On February 19, 2025, the Federal Court released a decision finding the Canadian Nuclear Safety Commission (the “Commission”) erred by finding it had no jurisdiction to consider the application of the United Nations Declaration on the Rights of Indigenous Peoples (the “UN Declaration”) through the United Nations Declaration on the Rights of Indigenous Peoples Act (the “Declaration Act”) in the context of the Crown’s duty to consult, and by failing to consider the UN Declaration and the Declaration Act when assessing whether the Crown had fulfilled its duty.
The Commission had granted Canadian Nuclear Laboratories (“Canadian Nuclear”) a licence to construct a “Near Surface Disposal Facility” for long term nuclear storage. The Kebaowek First Nation (“Kebaowek”) challenged the decision on the basis that the Commission had erred in law by failing to apply the UN Declaration and the Declaration Act.
The Court held that the UN Declaration, and the principle of free, prior, and informed consent (“FPIC”) is an important interpretive lens in the context of Aboriginal and treaty rights. The Court found that FPIC is not a right to a veto over projects, but the right to a robust process and “an important piece in understanding how to utilize UNDRIP as an interpretive framework in Canadian law”. The Court granted the application in part, ordering Canadian Nuclear to resume consultation regarding the implementation of the UN Declaration and the Declaration Act with Kebaowek. The Court directed the Commission to reconsider if the duty to consult was fulfilled through an interpretive lens of FPIC.
Background
Since the 1940s, nuclear waste has been stored at the Chalk River Laboratories Site (the “Site”), in the Town of Deep River, Ontario. Since the 1940s, no individuals nor any section 35 Aboriginal rights holders has had access to the lands around the Site due to safety concerns from low level nuclear radiation.
Kebaowek is one of 11 Alqonquin Anishinabeg Nations that make up the broader Alqonquin Nation. The Site is located approximately 150 kilometres southeast of Kebaowek’s reserve lands and within the traditional territory of the Kebaowek and the broader Alqonquin Nation. Kebaowek continues to exercise their Aboriginal rights within their traditional territory.
Canadian Nuclear applied to the Commission for approval to construct the Near Surface Disposal Facility to bring their storage of nuclear waste up to international safety standards. As the proposed Near Surface Disposal Facility would be a permanent facility, impacting the ability of the Alqonquin Nation to exercise their Aboriginal rights anywhere near the Site, Canadian Nuclear consulted with the Algonquin Anishinabeg Nations Tribal Council, Kebaowek and several other Algonquin Nations. Numerous impacted First Nations raised the issue of compliance with the UN Declaration and the Declaration Act before the Commission.
The Commission found that, as a creature of statute, it did not possess jurisdiction to determine how to implement the UN Declaration and the Declaration Act and its application to the Crown’s duty to consult and accommodate Indigenous Peoples. The Commission held that the consultation process with Kebaowek was sufficient and in accordance with the law.
The Federal Court Decision
The decision addressed whether there was a reviewable error made by the Commission, the role of the UN Declaration in Canadian law, the standard of FPIC in relation to the Crown’s duty to consult and accommodate and how the duty to consult and accommodate should incorporate the UN Declaration, specifically the application of FPIC in consultation processes.
The Court found the Commission’s decision to be incorrect, finding there is no limit on a decision-maker’s authority to consider legal questions and that the failure of the Commission to consider the UN Declaration as a contextual factor in assessing the adequacy of Crown consultation was an error of law. The Court held:
The Declaration Act’s Preamble highlights that the UNDRIP “can contribute to supporting sustainable development and responding to growing concerns relating to climate change and its impacts on Indigenous peoples”. Accordingly, this requires all decision makers, including administrative tribunals that have the authority to determine questions of law such as the Commission, to actively consider how UNDRIP may impact the interpretation of Canadian laws, including the fulfillment of section 35 constitutional obligations.
Applying the recent reasoning of the Supreme Court of Canada in Vuntut Gwitchin and Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, the Court held that the UN Declaration had been incorporated into Canadian law through the Declaration Act and, as such, may be used as a guide for legal interpretation of Aboriginal and treaty rights and the Crown’s legal obligations, including the duty to consult and accommodate, and that this must mean more than a “status quo” application of the duty to consult.
The Court held that the incorporation of the UN Declaration into Canadian law via the Declaration Act adds a contextual layer to the interpretation of section 35 of the Constitution Act, 1982, and in this case, the scope of the Crown’s duty to consult and accommodate.
The Court found that the FPIC standard, triggered in this case through Article 29(2) of the UN Declaration, requires a robust process of consultation with impacted Indigenous rights-holders, requiring a deep level of consultation that considers the laws, knowledge, and practices of the Indigenous group affected. This includes making “reasonable efforts to alter their processes to build in aspects that respect Indigenous laws, knowledge and processes.” While emphasizing that the FPIC standard requires enhanced procedural requirements to fulfill the duty to consult, the Court was clear that FPIC does not equal a veto power.
The Court remitted the decision back to the Commission to re-assess the fulfillment of the Crown’s duty to consult through the lens of the UN Declaration and the FPIC standard.
Key Takeaways
This decision is significant as one of the first to consider the application of the UN Declaration when considering the Crown’s constitutional obligations under section 35 of the Constitution Act, 1982. Applying the reasoning of the SCC that the UN Declaration has been incorporated into Canadian law through the Declaration Act, the Court has provided important direction around how the UN Declaration should be applied as an interpretative aid when considering the Crown’s fulfillment of the duty to consult and accommodate. Where FPIC is triggered, there must be a robust process of consultation and accommodation, informed by the laws, customs, and knowledge of the Aboriginal rights-holding group, and with a view towards reaching agreement.
The principle of FPIC is central to the inherent right of self-determination held by Indigenous Peoples. It includes the right of Indigenous Peoples to be meaningfully involved and fully informed about matters which impact their rights and interests. While this decision signals a step forward in the actualization of FPIC, it remains to be seen whether future “robust” processes truly create a shift in the status quo. Further, it remains at the discretion of administrative decision-makers to determine whether the consultation process was adequate. This poses the potential for Indigenous legal orders and processes to be reduced to fit within frameworks developed by non-Indigenous decision-making bodies.
Canadian Nuclear has appealed this decision to the Federal Court of Appeal.
This case summary provides our general comments on the case discussed and should not be relied on as legal advice. If you have any questions about this case or any similar issue, please contact any of our lawyers.
See CanLII for the Reasons for Judgement.