It seems to be a perennial problem that Canadian society isn’t privy to knowing how to navigate the legal system unless you’re a lawyer, or you study the law as a fun little side-gig. We view this as a big problem. We want to make sure that everyone can understand what happens when a case protects Indigenous rights and lands for the benefit of all Canadians. 

So, below is a synopsis of a judicial review (JR). We think it will help you and others learn more about important cases, like Kebaowek First Nation’s judicial review, which will be in court July 10-11, 2024.. 

What is a Judicial Review?

Essentially, a JR is when a court reviews a decision made by a body which is given authority by government through statute or regulation, such as a Ministry or a university. When one party believes the decision was not made legally, the courts will make sure the entity making the decision has the authority to actually make that decision, or that it was made in a fair way which didn’t break any laws. 

The concerns someone might have with a decision made by a body with authority include:

• Discrimination; 
• Bias; 
• Not considering something they are required to by law; 
• Considering something they must not consider; or 
• A lack of a fair hearing. 

Step 1: Filing

Let’s say your local library said that you had to pay triple the amount in late fees than the average person. You’re outraged. You throw your library books on the ground and stomp on them like an oil executive having a temper tantrum over a just transition. You don’t know what to do about it.

That’s where the legal system comes in! You can file a judicial review for the courts to look over the library’s decision that looks an awful lot like discrimination.

So, how do you do it? 

First, you can hire a lawyer. You will want to give them all the relevant documents you have and received from the library to use as evidence in the case. You will also discuss with your lawyer what happened to you, who will then write a legal argument to present in court. Your lawyer will then file a written application and file any affidavits with the courts and voila! Your legal case is started and you’re on your way to justice.

Step 2: Prepare

After your written materials are submitted, the Respondent will have an opportunity to submit theirs. This is typically within 30 days of receipt of your materials but can change. You and your lawyers review the Respondent’s Record, which includes their arguments, affidavits, and other materials. All materials will be reviewed by the judge before the hearing begins.

But then, you sit there and wait for a court date… for quite some time. Judicial reviews, depending on the size and nature of them, can take years before they see the inside of a courtroom. For instance, Gitxaała Nation’s judicial review took over two years before it was heard in court.

Step 3: Court

Next, you go to court to present your oral arguments. Each side will be given a certain amount of time to give their oral arguments, which are put on the public record. The judges will have received all the written materials in advance. Judges will be able to ask questions and get clarification, if needed. At the end, both sides are given a final chance to respond to the arguments from the previous hours and days.

Typically, judicial reviews are relatively short when comparing them to other cases you hear about in the news (who’s that Trump guy again who’s getting convicted?). Even the longer judicial reviews generally will not last longer than a few days. 

Step 4: Decisions

When the judge is ready, they will write a decision on all issues raised during the JR, and whether or not they are in your favour of your argument or the other side’s favour. The judge will determine if the decision will stand, if it should be quashed and sent back to the entity (in your case, the library) to make a new decision with further guidance, or if another possible remedy may be appropriate. Generally, there are no financial remedies available on judicial review.

Step 5: Appeals

Either side can typically appeal the decision made by the judge in the judicial review if they believe they have a grounds to appeal. This would mean that one party believes the judge made an error in their decision, which requires a higher court to decide upon. With an appeal, the whole process, for the most part, would begin all over again. The process can continue all the way to the Supreme Court of Canada, which cannot be appealed afterward.

Kebaowek First Nation’ s Judicial Review

Okay, now that you know the process for a judicial review, let’s dive into a RAVEN supported JR!

Kebaowek First Nation has filed a judicial review for the courts to review a decision made by the Canadian Nuclear Safety Commission (CNSC) in regards to a nuclear waste facility on Kebaowek’s territory. Over 37 hectares of old-growth forest, just a kilometre away from the sacred Kichi Sibi (Ottawa river), are going to be replaced by a Near Surface Disposal Facility (NSDF), where over 1 million cubic metres of nuclear waste will be stored. This will happen without free, prior, and informed consent of Kebaowek First Nation.

Kebaowek filed a judicial review about the CNSC’s decision because the CNSC chose not to include principles from the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which is Canadian federal policy as of 2021. This policy should give Kebaowek First Nation the right to say no to the nuclear waste facility to then move it elsewhere, much further away from a river that provides millions of people with drinking water.

The judicial review was filed back in February 2024, just a month after the decision to approve the NSDF was made. Kebaowek’s legal team collected evidence, wrote an application, provided affidavits, and submitted it to the Federal Court. In the petition, they write:

“Authorizing the Nuclear Waste Disposal Facility without obtaining Kebaowek’s consent violates the UN Declaration… the depth and scope of the Crown’s duty to consult must be informed by the UN Declaration.” (para 30)

The CNSC submitted their Respondent’s Record, which includes their written arguments, in response to Kebaowek First Nation for the courts. They notably said: 

“KFN’s argument must fail. The duty to consult is a right to a process and does not require consent from the Indigenous party… Reconciliation and the Crown’s duty to consult do not require that consultation lead Indigenous Nations to agree with proposed Crown action.” (para 73 and 74)

Kebaowek First Nation and the CNSC will be heading to court on July 10-11, 2024 to make their oral arguments. RAVEN will be there to cheer them on, organizing a gathering of support outside the federal courthouse in Ottawa at 8am ET on July 10. Will you be there?