Kebaowek First Nation has campaigned against a nuclear waste facility on their territory for years. They have joined other legal claims, winning one; conducted interviews with news outlets; sent resolution letters of support to municipalities and political parties; hosted talks at coffee houses to fundraise for legal fees; and even been part of documentary films, such as APTN’s Investigates film called “Time Immemorial.”
Now, Kebaowek’s years of hard work are starting to pay off.
In February, the Federal Court of Canada ruled that the consultation process over the Near Surface Disposal Facility (NSDF), which would replace 37 hectares of old forest with 1 million cubic tonnes of low-level nuclear waste, was flawed. The Canadian Nuclear Safety Commission (CNSC) now needs to go back and complete a fair consultation process with Kebaowek under the principles of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), to be completed by September 2026.
Chief Lance Haymond of Kebaowek First Nation says:
“This decision confirms what we have been saying all along—consultation must be more than a checkbox exercise. It must be real, meaningful, and grounded in the principles of free, prior, and informed consent… For too long, our rights have been ignored in decisions that directly impact our lands, waters, and communities. Today’s ruling sends a strong message that the federal government and industry cannot sideline Indigenous voices.”
This decision is an incredibly important victory for Kebaowek First Nation and Indigenous communities in Canada. However, it’s being appealed by Canadian Nuclear Laboratories (CNL). Let’s dive a little deeper into Justice Blackhawk’s decision to fully understand the weight of it in Canadian law, and the core of what’s being appealed.
Background
The CNSC, an administrative body of the federal government, approved the construction of the NSDF on Kebaowek’s traditional territory just one kilometre from the Kichi Sibi (Ottawa River). The NSDF would hold over one million cubic tonnes of low-level radioactive waste from the CNL research facility and other sites, including hospitals and universities.
The site for the NSDF was the main issue for Kebaowek. It would have replaced 37 hectares of old, mature forest with a facility that could leach nuclear waste into the Kichi Sibi, affecting the drinking water of millions of people. At-risk, culturally significant species, such as the Eastern Wolf, would have been impacted by its construction. Although they are not at-risk, several makwa (black bear) dens were already blocked by plywood and tarps so they couldn’t return this winter.
Kebaowek First Nation filed a judicial review and requested an expedited hearing in response to CNSC’s approval of the nuclear waste facility and the consultation process with CNL, the proponent of the NSDF project and the managing company of the Chalk River nuclear research and development facility. Kebaowek wanted consent to be part of the process, and if CNSC wasn’t going to make the decision to implement UNDRIP, then who would?
Kebaowek First Nation went to the Federal Court in July 2024 to challenge the CNSC’s decision through a judicial review, which is about this decision. You can read more of the details about their oral arguments in this court report here.
The Duty to Consult and Accommodate
Justice Blackhawk, the judge who heard Kebaowek First Nation’s judicial review in Federal Court, made a precedent-setting decision that particularly affects the Duty to Consult and Accommodate (DTCA). The DTCA requires the Crown to engage with Indigenous Nations over projects that may affect their asserted or proven rights under section 35 of the Constitution Act, 1982. The nuclear waste facility triggered the DTCA as it is affecting the rights of multiple First Nations in the area, requiring a consultation process.
CNL consulted Kebaowek First Nation under the current standard set out in Haida Nation v British Columbia (Minister of Forests), [2004] 3 S.C.R. 511. This standard is commonly known as the Haida test. The decision from Haida’s case in 2004 sets out the depth of consultation the Crown needs to consider with First Nations and their rights, depending on the project and how much those rights are affected.
The current issue with consultation is that Indigenous Nations don’t have the right to give or withhold consent during the consultation process. A Nations’ ability to control consultation over a resource project that severely affects their rights and territories is based on the Crown’s timelines, agendas, and legislation. This process can be limiting and doesn’t always accommodate the capacity needs of Nations, who may be dealing with hundreds of other consultation periods with limited resources to respond to all of them properly. Although it depends on the depth of consultation under the Haida test, the Crown can make decisions over resource projects that are contrary to the input of Nations, so long as the Nations’ input is considered in the Crown’s decision-making of the project.
Consent was the main issue for Kebaowek First Nation. Canada passed the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDA) in 2021, which, one would think, would implement the articles of UNDRIP into Canadian law. For Kebaowek First Nation, this is particularly true with article 29(2) of UNDRIP, which requires the free, prior, and informed consent (FPIC) of First Nations when nuclear waste disposal facilities are proposed on their territories.
Kebaowek raised consent as an issue in the consultation process after the new legislation was passed, but their concern was dismissed by the CNSC as they believed they were an administrative tribunal that couldn’t implement UNDRIP and FPIC into the consultation process, deferring to current case law under the DTCA. To quote the CNSC, they stated to Kebaowek First Nation in the consultation process that:
“… 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…” (para. 54).
Justice Blackhawk disagreed with the CNSC and sided with Kebaowek First Nation in arguing that FPIC, because of UNDRIP, should have been considered in the consultation process. The fact that the CNSC decided it didn’t have the jurisdiction to consider UNDRIP and FPIC in the consultation process was, in Blackhawk’s opinion, an error of law.
