The Intersection of International and Domestic Law in Relation to Consultation: Kebaowek First Nation v. Canadian Nuclear Laboratories, 2025 FC 319

It is early in 2025 but already we have a contender for the most significant public law decision of the year.

In Kebaowek First Nation v. Canadian Nuclear Laboratories, 2025 FC 319, Blackhawk J held that, in principle, the United Nations Declaration on the Rights of Indigenous Peoples (incorporated into domestic law by the United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14) is more demanding in terms of consultation than the duty to consult that Canadian courts have developed under s. 35 of the Constitution Act, 1982. At the very least, the “status quo” in terms of consultation is no longer sufficient (at para. 128). I discussed the decision on Radio-Canada (in French) and you can listen to that discussion here.

The case arose in the context of an application by CNL to build a Near Surface Disposal Facility to bury nuclear waste near the Chalk River nuclear site. Activity in the nuclear sector in Canada must be licensed by the Canadian Nuclear Safety Commission under the Nuclear Safety and Control Act, SC 1997, c 11. CNL applied for and was granted a licence. During the licensing proceedings (and, in fact, dating back to 2016: para. 151), the First Nation, on whose traditional territories the NSDF is to be built, engaged with CNL and the Commission.

Now, the domestic law duty to consult is well settled. Where Crown action would potentially interfere with a right protected by s. 35, the Honour of the Crown requires that there be meaningful consultation with affected Indigenous Peoples. The level of consultation varies along a sliding scale depending on the strength of the s. 35 claim and the severity of the potential interference. In its seminal decision in Haida Nation, the Supreme Court of Canada set out the background concepts (s. 35 and the Honour of the Crown) and explained:

 Against this background, I turn to the kind of duties that may arise in different situations.  In this respect, the concept of a spectrum may be helpful, not to suggest watertight legal compartments but rather to indicate what the honour of the Crown may require in particular circumstances.  At one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor.  In such cases, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice.  “‘[C]onsultation’ in its least technical definition is talking together for mutual understanding”: T. Isaac and A. Knox, “The Crown’s Duty to Consult Aboriginal People” (2003), 41 Alta. L. Rev. 49, at p. 61.

At the other end of the spectrum lie cases where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high.  In such cases deep consultation, aimed at finding a satisfactory interim solution, may be required.  While precise requirements will vary with the circumstances, the consultation required at this stage may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision.  This list is neither exhaustive, nor mandatory for every case. The government may wish to adopt dispute resolution procedures like mediation or administrative regimes with impartial decision-makers in complex or difficult cases.

Between these two extremes of the spectrum just described, will lie other situations.  Every case must be approached individually.  Each must also be approached flexibly, since the level of consultation required may change as the process goes on and new information comes to light.  The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake.  Pending settlement, the Crown is bound by its honour to balance societal and Aboriginal interests in making decisions that may affect Aboriginal claims.  The Crown may be required to make decisions in the face of disagreement as to the adequacy of its response to Aboriginal concerns.  Balance and compromise will then be necessary (Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 SCR 51, at paras. 43-45).

It is also well established that administrative decision-makers can engage in and assess the adequacy of consultation (Clyde River (Hamlet) v. Petroleum Geo‑Services Inc., 2017 SCC 40, [2017] 1 SCR 1069; Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41, [2017] 1 SCR 1099).

Before the Commission, the First Nation argued that UNDRIP went further than the domestic duty to consult, requiring consent rather than merely consultation (at para. 3). But the Commission held that it did not have jurisdiction to entertain this argument:

… The Commission recognizes Canada’s commitment to UNDRIP and the framework for reconciliation and implementation of UNDRIP set out within UNDA. However, while the jurisprudence on the legal effect of UNDA will surely develop over time, the Commission, as a creature of statute, is not empowered to determine how to implement UNDRIP in Canadian law and must be guided by the current law on the duty to consult.…

Blackhawk J held that the Commission made a reviewable error by refusing to opine on this question (at para. 70) and also suggested that the Commission ought to have made a reference to the Federal Court under s. 18.3 of the Federal Courts Act (at para. 72).

Reviewing the UNDRIP Act and Supreme Court jurisprudence on reconciliation between the Crown and Indigenous Peoples, she concluded:

In my view, interpreting section 35 rights in a manner consistent with the UNDRIP aligns with the objectives articulated in the preambular provisions of the UNDA. Specifically, the importance of the UNDRIP as a framework for reconciliation is consistent with the Truth and Reconciliation Commission of Canada Calls to Action and the National Inquiry into Missing and Murdered Indigenous Women and Girls Calls for Justice—that all relationships with Indigenous peoples must be based on recognition and implementation of the inherent right of self-government; and that the UNDRIP is a source for the interpretation of Canadian law. Further and pertinent to this judicial review application, the UNDA’s Preamble highlights that the UNDRIP “can contribute to supporting sustainable development and responding to growing concerns relating to climate change and its impacts on Indigenous peoples.” Accordingly, this requires all decision makers, including administrative tribunals that have the authority to determine questions of law such as the Commission, to actively consider how the UNDRIP may impact the interpretation of Canadian laws, including the fulfillment of section 35 constitutional obligations (at para. 81).

Blackhawk J also held that the domestic law duty to consult must now be understood by reference also to UNDRIP and the concept of free, prior and informed consent:

In my opinion, Canada’s adoption of the UNDRIP into Canadian law via the UNDA must mean more than a status quo application of the section 35 framework. The UNDRIP must be interpreted in the ordinary sense of the words set out. The words of the UNDRIP and the resulting commentary regarding its development and interpretation must be used to guide our interpretation of the section 35 framework, and in this application, how the UNDRIP is to be used to interpret the Crown’s analysis of the duty to consult and accommodate.

