What the Federal Court of Appeal’s Kebaowek Decision Means for UNDRIP, FPIC and Federal Regulators

The Federal Court of Appeal’s decision in Canadian Nuclear Laboratories Ltd. v. Kebaowek First Nation et al., 2026 FCA 174, is an important statement on the role of the federal United Nations Declaration on the Rights of Indigenous Peoples Act (UNDA) in regulatory decision-making. The Court allowed Canadian Nuclear Laboratories Ltd.’s (CNL) appeal, set aside the Federal Court’s judgment, dismissed Kebaowek First Nation’s cross-appeal and dismissed the underlying application for judicial review, leaving the Canadian Nuclear Safety Commission’s approval of the proposed Near Surface Disposal Facility (NSDF) in place.

The Court held that the UNDA does not immediately implement UNDRIP’s articles as freestanding domestic law. Instead, it provides a framework for the Government of Canada’s ongoing implementation of UNDRIP and a process for addressing inconsistencies between UNDRIP and Canadian law. On that basis, the Commission did not err by applying the existing law governing the duty to consult and accommodate rather than treating the UNDRIP free, prior and informed consent (FPIC) standard as an additional legal requirement.

Background – the NSDF and the Federal Court order

The NSDF dispute arose from CNL’s application to amend its operating licence for the Chalk River Laboratories site, which is owned by Atomic Energy of Canada Limited and has generated radioactive waste for more than 75 years. The proposed NSDF would provide a modern disposal solution for up to 1,000,000 cubic metres of solid low-level radioactive waste.

The central issue on appeal was not whether consultation was required. The Commission had accepted that it had a duty to engage and consult with Indigenous Nations and communities. The question was whether the enactment of the UNDA imposed additional consultation obligations on the Commission beyond the existing law of the duty to consult and accommodate.

The Federal Court had found that the Commission erred by failing to consider UNDRIP and FPIC as contextual factors in assessing whether the Crown had fulfilled its duty to consult and accommodate. It remitted the matter to the Commission for renewed consultation directed toward implementing the UNDRIP FPIC standard in a more robust manner, but it did not set aside the Commission’s approval.

CNL appealed. Kebaowek cross-appealed, seeking an order setting aside the Commission’s decision and remitting it for reconsideration. The Federal Court of Appeal allowed CNL’s appeal, dismissed Kebaowek’s cross-appeal and dismissed the underlying judicial review application.

What the Federal Court of Appeal decided

The Court treated the interpretation of the UNDA as a general question of law of central importance to the legal system and reviewed that issue for correctness. Its reasons can be understood through three main points.

1. The existing law on the duty to consult remains the governing framework. The Court relied on the established Haida spectrum, under which the content of consultation varies with the strength of the asserted right or title and the seriousness of the potential adverse effect. In this case, the Court placed the duty at the low end of the spectrum because the Site was outside Kebaowek’s asserted title area, although within its broader traditional territory, and because Kebaowek had not identified new or novel adverse impacts beyond those flowing from the historical taking of the lands for nuclear development.
2. The UNDA creates a framework, not automatic incorporation of every UNDRIP article. The Court distinguished between affirming UNDRIP as a human rights instrument with application in Canadian law and immediately implementing each UNDRIP article as binding domestic law. It held that, where UNDRIP and Canadian law are inconsistent, the UNDA does not make UNDRIP prevail; instead, the inconsistency triggers the Government of Canada’s obligation to take measures to resolve it in consultation and cooperation with Indigenous peoples.
3. The Commission is not the “Government of Canada” for section 5 of the UNDA when approving the NSDF. The Court accepted that a regulator’s project decision can be Crown action for duty-to-consult purposes, but held that this did not make the Commission the body responsible for the broader law-alignment process contemplated by section 5 of the UNDA. The Court emphasised the Commission’s statutory mandate over nuclear energy and nuclear substances, and contrasted that mandate with the general consultation and law-reform process described in section 5.

The practical result is that the Commission’s original approach was upheld. It was entitled to decide the project under the current statutory framework, including the Canadian Environmental Assessment Act, 2012 and the Nuclear Safety and Control Act, while applying the existing law on the duty to consult and accommodate.

Why Gitxaala mattered to the appeal

After the hearing, the parties were granted leave to file further written submissions on the British Columbia Court of Appeal’s decision in Gitxaala v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430 (which we discussed in a 2025 Insight). In its own decision, the Federal Court of Appeal used Gitxaala as support for the proposition that an inconsistency between UNDRIP and domestic law triggers government obligation to take action to resolve the inconsistency, rather than automatically making UNDRIP prevail over the domestic law.

Gitxaala concerned British Columbia’s Declaration on the Rights of Indigenous Peoples Act (the Declaration Act) and its provincial interpretive context, while Kebaowek concerned the federal UNDA and the mandate of a federal nuclear regulator. The Federal Court of Appeal also noted that the federal Interpretation Act does not contain a provision equivalent to the British Columbia Interpretation Act provision requiring Acts and regulations to be construed as consistent with UNDRIP.

The key passage from Gitxaala, quoted by the Federal Court of Appeal, framed inconsistency as a trigger for government action:

“It is the existence of inconsistency between a British Columbia law and one or more provisions of UNDRIP that triggers the Crown’s obligation to take action, namely, to develop the measures necessary to resolve the inconsistency, in consultation and cooperation with Indigenous peoples, and to implement those measures…”

The Federal Court of Appeal held that UNDRIP articles do not immediately displace inconsistent Canadian law, but it recognised that the UNDA sets out a process for resolving inconsistencies and left open questions about how that process may operate in relation to federal common law.

Implications and a Look Ahead – the Supreme Court, Gitxaala and UNDRIP politics

For project proponents and regulators, the decision narrows the immediate effect of the federal UNDA in regulatory approvals. It does not eliminate consultation obligations, and it does not resolve every question about how particular UNDRIP articles may apply in Canadian law. It does, however, reject the proposition that the Commission had to redesign its consultation analysis around FPIC before approving this project.

A leave application to the Supreme Court of Canada would not be surprising. Under the Supreme Court Act, a party seeking leave must serve and file the notice of application for leave to appeal and supporting materials within 60 days after the date of the judgment.

The Supreme Court of Canada has already granted leave to appeal in Gitxaala [1] and the appeal process is well advanced.  Factums have been filed and an October 14, 2026 order granted leave to 33 interveners or groups of interveners to file factums by November 20, 2026. A hearing date has not been set.

The Supreme Court of Canada’s eventual treatment of Gitxaala may therefore become the next major reference point for courts, governments, Indigenous governments and project proponents seeking to understand the legal consequences of UNDRIP and implementation statutes. Depending on whether and how Kebaowek proceeds further, the Supreme Court may also be specifically asked to address the federal side of the same broader debate.

For now, the Federal Court of Appeal has given federal regulators a narrower path: apply the current law, recognise that UNDRIP implementation remains an ongoing statutory project, and leave broad law-alignment work to the Government of Canada. That answer is unlikely to end the debate. Further judicial commentary, legislative discussion and political controversy over UNDRIP, FPIC and implementation in Canada should be expected.