Overview
The Federal Court of Appeal (FCA) recently released its decision in Canadian Nuclear Laboratories Ltd. v. Kebaowek First Nation et al., overturning the decision of the Federal Court from February 19, 2025.
The central issue on appeal considered whether the federal United Nations Declaration on the Rights of Indigenous Peoples Act (UNDA) “immediately implemented” the specific articles of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into Canadian law and, in doing so, modified the existing legal framework governing the duty to consult and accommodate.
The FCA held that UNDA does not “immediately implement” UNDRIP. Instead, UNDA establishes a framework for the Government of Canada to incrementally implement UNDRIP into the laws of Canada over time. The FCA further held that administrative agencies, such as the Canadian Nuclear Safety Commission (Commission), are not tasked with implementing UNDRIP. Accordingly, UNDA does not impose additional requirements on the duty to consult or the Commission’s consideration of whether the duty was fulfilled.
The FCA’s conclusion regarding the implementation of UNDRIP differs from the British Columbia Court of Appeal’s (BCCA) decision in Gitxaala v. British Columbia (Chief Gold Commissioner) (Gitxaala). In Gitxaala, the BCCA held that B.C.’s equivalent legislation, known as the Declaration on the Rights of Indigenous Peoples Act (Declaration Act), incorporates UNDRIP into the “positive law” of B.C. law with “immediate legal effect.” While the BCCA determined that the Declaration Act did not create substantive new legal rights, the Court affirmed that UNDRIP acted as an interpretative lens against which provincial laws should be measured. The BCCA also determined there was a proper role for courts in adjudicating whether existing laws are consistent with UNDRIP, and on that basis declared that B.C.’s mineral tenure regime was inconsistent with UNDRIP. See our previous Blakes Bulletin: B.C. Court of Appeal Rules Previous “Free Entry” Mineral Tenure Regime Inconsistent With UNDRIP.
While the decision by the FCA provides clarity regarding the duty to consult and accommodate for federally regulated activities, fundamental questions remain unanswered about the status of UNDRIP in Canada. Critically, does UNDRIP legislation create new legally binding standards that can be enforced in court, or is UNDRIP implementation a law reform project in which the courts play a limited role? The Supreme Court of Canada will likely weigh in on these questions when it decides the appeal of Gitxaala (scheduled to be heard next year).
Background to the Decision
The decision arose from a judicial review brought by Kebaowek First Nation (Kebaowek) regarding the Commission’s issuance of an approval to construct a modernized low-level radioactive waste disposal facility on the site of an existing facility in Ontario. The facility is located within the traditional territory of Kebaowek, but adjacent to (not within) their title claim area. The lands in question had been expropriated in the 1940s, and access had been restricted since that time.
The Commission concluded that the duty to consult was satisfied despite a number of Indigenous Nations asserting the Commission should have applied the principles of UNDRIP in its evaluation of the duty to consult. The Commission disagreed that it was empowered to consider UNDRIP. Kebaowek brought an application for judicial review on this basis.
The Federal Court concluded that UNDRIP was incorporated into Canada’s positive legal framework through UNDA and therefore had to be considered in assessing whether the duty to consult had been satisfied. In the view of the Federal Court, the proposed facility fell “clearly” within the scope of Article 29(2) of UNDRIP, triggering the free, prior and informed consent standard. As a result, the Federal Court concluded that the Commission erred by not considering UNDRIP in assessing whether the duty to consult had been satisfied. The Federal Court remitted the decision back to the Commission to resume consultations with Kebaowek in a manner informed by UNDRIP.
The Federal Court’s decision spurred significant debate regarding the implementation of UNDRIP and its impact on the duty to consult. The Court’s reasoning suggested that UNDRIP had materially raised the bar for consultation, requiring “an enhanced and more robust process” that is “directed towards finding mutual agreement.”
Analysis
The FCA approached the appeal as a question of statutory interpretation and considered whether UNDA had already incorporated UNDRIP into Canadian law such that federal decision-makers must apply the specific articles of UNDRIP in addition to pre-existing legal standards (arising from case law) on the duty to consult. The FCA framed the question as whether:
(a) UNDA has implemented the articles as set out in UNDRIP with the result that any such articles, which are not already part of the laws of Canada, are now part of the laws of Canada
(b) UNDA sets out a procedure for the implementation of the articles that are not already part of the laws of Canada
The FCA chose (b): UNDA does not implement the articles of UNDRIP into the laws of Canada. Rather, UNDA provides a framework for the implementation of UNDRIP. Where an inconsistency exists between UNDRIP and federal law, UNDA triggers an obligation on the Government of Canada to resolve the inconsistency over time. However, UNDA does not provide a timeframe for resolution of any inconsistency, or a requirement that UNDRIP will prevail. As noted below, however, it is not clear whether the FCA views the court as having a role in determining such inconsistencies, which was the question asked of the BCCA in Gitxaala.
The FCA also considered additional arguments as to why UNDRIP should not extend to the decision of the Commission in this case. First, the Commission was not the “Government of Canada” for the purposes of UNDA and was not responsible for implementing UNDRIP in its decision-making. Second, the FCA addressed the wording of Article 29(2) of UNDRIP itself. The FCA observed that the Federal Court had applied Article 29(2) without evaluating whether the claim at issue would engage the article. In other words, even if UNDRIP was implemented by UNDA, it is not sufficient to conclude an article of UNDRIP applies by virtue of a project being within the asserted territories of an Indigenous Nation on a duty to consult standard. Rather, an analysis of the meaning of “lands or territories” within the context of UNDRIP would be required.
Takeaways
The FCA’s decision provides clarity for federal Crown decision-makers and proponents of federally regulated projects by affirming that existing law on the duty to consult and accommodate continues to apply and is not altered by UNDA.
While the FCA held that specific articles of UNDRIP are not immediately implemented into the laws of Canada, the FCA’s commentary also provides important direction going forward for courts to include analyses of the parameters of the UNDRIP article(s) that are claimed to apply.
The decision is specific to UNDA and the federal laws of Canada, and does not displace the BCCA’s findings in Gitxaala in relation to the laws of B.C. Importantly, the BCCA and the FCA were asked different questions. The BCCA did not consider whether UNDRIP imposed any additional obligations on the duty to consult, nor did the FCA directly address whether consistency of existing laws with UNDRIP is a justiciable issue. We expect that the Supreme Court of Canada will provide further clarity on these matters when it decides the appeal of Gitxaala.
For more information, please contact the authors or any other member of our Indigenous group.
