The Federal Court of Appeal has just ruled in the precedent-setting Canadian Nuclear Laboratories v Kebaowek First Nation.
There’s no sugar-coating it—this is a deeply disappointing decision, both for Kebaowek First Nation and for the trajectory of Indigenous rights being recognised in the law.
Stemming from a decision by the Canadian Nuclear Safety Commission to authorise a nuclear waste facility near the Kichi Sibi (Ottawa River) without the Nation’s free, prior and informed consent, the case has worked its way through several layers of the legal system and may have more ahead.
The river is a vital source of drinking water for millions of people in Quebec and Ontario. Kebaowek has consistently raised concerns about the radioactive waste project’s long-term environmental consequences and the failure to adequately respect their rights and responsibilities in their territory.
The court’s ruling also comes against the backdrop of a worrying rollback on Indigenous rights across the country under the guise of “national interest” and other convenient excuses.
What did the court rule?
First, the Federal Court of Appeal ruled that the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDA) provides a framework for implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) but does not implement UNDRIP directly into Canadian law. This is despite guidance from the Supreme Court that UNDA does incorporate UNDRIP into Canadian law. The court concluded that UNDA instead provides a framework for the federal government to implement UNDRIP.
The Federal Court had previously affirmed the relevance of the rights enshrined in UNDRIP (including Free, Prior, and Informed Consent) and the need to meaningfully incorporate Indigenous laws, knowledge, and processes into consultation. However, the new ruling concluded that the Nuclear Safety Commission was not required to consider these rights in consulting with Kebaowek First Nation over a waste facility in Kebaowek’s territory.
The Court also unexpectedly found that the Commission, a federal regulatory and decision-making body with authority delegated by Parliament, is not part of the “Government of Canada.” If the federal government has committed itself to ensuring Canadian laws are consistent with UNDRIP, but the regulators responsible for applying those laws and approving projects are not subject to the same obligations, then how are those commitments supposed to translate into meaningful protections for First Nations?
Government rollbacks, not implementation
One major fly in the court’s ointment is that governments of all stripes are not, in fact, proactively using UNDA to embed Indigenous rights in the law and advance reconciliation as an urgent priority.
“Today’s decision is extremely unfortunate and, quite frankly, heartbreaking. But at the same time, I cannot say we are entirely surprised, especially when we look at the changing political landscape in Canada over the past year, with the C-5 One Canadian Economy Bill, and particularly over the past few months, with the C-39 Building Canada Strong Act Bill. If building a stronger Canada means exploiting the rights, the lands and natural resources of First Nations as quickly as possible, while treating our rights and our consent as obstacles to overcome, then we have to seriously question what happened to those commitments to reconciliation.” – Councillor Justin Roy, Kebaowek First Nation
From Prime Minister Mark Carney fast-tracking extractive projects in First Nations’ territories under the guise of national interest, to Ontario Premier Doug Ford’s remarkably similar special economic zones and BC Premier David Eby’s confusing rationale for hitting the brakes on rights legislation, concerns are growing at what appears to be a rollback across the country.
The journey for justice is never smooth, but a few years ago many of us hoped that these kinds of policies would stay in the past where they belong. And that instead respect for Indigenous rights would become the norm, recognised in the law and understood as the bedrock of a society we are building together.
Similar to climate commitments, governments grandstanding and signing Indigenous rights commitments internationally but failing to implement them in practice is not leadership.
As the Federal Court of Appeal recognizes, the question of what effect UNDA has on the laws of Canada is a question of central importance: can Canada claim to be implementing UNDRIP while Indigenous Nations continue to face significant barriers to exercising their rights in decisions affecting their territories?
The struggle continues
This is not over. Not for Kebaowek First Nation in their territories and not for the full implementation of the United Nations Declaration on the Rights of Indigenous Peoples.
That journey may take time, but just as the leadership of Kebaowek have been steadfast in their commitment to protect the Kichi Sibi, the team at RAVEN is also here for the long haul.
“We are deeply disappointed, but we are not defeated,” said Chief Lance Haymond of Kebaowek First Nation. “This case has never been about one project alone. It is about whether Canada’s promises of reconciliation and respect for Indigenous rights have real meaning. If our laws, our voices and our right to Free, Prior and Informed Consent are not meaningfully recognized, then we must continue fighting for that recognition.” – Chief Lance Haymond, Kebaowek First Nation
As the Nation considers their next steps, your support is more important than ever.
