On February 19, 2025, the Federal Court of Canada released a significant decision in Kebaowek First Nation v. Canadian Nuclear Laboratories, 2025 FC 319, ruling that the consultation process for the proposed Near Surface Disposal Facility at Chalk River, Ontario, was inadequate. This case highlights key issues related to approaching Indigenous consultation and examines the application of the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”). 

This decision is likely to have implications for future projects proposed on Indigenous lands, and the required approach to environmental impacts and Indigenous rights. Importantly, it is one of the first cases to consider the application of the federal United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14 (“UNDA”) to the duty to consult and accommodate grounded in the principle of the Honour of the Crown and legal requirement to effect reconciliation, with a view to preserving rights that are protected by section 35 of the Constitution Act, 1982.

In a separate Federal Court proceeding relating to the same project, Kebaowek First Nation v. Canadian Nuclear Laboratories, 2025 FC 472, Kebaowek and other concerned parties successfully challenged the federal Minister of Environment and Climate Change’s decision to issue a permit to Canadian Nuclear Laboratories (“CNL”) under s. 73 of the Species at Risk Act, SC 2002, c 29 (“SARA”) despite the existence of certain risks to endangered and threatened species in the area. This decision also provides new guidance as to when the requirements of SARA are met and a permit can be issued.

Background

This first Kebaowek decision concerned an application for judicial review of a Canadian Nuclear Safety Commission (the “Commission”) decision dated January 8, 2024. That decision granted CNL an amendment to its existing license for the Chalk River Laboratories site (the “Site”) to construct a facility for storing low-level radioactive waste.

The facility at issue is proposed to store approximately one million cubic meters of nuclear waste in an engineered containment mound near the Ottawa River. The facility, managed by CNL, is intended to be a long-term solution to store the waste in a manner consistent with modern industry standards. The facility would be the first permanent nuclear waste storage site in Canada. The waste that would be stored in the facility would take approximately 300 years to reach “inconsequential levels” of radioactivity.

Kebaowek First Nation’s traditional territory extends into Ontario and Quebec and includes the broader region around the Site on the Ottawa River, which holds profound cultural and spiritual importance to Kebaowek. Kebaowek took the position that they had been insufficiently consulted on the project, and that the Commission failed to secure their free, prior, and informed consent (“FPIC”) for the facility under Article 29 of UNDRIP.

The Commission’s decision

The Commission authorized the licence amendment to construct (but not yet operate) the facility. In so doing, it found the facility unlikely to cause significant adverse environmental effects and that it would not adversely impact any Indigenous rights. Since most (90%) of the radioactive waste to be stored originated onsite, the proposal to store and contain it there was found to also mitigate risks associated with transporting it.

Although the Commission acknowledged a duty to consult Kebaowek regarding the proposed license amendment, it concluded that the consultation process—spanning 2016 to 2023—was adequate. It cited a variety of workshops, engagement sessions, participant funding, and an extended timeline for Kebaowek to submit materials. However, the Commission expressly declined to address the issue of how UNDRIP may inform the Crown’s duty to consult, stating instead that the Commission “is not empowered to determine how to implement UNDRIP in Canadian law.”

Kebaowek sought judicial review of the Commission’s decision to the Federal Court.

Key findings

  1. The Commission has jurisdiction to determine if UNDRIP/UNDA applies to the duty to consult

    2. The Court found that the Nuclear Safety and Control Act establishes the Commission as a court of record and provides it with the power to consider questions of law, including on the issue of whether UNDRIP and UNDA apply to the duty to consult. The Court commented that if the Commission had doubts about that authority, it could have referred the question to the Federal Court under s. 18.3(1) of the Federal Courts Act.

    The Court clarified that UNDRIP, through UNDA, is now part of Canada’s positive legal framework and may now be used to interpret Canadian law. It is therefore presumed that the interpretation of duty to consult obligations will be done in a manner that conforms to UNDRIP. It should be viewed as an interpretive tool and/or contextual factor that can strengthen, or clarify, the scope of the duty to consult in a particular instance.

