Appeal court refuses to expand duty to consult in pivotal federal UNDRIP case

Appeal court refuses to expand duty to consult in pivotal federal UNDRIP case

Kebaowek First Nation loses, approval upheld for nuclear waste dump near Ottawa River

An Algonquin community in Quebec has lost a critical appeal court case over whether the federal government must implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) when consulting Indigenous groups on projects that impact their rights.

In a written decision released Friday, the Federal Court of Appeal unanimously upheld the Canadian Nuclear Safety Commission's approval of a nuclear waste landfill to be built near the Ottawa River at the Chalk River laboratory near Deep River, Ont.

Kebaowek First Nation, which is fighting the project, successfully challenged that approval in Federal Court by arguing the Trudeau's government's 2021 UNDRIP legislation requires government decision makers, when greenlighting such projects, to expand their consultation process to align with UNDRIP.

But the appeal court disagreed and overturned a lower court order requiring enhanced consultations with Kebaowek, concluding the federal law "does not implement the articles of UNDRIP immediately but rather provides for a process to eventually implement the articles."

"These provisions contemplate future action, not an immediate implementation of the articles as set out in UNDRIP into Canadian law," Justice Wyman W. Webb wrote for the three-judge panel.

In other words, UNDRIP doesn't override Canadian law until the Canadian government, in consultation and co-operation with Indigenous peoples, explicitly establishes such a process, according to the court.

Algonquin First Nations urge appeal court to expand duty to consult in Chalk River case

"Disappointed, heartbroken, just extremely unfortunate. It's certainly not the decision we were hoping for," Kebaowek Councillor Justin Roy said by phone after the decision came out.

"Even when we would talk about potential negative outcomes, an outcome of this negativity was never even on the radar."

Robert Janes, legal counsel for Kebaowek, called the decision disappointing and mystifying, saying it contradicts a British Columbia Court of Appeal ruling in a similar case, called Gitxaala, concerning provincial UNDRIP legislation.

That court found UNDRIP is part of B.C. law with immediate legal effect, which observers praised as an important victory for Indigenous peoples that dramatically increases their ability to use UNDRIP.

"I think in some ways the Federal Court of Appeal was communicating that it disagreed with the British Columbia Court of Appeal," said Janes.

"To some extent that's one of the things now that the Supreme Court of Canada is going to have to deal with."

The country's top court already agreed to hear the Gitxaala case, and Kebaowek learned Thursday it will be allowed to intervene, though no hearing date is set.

"The Federal Court of Appeal's decision, if it's upheld, will reduce the UNDRIP back to something of a promise to develop a checklist, or a to-do list sometime in the future," said Janes.

Federal Court judge had ordered consultation

The landfill in question, or near-surface disposal facility, would hold up to one million cubic metres of low-level radioactive waste, equal to about 400 Olympic-sized swimming pools.

In a statement, Canadian Nuclear Laboratories said it's taking the time to review and digest the decision.

"Given there are few examples of the application of UNDRIP in Canada, and none in the nuclear sector, it was important that CNL obtain a clear understanding of what is required to continue to pursue our work," the organization said, adding that it remains committed to participating actively in the journey of reconciliation.

The legal dispute arises from the nuclear commission's original conclusion that it had no jurisdiction to determine how to implement UNDRP in Canadian law. The Federal Court disagreed.

Justice Julie Blackhawk ordered the commission and the proponent, private-sector consortium Canadian Nuclear Laboratories, to embark on a first-of-its-kind enhanced consultation process designed to implement UNDRIP's principle that states should consult with Indigenous peoples to try and secure their free and informed consent.

Those talks collapsed right before the court-imposed deadline, with Kebaowek accusing the other parties of slow-walking things in hopes of prevailing on appeal.

Kebaowek pauses engagement in new UNDRIP consultations over nuclear dump

The appeal court has now overturned Blackhawk's ruling and dismissed Kebaowek's original application for judicial review. The court found the federal UNDRIP law imposes no new obligations on the nuclear commission in relation to Kebaowek.

The near surface disposal facility (NSDF) proposed by the privately owned Canadian Nuclear Laboratories would be on a ridge one kilometre from the Ottawa River, not far from Chalk River Laboratories in the foreground. (City of Ottawa)

The decision comes amid heightened political and legal scrutiny on the subject of consultation with Indigenous peoples as the Carney government pushes to streamline approval for major projects.

Ottawa's first formally designated national interest project, the proposed Pacific Link pipeline from Alberta to British Columbia, already faces a court challenge from Cold Lake First Nations in Alberta.

Regardless of the decision, Roy and Janes urged the Canadian government to honour and implement UNDRIP and the legislation.

"They put themselves on that path with the Trudeau government a number of years ago, but we've seen over the last year that this new Liberal government is not the Trudeau government," said Roy.

In a statement, the Canadian Nuclear Safety Commission said it remains committed to reconciliation, consultation and engagement with Indigenous nations as it pursues its regulatory work.

Brett Forester is a senior reporter with CBC Indigenous in Ottawa. He is a member of the Chippewas of Kettle and Stony Point First Nation in southern Ontario who previously worked as a journalist with the Aboriginal Peoples Television Network.