Kebaowek: Federal Court of Appeal weighs in on UNDRIP and the duty to consult

Must the Canadian Nuclear Safety Commission (the Commission) implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) when deciding whether the Crown has discharged its duty to consult Indigenous Peoples? The Federal Court of Appeal (FCA) concluded that, no, the Commission was not required to do so in connection with licensing a nuclear waste disposal facility. The FCA held that federal legislation pertaining to UNDRIP—the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDA)—provides a framework for the future steps to implement UNDRIP, rather than implementing its articles into federal law immediately. The FCA held that the responsibility for aligning federal law with UNDRIP rests with the Government of Canada, not the Commission.

What you need to know

• Dispute regarding consultation for near surface disposal facility. The Commission approved the construction of a near surface disposal facility for low-level radioactive waste. Kebaowek First Nation (KFN) challenged the decision, and the Federal Court determined that the Commission had erred by failing to assess the adequacy of the Crown’s consultation in light of UNDRIP. On appeal, the FCA set aside the Federal Court’s judgment and dismissed the challenge to the Commission’s approval.
• UNDA does not itself implement UNDRIP. The FCA held that UNDA provides a framework for the future implementation of UNDRIP into federal law, and a process for resolving inconsistencies with federal law. But it does not, itself, implement UNDRIP’s articles into federal law. This includes UNDRIP’s articles regarding free, prior, and informed consent (FPIC).
• Responsibility for aligning laws with UNDRIP rests with the Government of Canada. Under UNDA, an inconsistency between UNDRIP and Canadian law triggers the Government of Canada’s obligation to take action to resolve the inconsistency. Noting the Commission’s much narrower mandate, the FCA held that the Commission is not the “Government of Canada” under UNDA. Thus, the Commission was not responsible for implementing UNDRIP in its decision-making.
• The duty to consult framework continues to apply and more guidance is expected. The FCA’s decision means that federal decision-makers that are not the “Government of Canada” under UNDA are not required to apply UNDRIP when considering whether the duty to consult has been discharged. But the FCA did not provide an exhaustive definition of “Government of Canada”, and the Supreme Court of Canada is set to weigh in on the application of UNDRIP in Canada based on similar British Columbia UNDRIP implementation legislation in the upcoming Gitxaala appeal, which is expected to be heard in 2027.

Background

The underlying case addressed a licence amendment to develop a near surface disposal facility for low-level nuclear waste at Chalk River Laboratories, a site used for nuclear science and related activities for over 75 years. In its decision, the Commission determined that the Crown’s duty to consult potentially affected Indigenous communities had been discharged. Kebaowek First Nation (KFN) and other Indigenous participants argued that the Commission was required to apply UNDRIP in making this decision, but the Commission disagreed. It explained that, “while the jurisprudence on the legal effect of [UNDA] will surely develop over time, the Commission, as a creature of statute, is not empowered to determine how to implement UNDRIP in Canadian law”¹.

KFN sought judicial review of the decision on the basis that the Commission failed to apply UNDRIP.

In Kebaowek First Nation v. CNL², the Federal Court agreed with KFN. It held that UNDRIP was incorporated into Canada's positive legal framework through UNDA, and operates as a mandatory "interpretive lens" and contextual factor in the analysis of section 35 rights and the duty to consult. The Federal Court described UNDRIP as a "framework for reconciliation". It held that, although FPIC is not a veto or a right to a particular outcome, in the context of the proposed facility, “a deep level of consultation and negotiations geared toward a mutually accepted arrangement” was required. Though the Federal Court agreed with the Commission that the facility would not impact Aboriginal or Treaty rights, as site access has been restricted since the 1940s and no new or novel impacts have been raised, the Federal Court directed CNL and Commission staff to resume consultation with KFN with a view to considering the FPIC standard.

Federal Court of Appeal: Commission not required to implement UNDRIP

The FCA overturned the Federal Court’s decision, concluding that the Commission had not erred in declining to consider how UNDA and UNDRIP apply to the duty to consult³.

The FCA held that while UNDRIP has application in Canadian law, UNDA does not immediately implement the articles set out in UNDRIP. Rather, it provides a framework to implement UNDRIP and a process for the resolution of inconsistencies between UNDRIP and the laws of Canada. In reaching this view, the FCA looked to the structure of UNDA itself: one of its stated purposes is to provide a framework for the Government of Canada’s implementation of UNDRIP, which would be unnecessary if UNDA had already implemented UNDRIP. The FCA also noted that, unlike statutes that implement international treaties, UNDA contains no clause providing that UNDRIP prevails over conflicting Canadian law.

The FCA acknowledged that UNDA requires the “Government of Canada” to take all measures necessary to ensure that the laws of Canada are consistent with UNDRIP, but found that the Commission is not the “Government of Canada” when it is acting in its administrative capacity to approve the construction of a near surface disposal facility. The Commission’s mandate is limited to nuclear energy and nuclear substances, whereas UNDA contemplates a broad, government-wide hazardous substances implementation process, itself involving consultation “with Indigenous Peoples” before law reform. Even though the Commission acts on behalf of the Crown when it approves a project, this does not make it the “Government of Canada” within the meaning of UNDA. The FCA also rejected the argument that the Commission was required to account for UNDRIP under the Nuclear Safety and Control Act as one of the “international obligations to which Canada has agreed” because UNDRIP, as a declaration of the United Nations General Assembly rather than a treaty, is not binding as a treaty.

As a result, the FCA concluded that the Commission had not erred in applying the governing duty to consult framework or issuing a licence without considering UNDRIP, and dismissed the application for judicial review.

Implications

The decision provides clarity for nuclear project proponents regulated by the Commission. The established duty to consult framework governs. Only the “Government of Canada” is obliged under UNDA to take measures to ensure that Canadian law is consistent with UNDRIP.

At a broader level, the law related to UNDRIP is still developing. The Supreme Court of Canada is set to hear an appeal from the BC Court of Appeal in Gitxaala v. British Columbia (Chief Gold Commissioner) concerning British Columbia’s separate implementation legislation, the Declaration on the Rights of Indigenous Peoples Act. That appeal, which will likely be heard in 2027, gives the Supreme Court of Canada an opportunity to provide further clarity on the status of UNDRIP and the extent to which it is implemented into Canadian law through UNDRIP implementation legislation like UNDA.