The Federal Court recently undertook the most extensive analysis of the meaning of United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) and free, prior and informed consent (“FPIC”) in Canadian law since Canada enacted legislation implementing UNDRIP - the United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14 (“UNDA”).
In Kebaowek First Nation v Canadian Nuclear Laboratories, 2025 FC 319, the Federal Court quashed a decision of the Canadian Nuclear Safety Commission (the “Commission”) on the basis the Commission had a duty to consider UNDRIP when assessing the Crown’s fulfillment of its duty to consult and accommodate, and failed to do so. The Commission was wrong to find that it had no jurisdiction to consider UNDRIP or UNDA. However, the Court was clear that UNDRIP, and its requirements for FPIC, do not amount to a veto over decision-making. Rather, the Court found that FPIC is a “right to a robust process”.
Background
The Canadian Nuclear Laboratories Ltd. (“CNL”) applied to the Commission to amend their operating licence for the Chalk River Laboratories site in order to build a disposal facility for nuclear waste materials. The Chalk River site has been operating since the 1940s. It is located in the traditional territory of Kebaowek First Nation (“Kebaowek”), an Algonquin Anishinabeg Nation, who has been unable to use the site since the facility began operating more than 75 years ago. CNL applied to amend its operating licence to modernize its facility in accordance with modern international standards to handle waste that is largely already on site.
In January 2024, the Commission granted CNL’s application pursuant to the Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52 and the Nuclear Safety and Control Act, SC 1997 c 9. The Kebaowek challenged the decision alleging, among other things, that the Commission erred in failing to consider UNDRIP and its effect on the Crown’s obligation to consult and accommodate the Kebaowek.
The Federal Court Decision
The Federal Court agreed with the Kebaowek that the Commission was empowered to consider the application of UNDRIP and its failure to do so was an error of law.
The Court went on to provide guidance on the effect of UNDA in Canadian law. Particularly, with the enactment of UNDA, UNDRIP is “an interpretative lens to be applied to determine if the Crown has fulfilled is obligations …” (para. 76). UNDRIP is not itself a source of rights, but a codification of pre-existing rights. Section 35 rights, and the concomitant obligation of the Crown to consult and accommodate, must therefore be interpreted to conform with UNDRIP.
In undertaking this exercise and applying UNDRIP as an interpretative aid, the Federal Court engaged in a detailed discussion of the meaning of “free, prior and informed consent” or “FPIC”, one of the principles found throughout UNDRIP. FPIC was particularly important to this application as Article 29(2) of UNDRIP provides 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 concluded that, consistent with international scholarship, FPIC was not intended to be a general “veto power”. However, with UNDRIP’s adoption into Canadian law, the content of the Crown’s duty to consult now requires more than what was required under the common law. When the UNDRIP FPIC standard is invoked, it “requires a process that places a heightened emphasis on the need for a deep level of consultation and negotiations geared toward a mutually accepted arrangement” (para. 130), tailored “to consider the impacted Indigenous Nations laws, knowledge, and practice” (para. 183). In other words, “FPIC is a right to a robust process” but it is not a right to a particular outcome (para. 131). The Court observed “it would have been prudent for the Commission to have modified their consultation processes in a manner that addressed some of Kebaowek’s requests and suggestions” and this “would have been consistent with UNDRIP and the FPIC standard” (para. 138).
It was therefore an error for the Commission to not take UNDRIP into consideration when assessing the duty to consult, as FPIC gives rise to a heightened standard. The Court remitted the matter back to the Commission to re-assess the Crown’s fulfillment of the duty in view of this heightened standard.
Implications
This is one of the first decisions to consider the effect of Parliament’s implementation of UNDRIP into Canadian law through the enactment of UNDA, as well as the underlying meaning of FPIC found within UNDRIP. This case is the clearest articulation by a Canadian court to date that FPIC does not amount to “veto power”. The court is also clear that, at least at a federal level, UNDRIP applies today, and the Crown’s obligations flowing from section 35 must be fulfilled in a manner consistent with UNDRIP. This requires - at minimum - consultation to incorporate the Indigenous perspective aimed at mutual agreement.
