On October 16, the Federal Court of Appeal released its much-anticipated decision in CNL Ltd. v. Kebaowek First Nation, 2026 FCA 174. Kebaowek is one of several ongoing court proceedings throughout the country that are grappling with the legal effect of Canada’s, and British Columbia’s, commitment to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), including UNDRIP legislation at the federal and provincial level that (1) affirm the application of UNDRIP to Canadian and BC laws; and (2) oblige both levels of government to take “all measures necessary” to align laws with UNDRIP, in consultation and cooperation with Indigenous peoples: Declaration on the Rights of Indigenous Peoples Act, SBC 2019, c 44 (DRIPA), s 3, and United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14 (UNDA), s. 5.
The recent Kebaowek decision, however, unlike other UNDRIP-related decisions from Canadian courts, does not grapple with the legal effect of either issue (1) or (2) above. Rather, the Federal Court of Appeal made a very narrow ruling that UNDRIP is not “implemented” in Canada, in the sense that UNDRIP articles have the force of law, and that the Canadian Nuclear Safety Commission is not the “government of Canada” for the purposes of the “all measures” obligation in UNDA s. 5. The ruling does not address how UNDRIP applies to Canadian laws, and it does not address whether courts may adjudicate issues of UNDRIP consistency – such that a court can declare a law inconsistent with UNDRIP, thus triggering the “all measures necessary” duty.
Background – Canada’s commitment to UNDRIP
UNDRIP is, as recognized by the federal UNDA (s. 4(a)), a “universal international human rights instrument” that affirms minimum collective and individual human rights of Indigenous peoples. While Canada initially opposed UNDRIP when it was passed by the UN General Assembly, it has since reversed its position. In 2016, the Honourable Carolyn Bennett, then-Minister of Indigenous and Northern Affairs, told the United Nations Permanent Forum on Indigenous Issues that Canada was “a full supporter of the Declaration without qualification”, and further, “[b]y adopting and implementing the Declaration, we are excited that we are breathing life into Section 35 and recognizing it now as a full box of rights for Indigenous peoples in Canada”.
Many rights affirmed by UNDRIP – including (among others) self-determination, self-government, free, prior and informed consent, the right to lands, territories and resources, and the right to redress – are already recognized as binding customary international law (Resolution No. 5/2012 of the 75th Conference of the International Law Association held in Sofia, Bulgaria, 2012, paras. 4, 5, 7, and 10).
How courts have been grappling with Canada’s commitment
BC passed DRIPA in 2019 and Canada passed UNDA in 2021. To date:
- the Superior Court of Quebec (R. c. Montour, 2023 QCCS 4154) concluded that Canada’s commitment to UNDRIP gives rise to a presumption of conformity (i.e. courts and statutory decision makers must, when interpreting Canadian laws, including s. 35(1) of the Constitution Act, 1982, prefer interpretations that conform with UNDRIP) (Montour, para. 1201);
- the BC Court of Appeal (Gitxaala v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430) also concluded that there is now a presumption of conformity between UNDRIP and all laws in Canada, including the common law (e.g. para. 78); and
- the Court of King’s Bench of Manitoba (Chief Heidi Cook et al. v. The Government of Manitoba et al., 2026 MBKB 65, per now Supreme Court of Canada Justice Joyal) also concluded that there is now a presumption of conformity between UNDRIP and s. 35(1) (para. 682).
What these decisions say collectively is not that every UNDRIP article has the force of law in Canada and BC; rather, they say that the Crown’s commitment to UNDRIP has made UNDRIP akin to a binding international instrument. For decades, courts have recognized that domestic law should be interpreted consistently with Canada’s international commitments. Recent UNDRIP decisions say that UNDRIP is one such commitment.
The FCA in Kebaowek did not grapple with this. The very narrow issue for the court was whether UNDRIP is “implemented”, in the sense that UNDRIP articles now have the force of law in Canada. That issue is distinct from those in Montour, Gitxaala and Chief Heidi Cook. The issue in those cases was UNDRIP’s application to Canadian (and BC) laws, not the independent force of UNDRIP articles.
Unpacking the Kebaowek decision
The case is a judicial review of a decision by the Canadian Nuclear Safety Commission (Commission) to authorize the construction of a nuclear waste facility. The area (called the “Site”) in the decision was originally expropriated in 1944, and the Site has been generating radioactive waste for over 75 years. According to the FCA reasons, current waste storage practices are “inconsistent with modern waste management principles”, so the proposed new facility is a “modernized disposal solution” (paras. 11-14).
The site is within Kebaowek’s traditional territory and adjacent to their Title Claim area (para. 16).
During the regulatory proceeding before the Commission, the Commission consulted with affected First Nations, including Kebaowek. Keboawek and others raised the issue of how UNDRIP applies to the duty to consult and accommodate under s. 35(1). The Commission decided that it “as a creature of statute, is not empowered to determine how to implement UNDRIP in Canadian law” (para. 19).
