The Decision of the Federal Court of Canada
The Federal Court of Canada’s recent decision in Kebaowek First Nation v Canadian Nuclear Laboratories [2025] FC 319 stands as one of the most significant public law rulings in recent Canadian history. It is the most important decision to date on the legal status of Free, Prior and Informed Consent (FPIC) under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which was incorporated into Canadian law in 2021. FPIC is rooted in the rights to self-determination and freedom from racial discrimination.
Background
Kebaowek First Nation is the band government representing the Kebaowek (Eagle Village) First Nation located in Quebec, Canada. The Nation is part of the Anishnabeg Algonquin Nation. Its vision is to grow into a strong, unified community where Anicinabe rights and ownership of traditional territory are recognised by all levels of government, and where the community can prosper through sustainable economic development and achieve self-sufficiency.
Context of the Case
In early 2024, the Canadian Nuclear Safety Commission approved an application by Canadian Nuclear Laboratories Ltd to amend its operating licence for the Chalk River Laboratories site, allowing for the construction of a nuclear waste disposal facility near the Ottawa River. The site is located on the traditional territory of the Kebaowek First Nation. Amid widespread opposition, Kebaowek First Nation challenged the Commission’s decision, arguing that it erred in law by failing to consider UNDRIP, as incorporated into Canadian domestic law, during its approval process.
Court Findings
In a landmark decision, the Federal Court found in favour of the Kebaowek First Nation, holding that the Canadian Nuclear Safety Commission had breached the Crown’s constitutional obligations by failing to consider UNDRIP, including the principle of FPIC, when assessing whether its duty to consult had been fulfilled.
The Court drew on various academic sources and emphasised that FPIC does not confer a veto power on Indigenous peoples over Crown decision-making. Rather, it recognised FPIC as a right to a “robust process” that meaningfully engages with the laws, knowledge, and practices of the affected Indigenous community.
As a result, the Federal Court quashed the Commission’s decision and remitted the matter for reconsideration.
Impact in Canadian Law
This decision marks a significant victory in the Kebaowek First Nation’s efforts to protect its lands and waters from the potential risks associated with nuclear waste. It also stands as one of the clearest judicial interpretations to date of how UNDRIP and the principle of FPIC operate within Canadian domestic law following the enactment of the United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14 (“UNDA”).
However, the decision also represents a major setback for Indigenous communities across Canada. Rather than affirming a legal requirement for the Crown (or its delegates) to obtain FPIC from affected First Nations before proceeding with decisions that impact their rights, the Court clarified that the incorporation of UNDRIP into domestic law results in an enhanced duty to consult, rather than a binding consent requirement.
Consequently, aligning Canadian law with the FPIC standard outlined in UNDRIP, as endorsed by Canada and other signatories like Australia, will likely require additional legislative reform or future judicial interpretation.
Relevance in Australia
Like Canada, Australia is a signatory to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), but it has not incorporated UNDRIP or the principle of FPIC into Australian law in any meaningful way. As a result, decision-makers are not substantively required to obtain FPIC from First Nations peoples when making decisions that affect their rights.
In both native title and cultural heritage law, the Australian legal framework has often lagged behind community expectations and best practice. Although FPIC is not a legal requirement under native title or cultural heritage legislation at either the federal or state level, many investors, Australian corporates, and project proponents have adopted it as a best practice standard, particularly in the context of future acts and Indigenous Land Use Agreements (ILUAs). These practices often align with international standards such as UNDRIP, Reconciliation Action Plans, and broader commitments to respecting First Nations peoples and their connection to Country.
The need for reform was brought into sharp focus by the destruction of Juukan Gorge in 2020. A subsequent parliamentary inquiry found that existing state and federal legislative regimes are inadequate to protect the rights and interests of First Nations peoples.
As discussed in a 2024 Marrawah Law article following Minister Plibersek’s section 10 declaration regarding the Belubula River, the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act) functions as a “last resort” measure, placing the onus on First Nations communities to respond to threats, rather than establishing proactive obligations on project proponents.
Reform may be on the horizon. The Australian Law Reform Commission (ALRC) has been tasked with reviewing the future acts regime in the Native Title Act 1993 (Cth). In its Issues Paper released in November 2024, the ALRC explicitly noted longstanding calls to incorporate international law principles such as FPIC into the future acts regime. These calls have come from:
- Australian Human Rights Commission (Annual Native Title Reports in 2008, 2010, 2011, 2012, and 2024)
- Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs, Inquiry into the Application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia (2023), Recommendation 1
- Joint Standing Committee on Northern Australia, The Engagement of Traditional Owners in the Economic Development of Northern Australia (2022), Recommendation 9
- Joint Standing Committee on Northern Australia, A Way Forward: Final Report into the Destruction of Indigenous Heritage Sites at Juukan Gorge, Recommendation 4
Marrawah Law supports these calls for reform and reaffirms its commitment to seeing FPIC fully implemented in line with UNDRIP. However, the recent decision of the Federal Court of Canada highlights that clear legislative intent is essential. Without it, courts may be reluctant to interpret FPIC as a binding requirement, increasing the risk of costly test litigation to determine its scope.
The public consultation period on the ALRC’s Issues Paper closed on 21 February 2025. Stakeholders will have a further opportunity to contribute once the ALRC releases its Discussion Paper, expected later this month. The final report is due to be delivered to the Attorney-General by 8 December 2025.
People participate in a rally against the Near Surface Disposal Facility (NSDF) project at the Canadian Nuclear Laboratories Chalk River site, on Parliament Hill in Ottawa, on Feb. 14.
Justin Tang/The Canadian Press
https://educaloi.qc.ca/en/capsules/the-federal-court-of-canada/