The entirely predictable, nation-harming consequences of former Prime Minister Trudeau’s deliberately Crown sovereignty – weakening UNDRIP Action Plan, are beginning to materialize.
Federal Court decision
On February 19th, 2025, the Federal Court of Canada in its decision in Kabaowek First Nation v. Canadian Nuclear Laboratories Ltd. ordered the Atomic Energy of Canada’s licensed contractor, Canadian Nuclear Laboratories Ltd., to pause all work on its previously approved project – the construction of a new, state of the art, radioactive nuclear waste disposal facility at AEC’s Chalk River Ontario site.
The Court declared that Canadian Nuclear and the Canadian Nuclear Safety Commission (CNSC) hadn’t consulted with the Algonquin Kebaowek First Nation (KFN) enough and directed them to further consult with them,
“…with a view to implementing the UNDRIP free, prior and informed standard in a robust manner, by adapting its processes to address Indigenous laws, knowledge and processes and to develop a process aimed at reaching an agreement.” (italics added)
The Court directed that the further consultation process be completed by September 30, 2026.
As a result of this decision all Canadians, including all Aboriginal Canadians, are told by the Federal Court of Canada that lessening a significant danger to public safety – the threat of a radioactive leak- ranks subordinate to Aboriginal rights.
KFN
KFN is a Quebec reserve located on the shore of Lake Kipawa,150 kms. north of Chalk River. Along with other Algonquin bands, it has long maintained a claim for Aboriginal title to vast areas of Ontario and Quebec. Its’ claimed Aboriginal title area stops at Deep River, north of Chalk River, but, according to the Judge in the case, Madam Justice Blackhawk, a Mohawk Aboriginal who “dedicated (herself) as a lawyer to Indigenous issues and Aboriginal law matters”, (raising a serious ethics issue relating to the prohibition against a judge presiding over a case where doing so would give rise to a reasonable apprehension of bias), the Chalk River site is within the “traditional lands” of KFN, thus, according to ill-considered and nationally harmful Supreme Court of Canada jurisprudence, entitling them to be consulted and accommodated pursuant to section 35 of the Constitution.
KFN had already been given fair and robust consultation opportunities and experiences, before this court decision directed Canadian Nuclear to give KFN even more.
Court decision sets out consultation efforts with KFN- 2016 -2022
In July of 2016 Canadian Nuclear began to engage with KFN and the entire Algonquin Anishinabeg Native Tribal Council (AANTC) about the proposed project.
Between July 2016 and November 2021, AANTC provided Canadian Nuclear with comments on multiple drafts of the Nuclear Waste Facility Environmental Impact Statement for the proposed facility. Canadian Nuclear sent letters and emails, held meetings, and hosted webinars on the proposed facility. AANTC participated in these events, as did representatives from KFN.
On November 7, 2019, KFN made a presentation at a CNSC public hearing on the facility and requested the development of a Consultation Framework Agreement (“CFA”), (being an agreement whereby KFN would be paid monies for their and their hired experts’ consultation time and attention).
On May 14, 2020, KFN wrote a joint letter with the AANTC to the Prime Minister’s office expressing concerns with the environmental assessment process for the proposed project. In a meeting with Canadian Nuclear on June 17, 2020, KFN reiterated its request and insisted on the development of a CFA with KFN in advance of any further environmental assessment work related to the proposed facility.
On August 26, 2020, KFN and the AANTC sent a letter to the Minister of Natural Resources, expressing their concerns about CNSC’s conduct and the consultation process. On May 31, 2021, KFN and the AANTC wrote again to the Minister of Natural Resources and requested a moratorium on the project, and on other projects, due to their alleged failure to consult and accommodate.
On November 5, 2021, KFN met with the CNSC Director of Indigenous and Stakeholder Relations Division to discuss KFN’s previously communicated concerns and demands related to the CNSC processes. In an email on November 9, 2021, the Director summarized the discussions from November 5, 2021, and confirmed that the CNSC was of the view that participatory funding given to the AANTC was intended to help engage and coordinate among the Algonquin Nations, including KFN.
Representatives from KFN attended the CNL Regulatory Oversight Overview Hearing on November 25, 2021, and raised concerns with the environmental assessment process.
On December 6, 2021, KFN sent an email requesting funding to develop an action plan and CFA, separate from the AANTC. Later that day, KFN received a response indicating that they were to work with AANTC to utilise funds remaining from those provided to AANTC.
On December 7, 2021, the AANTC withdrew from its CFA with the CNSC and advised them that they could not be used to circumvent the CNSC’s consultation obligations or as an excuse not to provide funding to specific member communities.
On January 31, 2022, KFN wrote to the CNSC requesting an adjournment of the hearing(s) scheduled for February 22, 2022, pending the development of a CFA and work plan with KFN. This request was denied by the CNSC on February 18, 2022.
