Earlier this month, we put out a blog about the appeal by Canadian Nuclear Laboratories (CNL) in Kebaowek’s legal case. We focused mainly on CNL’s arguments as they downplayed the importance of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
We provided some information about Kebaowek’s cross-appeal, but there have been some requests for more analysis on their arguments. Make sure to read the previous blog to get the full scoop of CNL’s arguments and an introduction to Kebaowek’s cross-appeal, but let’s get into it so we can better support Kebaowek when they head to court.
Kebaowek’s Appeal
Kebaowek responded to CNL’s appeal, describing the issues as:
- What was the proper standard of review?
- Was the Canadian Nuclear Safety Commission (CNSC) incorrect or unreasonable in declining to decide whether the UNDA and UNDRIP applied to its decision?
- Was the CNSC incorrect or unreasonable in the assessment and carrying out of the duty to consult?
- 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?
Additionally, Kebaowek is cross-appealing the initial decision in Federal Court on the two narrow items:
- Should the Federal Court have set aside the Decision and then remitted it to the Commission to be reconsidered after the completion of the consultation?
- What remedy, if any, should be given if the answer to the above issue is “yes”?
Let’s go through each point individually to show how Keabowek is framing their arguments for each one.
Standard of Review
The argument that Kebaowek presented for the standard of review was successful at the Federal Court. Justice Blackhawk decided the appropriate standard of review was correctness because the applicability of UNDRIP and UNDA in administrative decision-making is of central importance to the legal system as a whole. Whether or not the Canadian Nuclear Safety Commission (CNSC) has the jurisdiction to implement UNDRIP or UNDA in decisions for nuclear waste facilities and other major projects is incredibly important, especially as it pertains to the Duty to Consult and Accommodate (DTC) and Free, Prior, and Informed Consent (FPIC).
Further, the Supreme Court of Canada (SCC) has made it clear in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (Haida), that the standard of correctness applies to questions of pure law when it comes to the DTC. This solidifies Kebaowek’s arguments, and the Federal Court noted that, even if the Commission’s decision was assessed based on a “reasonableness” standard, the decision to approve the nuclear waste facility would still be incorrect and unreasonable.
Incorrect and Unreasonable
Now, was the CNSC incorrect or unreasonable in declining to decide on the application of UNDA and UNDRIP? There are two main questions that Kebaowek is asking in its arguments in saying yes to this. First, does the Nuclear Safety and Control Act (NSCA) give the CNSC the legal power to determine legal questions and address or fix any issues that are raised? Second, is there anything preventing the CNSC from going ahead and making a decision on the application of UNDA?
The NSCA makes the CNSC a Crown agent that can determine its own processes and act as a court of record. The CNSC is empowered to determine whether or not the DTC has been fulfilled in decision-making. The CNSC is required to maintain consistency with international obligations that Canada has agreed to, and there is no provision within the NSCA that prevents the CNSC from interpreting UNDRIP and UNDA.
It seems pretty clear that the CNSC, under the NSCA, can make decisions in regards to UNDRIP and UNDA. The NSCA doesn’t prevent the CNSC from making decisions about clauses within UNDRIP and UNDA. Kebaowek is saying the CNSC also had an obligation to interpret and use UNDRIP and UNDA in determining whether or not the DTC was fulfilled with the nuclear waste facility.
To take these questions further, Kebaowek refers to one of the most important cases for informing administrative law, which is Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (Vavilov). It supports the need for the CNSC to apply UNDRIP to its decision-making. Kebaowek argues that the CNSC acted contrary to the case law set out in Vavilov. The only excuse the CNSC had for not implementing UNDRIP in its decision for the nuclear waste facility was that it was a “creature of statute.” But with UNDA having the potential to affect the decision for the nuclear waste facility through the DTC and under s.24 of the NSCA, the CNSC erred in avoiding UNDA in its decision.
The CNSC should also be responding to specific articles within UNDRIP that pertain to FPIC for nuclear waste on Indigenous lands. Kebaowek argues that UNDRIP is a statute that places obligations on the Government of Canada, not Parliament, as CNL argues. In the preamble, UNDA sets out obligations on the Government of Canada (not Parliament) – and including, in Kebaowek’s argument, the CNSC – needs to take effective legislative, policy, and administrative measures in consultation and cooperation with Indigenous Peoples to implement UNDRIP. Along with other language in the UNDA, this supports the argument that UNDA requires immediate action by the whole federal government (not just Parliament). This interpretation is also supported by Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 at paragraphs 3-4 and 14-16.
