A year has passed since Kebaowek First Nation (Kebaowek) went to Federal Court to challenge a decision over a nuclear waste facility. They received a favourable decision, but Canadian Nuclear Laboratories (CNL) is appealing the judicial review. Kebaowek is also cross-appealing on a narrow issue related to the Federal Court’s remedy. Both parties submitted their written arguments last month.
Needless to say, CNL downplayed the importance of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and Canada’s Act implementing it (UNDA) in their written arguments with hopes of getting the Federal Court’s decision overturned. Meanwhile, Kebaowek is cross-appealing in an attempt to set aside the initial decision of the Canadian Nuclear Safety Commission (CNSC).
Let’s get into the weeds of this decision so we can be better prepared to support Kebaowek when they head to the Federal Court of Appeal, likely later this year.
Background
Kebaowek filed a judicial review over the CNSC’s decision to approve a nuclear waste facility on their traditional territory. Several years of consultation with various First Nations led to the decision to approve the project that would store over 1 million cubic tonnes of low-level nuclear waste just one kilometre from the Kichi Sibi (Ottawa River).
Kebaowek argued that the CNSC failed to implement (or even consider) the UNDRIP principles of free, prior, and informed consent (FPIC) into the consultation process when it ought to have. Around the same time UNDA was passed in Parliament, Kebaowek was raising concerns that the CNSC wasn’t consulting with the aim of obtaining Kebaowek’s consent. CNSC declined to consider and apply UNDRIP and UNDA, saying it was a “creature of statute” and therefore “not empowered to determine how to implement UNDRIP.”
Kebaowek’s judicial review led to a favourable decision for the First Nation. Justice Blackhawk ordered CNL to continue consultation with Kebaowek through a process that implements the free, prior, and informed consent standard from UNDRIP, and incorporates Indigenous laws, knowledge, and processes. The Court said this must be completed by September 2026. CNL filed to appeal the decision shortly after it was released.
Written Arguments over UNDRIP and UNDA in the Appeal
CNL focuses on four grounds of appeal:
- What was the proper standard of review?
- Whether the Federal Court made a legal error in finding that the CNSC was wrong in declining to decide on the application of UNDA?
- Whether the Federal Court made a legal error in finding that the CNSC was incorrect or unreasonable in assessing and carrying out the duty to consult (DTC)?
- Did the Federal Court order an overly broad remedy by (1) ordering that Canadian Nuclear consult and (2) allowing the consultation to continue until September 2026?
The concept of Standard of Review is one we have discussed before at RAVEN, including here and here. CNL argues that the Federal Court incorrectly focused on the correctness standard of review rather than one of reasonableness. CNL says that under a judicial review, the appropriate question to ask is whether the duty to consult has been met, and that, because assessing the duty to consult is inherently fact-specific, it should be considered on a basis of reasonableness. CNL argues that UNDRIP is at most a “subordinate element” of the decision in assessing the duty to consult, and it was incorrect to raise it to its own question.
One consideration in determining the Standard of Review is to consider whether a question of law is of central importance to the legal system as a whole. If so, correctness is more likely to apply, and if not, reasonableness may apply. CNL further argues that the Federal Court, “…erred in concluding that the implications of UNDRIP and UNDA to the [duty to consult] Decision represented a fundamental question of law of central importance to the legal system as a whole, leading it to incorrectly apply the correctness standard of review… The implication of the CNSC’s interpretation of UNDRIP to the DTC Decision is unique to the specific issues and factors at play in respect of the NSDF and does not give rise to ‘significant legal consequences for the justice system as a whole’.” CNL’s argument focuses on the narrow consequences of the CNSC’s decision for the specific circumstance to argue that UNDRIP and UNDA application aren’t of central importance.
In arguments relating to both the standard of review and the failure to fulfill the duty to consult, CNL argues both that incorporating UNDRIP into consultation would abandon previous jurisprudence set out by the Supreme Court of Canada (SCC) with the Haida test, and that consultation with Kebaowek still wouldn’t require free, prior, and informed consent. CNL says this is because Kebaowek doesn’t assert Aboriginal title to the area of the nuclear waste facility, and there are no new adverse effects due as the NSDF would be built in an area that is currently restricted from any current or future access. CNL relies on the narrow focus of the duty to consult, which doesn’t consider the ongoing impacts of past harms.
