In late 2024, the nuclear safety commission staff used the lack of explicit United Nations Declaration on the Rights of Indigenous Peoples1 language in their governing statute as a reason for not considering or applying it during recent consultation. Kebaowek First Nation v Canadian Nuclear Laboratories, 2025 FC 319 ("Kebaowek") puts an end to that shifty line of reasoning and is a monumental case for two reasons: 1) it is the first time the Federal Court considered the role of the Declaration in relation to the Crown's Indigenous consultation requirements and 2) it closed an administrative law loophole in relation to the Declaration's application. The legal world is on notice - the Declaration applies to consultation requirements and to all administrative tribunals who consider the adequacy of the Crown's duty to consult with Indigenous communities.
Background
Kebaowek was an application for a judicial review of the Canadian Nuclear Safety Commission's ("CNSC") decision to grant the Canadian Nuclear Laboratories Ltd.'s ("CNL") application to amend their Nuclear Research and Test Establishment Operating Licence ("Licence") for the Chalk River Laboratories site ("Site") to authorize the construction of a Near Surface Disposal Facility ("NSDF") on the Site. Justice Blackhawk was the presiding judge.
The application dealt with five issues:2
- What is the appropriate standard of review?
- Did the Commission err in determining that it did not have the jurisdiction to determine if the Declaration and UNDA3 applied to the duty to consult and accommodate?
- Did the Commission err in determining that the Crown had fulfilled its duty to consult and accommodate Kebaowek?
- Did the Commission err in determining that the NSDF is not likely to cause significant adverse environmental effects?
- What is the appropriate remedy?
This memo looks at the Court's findings on issues 1, 2 and 3, specifically administrative law and the role of the Declaration and UNDA in relation to the Duty to Consult and Accommodate ("DTCA").
Issue 1 - Standard of Review
The appropriate standard of review is an important consideration for First Nations across Canada. This is because the CNL argued that its enabling statute and appropriate legislation did not give explicit instructions on the implementation of the Declaration and UNDA, giving the CNSC deference to choose how to do so. If that was true, the standard of review would be reasonableness.4 However, constitutional questions or a general question of law which are "both of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise" carry the standard of review of correctness5, and the Commission's decision would not be afforded a defence of deference.
Justice Blackhawk stated that the Supreme Court of Canada ("SCC") clarified that questions concerning the scope of Aboriginal and treaty rights under section 35 of the Constitution Act, 1982 "require a final and determinative answer from the courts".6 She found that the appropriate standard of review was correctness as the scope and content of the DTCA are general questions of law of central importance and outside the Commission's area of expertise.
This finding is foundational. There are hundreds of...
