UNDRIP’s Promise Deferred: The Federal Court of Appeal Overturns Federal Court in Kebaowek

By Louise Kyle, Lara Koerner-Yeo, Isabelle Boisvert-Chastenay, October 19th, 2026

Introduction

What does Canada’s commitment to implementing the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) mean if it does not change how Crown decisions affecting Indigenous peoples’ rights and territories are made? The Federal Court of Appeal’s decision in Kebaowek brings the gap between legislative recognition and practical protection into sharp focus.

This preliminary summary is the first in a series about the Federal Court of Appeal’s decision.

As shared in our previous post, the Federal Court’s decision in Kebaowek First Nation v Canadian Nuclear Laboratories, 2025 FC 319, recognized UNDRIP, as incorporated by the United Nations Declaration on the Rights of Indigenous Peoples Act[1] (“UNDA”), as an interpretive lens informing the duty to consult and accommodate. The Court held that the Canadian Nuclear Safety Commission (the “Commission”) had erred by failing to consider UNDRIP and the standard of free, prior and informed consent when assessing the adequacy of consultation in its administrative decision-making.

The Federal Court required the Commission to reconsider consultation through the interpretive lens of UNDRIP. Its decision gave concrete significance to Canada’s legislative commitments: UNDRIP must inform the assessment of whether the Crown had fulfilled its obligations to Kebaowek.

Canadian Nuclear Laboratories appealed, and the Federal Court of Appeal released its decision[2] today.

The Federal Court of Appeal’s Decision

On October 16, 2026, writing for a unanimous panel, Justice Webb found that the Commission did not err in finding that it “is not empowered to determine how to implement UNDRIP in Canadian law and must be guided by the current law on the duty to consult”.[3] The Federal Court of Appeal allowed the appeal, set aside the Federal Court’s judgment and dismissed Kebaowek’s application for judicial review.[4] The Court also dismissed Kebaowek’s cross-appeal.[5]

According to the Federal Court of Appeal, the central issue was the interpretation of UNDA including whether the various articles of UNDRIP have been implemented or the Commission had the authority to implement them.[6] The Federal Court of Appeal determined that the interpretation of the UNDA is a general question of law of central importance to the legal system as a whole and, therefore, applied the standard of review of correctness.

The Court organized its analysis around three questions:[7]

a general overview of the duty to consult and accommodate, which the Commission determined had been satisfied;
an interpretation of the UNDA to determine how it applies and, in particular, whether Article 29(2) has been implemented (and therefore would be engaged); and
a determination of whether the Commission is the Government of Canada for the purposes of section 5 of the UNDA.

The duty to consult and accommodate

The Court did not question that consultation was required.[8] The Commission acknowledged that it had a duty to consult with Indigenous Nations and communities, including Kebaowek.[9] The Commission applied the “existing” Haida consultation framework, emphasizing that the content of consultation depends on the strength of the asserted rights and the seriousness of the potential adverse effects.[10]

In this matter, the Federal Court of Appeal placed the duty at the low end of the spectrum, relying on the absence of an Aboriginal title claim covering the project site and the Federal Court’s findings concerning the absence of new adverse impacts beyond those associated with the original taking of the lands for nuclear development in the 1940s.[11]

This reasoning is particularly troubling given the site’s history and the permanent changes to the lands now being contemplated. Lands were taken for nuclear development without consultation, and the resulting damage has prevented Indigenous peoples from using them for generations. Relying on that history to support a lower level of consultation today risks allowing the consequences of past dispossession to diminish the protections available against present-day decisions.

Does UNDA implement Article 29(2) of UNDRIP?

The Federal Court of Appeal considered whether UNDA implemented UNDRIP’s articles into Canadian law or instead established a process for their future implementation.