  2. UNDRIP must be used as an interpretive tool when determining whether the duty to consult and accommodate had been discharged

    3. Kebaowek cited several UNDRIP articles that it argued the Commission should have considered when evaluating whether the duty to consult had been fulfilled, including Articles 11, 12, 13, 25, 29, and 32. Article 29(2) of UNDRIP specifically addresses proposals to dispose of hazardous material on Indigenous peoples’ lands, specifying that FPIC is required before any such action takes place. It reads as follows:

    States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent.

    The Court acknowledged that this is one of the first decisions to set out how UNDRIP can be utilized as an interpretive aid. It further acknowledged that there is no Canadian jurisprudence on how the articles of UNDRIP should be interpreted and applied.

    The Court determined that, as an interpretive tool, the adoption of UNDRIP into Canadian law now requires more when interpreting the duty to consult, finding UNDRIP to be an “added contextual layer that informs the scope of the duty to consult and accommodate.” Because the waste disposal facility at issue in this case clearly falls within the scope of Article 29(2), the Court concluded that the FPIC standard set out in that Article is triggered.

  3. FPIC entails a right to a robust process

    4. The Court considered the limitations of FPIC vis-à-vis those associated with the duty to consult, given what the Court described as “confusion about the meaning of FPIC, with the majority of dialogue focused on the wording of FPIC and concerns that this amounts to a ‘veto’ or absolute power for Indigenous peoples.” The Court examined international reports, jurisprudence, and commentary and found that FPIC is a “single universal standard” whereas, in contrast, the duty to consult lies on a spectrum based on the strength of the right being asserted, and the nature of the potential impacts.

    The Court found that FPIC was essential for the protection of Indigenous people’s human rights in the face of major development projects and stated that, at least in some cases, securing it may be a requirement.

    In this case, the Court concluded that “the UNDRIP concept of FPIC requires an enhanced and more robust process to ensure that consultation processes were tailored to consider Kebaowek’s Indigenous laws, knowledge, and practices, and that the process was directed towards finding mutual agreement.”

    In the Court’s view, Kebaowek was seeking to enforce its right to the Crown engaging with it regarding the project within a process of this nature and directed to this goal. Accordingly, it directed CNL and the Commission staff “to continue to consult with Kebaowek in a manner that promotes reconciliation and aligns with the principles articulated in the UNDRIP, including the FPIC standard.”

    The Court’s decision means that the Commission failed to apply a heightened FPIC perspective when determining whether Crown consultation was sufficient—especially in view of Article 29(2), which expressly mentions FPIC in the context of hazardous waste storage, and a large-scale, long-term waste disposal project like the one at issue.

    Based on the Court’s reasoning on this issue, and although Kebaowek succeeded in its argument that FPIC provided a right to a specific process in this case, certain questions regarding the precise nature of FPIC may require further clarification from the courts. For example, the Court did not clarify when securing FPIC will be a requirement, nor how Article 29 of UNDRIP will be considered once CNL and the Commission continue consultations. The Court also did not comment on what the consequence or next step might be if there is a further failure in this regard.

  4. No impacts on Section 35 rights

    5. As mentioned above, the Commission found that the proposed facility would not adversely impact asserted or established rights

    The Court found the Commission reasonably considered the evidence before it and reached a reasonable, supported conclusion on the impacts of the proposed facility on Kebaowek’s asserted rights.

    Accordingly, the Court allowed the judicial review in part and remitted the matter back to the Commission, with direction to address the jurisdictional question and to re-assess the Crown’s fulfillment of the duty to consult and accommodate, in view of UNDRIP and the FPIC standard.

    The Court acknowledged that one consequence of prolonging a final decision is that the radioactive waste at issue continues to be stored in a manner that does not comply with current industrial waste standards. As such, the Court required the renewed consultation process to be completed by September 30, 2026.