CNL also argues that the Federal Court was incorrect to characterize the CNSC as declining to consider UNDRIP and UNDA. CNL argues that the CNSC “is not one of the parties contemplated in UNDA for implementing UNDRIP into Canadian law” – instead, CNL says this is Parliament’s role. CNL further argues that neither UNDRIP nor UNDA alters the duty to consult in this case, as there must be an adverse impact on a right to trigger the duty, and the NSDF project does not adversely affect any rights.
As a result, CNL says the order given by the Federal Court was incorrect because the duty to consult rests with the Crown, not CNL. Additionally, CNL argues that the 19-month-long time period for CNL to consult with Kebaowek is too long, arguing that the project needs to move forward in accordance with international best practice for nuclear waste storage, that timely decision-making is important for good governance, and that there are no adverse impacts to Indigenous rights.
Needless to say, Kebaowek wasn’t pleased about CNL’s arguments around UNDRIP. Kebaowek stated that CNL “erroneously frames the question of UNDRIP‘s applicability as a ‘subordinate element’ of the Commission’s [CNSC] decision under review. The question of whether the UNDRIP Act and UNDRIP apply to the Commission’s decision-making in respect of the duty to consult is a key legal question – the answer to which had the potential to change what the Crown was obliged to do to honourably discharge the duty to consult Indigenous Nations in respect of the Licence amendment, and therefore whether the duty to consult was adequately discharged.”
Kebaowek went on to cite several parts of UNDRIP, UNDA, and the Nuclear Safety and Control Act that give reason as to why the CNSC ought to have included UNDRIP in consultation. The CNSC has comprehensive powers under the Nuclear Safety and Control Act to consider questions of law, including whether the DTC is discharged adequately. Articles 29(2) and 32(2) in UNDRIP can affect consultation as consent is sometimes necessary on the deepest end of the Haida test. Section 5 of UNDA emphasizes that obligations are vested in the government of Canada, which is separate from Parliament.
Kebaowek states, “The Government of Canada can meet its statutory obligation under the UNDRIP Act when the CNSC – which has all the necessary legal tools to do so – considers, interprets, and applies UNDRIP in its Nuclear Safety and Control Act decision-making process.” This gives reason for the current decisions around UNDRIP to remain.
Cross-Appeal
Kebaowek is going another step further by cross-appealing the initial decision in Federal Court. They are arguing the CNSC’s decision to approve the nuclear waste facility should be set aside because the Federal Court found that the CNSC’s decision was contrary to the law..
Justice Blackhawk in Federal Court decided that consultation should continue with Kebaowek with FPIC over the process, but that the decision for the CNSC to approve the nuclear waste facility should stay. Kebaowek argues that setting aside the decision is imperative to uphold true reconciliation in respect of the decision-making process on the nuclear waste facility:
“There is nothing as corrosive to the concept of true reconciliation as the idea that the duty to consult is just a process of the Crown going through the motions and letting the Indigenous peoples “blow-off steam.” By leaving the flawed Decision in place – which allows Canadian Nuclear to proceed with implementation – the Court leaves the impression that this is exactly what this process is: an opportunity for Kebaowek to “blow-off steam” with little or no chance of affecting the final outcome.”
Kebaowek, therefore, wants the decision to be set aside so that they can engage in the process of UNDRIP-compliant consultation, incorporating their own laws and processes, that will actually be implemented into the process instead of just blowing off steam. The new standard of UNDRIP, as implemented through UNDA, will then actually take effect for Kebaowek and their case.
In conclusion, Kebaowek says, “UNDRIP and the UNDRIP Act [UNDA] mark significant milestones in this approach to reconciliation, having been advanced on a diplomatic, mature Nation-to-Nation basis over many decades. The Federal Court rightly recognizes that it well behooves Federal decision-makers and the courts to respect such progress and ensure that it is properly implemented as Parliament and the Indigenous Nations in Canada intended.”
Conclusion
Canada touts being a leader in reconciliation with Indigenous Peoples. There are certainly moments to celebrate with Indigenous Nations leading the way for their rights, title, and self-determination.
Yet, behind the dark veil of the Canadian legal system are arguments being made that can be viewed as disrespectful and contrary to what settler society wants for moving reconciliation forward in Canada. Thousands and thousands of people are in support of Kebaowek having FPIC in the consultation process over the nuclear waste facility on their territory. We know it will lead to better protection of the Kichi Sibi, the life-line for millions of people as they rely on the river for drinking water.
No matter how egregious the arguments made by CNL are, we all know that when we act in solidarity behind Kebaowek together, we are stronger. Keep your eyes peeled for a hearing date at the Federal Court of Appeal. We will be there to raise funds and awareness with Kebaowek in their pursuit of justice for all.