The analysis focused on Article 29(2) of UNDRIP, which specifically addresses the storage or disposal of hazardous materials:

2. States shall take effective measures to ensure 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.

The Court treated the implementation question as applying equally to Article 32(2), which addresses consultation and cooperation to obtain consent before approving projects affecting Indigenous lands and resources.[12]

Reading UNDA’s text, context, and purpose, the Court concluded that UNDA provides a framework for implementation rather than implementing UNDRIP’s articles into Canda’s laws now.[13] It acknowledged the Supreme Court of Canada’s statement in the Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 (the “Bill C-92 Reference”), that UNDRIP had been incorporated into Canada’s positive law.[14] Nevertheless, the Court ultimately concluded that UNDA does not implement UNDRIP articles domestically and therefore does not incorporate UNDRIP into federal law.[15]

The Court also considered the British Columbia Court of Appeal’s decision in Gitxaala v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430, which addressed substantially similar provincial legislation. In Gitxaala, the Court of Appeal recognized UNDRIP’s incorporation into British Columbia’s positive law and declared that the establishment of an automatic mineral claims registration system without prior consultation and cooperation was inconsistent with Article 32(2).[16] The Federal Court of Appeal distinguished the analysis concerning British Columbia’s express statutory requirement that provincial enactments be interpreted consistently with UNDRIP, emphasizing that the federal Interpretation Act contains no equivalent provision.[17]

The Federal Court of Appeal concluded that “the UNDA does not immediately implement the articles as set out in UNDRIP but rather provides a framework for the implementation of the various articles as set out in UNDRIP and sets out a process for the resolution of inconsistencies between UNDRIP and the laws of Canada, which may include the federal common law”.[18]

Is the Commission the Government of Canada for the purposes of section 5 of the UNDA?

The Court also held that the Commission, when deciding whether to authorize this project, was not the “Government of Canada” for the purposes of section 5 of UNDA.[19]

Although the Court accepted that the Commission’s decisions can constitute Crown conduct triggering the constitutional duty to consult and that previous case law from the Supreme Court of Canada has highlighted the interchangeable nature of “government action” and “Crown conduct”, the Court held that this did not necessarily bring the Commission within section 5’s implementation obligation.[20]

The result is a problematic accountability gap. The Commission can exercise statutory authority to authorize a project, and its decision can constitute Crown conduct for the purposes of consultation, yet it falls outside the UNDRIP implementation obligation imposed on the “Government of Canada”.

UNDRIP is not a binding treaty in Canada

Relying on the Bill C-92 Reference, the Court noted that:

“UNDRIP is not binding as a treaty in Canada and therefore, as a UN general assembly resolution, would not be an international obligation to which Canada has agreed. Furthermore, since the UNDA did not immediately implement the articles of UNDRIP into Canadian law and since the Commission is not the Government of Canada for the purposes of resolving any inconsistency between UNDRIP and the laws of Canada, there is no obligation on the Commission to implement UNDRIP in the course of deciding whether to approve the construction of the project”.[21]

UNDRIP and Indigenous Lands: Questions Left Open

The Court made additional observations about Article 29(2), which addresses the storage or disposal of hazardous materials on Indigenous peoples’ lands or territories without their free, prior and informed consent.[22]

It questioned whether that provision would apply to the Chalk River site, given the historical taking of the lands, and discussed its relationship with Article 28’s provisions concerning redress for lands taken without consent. It raised similar questions about Article 32(2).[23]

These observations should be distinguished from the Court’s conclusions on UNDA. The Court did not finally determine the meaning of Indigenous “lands or territories” under these articles or decide a claim for compensation. Nevertheless, its discussion raises consequential questions about the relationship between historical dispossession and the protections recognized by UNDRIP.

The suggestion that the historical taking of lands could limit the application of UNDRIP’s consent protections is especially concerning. It risks allowing the very dispossession that UNDRIP seeks to address to become a reason for limiting its protections.

What Does This Mean for Indigenous Nations?

The decision significantly limits reliance on UNDA as a basis for requiring federal regulators to apply additional UNDRIP-based consultation obligations in individual project approvals. It reveals a serious and alarming gap between Canada’s legislative commitment to implementing UNDRIP and the enforceable obligations governing decisions that affect Indigenous peoples’ rights and territories.

Future posts in this series will further unpack the Federal Court of Appeal’s decision and its implications.

[1] SC 2021, c. 14.

[2] Canadian Nuclear Laboratories v Kebaowek First Nation, 2026 FCA 174.

[3] Para 116.

[4] Para 117.

[5] Para 117.

[6] Para 37.

[7] Para 43.

[8] Para 4.

[9] Para 4, 18.

[10] Paras 19.

[11] Paras 47-52.