to consult cases for long-established projects, like mines or dams: the baseline for assessing impacts to rights may assume (and thus implicitly perpetuate) the historic exclusion of Indigenous people. Absent government or industry goodwill, this approach often leaves First Nations to bear the heavy burden of proving their rights in court before they can participate in decisions that affect their territory or their rights.

Here, the Court missed an opportunity to consider how UNDRIP may affect not only the process of consultation, but also the trigger and focus of the consultation. As noted above, UNDRIP’s Article 29(2) requires FPIC before any storage or disposal of hazardous materials on Indigenous lands. It does not require an Indigenous Nation to point to new, novel impacts of the hazardous waste storage to trigger consultation or consent, and it does not indicate that only novel impacts can be the focus of consultation or consent. In this case, the parties accepted that the duty to consult was triggered, but disagreed about the focus of consultation. It remains to be seen whether applying UNDRIP to s. 35 and the duty to consult can impact when the duty is triggered, when the parties do not agree that the duty is triggered. It also remains to be seen the extent to which applying UNDRIP to s. 35 and the duty to consult can shift the focus of consultation.

Consultation Failures by the Canadian Nuclear Safety Commission in particular

The Court had strong words for the Canadian Nuclear Safety Commission and its approach to consultation. The Commission was faulted for unreasonably restricting itself from considering UNDRIP in its decision-making.[46] The Commission has frequently taken the position that “as a creature of statute, [the Commission] is not empowered to determine how to implement UNDRIP in Canadian law.”[47] Yet as the Court pointed out, it has been uncontroversial for over 20 years now that administrative tribunals like the Commission can determine constitutional and legal questions relevant to the decisions before them.[48]

In applying UNDRIP to the duty to consult, the Court provided additional guidance as to how the Commission fulfills the Crown’s duty, by noting that “the Commission ought to have considered the consultation process from the Indigenous rights holders’ point of view. In other words, it would have been prudent for the Commission to have modified their consultation processes in a manner that addressed some of Kebaowek’s requests and suggestions.”[49]

Going forward, First Nations with rights that may be adversely affected by CNSC decisions may rely on this case to ensure that the Commission’s processes better accommodate First Nations’ procedural concerns.

4.    Uncertainty regarding the proposed Facility’s future

The Court’s approval of the Commission’s reasoning on the lack of adverse impacts, in addition to its comments on UNDRIP, result in a puzzling outcome. The Court did not explicitly quash the Commission’s approval decision. Rather, the Court imposed a “limited remedy” that:

• CNL and the CNSC must resume consultation with Kebaowek, “with a view to implementing the UNDRIP FPIC standard”, to be completed by September 30, 2026; and
• following this consultation process, the Commission must reconsider if the duty to consult and accommodated in this case was fulfilled, considering the principles in UNDRIP “and in particular, the FPIC standard”.

It is not clear how the Court-ordered consultation process may impact the proposed Facility’s approval. For consultation to be meaningful, the outcome cannot be pre-determined.[50] Hopefully, CNL and CNSC staff take the Court’s judgment seriously, and engage with Kebaowek with an open mind, with an aim to agreement. If this further consultation reveals new information regarding the Facility’s impacts, CNL and the CNSC should be required to show how they addressed these concerns. Practically speaking, however, it is difficult to imagine the Commission changing its findings on the Facility’s impacts, given the Court has already upheld these findings as reasonable.

5.    Beware of rights-holder issues

At a few points in the decision, the Court appears to have made a finding that section 35 rights asserted by Kebaowek “are held by the Algonquin Nation as a whole”.[51] It is not clear that the identity of the rights holder was a live issue before the Court (or the Commission, for that matter), and it is not clear that the parties made submissions or adduced evidence on the issue. As such, and given the absence of 10 of the 11 Algonquin First Nations from the proceedings, the Court’s finding that the Algonquin Nation was the section 35 rights holder in this case is likely obiter.

[1] Kebaowek First Nation v Canadian Nuclear Laboratories, 2025 FC 319, para 226 (“Kebaowek”). It is not clear from the decision, or the publicly available application materials, why the proponent was the respondent to the application for judicial review, and not the decision maker.

[2] Kebaowek, para 227.

[3] Kebaowek, para 229.

[4] Kebaowek, para 228.

[5] Kebaowek, paras 78-80, citing Reference re An Act respecting First Nations, Inuit and Metis children, youth and families, 2024 SCC 5, paras 4, 15 (“C92 Reference”).

[6] Kebaowek, para 80. See Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10, para 117, per Kasirer and Jamal JJ (majority).

[7] Kebaowek, para 79.

[8] Kebaowek, paras 81-82.