Justice Blackhawk views UNDRIP as a foundational framework for reconciliation that was implemented into Canada’s positive law. She pointed to how the Supreme Court of Canada, in Reference re An Act respecting First Nations, Inuit and Metis children, youth and families, 2024 SCC 5 at para 3, regards UNDRIP as the “foundational framework for ‘reconciliation initiative by Parliament.'” [para 77]. That very same case saw the Supreme Court of Canada deciding that UNDRIP is part of Canada’s positive law through UNDA.
Justice Blackhawk adds:
“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 [CNSC], to actively consider how the UNDRIP may impact the interpretation of Canadian laws, including the fulfillment of section 35 constitutional obligations” (para. 81, emphasis added).
A way to fulfill the section 35 obligations that Justice Blackhawk is discussing above is through the DTCA. Consulting and accommodating over resource extraction projects is supposed to ensure Indigenous Nations’ rights that are not yet recognized by the Crown don’t get ignored. The depth of consultation is based on how strong the claim is to those rights and what the potential impacts on those rights would be from the resource project.
However, the current expectations under the DTCA are couched in a process set out by the Crown that typically doesn’t provide the proper time, space, and capacity for Nations to properly provide their concerns over projects that affect their rights. Even though Kebaowek First Nation was granted extensions, funding, and levels of consultation that aren’t typical for fulfilling lower depths of the DTCA, the First Nation also raised various concerns about the process, particularly FPIC.
Meaningful reconciliation must incorporate the perspective of the rights holder in the consultation process. UNDRIP, through the passing of UNDA as legislation in 2021 and thanks to Kebaowek First Nation’s case, has now become a part of the process to fulfill the DTCA. Consultation must be viewed through an Indigenous lens instead of the Crown.
Justice Blackhawk says:
“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” (para. 129).
Recognizing the application of FPIC through UNDRIP is an incredible breakthrough for Aboriginal law across Canada. It is unknown exactly when and where FPIC will be required for consultation, but we anticipate consultation processes on at least the high end of the Haida spectrum to engage FPIC. If Justice Blackhawk’s decision isn’t appealed, it will set a crucial precedent for current and future generations.
Not a Veto
It should be made clear, though, that FPIC in this case does not mean a veto, which is a common misconception. Justice Blackhawk, quoting international scholarship, emphasized how FPIC is not a veto. Instead, consent is part of the process of fulfilling the DTCA.
With Kebaowek First Nation, they have been granted the right to FPIC in the consultation process of the NSDF. They will have consent over how they are consulted over the NSDF, ensuring their laws, knowledge, and cultural processes are respected. This does not mean they have a veto over the NSDF itself.
Justice Blackhawk, near the end of her decision, states:
“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” (para. 183).
The Appeal
On March 20th, 2025, CNL filed a Note of Appeal in the Federal Court of Appeal of the decision given by Justice Blackhawk. Ultimately, CNL does not agree with Justice Blackhawk on incorporating UNDRIP into the DTCA and Canadian law, and are asking the appellate court to set aside the judgment and to dismiss the case entirely.
CNL is arguing that they made the right decision as they were not empowered to determine how to implement UNDRIP. Those obligations, they are arguing, rest with Parliament itself and not CNSC. This is because section 2(3) of UNDA was incorrectly relied upon in Justice Blackhawk’s decision.
Further, CNL wrote that the “Federal Court’s reasons represent a fundamental, improper, modification in the approach to the duty to consult and accommodate in Canada.” The purpose of the DTCA is to uphold the Honour of the Crown by preventing the Crown from stripping rights of their meaning and running roughshod over those rights being proven in Court or asserted in Court. CNL is arguing that the modifications presented by Justice Blackhawk to incorporate FPIC in the process are incompatible with the purposes of the DTCA listed above. CNL goes on to say that no new adverse impacts were presented to the Federal Court at the hearing, and that any potential adverse impacts to Kebaowek’s rights were caused by the previous establishment of the CNL campus. As the DTCA does not apply retroactively, and only to new adverse impacts, according to CNL’s arguments, the court was incorrect to find that the DTCA was not met.
Trust
Trust is essential for reconciliation. There has been an erosion of trust by the Crown with Indigenous communities across Canada, while, thanks to the legal system, there is some hope of it being restored. We are on the path to meaningful reconciliation, but the Crown and all Canadians still have a long way to go. This appeal by CNL is another erosion of trust, taking a step backward on that path.
The new consultation process would have respected Kebaowek’s laws, knowledge, and processes to ensure the NSDF is constructed in a manner that is safe, fair, and honours the Kichi Sibi. It would have helped other Indigenous communities across Canada with better consultation processes that incorporate FPIC. Now, Kebaowek will need to prepare for the appeal, campaigning with and without RAVEN to raise the necessary funds to move the case forward.
Donate now to support this legal challenge to honour Kebaowek’s rights, FPIC, and the Kichi Sibi.