As was observed by the Supreme Court in Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69 [Mikisew Cree], “[t]he determination of the content of the duty to consult will, as Haida suggests, be governed by context” (at para 63). In Mikisew Cree, the Supreme Court found that modern settlements are an important context that informs the duty to consult and accommodate. Now, the UNDRIP is an added contextual layer that informs the scope and content of the duty to consult and accommodate.

As highlighted above, Article 29(2) states 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 proposed NSDF is a project that clearly falls within the scope of Article 29(2), thus triggering the UNDRIP FPIC standard. Based on the foregoing, I am of the view that the UNDRIP FPIC standard requires a process that places a heightened emphasis on the need for a deep level of consultation and negotiations geared toward a mutually accepted arrangement. Much of the jurisprudence that has developed in the context of the duty to consult and accommodate confirms that it is not just a mere “check box” exercise; it must be a robust process of consultation.

Similarly, in my opinion, FPIC is a right to a robust process. As explained above, it is not a veto or a right to a particular outcome. Nor is FPIC absolute, as States may infringe UNDRIP rights in certain limited circumstances (Article 46(2)).

The duty to consult and accommodate is an aspect of the justified infringement of section 35 rights framework. I am of the view that the UNDRIP and UNDA must be considered when assessing if the Crown fulfilled its duty to consult and accommodate (at paras. 128-132).

The First Nation argued that the Commission should have adopted additional practices to facilitate consultation (at para. 135). Blackhawk J agreed, emphasizing the need for decision-makers engaged in consultation to see matters from the rights-holders’ point of view (at para. 138):

Process rights must be considered from the perspective of the rights holding collective and must consider the customs, traditions, and laws of the Indigenous rights holders. This ensures that consultation processes are robust and align with the spirit of reconciliation and the continuing evolution of the Canadian legal framework, which now includes the UNDRIP. Processes that meaningfully accommodate the Indigenous collective’s perspectives ensure that the necessary trust and give and take required to nourish the ongoing Crown-Indigenous relationship will be reinvigorated and strengthened over time.

Kebaowek provided suggestions to CNSC staff that would enhance the consultation process, and these suggestions were not acted upon. This is not to suggest that tribunals must acquiesce to every suggestion made by an Indigenous Nation; rather, this means tribunals must make reasonable efforts to alter their processes to build in aspects that respect Indigenous laws, knowledge, and processes. Arbitrary time limits for oral submissions and holding hearings in regions a substantial distance from the Indigenous community that make full participation of the Nation difficult are examples of processes that are not aligned with the spirit of the UNDRIP and the FPIC standard (at paras. 139-140).

The failure to adapt in this instance (seemingly caused, it should be said, by apparent confusion over whether consultation with the Kebaowek First Nation, as opposed to a collective, was necessary: see paras. 141-159) was unlawful:

In my view, the Commission’s approach to consultation was flawed. The Commission failed to consider the UNDRIP as a contextual factor in assessing the adequacy of Crown consultation. This failure to consider the UNDRIP as an important contextual factor was an error of law. It is clear that the NSDF is a project that falls within Article 29(2) and triggers the FPIC standard. While the FPIC standard is not a veto, it requires significant robust processes tailored to consider the impacted Indigenous Nations laws, knowledge, and practices and employs processes that are directed toward finding mutual agreement. In this case, the record demonstrates that the Commission and the CNSC were not prepared to modify or alter their processes to respond to Kebaowek’s requests for accommodation. This was not reasonable and failed to consider the important added contextual factors of the UNDRIP, which must now be considered when assessing the adequacy of Crown consultation (at para. 183).

Accordingly, Blackhawk J sent the matter back to the Commission for further consideration of the consultation issues. It will be interesting to see what happens next. In the Reference re An Act respecting First Nations, Inuit and Metis children, youth and families, 2024 SCC 5 the Supreme Court largely avoided the question of the implications for domestic law of the incorporation of UNDRIP (see Professors Bankes and Hamilton) but in this case the implications will have to be confronted.

Given the change to the status quo envisaged by this decision, an appeal at least to the Federal Court of Appeal seems likely. It is notable that in Gitxaala v. British Columbia (Chief Gold Commissioner), 2023 BCSC 1680, at paras. 485-491, a first-instance court on the other side of the country concluded that the province’s implementing legislation, couched in similar terms to the federal implementing statute, did not create any justiciable obligations (see Professor Bankes). However, the court did there find that an interpretive obligation created under BC law had sufficient force to require a consultation process under a provincial statute: in other words, the regulatory statute, read in conjunction with UNDRIP, required a bespoke consultation process. This is of a piece with other judicial suggestions that a principle of reconciliation can inform the application by regulators of broad statutory language.  But Blackhawk J’s reasons sweep more broadly, reading s. 35 and its jurisprudence through the lens of UNDRIP on the basis of the presumption of conformity with international law (which also has particular statutory hooks in the Nuclear Safety and Control Act, albeit that those provisions refer to treaties in relation to nuclear matters). Ultimately, the Supreme Court of Canada will likely have to determine whether UNDRIP has given additional heft to the domestic law duty to consult in the way that Blackhawk J envisages. This is one to watch.

This content has been updated on February 25, 2025 at 18:17.