Kebaowek First Nation has received a decision from the Federal Court that is overwhelmingly positive for protecting the Kichi Sibi and advancing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Canadian law.
Chief Justice Blackhawk declared that the UNDRIP should have been considered when the Canadian Nuclear Safety Commission (CNSC) approved the construction of a nuclear waste facility in Kebaowek’s territory. CNSC and Canadian Nuclear Laboratories will now need to consult with Kebaowek to receive their free, prior, and informed consent (FPIC) before the Near Surface Disposal Facility (NSDF) begins construction, incorporating Indigenous laws, knowledge, and processes into consultation.
Robert Janes KC, the lead lawyer for Kebaowek’s case, says:
“The court has made it clear that respecting Canada’s commitments under UNDRIP cannot be delayed to some far distant date. Canada must respect these commitments now.”
This decision, if Canada doesn’t file for an appeal within the standard 30-day period after a decision, will ensure the new consultation –process will meet the requirements of FPIC. The new process will hopefully protect the Kichi Sibi from potential nuclear contamination that could be caused by the NSDF, safeguarding the drinking water of millions of people.
Chief Lance Haymond of Kebaowek First Nation says:
“This victory is not just for Kebaowek—it is for all First Nations asserting their rights, for the millions of people who rely on the Ottawa River for drinking water, and for future generations who deserve a safe and healthy environment.”
Kebaowek’s victory represents more than just protecting the Kichi Sibi – it ushers in a new era of respect for Indigenous rights through the legal system. First Nations are now able to hold Canada accountable to the principles of UNDRIP during the consultation process over nuclear waste projects. It shows that Canada must now ensure the standard of FPIC is met when consultation is triggered under UNDRIP.
The decision does not replace the duty to consult and accommodate, which arose under s. 35 of the Constitution, but rather, it is a separate requirement to be considered when assessing consultation and infringement. This level of clarity for how UNDRIP should be applied to consultation has never occurred in Canadian legal history, and will surely be used as precedent for other Indigenous-led litigation for decades to come.
Justice Blackhawk’s decision is welcomed with gratitude by all of us at RAVEN. We are deeply appreciative of Kebaowek’s leadership in leading the case with JFK’s legal work and to our resilient community of supporters who make access to justice possible. Together, we have raised over $100,000 for Kebaowek since the campaign launched in May 2024, showcasing an incredible wave of support for the advancement of Indigenous rights.