Federal Court Of Appeal Finds Federal Legislation Does Not Implement UNDRIP

On October 16, 2026, the Federal Court of Appeal (FCA) released its judgment in CNL Ltd. v. Kebaowek First Nation et al., 2026 FCA 174, which allowed the appeal of Canadian Nuclear Laboratories (CNL). The FCA held that the Canadian Nuclear Safety Commission (CNSC) was not responsible for implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) when it approved CNL’s proposed Near Surface Disposal Facility (NSDF).

Cassels lawyers Thomas Isaac and Arend Hoekstra represented CNL before the FCA.

The decision has significant implications for major projects across Canada, including nuclear, infrastructure, and resource projects. It provides important guidance on UNDRIP and the implications of the federal United Nations Declaration on the Rights of Indigenous Peoples Act (UNDA). It also sheds light on the role of federal regulators in the implementation of UNDRIP, including in seeking the free, prior, and informed consent of Indigenous peoples.

Key Findings of the FCA

Kebaowek First Nation (KFN) challenged the CNSC’s determination that the duty to consult KFN had been satisfied when approving the NSDF. KFN alleged that the CNSC had failed to give appropriate consideration to UNDRIP and UNDA, and specifically the obligations to obtain the free, prior, and informed consent of Indigenous peoples, when assessing the Crown’s duty to consult. The Federal Court found that, notwithstanding there would be no new adverse impacts on KFN from the NSDF, the CNSC must incorporate UNDRIP into its consultation with KFN to be completed within 19 months of the decision.

On appeal, the FCA overturned the lower court decision and upheld the CNSC’s approval of CNL’s nuclear licence amendment. In reaching its decision, the FCA found that:

• UNDA does not directly give effect to UNDRIP’s articles; instead, it creates a framework for Canada’s future implementation of UNDRIP’s articles;
• The framework for implementing UNDRIP under UNDA does not include a provision that immediately resolves inconsistencies between Canadian laws and UNDRIP;
• The CNSC is not the “Government of Canada” for the purposes of implementing UNDRIP under the UNDA; and
• The scope of some aspects of UNDRIP may be limited to lands currently owned or possessed by Indigenous peoples.

UNDA Does Not Give UNDRIP’s Articles Direct Legal Effect

The FCA found that UNDRIP on its own does not create or impose obligations in Canadian law¹ and that UNDA does not incorporate UNDRIP’s articles into Canadian law.² Rather, it establishes a framework for Canada’s future implementation of UNDRIP’s articles.³ In reaching this conclusion, the FCA relied on UNDA’s stated purposes, including to affirm UNDRIP as a “universal international human rights instrument with application in Canadian law”, and to provide “a framework for the Government of Canada’s implementation of the Declaration.”⁴ The FCA stated that UNDA could not have implemented UNDRIP into Canadian law since “[t]here is no need to provide a framework for the implementation of UNDRIP if UNDRIP is implemented by the UNDA.”⁵

UNDA Does Not Automatically Resolve Inconsistencies between Canadian Law and UNDRIP

The FCA found that UNDA requires Canada, in consultation and cooperation with Indigenous peoples, to take measures to address inconsistencies between Canadian law and UNDRIP.⁶ Per the FCA, “[a]n inconsistency is not resolved by providing that the provisions of UNDRIP will prevail but rather it triggers the obligation to take action to resolve the inconsistency. This is consistent with my view that the UNDA does not implement the articles of UNDRIP immediately but rather provides for a process to eventually implement the articles.”⁷

The CNSC Is Not the “Government of Canada” for the Purposes of Implementing UNDRIP under the UNDA

The FCA reached this conclusion based on the narrow statutory mandate of the CNSC (i.e. issues relating to nuclear energy and nuclear substances),⁸ the broad consultation process envisioned by UNDA,⁹ as well as Parliament’s use of the term “Government of Canada” in other federal legislation.¹⁰ Consequently, the FCA found that the CNSC was not obligated to carry out the collaborative process for reconciling Canadian law with UNDRIP, as contemplated by UNDA, when deciding whether to approve construction of the NSDF.¹¹

Parts of UNDRIP May Only Be Relevant to a Narrower Category of “Lands”

The FCA noted that unlike some aspects of UNDRIP which apply to lands that have “traditionally” been used and occupied by Indigenous peoples (e.g., Articles 26, 27, and 28), Article 29 (storage of hazardous materials) and Article 32 (seeking free, prior, and informed consent before any major project) use different language that may suggest their application is limited to only the currently possessed lands and territories of Indigenous peoples.¹² The FCA acknowledged that this distinction raises additional questions regarding what rights may be available to Indigenous peoples who have had their “traditionally” used or occupied lands taken by the state.¹³

Implications for Major Projects

The FCA’s decision is highly relevant in the context of building major projects where federal agencies are increasingly being called upon to make decisions that could impact Indigenous rights and interests. Key implications of the decision include:

• The decision confirms that UNDA establishes a process for the future implementation of UNDRIP rather than immediately incorporating its provisions into Canadian law.
• Federal regulators, such as the Canada Energy Regulator, may not be responsible for implementing UNDRIP when exercising their administrative decision-making functions.¹⁴ However, there is some uncertainty around whether federal decisions-makers who could be characterized as the “Government of Canada” would have obligations to reconcile Canadian law with UNDRIP in accordance with UNDA.
• UNDRIP requirements under Article 29(2) and Article 32(2) to seek and obtain free, prior, and informed consent before approving a major project may apply only on lands which are currently owned or possessed by Indigenous peoples, pending further implementation of UNDRIP through legislative or other measures. While the FCA’s commentary suggests a narrow application of UNDRIP, this finding does not alleviate the existing Crown duty to consult when Crown decision-making or conduct has the potential to adversely impact Aboriginal rights.
• The FCA noted that it is unclear whether reference to “Canadian law” in UNDA includes federal common law principles,¹⁵ such as the duty to consult. Accordingly, it remains uncertain how the implementation of UNDRIP into Canadian law may impact the duty to consult and accommodate.

Further UNDRIP Proceedings

Leave to appeal the decision to the Supreme Court of Canada (SCC) must be sought within 60 days of the decision. Any appeal will be subject to the SCC granting that leave. The SCC has recently granted leave to appeal in another decision addressing UNDRIP: Gitxaala v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430, which may also provide the SCC with an opportunity to comment on the implications of UNDRIP on Canadian law and any obligations of Crown decision-makers in considering and applying the principles of UNDRIP.

Footnotes

^{1. CNL Ltd. v. Kebaowek First Nation et al., 2026 FCA 174 at para 5 [CNL v. KFN].}

^{2. CNL v. KFN at paras 65, 69.}

^{3. CNL v. KFN at para 71.}

^{4. United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14, s 4 [UNDA]; CNL v. KFN at paras 67–69.}

^{5. CNL v. KFN at para 69.}

^{6. CNL v. KFN at para 75, 82; UNDA, ss 5–7.}

^{7. CNL v. KFN at para 81.}

^{8. CNL v. KFN at paras 93–94, 101.}

^{9. UNDA, s 5; CNL v. KFN at para 101.}

^{10. CNL v. KFN at paras 99–100.}

^{11. CNL v. KFN at paras 101, 103.}

^{12. CNL v. KFN at paras 110–111, 115.}

^{13. CNL v. KFN at para 114.}

^{14. CNL v. KFN at para 83.}

^{15. CNL v. KFN at para 82.}

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