On October 16, 2026, the Federal Court of Appeal overturned a Federal Court decision concerning the role of the United Nations Declaration on the Rights of Indigenous Peoples (the “UN Declaration”) in relation to the Crown’s duty to consult Indigenous peoples. The Court of Appeal held that Canada’s United Nations Declaration on the Rights of Indigenous Peoples Act (the “Declaration Act”) does not immediately make every provision of the UN Declaration enforceable as Canadian law or impose new requirements on the existing duty to consult.
Background
The case concerns Canadian Nuclear Laboratories’ proposed near surface disposal facility at the Chalk River Laboratories site in Ontario. The facility would provide long-term storage for up to one million cubic metres of low-level radioactive waste. The site is outside of the area over which the Kebaowek First Nation claims Aboriginal title, or ownership of the land. It is, however, within their broader traditional territory, where they have other asserted rights, including rights to fish, hunt, trap and gather, and to use the land for social and ceremonial purposes.
The Canadian Nuclear Safety Commission approved the facility in 2024. Although several Indigenous groups had raised the UN Declaration during the regulatory process, the Commission concluded that it was not empowered to determine how the UN Declaration should be implemented in Canadian law. It instead applied existing Canadian law relating to the Crown’s duty to consult and concluded that the duty had been fulfilled.
The Federal Court Decision
In 2025, the Federal Court disagreed with the Commission. It held that the UN Declaration had been incorporated into Canadian law through the Declaration Act and must therefore inform how Canadian laws, including the constitutional duty to consult, are interpreted. Of particular importance to the Court was the principle of free, prior and informed consent (FPIC). The Federal Court concluded that Article 29(2) of the UN Declaration, which addresses the storage and disposal of hazardous materials on Indigenous lands or territories, applied to the proposed facility. In the Federal Court’s view, FPIC did not give Kebaowek a veto over the project. However, it required a more robust consultation process aimed at reaching agreement and adapted to take account of Kebaowek’s laws, knowledge, and processes.
The Federal Court therefore directed the Commission to resume consultation and reconsider whether the Crown had fulfilled its duty to consult in light of the UN Declaration and FPIC.
The Federal Court of Appeal Decision
The Federal Court of Appeal took a substantially different view of the Declaration Act. The Court of Appeal accepted that the Declaration Act recognizes the UN Declaration as an international human rights instrument with application in Canadian law. However, it held this does not mean Parliament made each provision of the UN Declaration immediately enforceable as part of Canadian law. Rather, the Declaration Act establishes a framework for the federal government to implement the UN Declaration over time.
The Court relied on section 5 of the Declaration Act, which requires the federal government, in consultation and cooperation with Indigenous peoples, to take measures to ensure that Canadian laws are consistent with the UN Declaration. In the Court’s view, that process would be unnecessary if Parliament had already given every provision of the UN Declaration immediate legal effect. If an existing Canadian law is inconsistent with the UN Declaration, the Court held, the UN Declaration does not automatically override that law. Instead, the inconsistency triggers the federal government’s obligation to take steps to address it.
This led the Court of Appeal to reject the Federal Court’s treatment of FPIC. Because provisions such as Article 29(2) have not automatically become enforceable Canadian law through the Declaration Act, the Commission was not required to add an FPIC-based standard to the existing law governing consultation. The Crown’s duty to consult therefore continues to be governed by established Canadian law, under which the extent of consultation depends largely on the strength of the claimed Aboriginal or treaty right and the seriousness of the potential impact on that right.
The Court of Appeal also disagreed with the Federal Court’s assumption that Article 29(2) necessarily applied to the Chalk River site. Because the site lies outside Kebaowek’s asserted Aboriginal title area and was taken for nuclear development in the 1940s, the Court questioned whether it constitutes Kebaowek’s “lands or territories” for the purposes of Article 29(2). It did not ultimately decide that issue because its interpretation of the Declaration Act made it unnecessary to do so.
Finally, the Court held that the Nuclear Safety Commission, when deciding whether to approve this particular facility, is not the “Government of Canada” responsible for the broader process under section 5 of bringing Canadian laws in line with the UN Declaration.
The Court of Appeal allowed Canadian Nuclear Laboratories’ appeal, set aside the Federal Court judgment and dismissed Kebaowek’s application for judicial review.
Key Takeaways
This decision is a significant departure from the approach taken by the Federal Court. The Federal Court viewed the UN Declaration as adding an important new interpretive layer to the Crown’s existing constitutional obligations to Indigenous peoples. Under the Federal Court’s approach, FPIC could affect what meaningful consultation requires in a particular circumstance. The Federal Court of Appeal drew a sharper distinction between recognizing the UN Declaration in Canadian law and implementing its individual provisions as enforceable Canadian law. In its view, the Declaration Act establishes a process for Canada to work with Indigenous peoples to bring Canadian law in line with the UN Declaration, but it does not itself make every UN Declaration standard part of existing Canadian law, including the law relating to the duty to consult.
This case summary provides our general comments on the case discussed and should not be relied on as legal advice.
See CanLII for the Reasons for Judgment.
