Ever since the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted into domestic law in 2021 with An Act Respecting the United Nations Declaration on the Rights of Indigenous Peoples (UNDA), many – including us – have been skeptical as to whether the adoption would be the impetus for change or just another hollow gesture.[2]
One of the big questions regarding the application of UNDRIP and UNDA concerns the concept of “free, prior and informed consent” (FPIC). FPIC is continually underscored as a critically important element of reconciliation efforts, as per the UNDRIP, UNDA, and other reports and recommendations such as 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.[3] However, there has been controversy over FPIC because of (mistaken) concerns that FPIC amounts to a veto power.[4] With no instruction from Parliament on the after either, FPIC has failed to take off meaningfully in jurisprudence.
Blackhawk J’s decision in Kebaowek First Nations v Canadian Nuclear Laboratories courageously pushes new precedent forward by being “one of the first decisions that sets out how the UNDRIP, as incorporated into federal law through the UNDA, may be utilized as an interpretive aid.”[5] Released on February 19, the federal decision concerned the Kebaowek First Nations challenging the construction of a “near-surface disposal facility” (NSDF) for nuclear waste. Blackhawk J directed that the Canadian Nuclear Safety Commission and the Canadian Nuclear Laboratories Ltd (CNL) – those responsible for the approval and construction of the NSDF – need to resume consultation with Kebaowek “in a manner that promotes reconciliation and aligns with the principles articulated in the UNDRIP, including the FPIC standard.”[6]
After an in-depth canvassing of relevant law and jurisprudence, it was held that the Commission made an error of law by asserting that it did not have jurisdiction to determine if the UNDRIP and UNDA applied to the duty to consult and accommodate. Furthermore, the Commission’s decision was unreasonable because it “failed to consider and apply the UNDRIP as an interpretive lens when determining if the duty to consult and accommodate had been discharged in this matter vis-a-vis Kebaowek.”[7]
Blackhawk J pulled together many sources – including, precedent from Haida Nation and the presumption of conformity with international law – to establish that: “[T]he adoption of the UNDRIP into Canadian law now requires more.”[8] In analyzing a duty to consult process, “[t]he UNDRIP is an added contextual lawyer that informs the scope and content of the duty to consult and accommodate.”[9] As such, when an issue falls within the scope of a UNDRIP article (in this case it was Article 29(2)), this will necessarily trigger the UNDRIP FPIC standard.[10]
The UNDRIP FPIC standard “requires a process that places a heightened emphasis on the need for a deep level of consultation and negotiations geared toward a mutually accepted arrangement.”[11] Addressing the common confusion about FPIC, Blackhawk J clarified that the UNDRIP FPIC standard “is not a veto or an absolute power for Indigenous peoples.”[12] However, “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.”[13]
We expect that this decision will be challenged at the Federal Court of Appeal and potentially appealed to the Supreme Court. However, this decision imports optimism for the application of UNDRIP and UNDA, partially the application of the UNDRIP FPCI standard in Canadian jurisprudence!
Until next time,
The ReconciliACTION Team
Citations
[1] Kebaowek First Nation v Canadian Nuclear Laboratories, 2025 FC 319 [Kebaowek].
[2] United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14.
[3] Kebaowek, supra note 1 at paras 93-95. See also Truth and Reconciliation Commission of Canada, Truth and Reconciliation Commission of Canada: Calls to Action, (Winnipeg: Truth and Reconciliation Commission of Canada, 2015); “Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls,” National Inquiry into Missing and Murdered Indigenous Women and GIrls (accessed 22 February 2025), online: <mmiwg-ffada.ca> [perma.cc/W6GV-4Q5M].
[4] Kebaowek, supra note 1 at para 95.
[5] Ibid at para 92.
[6] Ibid at para 221.
[7] Ibid at para 215.
[8] Ibid at para 124. See also Ibid at paras 54-183 generally; Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73; Mikisew Cree First nation v Canada (Minister of Canadian Heritage), 2005 SCC 69 at para 63; R v Hape, 2007 SCC 26 at para 53.
[9] Kebaowek, ibid at para 129.
[10] Ibid at para 130.
[11] Ibid.
[12] Ibid at para 96.
[13] Ibid at para 183.
[Image] “Justice Julie Blackhawk is Setting New Precedents” Lakehead University: Alumni Spotlight Archive (8 November 2024), online: <lakeheadu.ca> [perma.cc/UB3Q-APN5].