From consultation to consent: the integration of UNDRIP in Canadian law From consultation to consent: the integration of UNDRIP in Canadian law

In Kebaowek First Nation v. Canadian Nuclear Laboratories, 2025 FC 319, the Federal Court of Canada found that the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into Canadian law (via the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDA)) is a contextual factor that requires an enhanced duty to consult in the circumstances.

The case concerns the Canadian Nuclear Safety Commission’s (CNSC) decision to authorize the construction of a Near Surface Disposal Facility (NSDF) at the Chalk River Laboratories site. The Kebaowek First Nation sought judicial review, arguing that the CNSC failed to properly apply the UNDRIP and the UNDA in its consultation process. The Court found, inter alia, that the adoption of UNDRIP into Canadian law informs the scope and content of the duty to consult and accommodate, and therefore the assessment as to the adequacy of consultation.

Background

The Kebaowek First Nation challenged the CNSC’s decision to amend Canadian Nuclear Laboratories Ltd.’s (CNL) operating licence to allow the construction of an NSDF. The proposed facility would store low-level nuclear waste generated over the past 75 years. CNL began to engage with Kebaowek First Nation in the summer of 2016, made its licence application to the CNSC in March 2017 and was finally granted the licence amendment in January 2024.

The case addressed several issues, including

• whether the CNSC had the jurisdiction to apply UNDRIP and UNDA into its decision-making process
• whether the Crown had fulfilled its duty to consult and accommodate the Kebaowek First Nation in light of the adoption of UNDRIP into Canadian law

The Kebaowek First Nation’s main argument was that the CNSC did not properly apply UNDRIP as a contextual factor that must inform the Crown’s consultation process.

The Court’s analysis

The Federal Court’s analysis began with the standard of review. The Court determined that the issues of jurisdiction and the duty to consult and accommodate were constitutional questions and/or general questions of law of central importance requiring a correctness standard.^[1] The Court found that the CNSC erred in concluding that it lacked the jurisdiction to consider UNDRIP and UNDA. The Court emphasized that administrative tribunals with the power to decide questions of law have the authority to resolve constitutional questions linked to matters before them. The CNSC’s failure to determine these questions amounted to an error of law.^[2]

After reviewing the jurisprudence with respect to the duty to consult, the Court turned to a review of UNDRIP and how UNDRIP’s principles are to be interpreted in light of the jurisprudence on the duty to consult. In the circumstance of this particular case, the Court noted that the CNSC’s consultation process did not adequately consider UNDRIP’s principles, and in particular the standard of “free, prior, and informed consent” (FPIC) in Article 29(2) of UNDRIP. The Court clarified that while FPIC is not a veto or a right to a particular outcome,^[3] it is a right to a robust process directed towards finding mutual agreement.

The Court contrasted the duty to consult and accommodate and FPIC, noting that the triggers are similar but have important distinctions. First, international jurisprudence and commentary suggest that FPIC is a “single” universal standard whereas the duty to consult and accommodate is contextual and lies along a spectrum. Second, FPIC and the duty to consult and accommodate differ in terms of the limitations imposed on the right in question. The Court agreed with the Kebaowek First Nation’s argument that “it would be a mistake to conflate the scope and content of the duty to consult and accommodation with only the section 35 common law obligations, and that the adoption of the UNDRIP into Canadian law now requires more.”

The Court noted that UNDRIP’s principles provide a framework for understanding and implementing the duty to consult and accommodate — and, in particular, ensure that Indigenous perspectives are meaningfully integrated into decision-making processes. This interpretation aligns with the spirit of reconciliation and the continuing recognition of Indigenous rights as part of the Canadian legal framework.

Ultimately, the Court found that the Commission’s failure to consider UNDRIP as a contextual factor in assessing the adequacy of Crown consultation was an error of law. The NSDF falls within Article 29(2) of UNDRIP and triggers the FPIC standard, which — while not a veto — requires significant robust processes tailored to consider the impacted Indigenous Nations laws, knowledge and practices. In this case, the Court found that the Commission’s and CNSC’s refusal to modify or alter their processes to respond to Kebaowek’s requests for accommodation was not reasonable. The Court granted the judicial review in part, remitting the decision back to the CNSC for further review.^[4]

Takeaways

Kebaowek First Nation is a significant decision. As the Court noted, there is no Canadian jurisprudence that considers how UNDRIP’s principles should be interpreted or how they may aid in the interpretation of Canadian laws. Kebaowek First Nation marks one of the first decisions that set out how the UNDRIP, as incorporated into federal law through the UNDA, can be utilized as an interpretive aid. In that regard, the Court held that

• Crown decision makers must assess UNDRIP’s principles in connection with any duty-to-consult obligations
• in certain circumstances, UNDRIP may impose enhanced consultation obligations on the Crown

A day after the Kebaowek First Nation decision was released, the Federal Court decided the case of Concerned Citizens of Renfrew County v. Canadian Nuclear Laboratories, 2025 FC 334, also involving the CNSC’s approval of the NSDF project. While this case did not focus on Indigenous rights, it also involved scrutiny over the CNSC’s decision-making process regarding the NSDF project. In Concerned Citizens, the applicants argued that the CNSC’s assessment of radiation dose limits, waste verification and environmental impacts was inadequate. The Federal Court found that the CNSC’s decision justified and reasonable, emphasizing the Commission’s expertise and thorough consideration of the record. The Court upheld the CNSC’s decision, noting that the Commission had adequately addressed the potential environmental impacts and had implemented appropriate oversight mechanisms.

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[1] Vavilov at para. 17; see also Dunsmuir v. New Brunswick, 2008 SCC 9, at paras 62–64; Housen v. Nikolaisen, 2002 SCC 33, at para. 8.

[2] R v. Conway, 2010 SCC 22, at para. 78; Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, at paras. 39–44, 47, 117.

[3] Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, UNHRC, 2009, 12th Sess, UN Doc A/HRC/12/34, at para. 46.

[4] “Commission” when referring to the tribunal; “CNSC” when referring to the organization.