Introduction
On February 19, 2025, the Federal Court released an important decision (Kebaowek First Nation v Canadian Nuclear Laboratories[1]) regarding Canada’s commitments under the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) in carrying out its duty to consult. This decision represents the first time a Canadian Court considered how UNDRIP should be used to interpret Canadian laws and fulfill constitutional obligations including rights under section 35 of the Constitution Act, 1982 and the duty to consult and accommodate.
Summary of the Decision
Kebaowek First Nation brought an application for judicial review challenging the Canadian Nuclear Safety Commission’s decision to grant Canadian Nuclear Laboratories Ltd. an amendment to their Licence at the Chalk River Laboratories site that would authorize the construction of a Near Surface Disposal Facility.
The Court granted the application in part, concluding that the Canadian Nuclear Safety Commission (the “Commission”) made two errors of law. First, the Commission incorrectly determined that it had no jurisdiction to determine whether UNDRIP or the UN Declaration on the Rights of Indigenous Peoples Act (“UNDA”)[2] applied the duty to consult and accommodate. Second, the Commission erred in law by failing to consider UNDRIP and the free, prior, and informed consent standard when assessing whether the Crown fulfilled its duty to consult and accommodate.
The Court remitted the matter back to the Commission to address the jurisdictional question and reassess the fulfilment of the duty to consult and accommodate, instructing the Commission to apply UNDRIP as an interpretive framework in making that reassessment.
Contrast with Gitxaala Case
The outcome of the Kebaowek case contrasts with the decision in the 2023 BC Supreme Court Gitxaala case, where the BC Supreme Court found that the BC Declaration on the Rights of Indigenous Peoples Act (“DRIPA”) does not implement UNDRIP into the province’s domestic law and DRIPA does not create justiciable rights.[3] In Gitxaala, the issue was whether the provincial mineral tenure system was consistent with UNDRIP and DRIPA. In Kebaowek, the issue is not conformity of laws but instead, whether UNDRIP is part of the laws of Canada such that it can be used to interpret the scope of the duty to consult and accommodate.
Gitxaala appealed on the UNDRIP point and the appeal was heard in late January 2025.
Key Takeaways
The Kebaowek decision underscores several key points:
- Jurisdictional Authority: the Canadian Nuclear Safety Commission has the jurisdiction to consider UNDRIP and UNDA in its decision-making processes.
- Interpretive Lens: UNDRIP serves as an important interpretive lens informing Canadian law, including constitutional obligations such as the scope and content of the duty to consult and accommodate.
- Duty to Consult and Accommodate: UNDRIP has enhanced the Crown’s s. 35 obligation to consult and accommodate with Indigenous rights-holders, now requiring “more” than s. 35 common law obligations. It requires a more robust consultation process that aligns with Indigenous laws, knowledge, and practices, and has the objective of reaching an agreement.
- Free, Prior, and Informed Consent: the objective of consultation in Canada is consent. UNDRIP’s free, prior, and informed consent standard is not a veto or absolute power, but is tied to Indigenous peoples’ right of self-determination and international human rights related to property, cultural, and non-discriminatory rights.
- Immediate Application of UNDRIP: the application of UNDRIP in Canadian law need not wait for implementation through the Action Plan but has been incorporated into the country’s positive law and is an interpretive lens to use immediately.
- Reconciliation Framework: The decision reinforces the role of UNDRIP as a framework for reconciliation, emphasizing the need for meaningful engagement with Indigenous communities.
Next Steps
Canadian Nuclear and the CNSC are directed to resume consultation with Kebaowek, incorporating the principles of UNDRIP and the free, prior, and informed consent standard into their processes. This renewed consultation process is to be completed by September 30, 2026. JFK Law will be assisting Kebaowek throughout this process.
Where do we go from here?
The Kebaowek decision has clear significant utility in cases involving the duty to consult and accommodate. JFK lawyers are also considering ways to use the case in various types of negotiations with Crown and non-Crown actors as well as in dispute resolution and litigation environments before all manner of tribunals and courts.
Conclusion
The Kebaowek case represents an important inflection point in the implementation of Indigenous rights and integration of international human rights standards into Canadian law. It establishes a precedent for realizing UNDRIP as a framework for reconciliation and a foundation for more robust consultation processes. Kebaowek was represented by Robert Janes, KC, Lara Koerner-Yeo, and Louise Kyle.
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[1] 2025 FC 319 [Kebaowek].
[3] Gitxaala v British Columbia (Chief Gold Commissioner), 2023 BCSC 1680 [Gitxaala] at para 432.