Kebaowek First Nation v. Canadian Nuclear Laboratories, 2025 FC 319
In 2016, after years of delay, the Government of Canada finally affirmed its full and unqualified support of the United Nations Declaration on the Rights of Indigenous Peoples. Almost a decade later, much uncertainty remains as to what UNDRIP means for the rights of Indigenous peoples in Canada.
Last month, for the first time, the Federal Court directly addressed the role of UNDRIP in the context of the Crown's duty to consult. Below, we consider the implications of the decision for Indigenous people across the country.
What happened
In January 2024, the Canadian Nuclear Safety Commission approved an application authorizing Canadian Nuclear Laboratories to construct a nuclear waste disposal facility near the Ottawa River. The facility faced widespread opposition from local communities, non-profits, and the Bloc Québécois.
Kebaowek First Nation challenged the decision in Federal Court on the basis the Commission failed to apply UNDRIP as part of its consideration of the application.
What the Court said
The Federal Court held the Commission breached the Crown's constitutional obligations to Kebaowek by failing to consider UNDRIP, including the principle of free, prior and informed consent, in determining whether the duty to consult had been met.
The Court held that the principle of free, prior and informed consent did not give Kebaowek a veto over the decision-making process. It did, however, require the Commission to implement an enhanced approach to consultation which takes into account Kebaowek's laws, knowledge and processes, and which was is aimed at achieving mutual agreement.
The Court ordered the Commission and Canadian Nuclear Laboratories to resume consultation with Kebaowek in accordance with UNDRIP, and for the Commission to reconsider whether the duty to consult was fulfilled in light of the standard of free, prior and informed consent.
Why it's important
The decision marks a significant milestone in Kebaowek's fight to protect lands and waters from the risks of nuclear waste.
The Court's decision in Kebaowek also provides long-awaited insight into how Canadian courts will interpret the Crown's obligations under UNDRIP.
The decision clarifies that the adoption of UNDRIP into federal law gives rise to an enhanced obligation on the Crown when consulting Indigenous peoples about decisions which could affect their rights. Importantly, the obligation exists now – it is not dependent on future, yet-to-be-determined legislative amendments to bring Canadian laws into alignment with UNDRIP.
Unfortunately, the decision could also mark a serious step backwards for Indigenous peoples' efforts to ensure the Crown seeks and obtains their consent prior to decisions which affect their rights and territories.
Rather than affirming that UNDRIP requires the Crown to secure the consent of Indigenous peoples prior to decisions which could damage their rights or territories, the Court held that the free, prior and informed consent standard merely entitles Indigenous peoples to a more robust consultation process.
The Court also took pains to repeatedly note that the principle of free, prior and informed consent does not give rise to a "veto," even in the context of significant decisions which could have far-reaching repercussions on an Indigenous group's constitutionally protected rights.
Looking Ahead
The duty to consult has long been criticized as a box-checking exercise which fails to recognize or give effect to Indigenous peoples' jurisdiction and authority under their inherent laws.
Canada's endorsement of UNDRIP, and its subsequent adoption into domestic law, was heralded as providing a much-needed opportunity for Indigenous peoples to finally exercise meaningful decision-making authority under their own laws and governance processes.
By interpreting FPICas a right to an enhanced process, rather than a right to freely decide whether to reject or support a proposed activity, the Court in Kebaowek risks reducing UNDRIP to yet another hollow promise on the endless road to reconciliation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