Parallel litigation regarding Species At Risk Act: Kebaowek First Nation v. Canada (Attorney General), 2025 FC 472

As noted above, Kebaowek and other interested parties also challenged the issuance of a SARA permit for the same waste disposal facility. Briefly, the Site lies near the habitats of three species at risk: Blanding’s Turtle, Little Brown Myotis, and Northern Myotis. The Court set aside the issuance of the SARA permit on the ground that the Minister’s interpretation and application of subsection 73(3) of SARA was unreasonable in certain critical respects.

Section 73 of SARA states that the Minister has discretion to issue a permit to allow activities which affect species at risk otherwise prohibited by SARA if certain strict requirements are met, including that: all reasonable alternatives to the activity must have been considered, with the best solution adopted;  all feasible measures will be taken to minimize harm; and the activity will not jeopardize the survival or recovery of the species.

The applicants argued that the Minister failed to ensure “all reasonable alternatives” were meaningfully evaluated and determine that the site chosen was truly the “best solution.” The Court granted the application, quashed the permit, and identified the following errors.

1. Failure to consider “all reasonable alternatives”

The Minister accepted CNL’s self-imposed restriction to look only at sites owned by Atomic Energy of Canada Limited (“AECL”), without analyzing whether non-AECL land might offer conservation advantages. This undermined SARA’s statutory requirement to explore options that could reduce harm to at-risk species. Even if a non-AECL site had greater logistical challenges, subsection 73(3)(a) of SARA still required CNL to consider it if it offered reduced harm to at-risk species.

2. Failure to justify why the chosen site was the “best solution”

Although the Minister (through ECCC) had traditionally interpreted the concept of “best solution” in a “conservation-first” manner, the Court noted that in this case, the Minister’s decision departed from an established institutional practice without explanation, which was a legal error. Specifically, the Court found that although the wording of subsection 73(3)(a) suggests it may be permissible for the Minister to balance ecological harm with non-ecological factors, such as costs and operational considerations, in this instance the Minister gave no rationale for doing so. Thus, the Minister’s conclusion that the site chosen was the “best solution” was inadequately supported.

The Applicants raised a variety of other concerns about contradictory evidence before the Minister relating to mitigation measures (e.g., the relative merits of implementing bat boxes and wildlife corridors), inconsistencies in how other species (e.g., monarch butterfly) were addressed, and a failure to protect the nests of certain bird species. However, after examining the evidence in detail, the Court found these aspects of the Minister’s decision to be reasonable.

Conclusion

These decisions represent an important step forward in the evolving landscape of Indigenous rights in Canada. The first Kebaowek decision provides new judicial guidance and commentary how the environmental and regulatory review of proposed major projects intersect with the requirements of section 35 of the Constitution Act, 1982 and UNDRIP.

Importantly, this decision confirms that UNDRIP, through UNDA, may impose distinct legal obligations on Canadian regulatory bodies and industry stakeholders, including a requirement to employ processes designed to obtain FPIC in appropriate cases. Decision-makers who are evaluating whether the duty to consult has been discharged in turn will be required to interpret constitutional and statutory obligations (including the duty to consult and accommodate) in a manner consistent with UNDRIP.

The second Kebaowek decision also provides new guidance in relation to species at risk issues. Specifically, any permit issued under section 73 of SARA must be based on a rigorous and transparent analysis of alternatives, and include a clear justification of either why the selected option is “best” from a conservation standpoint, or for departing from that established approach.

Projects situated near the habitats of listed species at risk may be required to demonstrate robust comparative site assessments and clearly explain how their mitigation plans align with the Act’s primary conservation objectives. This exercise may also include setting out any relevant practical or socio-economic considerations which might justify departing from SARA’s established primary objectives respecting conservation.

As of the time of writing, CNL has filed an appeal of the first Kebaowek decision, and Kebaowek has filed a notice of cross-appeal.