UNDRIP in Practice: Redefining Consultation in Kebaowek First Nation v. Canadian Nuclear Laboratories

Kebaowek First Nation v. Canadian Nuclear Laboratories (2025 FC 319)

Background

The Federal Court decided a judicial review on February 19, 2025, concerning the Kebaowek First Nation’s (“Kebaowek“)” legal challenge against the Canadian Nuclear Safety Commission (the “Commission“) over its approval of a Near Surface Disposal Facility (the “Disposal Facility“) at the Chalk River Laboratories site. Kebaowek argued that the Commission failed to properly apply the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP“) when assessing the Crown’s duty to consult and accommodate under section 35 of the Constitution Act, 1982. Kebaowek also raised concerns regarding the adequacy of consultation and the environmental impact assessment of the Disposal Facility.

Kebaowek First Nation, located in western Quebec along the shores of Lake Kipawa, is part of the Algonquin Nation. With approximately 1,100 members, Kebaowek has long maintained a deep cultural and spiritual connection to its traditional territory, which spans both Quebec and Ontario. The community has been actively involved in advocating for the recognition and protection of its land rights, engaging in legal challenges, petitions, and lobbying efforts to ensure its voice is heard in governmental and regulatory decision-making.

On January 8, 2024, the Commission granted approval for the Disposal Facility. In response, Kebaowek sought judicial review of the approval, resulting in Federal Court ruling that set a new precedent for the standard of consultation required for projects impacting Indigenous communities across Canada. The Court concluded that the duty to consult has evolved, with UNDRIP now imposing heightened obligations that go beyond prior consultation requirements under Canadian law. As Justice Blackhawk noted, “The status quo is no longer sufficient when evaluating consultation obligations with Indigenous communities.”[1]

Key Legal Issues

The case centered on three key legal questions.

1. First, whether the Commission had jurisdiction to apply UNDRIP and the federal United Nations Declaration on the Rights of Indigenous Peoples Act (“UNDA”) in its regulatory decision-making?
2. Second, whether the Crown met its obligation to meaningfully consult and accommodate Kebaowek First Nation in accordance with section 35 of the Constitution of Canada?
3. Finally, whether the environmental impact assessment process adequately accounted for the Disposal Facility’s potential adverse effects on the environment and on Kebaowek’s rights?

Court’s Findings

The Federal Court found that the Commission erred in determining it lacked jurisdiction to apply UNDRIP and the UNDA. The Court clarified that UNDRIP serves as an interpretive tool in Indigenous rights cases and must inform the Crown’s consultation obligations under section 35. Justice Blackhawk emphasized that administrative decision-makers must actively consider UNDRIP’s role in shaping consultation standards, stating, “The UNDRIP can no longer be treated as merely aspirational; it is a guiding framework that informs how the Crown must engage with Indigenous nations.”[2]

On the duty to consult and accommodate, the Court ruled that the Commission’s process failed to integrate Indigenous perspectives adequately. Specifically, the Court found that the consultation did not meet the high standard of “deep consultation” required for projects with significant impacts on Indigenous rights. The Commission’s failure to incorporate the principle of free, prior, and informed consent (“FPIC”), as articulated in UNDRIP, further weakened it’s approach. Justice Blackhawk underscored this point by stating, “FPIC requires consultation processes that move beyond perfunctory engagement and demonstrate a genuine effort to reach consensus.”[3]

Regarding the environmental impact assessment, the Court criticized the Commission’s reliance on a Forest Management Plan that was neither disclosed nor consulted on. This lack of transparency undermined the legitimacy of the assessment. Additionally, the Court found that the Commission failed to properly assess the consequences of Kebaowek’s permanent exclusion from the site, further compromising the decision-making process. The Court explicitly stated, “Processes that fail to meaningfully integrate Indigenous laws, knowledge, and perspectives are inadequate under the new consultation framework.”[4]

Outcome

The Federal Court granted the judicial review in part, setting aside the Commission’s decision and directing that further consultation take place under the guidance of a newly constituted panel. This ruling strengthens the role of UNDRIP in Canadian law and highlights the need for regulatory bodies to integrate Indigenous legal traditions and consultation standards into their decision-making processes.

What Does This Mean?

This decision has far-reaching implications for Indigenous rights, environmental law, and regulatory practices in Canada. It offers new guidance for how UNDRIP, should be implemented as an essential interpretive tool in Canadian law and reflects evolving judicial consensus on UNDRIP’s relevance in shaping the Crown’s consultation obligations to Indigenous communities.

For consultation processes, the ruling raises the bar for meaningful consultation with Indigenous groups. Regulatory bodies must incorporate Indigenous legal traditions and ensure that consultation efforts go beyond procedural formalities. The Court affirmed that while Indigenous nations are entitled to a more robust consultation process, this does not equate to a requirement for their full consent. Meaningful consultation, the Court explained, does not grant Kebaowek, or any First Nation, a veto power.[5] Although the decision clarifies increased consultation processes and sets a stronger precedent moving forward, it also leaves many questions regarding consent unanswered.

The case also underscores the need for greater transparency and diligence in environmental assessments. Moving forward, environmental review processes must be more inclusive of Indigenous concerns and backed by thorough, publicly available documentation. This decision further clarifies that UNDRIP is not merely an aspirational document but one that imposes increased legal obligations on decision-makers in Canada.

From a policy perspective, the ruling may encourage legislative amendments to align Canadian regulatory frameworks with UNDRIP’s commitments. Parliament and regulatory agencies may need to introduce reforms to better integrate Indigenous consultation and accommodation standards into existing legislation.

For industry stakeholders, this ruling serves as a cautionary precedent. Companies involved in resource extraction, infrastructure development, and environmental projects must proactively adapt to evolving legal standards on Indigenous consultation. Ensuring early, meaningful, and substantive engagement with Indigenous nations will be crucial for project approvals and regulatory compliance.

Conclusion

Kebaowek First Nation v. Canadian Nuclear Laboratories is a landmark decision that reinforces the legal significance of UNDRIP in Canadian administrative law. The ruling signals to regulatory agencies that Indigenous rights, as framed by UNDRIP, must be meaningfully considered in decision-making, particularly in cases involving significant environmental and territorial impacts. Beyond its legal implications, the decision marks a significant step toward greater recognition of Indigenous governance and self-determination within Canada’s evolving legal landscape.

This ruling has ushered in a new era of Indigenous rights in the legal system, ensuring that First Nations can hold the Canadian government accountable under UNDRIP. The decision does not replace the established duty to consult and accommodate under section 35 of the Constitution but adds a separate and additional requirement that strengthens Indigenous participation in regulatory decisions. This case sets a precedent that will likely influence Indigenous rights cases in Canada for decades to come.

[1] Kebaowek First Nation v. Canadian Nuclear Laboratories, 2025 FC 319 at para 128.

[2]  Ibid at para 81.

[3] Ibid at para 132.

[4] Ibid at para 138.

[5] Ibid at paras 96-97, 119, 131, 183