In late 2024, the nuclear safety commission staff used the lack of explicit United Nations Declaration on the Rights of Indigenous Peoples[1] language in their governing statute as a reason for not considering or applying it during recent consultation. Kebaowek First Nation v Canadian Nuclear Laboratories, 2025 FC 319 (“Kebaowek“) puts an end to that shifty line of reasoning and is a monumental case for two reasons: 1) it is the first time the Federal Court considered the role of the Declaration in relation to the Crown’s Indigenous consultation requirements and 2) it closed an administrative law loophole in relation to the Declaration’s application. The legal world is on notice – the Declaration applies to consultation requirements and to all administrative tribunals who consider the adequacy of the Crown’s duty to consult with Indigenous communities.
Background
Kebaowek was an application for a judicial review of the Canadian Nuclear Safety Commission’s (“CNSC“) decision to grant the Canadian Nuclear Laboratories Ltd.’s (“CNL“) application to amend their Nuclear Research and Test Establishment Operating Licence (“Licence“) for the Chalk River Laboratories site (“Site“) to authorize the construction of a Near Surface Disposal Facility (“NSDF“) on the Site. Justice Blackhawk was the presiding judge.
The application dealt with five issues:[2]
- What is the appropriate standard of review?
- Did the Commission err in determining that it did not have the jurisdiction to determine if the Declaration and UNDA[3] applied to the duty to consult and accommodate?
- Did the Commission err in determining that the Crown had fulfilled its duty to consult and accommodate Kebaowek?
- Did the Commission err in determining that the NSDF is not likely to cause significant adverse environmental effects?
- What is the appropriate remedy?
This memo looks at the Court’s findings on issues 1, 2 and 3, specifically administrative law and the role of the Declaration and UNDA in relation to the Duty to Consult and Accommodate (“DTCA“).
Issue 1 – Standard of Review
The appropriate standard of review is an important consideration for First Nations across Canada. This is because the CNL argued that its enabling statute and appropriate legislation did not give explicit instructions on the implementation of the Declaration and UNDA, giving the CNSC deference to choose how to do so. If that was true, the standard of review would be reasonableness.[4] However, constitutional questions or a general question of law which are “both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise” carry the standard of review of correctness[5], and the Commission’s decision would not be afforded a defence of deference.
Justice Blackhawk stated that the Supreme Court of Canada (“SCC“) clarified that questions concerning the scope of Aboriginal and treaty rights under section 35 of the Constitution Act, 1982 “require a final and determinative answer from the courts”.[6] She found that the appropriate standard of review was correctness as the scope and content of the DTCA are general questions of law of central importance and outside the Commission’s area of expertise.
This finding is foundational. There are hundreds of administrative tribunals across Canada. If each had deference on applying the Declaration, Indigenous communities would be at the mercy of each tribunals level of knowledge and understanding of both the DTCA law and the Declaration which would lead to significant inconsistencies. Kebaowek provides necessary guidance to tribunals across the country that the Declaration must be considered when determining if the Crown met its DTCA. It provides consistency and discourages different tribunals from applying their own standards. This decision also blocks the Crown from using a backdoor workaround to the legal requirements of the Declaration and UNDA.
Issue 2 – Did the Commission err in determining that it did not have the jurisdiction to determine if the Declaration and UNDA[7] applied to the duty to consult and accommodate?
Yes, Justice Blackhawk found that the Commission erred in determining it did not have the jurisdiction to consider the application of the Declaration and the UNDA. This incorrect assumption by the Commission led to a skewed DTCA analysis.
At paragraph 66 Justice Blackhawk cited the SCC finding in Paul v British Columbia (Forest Appeals Commission)[8] that stated there is no requirement for an administrative tribunal to have an express ability to apply section 35 of the constitution, as there is no principled basis to distinguish questions arising under section 35 from other constitutional questions, such as those arising from the Canadian Charter of Rights and Freedoms.[9] As she said,”[s]ection 35 rights are not an enclave that excludes administrative tribunals from determining these issues”. The SCC went even further in Paull:[10]
[i]t is worth noting that administrative tribunals, like courts, have fact-finding functions. Boards are not necessarily in an inferior position to undertake such tasks. Indeed, the more relaxed evidentiary rules of administrative tribunals may in fact be more conducive than a superior court to the airing of an aboriginal rights claim.
