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...