This, as well as some other specific points to articles in UNDA and the NSCA, doesn’t prevent the CNSC from making decisions at all – in fact, it empowers and obliges it to make decisions about nuclear waste facilities under UNDRIP‘s principles, according to Kebaowek’s written argument and agreed upon by Justice Blackhawk in Federal Court earlier this year.
Duty to Consult
CNL is appealing the court’s decision that it did not fulfill the DTC, saying it completely fulfilled it with Kebaowek First Nation during the consultation process for the nuclear waste facility and that the decision should be overturned. Kebaowek defended the Federal Court’s decision in its written argument, writing that the DTC had not been properly carried out in light of the UNDA and UNDRIP.
Further, CNL relies on the test set out in Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations) (Ktunaxa) in saying that it fulfilled the DTC with Kebaowek. This erroneously mistakes the true nature of the DTC set out in Haida; fulfilling the DTC is flexible based on contextual factors to uphold the Honour of the Crown, not a rigid test.
Kebaowek argues that contextual factors beyond the formulaic “strength of claim and significance of impact” test need to be at least considered in the DTC with adjustments for such considerations. For instance, Kebaowek explains that Treaty rights can affect the nature of a right or an obligation on the Crown, and there, specific measures should be taken to honour that Treaty and to uphold the Honour of the Crown by at least considering it in the DTC process. UNDA and UNDRIP should be at least considered in the decision for the nuclear waste facility since both are relevant contextual factors with specific articles of UNDRIP pertaining to nuclear waste and FPIC on Indigenous lands.
Remedy
Did the Federal Court issue an overly broad remedy to CNL by ordering CNL to consult with the obligation of seeking consent (despite being a private entity), and because the length of time for consultation is too long? Kebaowek argues no.
Justice Blackhawk ordered CNL and the CNSC to continue with the consultation process as was before, incorporating FPIC into the process for Kebaowek – not just CNL. Kebaowek argues that CNL is simply the proponent, and it would be open to it and the CNSC to decide how to distribute different aspects of consultation
The length of time for consultation to incorporate FPIC is appropriate based on the facts of this case, according to Kebaowek’s arguments. CNL’s arguments referenced a previous case led by Gitxaała Nation where the Court ordered the parties to remedy a consultation issue over a period of 3-4 months (compared with 18 months for Kebaowek). The Gitxaała decision did not deal with a complete overhaul of the consultation process at hand, like in this instance with Kebaowek. Justice Blackhawk struck a balance between what Kebaowek wanted and what CNL’s arguments were – Kebaowek wanted the entire decision to be set aside to restart from the beginning to incorporate consent, not keeping the decision and continuing the consultation process with UNDRIP’s principles after the decision.
Cross-Appeal
To continue the point above, should Justice Blackhawk at the Federal Court have set aside the decision to approve the nuclear waste facility, remitting it back to CNSC to reconsider entirely?
Kebaowek explains that for consultation to be meaningful, it must come well before proposed Crown conduct, not after the fact. This would otherwise take away from the nature of consultation – what is heard during the consultation process should be reflected in the decision, after considering the concerns of affected rights holders. By engaging in consultation this way – where the project is already approved and being implemented with consultation continuing afterward – makes the process performative instead of substantial. It isn’t what true reconciliation is all about.
That’s why Kebaowek believes the appropriate remedy should be remitted back to the CNSC or another appointed Commission to re-decide after the new consultation process is complete.
Conclusion
Kebaowek First Nation is not only defending the decision the Federal Court issued, but it’s asking the Court of Appeal to take reconciliation further. CNL’s arguments around the standard of review, the DTC, and not implementing UNDRIP through UNDA reflect an ongoing resistance against upholding Indigenous rights and laws that honour those rights. This is exactly how colonialism has worked for centuries, and CNL, alongside the CNSC, continues to perpetuate it onto Kebaowek.
Donate now to Kebaowek’s legal case. RAVEN’s fundraising goal is $15,000 for Kebaowek’s legal team to prepare for their appeal hearing on October 8th in upholding the decision and advancing it further to honour true reconciliation in Canada. Your support means support for FPIC in Canadian government decision-making, making Kebaowek’s pursuit of justice that much more possible!