The Court found that tribunals are a body with the authority to determine questions of law, including the interpretation of the fulfillment of the DTCA which includes consideration of the Declaration and UNDA. Justice Blackhawk also pointed out that if the Commission was unclear as to the jurisdiction, they had the ability to seek clarification from the courts, which they did not do. She also found the Commission’s decision was unreasonable, even if not incorrect, as it was inconsistent with the principles of statutory interpretation.
Issue 3 – Did the Commission err in determining that the Crown had fulfilled its duty to consult and accommodate Kebaowek?
Justice Blackstock found that the Commission did err in determining that the Crown had fulfilled its DTCA. The failure came as a result of the Crown’s disregard of the application of the Declaration and UNDA during consultation.
The Court found that the Declaration and UNDA should apply in three ways:
- as an interpretive aid;[11]
- as the foundational framework and legislative measure that implements the framework;[12] and
- through the presumption of conformity to international law.[13]
1) Interpretive Aid
The Court plainly declared that the Declaration may be relied on to interpret Canadian law.[14] While the Declaration does not create new law or statutory obligations, it is an interpretative lens that must be applied to determine if the Crown has fulfilled its obligations prescribed at law.[15] The Court also emphasized that the rights set out within the Declaration exist, suggesting that the UNDA has codified pre-existing rights.[16]
Section 35 rights must be interpreted in a manner consistent with the Declaration. This is also 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.[17] Justice Blackstock stated:
Accordingly, this requires all decision makers, including administrative tribunals that have the authority to determine questions of law such as the Commission, to actively consider how the UNDRIP [the Declaration] may impact the interpretation of Canadian laws, including the fulfillment of section 35 constitutional obligations.
The Court noted that Parliament clarified “[n]othing in this Act is to be construed as delaying the application of the Declaration in Canadian Law.”[18] This means despite the CNSC’s enabling legislation being silent on the Declaration, and no mention of the CNSC in the UNDA Action Plan,[19] it does not create a Declaration implementation loophole for this Crown agency. Instead, it “requires all decision makers, including administrative tribunals that have the authority to determine questions of law…to actively consider how the UNDRIP may impact the interpretation of Canadian laws, including the fulfillment of section 35 constitutional obligations.”[20]
2) Foundational Framework
Justice Blackstock stated that “Importantly, the Supreme Court has clarified that the UNDRIP is the foundational framework of the ‘reconciliation initiative by Parliament’ (Reference at para 3)”.[21] Justice Blackstock, citing recent SCC decisions[22] quoted the Court’s finding that “[w]hile the Declaration is not binding as a treaty in Canada… the Declaration has been incorporated into the country’s positive law by the [UNDA]”… Parliament’s enactment of the UNDA in 2021 “[affirmed] the Declaration ‘as a universal human rights instrument with application in Canada law’. It is therefore through this Act of Parliament that the Declaration is incorporated into the country’s domestic positive law”.[23]
The Court outlined the federal inquiries, reports and commissions which call for the implementation of the Declaration at all levels of government and then stated that “Together, these reports and recommendations stress the importance of looking to the UNDRIP as a ‘framework for reconciliation’ and underscore the importance of “free, prior and informed consent of Indigenous peoples to all decision-making processes that effect them”.[24] This leaves little ambiguity as to the country-wide application of the Declaration. The intention is for the Declaration to be applied across the country at all government levels.