KFN’s application for a participant CFA was accepted by the CNSC on March 18, 2022, and was finalised on April 4, 2022. The finalized CFA covered activities such as: a review of the environmental assessment Report and supporting documentation; legal counsel review and analysis of the environmental assessment Report; development of plans and reports; and conducting community engagement activities.
(In other words, KFN was given the consultation funding they asked for.)
The CNSC issued a procedural direction on July 5, 2022, that left the record open for a longer period of time to permit KFN and Kitigan Zibi Anishinabeg (“KZA”) to prepare further evidence for the Commission’s consideration. Initially, KFN and KZA were to provide their submissions by January 31, 2023, however, a further extension was granted to May 1, 2023.
CNSC decision rendered after a 7-year application process
On January 8th, 2024, eight months later, the CNSC issued its decision authorizing Canadian Nuclear to proceed with the construction of the facility.
Rationale of Court for staying construction and ordering further consultation
UNDRIP and “free, prior and informed” consent make the consultation duty more onerous to fulfill
Justice Blackhawk noted that the federal government passed the United Nations Declaration on the Rights of Indigenous Peoples Act, (UNDA) on June 21, 2021. This allowed the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP) to be incorporated into Canada’s domestic positive law as an interpretive lens to be used to determine if the Crown has fulfilled its section 35 obligations.
The Court declared that Section 35 rights, and possibly even non-section 35-related Canadian laws, are now to be interpreted in a manner consistent with UNDRIP.
The Court explained that UNDRIP is an “international human rights instrument” that Canada has formally adhered to, and thus it is presumed that the interpretation of section 35 will be done in a manner that conforms to international agreements or instruments that Canada has signed or formally adhered to, such as UNDRIP.
Article 29 of UNDRIP says:
States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior, and informed consent.
Article 32 of UNDRIP says:
States shall consult and cooperate in good faith the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
The Court echoed previous Supreme Court of Canada facile statements that said that the consult and accommodate obligation does not give a legal veto to Aboriginal groups. Likewise, the Court said, the principal of “free, prior and informed consent” (FPIC) does not give a legal veto or absolute power to Aboriginal groups. The Court referred to Article 46, which says:
1. Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.
2. In the exercise of the rights enunciated in the present Declaration, human rights and fundamental freedoms of all shall be respected. The exercise of the rights set forth in this Declaration shall be subject only to such limitations as are determined by law and in accordance with international human rights obligations. Any such limitations shall be non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society.
3. The provisions set forth in this Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith.
The Court declared that UNDRIP is an added contextual layer that informs the scope and content of the duty to consult and accommodate, and that when a proposed project triggers the UNDRIP FPIC standard, that requires:
“…a process that places a heightened emphasis on the need for a deep level of consultation and negotiations geared towards a mutually accepted arrangement…FPIC is a right to a robust process…UNDRIP and UNDA must be considered when assessing if the Crown fulfilled its duty to consult and accommodate…The UNDRIP concept of FPIC requires an enhanced and more robust process to ensure that consultation processes (are) tailored to consider (the First Nation’s) Indigenous laws, knowledge, and practices, and that the process (is) directed towards finding mutual agreement…reaching an outcome that is acceptable to both parties.” (italics added)
The Court declared that CNSC should have considered the consultation process from the “Indigenous rights holders’ point of view…informed by Indigenous perspectives”, including their “customs, traditions and laws”. The Court further said that given that KFN had responsibilities “as caretakers of the lands in their traditional territories, including the lands of and around the site of the facility”, CNSC should have consulted with KFN as “an independent nation and with recognition of its specific rights”.
Summing up, the Court declared:
“While the FPIC is not a veto, it requires significant robust processes tailored to consider the impacted Nation’s laws, knowledge, and practices and employs processes that are directed towards finding mutual agreement. In this case the record showed… CNSC was not prepared to modify or alter their processes to respond to Kabaowek’s requests for accommodation. This was not reasonable and failed to consider the important added contextual factors of the UNDRIP, which must now be considered when assessing the adequacy of Crown consultation.” (italics added)
The Court said that the stringent section 35 obligation, now informed and made more onerous by UNDRIP and UNDA, could be infringed only in accordance with the principles set out in this regard by the Supreme Court in its Tsilhqot’in Nation decision, explained in detail here.
Briefly, to justify an infringement of a section 35 right, the Crown must demonstrate:
“(1) that it discharged its procedural duty to consult and accommodate; (2) that its actions were backed by a compelling and substantial objective; and (3) that the governmental action is consistent with the Crown’s fiduciary obligation to the group.” (italics added)
Discussion
UNDRIP, UNDA and FPIC make the consultation duty more onerous and veto-like
Firstly, Justice Blackhawk assured the reader that, with its decision, the Court was not granting a FPIC-based veto to KFN and to similarly situated Aboriginal groups, but rather, was granting a right to a strengthened consultation process with no guaranteed outcome.
