Aboriginal and Indigenous Law: Recent developments of importance

The status of the United Nations Declaration on the Rights of Indigenous Peoples

This year, two important decisions considered how the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) should inform Canadian law: Kebaowek v. Canadian Nuclear Safety Commission, 2025 FC 319 (“Kebaowek”) and Gitxaala v British Columbia (Commissioner of Gold), 2025 BCCA 430 (“Gitxaala”).  

First, a bit of context: since 2016, when Canada announced that it would support UNDRIP “without qualification,” British Columbia (2019)^[1], Canada (2021^)[2] and the Northwest Territories (2023) have passed very similar laws to give it effect.^[3]   Importantly, all  three laws have a purpose provision that affirms UNDRIP as having application to the laws of that jurisdiction.^[4]  In 2024, the Supreme Court of Canada interpreted this part of the federal Act as having “incorporated [UNDRIP] into the country’s positive law.”^[5]  All three laws also commit the government of their respective jurisdictions to take measures necessary to ensure the laws of that jurisdiction are consistent with UNDRIP,^[6] and to prepare and implement an action plan to achieve the objectives of the declaration.^[7] 

The first important decision of the year on the status of UNDRIP and the effect of these implementing laws is Kebaowek,^[8] a judicial review of a decision of the Canadian Nuclear Safety Commission (“CNSC”) to approve an application to allow a near-surface nuclear disposal facility at Chalk River within Kebaowek First Nation’s territory.  For the past 75 years, the site has been used as a temporary storage site for nuclear waste. The proposed facility would permanently dispose of the existing waste at the site, as well as allow more low-level nuclear waste to be stored there in a manner more aligned with modern standards.

Kebaowek argued that as a result of the federal United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021 c 14 (“the federal UNDRIP Act”), the CNSC had an obligation to secure their free, prior and informed consent pursuant to UNDRIP before approving the project, and that this obligation also informed what it meant for the CNSC to satisfy its duty to consult and accommodate them.

The Federal Court held that the CNSC had jurisdiction to consider UNDRIP and erred in failing to do so.^[9]  As a result of the federal UNDRIP Act, UNDRIP now attracted the “presumption of conformity” – a presumption that both statute law and the Constitution, including s. 35 rights, should be interpreted to the extent possible in a manner that is consistent with UNDRIP.^[10]

The key provision of UNDRIP at issue is 29(2), which requires states to obtain the free, prior and informed consent of Indigenous peoples before allowing the storage or disposal of hazardous materials in their territories.^[11]The Court found that applying this provision to the duty to consult “requires an enhanced and more robust process to ensure that consultation processes were tailored to consider Kebaowek’s Indigenous laws, knowledge, and practices, and that the process was directed towards finding mutual agreement.”^[12]

The second important case of the year is Gitxaala, a challenge to the “free entry mining” system under British Columbia’s Mineral Tenure Act, RSBC 1996, c 292.  Under this system, “free miners” are allowed to register claims to mineral rights on Crown lands without any consultation with the First Nations in whose territories those claims are located.  Once a claim is registered, it entitles the holder of the claim to conduct exploratory activities. Two First Nations, Gitxaala and Ehattesaht, argued that this system was both a breach of the duty to consult and inconsistent with UNDRIP.

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