3) Presumption of Conformity
The presumption of conformity argument is an established principles in other areas of law, but it is a fresh angle regarding the application of the Declaration and one of the first times the federal court has used it for the Duty to Consult analysis. Justice Blackstock explained the presumption is that our laws will conform with international law which is a well-established principle of statutory interpretation. She quoted the Quebec Court of Appeal’s finding that there is no reason the presumption would not extend to section 35 of the Constitution Act, 1982.[25] She then definitively declared it is a “presumption that the interpretation of section 35 of the Constitution Act, 1982 will be done in a manner that conforms to international agreements that Canada is a part of, including the UNDRIP.”[26]
There are two approaches that inform how international conventions that have been incorporated into Canadian law are to be interpreted. 1) the principle of complementarity and 2) context of international convention.[27]
The principle of complementarity has authority in s. 8.1 of the Interpretation Act. It means that international convention ought to be interpreted in accordance with domestic law which requires interpreting the Declaration in a manner that respects the international legal agreement.[28] And, generally, legislation is presumed to comply with Canada’s international obligations.
How the Declaration intersects with the DTCA
While the DTCA and FPIC have similar objectives, FPIC is a single universal standard as opposed to the DTCA which sits upon a spectrum based on the combination of the strength of rights and the potential infringement.
The scope of the DTCA and the Crown’s obligations are contextual – they are directly proportional to the nature and seriousness of the infringement of a sec. 35 right. Canadian law also provides a justification framework for infringing on sec. 35 rights.[29] However, FPIC is not based on the context and severity of the infringement of a right. The justification for limiting the rights in the Declaration are more stringent. Any limitation must be: 1) in accordance with international human rights obligations, 2) non-discriminatory, and 3) used only for the purposes of obtaining recognition and respect for the rights and freedoms of others and meeting the just and most compelling requirements of a democratic society.[30] FPIC is a right to a robust process and may only be infringed in certain limited circumstances.[31]
Justice Blackhawk found that the Declaration and UNDA must be considered when determining whether the Crown fulfilled its DTCA.[32] This is the first time a federal court has made this finding.
Importantly for Indigenous communities and consultation teams is Justice’s instructions that consultation must be done in a manner that promotes reconciliation. She found that the disregard by the CNSC of the Declaration’s application on Kebaowek in violation of this principle and a failure by the Crown of discharging of its DTCA. While there was room to go further in her decision, especially around remedies, Justice Blackhawk has significantly moved the Declaration’s legal needle for the betterment of Indigenous communities in Canada. Let’s hope the Federal Court of Appeal agrees.
This publication is intended for general information purposes only and should not be relied upon as legal advice.
[1] United Nations Declaration on the Rights of Indigenous Peoples, OHCHR, 33rd Sess, UN Doc A/RES/61/295 (2007) GA Res 61/295 (“Declaration” or “UNDRIP“)).
[2] At para 42.
[3] United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14 [UNDA].
[4] At para 46.
[5] Canada (Minister of Citizenship and Immigration) v. Vavilov, [2019] 4 SCR 653 at para 58.
[6] At para 50.
[7] United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14 [UNDA].
[8] 2003 SCC 55 [Paul].
[9] s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
[10] Paul at para 26.
[11] At para 76.
[12] At par 77.
[13] At para 84.
[14] At para 76 citing Reference re An Act respecting First Nations, Inuit and Metis children, youth and families, 2024 SCC 5 [Reference] at para 4; R c Montour, 2023 QCCS 4154 [Montour] at para 1287.
[15] Ibid.
[16] Ibid.
[17] At para 81.
[18] At para 78.
[19] UNDA Action Plan.
[20] At para 81.
[21] At para 77.
[22] Reference, Dickson v. Vuntut Gwitchin First Nation, 2024 SCC 10.
[23] At para 78.
[24] At paras 93-95.
[25] Renvoi à la Cour d’appel du Québec relative à la Loi concernant les enfants, les jeunes et les familles des Premières Nations, des Inuits et des Métis, 2022 QCCA 185 at para 509; Mason at para 106.
[26] At para 85.
[27] At paras 103 & 104.
[28] At para 104.
[29] R. v. Sparrow, [1990] 1 SCR 1075.
[30] At para 118.
[31] At para 131.
[32] At para 132.