[9] Kebaowek, paras 84-85.

[10] Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10, para 117, per Kasirer and Jamal JJ (majority).

[11] In this analysis, the Court at times referred to UNDRIP as an “international agreement” or an “[i]nternational convention”: Kebaowek, paras 85, 98. Despite the Court’s language on this point, UNDRIP is not an international treaty, as the Supreme Court recognized in the C92 Reference, para 4; see also Kebaowek, para 78. It is a Declaration of the United Nations General Assembly, which Canada endorsed without qualification in 2016: Kebaowek, para 75.

[12] See Brenda L. Gunn, “Legislation and Beyond: Implementing and Interpreting the UN Declaration on the Rights of Indigenous Peoples”, 2020 53:4 UBC Law Review 1065 at 1075-1078; Naomi S. Walqwan Metallic, “Breathing Life into Our Living Tree and Strengthening our Constitutional Roots: The Promise of the United Nations Declaration on the Rights of Indigenous Peoples Act”, in Richard Alpert et al., eds, Rewriting the Canadian Constitution, 2022 [forthcoming], at 8-9, 14-15, 19. For a discussion on the connections between the rights to self-determination and lands and property, the FPIC, see Kebaowek, para 96.

[13] R v Hape, 2007 SCC 26, para 53.

[14] R v Hape, 2007 SCC 26, paras 53-56.

[15] Kebaowek, para 84, citing Renvoi a la Cour d’appel du Quebec relative a la Loi concernant les enfants, les jeunes et les families des Premieres Nations, des Inuits et des Metis, 2022 QCCA 185, para 509, affirmed in part on other grounds, C92 Reference; see also R c Montour, 2023 QCCS 4154, para 1175.

[16] Tsilhqot’in Nation v British Columbia, 2014 SCC 44, para 142.

[17] Kebaowek, paras 70, 86.

[18] Kebaowek, para 80.

[19] C92 Reference, paras 4, 15; Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10, para 117, per Kasirer and Jamal JJ (majority).

[20] Nevsun Resources Ltd v Araya, 2020 SCC 5.

[21] Kebaowek, paras 177, 130, 133.

[22] Kebaowek, para 130

[23] United Nations Declaration on the Rights of Indigenous Peoples, Article 19 [“UNDRIP”].

[24] E.g., UNDRIP, Arts. 10, 29(2).

[25] UNDRIP, Art. 29(2).

[26] Kebaowek, para 177

[27] E.g., UNDRIP, Art. 19.

[28] Kebaowek, paras 130, 133, 183.

[29] Kebaowek, paras 133, 138-139, 183.

[30] Kebaowek, paras 140, 183.

[31] See, e.g., Tsleil-Waututh Nation v Canada (Attorney General), 2018 FCA 153, para 516.

[32] Quebec (Attorney General) v Pekuakamiulnuatsh Takuhikan, 2024 SCC 39, para 211.

[33] Kebaowek, paras 138-140, 183, 217.

[34] Kebaowek, paras 122, 131.

[35] UNDRIP, Art 29(2).

[36] Kebaowek, paras 62, 96-97, 119, 122, 131, 183, 222

[37] Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73, para 48; Tsilqot’in Nation v British Columbia, 2014 SCC 44, para 76.

[38] Shin Imai, “Consult, Consent, and Veto: International Norms and Canadian Treaties” in John Borrows, Michael Coyle eds. The Right Relationship: Reimagining the Implementation of Historical Treaties 370 at 386-387, citing the UN Special Rapporteur on the Rights of Indigenous Peoples.

[39] See e.g. Asia Pacific Forum and United Nations Human Rights Office of the High Commissioner, “The United Nations Declaration on the Rights of Indigenous Peoples: A Manual for National Human Rights Institutions” (UN Doc HR/PUB/13/2) (2013).

[40] Kebaowek, para 183.

[41] Kebaowek, para 212.

[42] Kebaowek, paras 4, 184, 194-199.

[43] Clyde River (Hamlet) v Petroleum Geo‑Services Inc., 2017 SCC 40, para 45 (emphasis in original).

[44] Kebaowek, para 174.

[45] Kebaowek, para 209.

[46] Kebaowek, para 70.

[47] “Record of Decision: Application to amend the Nuclear Research and Test Establishment Operating Licence for the Chalk River Laboratories site to authorize the construction of a Near Surface Disposal Facility”, Canadian Nuclear Safety Commission, January 8, 2024 (DEC 22-H7), para 432.

[48] Kebaowek, paras 66-67.

[49] Kebaowek, para 138.

[50] Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69, para 54.

[51] See Kebaowek, para 154.