In the Federal Court below (2025 FC 319), Justice Blackhawk allowed Kebaowek’s application for judicial review. She concluded that the Commission did have jurisdiction to determine if UNDRIP applied to the duty to consult, because there is now a presumption of conformity with UNDRIP that applies to s. 35(1) (para. 85), and the Commission has statutory authority to determine questions of law (paras. 68-69).
Justice Blackhawk further determined that, when the duty to consult is considered in light of UNDRIP – particularly (but not only) the right of free, prior and informed consent – it “gives rise to an enhanced obligation to consult” (para. 124).
In the result she remitted the matter back to the Commission to resume consultation with Kebaowek, following which it would reconsider if the duty to consult and accommodate was fulfilled in view of the application of UNDRIP.
The Federal Court of Appeal overturned this decision; however, as above, its reasons do not address the reasoning of Justice Blackhawk. The decision, by Justice Webb (Justices Monaghan and Pamel concurring), was instead focused solely on whether the Commission had jurisdiction to implement UNDRIP (para. 36).
Therefore, the only issues decided by Justice Webb were: (1) whether UNDRIP is implemented – in the sense that its articles have the force of law in Canada – and (2) whether the Commission is the “government of Canada” under UNDA s. 5 (if the Commission is the government under UNDA, then it has the obligation to take all measures necessary to align laws with UNDRIP). The FCA answered “no” to both questions.
However, neither of these issues is particularly live in current Canadian UNDRIP jurisprudence. As noted, in other proceedings, including in the Kebaowek Federal Court proceeding, the courts have focused on how to apply UNDRIP to Canadian (or BC) laws – not whether UNDRIP has the force of law in Canada. These are distinct questions, because international instruments can apply to Canadian laws even if they are not “implemented”, as explained by Justice Dickson in Gitxaala at para. 63 (emphasis added):
“…’international treaties and conventions, even where they have not been implemented domestically by statute, can help to inform whether a decision was a reasonable exercise of administrative power’: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 114.”
The BC Court of Appeal considered UNDRIP to be “implemented” in the sense that it has “immediate effect as an interpretive aid in domestic law”, not in the sense that it has the force of law (para. 146).
Montour and Chief Heidi Cook are then examples of courts applying UNDRIP “as an interpretive aid”. In the latter case, now SCC Justice Joyal said, “s. 35 should be interpreted consistent with international law principles, including UNDRIP, unless there is an express legislative intention to the contrary” (para. 682).
Kebaowek (with respect to which leave to appeal may well be sought from the Supreme Court of Canada) therefore leaves the key questions unanswered. Montour is being appealed to the Quebec Court of Appeal. **We understand that Chief Heidi Cook was not appealed. Gitxaala will be heard by the Supreme Court of Canada, which has already said that UNDRIP is “incorporated into the country’s positive law” (Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5, para. 4).
Parliament is presumed not to speak in vain. If the day before it passed UNDA, key UNDRIP rights were already binding on Canada under customary international law, there must be an effect to the passage of legislation that affirms UNDRIP’s application – as a whole – to Canadian laws. Three courts have said that effect is a presumption of conformity. The latest from the Federal Court of Appeal does not change that analysis.
Justiciability of inconsistency; the BC Interpretation Act
Finally, the Kebaowek decision also says nothing about the justiciability of questions of inconsistency – that is, can courts adjudicate whether a law is consistent with UNDRIP, and declare an inconsistency that will trigger the government’s obligation to take “all measures necessary” to align the law? In Gitxaala, the majority of the Court of Appeal said yes, consistency is justiciable.
The Federal Court of Appeal did not need to address this issue, and did not. However, Justice Webb was aware of the Gitxaala decision, and at para. 76 notes “an inconsistency will give rise to an obligation on the part of the Government of Canada to resolve the inconsistency in consultation and cooperation with Indigenous peoples”.
In subsequent paragraphs, Justice Webb also notes that in BC, s. 8.1(3) of the Interpretation Act requires that “[e]very Act and regulation must be construed as being consistent with the Declaration” (Kebaowek, para. 77). Gitxaala described this as a “statutory presumption of consistency … functionally akin to the presumption of conformity” (para. 125).
While Justice Webb correctly notes that there is no equivalent federal provision in the federal Interpretation Act, the fact remains that the BC Court of Appeal also concluded that “UNDRIP engages the common law interpretive presumption of conformity” (para. 125), which applies without a direction from an Interpretation Act. But the Federal Court of Appeal did not consider the interpretive application of UNDRIP to Canadian laws, so its reasons do not offer any further insight.
CNL Ltd. v. Kebaowek First Nation, 2026 FCA 174.
Ruben Tillman