The ruling upheld the Canadian Nuclear Safety Commission’s approval of a nuclear waste site in Ontario
In a ruling on Friday, the Federal Court of Appeal found that when Canadian law is inconsistent with the United Nations Declaration on the Rights of Indigenous Peoples, the latter does not automatically prevail.
Instead, when such inconsistencies occur, Parliament must consult and cooperate with Indigenous peoples to resolve the differences, the FCA said.
Friday’s ruling in Canadian Nuclear Laboratories Ltd. v. Kebaowek First Nation effectively upheld a 2024 decision by the Canadian Nuclear Safety Commission to approve the construction of a nuclear waste landfill on the Chalk River Laboratories site, a nuclear research facility in Deep River, Ontario. Canadian Nuclear Laboratories operate the site.
The Kebaowek First Nation, which said the landfill was set to be built on their traditional territory, had challenged the commission’s decision with the Federal Court, arguing the commission had not considered UNDRIP when assessing whether the Crown had fulfilled its duty to consult Indigenous groups set to be impacted by the construction. While UNDRIP is not legally binding, it sets out human rights and standards that Canada has committed to, including provisions that ask nations to consult Indigenous groups about when they store or throw out hazardous materials on their lands and when they embark on projects that could impact Indigenous territories.
The Federal Court ordered extended consultation with the Kebaowek First Nation. But writing for a unanimous court, FCA Justice Wyman Webb ruled that the commission’s original decision to engage in more limited consultation was correct.
The commission had justified its decision by arguing that, while Canada is committed to the reconciliation framework outlined in UNDRIP, there is not yet sufficient guidance in Canadian law on how to implement it. The commission said its consultation process was instead “rooted in the law on the duty to consult as articulated in jurisprudence to date.”
Webb agreed with this argument. “In my view, the commission did not err in finding that it ‘is not empowered to determine how to implement UNDRIP in Canadian law and must be guided by the current law on the duty to consult,’” the justice wrote.
Webb wrote that the main issue on appeal is whether UNDRIP introduced any new obligations for the commission on top of those arising from Canada’s existing laws on the duty to consult and accommodate.
The appellate court’s suggestion that UNDRIP’s consultation provisions are not already Canadian law appears to depart from a precedent that the Supreme Court of Canada recently set. In 2024, the SCC found that UNDRIP’s provisions had been effectively incorporated into Canada’s positive law when Parliament enacted the federal United Nations Declaration on the Rights of Indigenous Peoples Act (UNDA) in 2021.
In Canadian Nuclear Laboratories, however, Webb said several aspects of the SCC’s ruling do not seem to support the conclusion that UNDRIP automatically overrides existing Canadian law.
Webb concluded that UNDA “does not immediately implement the articles as set out in UNDRIP but rather provides a framework for the implementation of the various articles as set out in UNDRIP and sets out a process for the resolution of inconsistencies between UNDRIP and the laws of Canada, which may include the federal common law.”
The justice added that the British Columbia Court of Appeal had reached a similar conclusion last year in Gitxaala v. British Columbia (Chief Gold Commissioner), which is considered a major victory for Indigenous groups. In Gitxaala, the BCCA ruled that DRIPA, the 2019 law that serves as the province’s reconciliation framework, “incorporates UNDRIP into the positive law of British Columbia with immediate legal effect.”
However, the BCCA also said that inconsistencies between BC law and UNDRIP should be resolved by the Crown taking action “to develop the measures necessary to resolve the inconsistency, in consultation and cooperation with Indigenous peoples, and to implement those measures,” Webb noted.
The SCC has allowed the BC government to appeal the Gitxaala decision.
Lara Koerner-Yeo, a senior associate at JFK Law LLP and one of the lawyers representing Kebaowek First Nation, says the FCA's ruling has raised a key question: What does it mean for UNDA to incorporate UNDRIP into Canadian law "if this incorporation, according to the FCA, does not include the implementation of UNDRIP articles and thus has no bearing on the commission's duty to consult decision-making"?
In finding that UNDA doesn’t implement the articles of UNDRIP, the FCA has confirmed that, for now, there are no additional obligations on how the commission approaches its duty to consult, Koerner-Yeo says. “The FCA decision doesn't require the commission to consider UNDRIP in its decision-making on the duty to consult, but it also doesn’t say the commission can’t," she says.
"We also don't see the FCA as having the final word on this," she adds. "Given how the FCA approached the interpretive exercise both on the question of UNDRIP’s incorporation via UNDA, as well as on the issue of whether the commission is part of the Government of Canada, we think it [is] likely that the Supreme Court will want to weigh in to provide greater clarity in this evolving area of law.”
Kebaowek First Nation has not yet decided whether to bring an appeal to the SCC.
In a statement on Friday, Canadian Nuclear Laboratories said, “Given there are few examples of the application of UNDRIP in Canada, and none in the nuclear sector, it was important that CNL obtain a clear understanding of what is required to continue to pursue our work and mission to responsibly address Canada’s nuclear liabilities.”
CNL added, “Reconciliation is a long path, and CNL remains committed to being an active participant in the journey while advancing and strengthening Canada’s nuclear sector.
