Federal Court of Appeal: UNDRIP Lacks Automatic Prevalence Over Canadian Law

• The Federal Court of Appeal ruled that UNDRIP does not automatically override Canadian law when inconsistencies arise.
• The court upheld the Canadian Nuclear Safety Commission's approval for a nuclear waste site, rejecting a challenge from Kebaowek First Nation.
• Justice Webb clarified that the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDA) provides an implementation framework and a process for resolving inconsistencies, not an immediate override.
• The ruling affirmed that the Canadian Nuclear Safety Commission correctly relied on existing jurisprudence regarding the duty to consult Indigenous Canada.
• This decision appears to nuance a 2024 Supreme Court of Canada finding on UNDRIP's incorporation into positive law.

The Federal Court of Appeal clarified that the United Nations Declaration on the Rights of Indigenous Peoples Act establishes a framework for the implementation of UNDRIP's various articles and a process for resolving inconsistencies with Canadian law, rather than immediately enacting its provisions or automatically overriding existing statutes.

The Federal Court of Appeal recently issued a significant ruling, determining that the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) does not automatically take precedence when it conflicts with existing Canadian law. Instead, the court emphasized that any such inconsistencies necessitate a process where Parliament engages in consultation and cooperation with Indigenous peoples to find resolutions. This decision effectively upheld a 2024 approval by the Canadian Nuclear Safety Commission (CNSC) for the construction of a nuclear waste landfill.

The case, Canadian Nuclear Laboratories Ltd. v. Kebaowek First Nation, centered on a proposed nuclear waste landfill at the Chalk River Laboratories site in Deep River, Ontario, which is operated by Canadian Nuclear Laboratories. The Kebaowek First Nation challenged the CNSC's decision before the Federal Court, asserting that the landfill was planned for their traditional territory. Their primary contention was that the CNSC had failed to adequately consider UNDRIP's principles when assessing whether the Crown had fulfilled its duty to consult Indigenous groups potentially affected by the project.

Initially, the Federal Court had ordered more extensive consultation with the Kebaowek First Nation. However, Justice Wyman Webb, writing for a unanimous Federal Court of Appeal, reversed this lower court decision. The appellate court concluded that the CNSC's original determination to conduct a more limited consultation process was appropriate, thereby affirming the Canadian Nuclear Safety Commission approval for the project.

While UNDRIP itself is not legally binding, it articulates human rights and standards that Canada has formally committed to upholding. These provisions include expectations for nations to consult with Indigenous groups regarding the storage or disposal of hazardous materials on their lands, as well as any projects that could impact Indigenous territories. The Kebaowek First Nation's challenge was rooted in the belief that the CNSC's assessment of the Crown's duty to consult Indigenous Canada should have been guided by these UNDRIP principles.

The CNSC defended its consultation approach by acknowledging Canada's commitment to the reconciliation framework outlined in UNDRIP. However, the commission argued that Canadian law currently lacks sufficient guidance on how to implement UNDRIP's provisions. Consequently, the CNSC stated that its consultation process was instead based on the established jurisprudence concerning the duty to consult. Justice Webb concurred with this position, stating that the commission was not empowered to determine the implementation of UNDRIP in Canadian law and was correctly guided by existing legal precedents on consultation.

A central question in the appeal was whether UNDRIP introduced new obligations for the CNSC beyond those already mandated by Canada's existing laws on the duty to consult and accommodate. The Federal Court of Appeal's stance, particularly regarding the UNDRIP automatic prevalence Canadian law Federal Court of Appeal interpretation, appears to distinguish itself from a 2024 Supreme Court of Canada (SCC) precedent. The SCC had previously found that UNDRIP's provisions were effectively incorporated into Canada's positive law following the enactment of the federal United Nations Declaration on the Rights of Indigenous Peoples Act (UNDA) in 2021.

Justice Webb, in the Canadian Nuclear Laboratories Ltd. v. Kebaowek First Nation decision, clarified that aspects of the SCC's ruling do not support the conclusion that UNDRIP automatically overrides existing Canadian law. He concluded that UNDA does not immediately implement UNDRIP's articles but rather provides an UNDA implementation framework Canada, outlining a process for resolving inconsistencies between UNDRIP and Canadian laws, including federal common law. Justice Webb also noted that the British Columbia Court of Appeal, in its Gitxaala v. British Columbia decision, had reached a similar conclusion regarding the integration of UNDRIP into domestic law, even as the BCCA ruled that British Columbia's Declaration on the Rights of Indigenous Peoples Act (DRIPA) "incorporates UNDRIP into the positive law of British Columbia with immediate legal effect."

This ruling clarifies that UNDRIP serves as a framework for implementation and resolution of inconsistencies, rather than automatically overriding existing Canadian law. Lawyers advising on projects impacting Indigenous communities must continue to prioritize established jurisprudence on the duty to consult, while closely monitoring legislative and judicial developments regarding UNDRIP's specific application and the process for resolving legal inconsistencies.

Source: Reporting based on a legal news source.