But in my respectful view, that is exactly what she did. She granted KFN a practical veto – a de facto veto – and created a precedent that grants a practical, de facto veto to all Aboriginal bands and groups in all future, similar consultation situations.
In this regard she declared at paragraph 130 of her decision that she was of the view that:
“…the UNDRIP FPIC standard requires a process that places a heightened emphasis on the need for a deep level of consultation and negotiations geared towards a mutually acceptable arrangement.”
At paragraph 136 of her decision, she said:
“If there is to be true reconciliation, both parties must engage in a mutual, respectful dialogue that strives to understand each other’s respective interests with the objective of reaching the outcome that is acceptable to both parties.”
At paragraph 183 of her decision, in my view contradicting herself within the same sentence, she said:
“While the FPIC is not a veto, it requires significant robust processes tailored to consider the impacted Indigenous Nations (sic) laws, knowledge and practices and employs processes that are directed towards finding a mutual agreement.” (all italics added)
The plain meaning of the above-italicized phrases is that a mutual agreement, not merely a strengthened process where “agreement” is not a guaranteed outcome, is the legal “objective” of the process mandated by Justice Blackhawk’s UNDRIP-FPIC standard.
Failing the reaching of a mutual agreement, it follows that the UNDRIP-FPIC standard is not met, and a stalemate results. The project proponent cannot proceed in this stalemated situation, leaving it in the same practical position as if its Aboriginal consultation counterpart had vetoed the proposed project.
UNDRIP, UNDA and FPIC make the infringement justification standard more onerous
Secondly, the Court re-iterated that the standard to be met for any court to be persuaded to judicially infringe upon this UNDRIP-FPIC consultation standard – for instance to waive it or override it in the context of some grave civic, economic or military national emergency, such as Canada is now facing with American attacks against its economy and against its very sovereignty – is “very high”.
Economic harm to Canada, Canadian businesses, Canadian workers, or to our government treasuries, will seemingly not be enough to justify infringement. In the B.C. Gitxaala case, which invalidated the Province’s free-entry mining regime, the Court said that the Crown’s obligation to consult “could not be avoided or delayed on the basis that mining is good for the economy” (!)
Harm to many aspects of the “public interest” will not be enough to justify infringement.
Seemingly, the threat of a radiation leak at the Chalk River waste storage facility is not considered by Justice Blackhawk as a matter of public interest.
Quoting the Supreme Court of Canada Sparrow decision as precedent, Justice Blackhawk, being equally vague and confusing as the Supreme Court in Sparrow, said:
“In order to justify the infringement, the Crown must demonstrate that:
- There is a valid legislative objective that is “compelling and substantial;” examples provided by the Supreme Court include conservation and natural resource management, and public safety. However, the Supreme Court was clear that “public interest” is not sufficient to justify the limiting of a constitutionally protected right (Sparrow at 1113); and
- The limitation is justified in light of the principle of the honour of the Crown and the Crown’s fiduciary duty towards Indigenous people (Sparrow at 1114–1121). Here the Court will consider if the infringement is necessary to achieve the Crown’s purpose, if the infringement minimally impairs the protected right, if fair compensation was offered, and if there was consultation with the rights holding collective (Sparrow at 1114–1121).” (italics added)
In Aboriginal litigation, contested issues take years to resolve. The infringement justification standard that would have to be met in some kind of future national emergency as contemplated above -some true public interest civic, economic or military emergency situation- is “very high”.
The courts have said that economic harm and Sparrow “public interest” cannot be cited as reasons to justify infringement of Aboriginal rights.
Given the uncertainty and delays involved in Aboriginal litigation, this maddening, irresponsible, legal vagueness about what is “compelling and substantial”, or in the UNDRIP context, what is a “just and most compelling requirement of a democratic society”, and what is or is not in the “public interest” should be regarded as an aspect of the practical veto now possessed more assuredly than ever by Aboriginal bands and groups over any proposed project that they merely suggest might interfere with their section 35 rights.
Legal vagueness in Aboriginal litigation always hands the advantage to the Aboriginal litigant.
Justice Blackhawk’s decision is calamitous- calamitous in terms of it further impeding our elected legislatures’ abilities to quickly enact laws to, in an emergency, however defined, further the true public, national interest as may be determined in good faith by our elected legislatures.
Justice Blackhawk’s decision is a further judicial attack against legislative supremacy and necessary and beneficial Crown sovereignty.
The KFN decision continues the judiciary’s sloppy handling of the concepts of “traditional lands” and an Indian band being a “nation”
Thirdly, Justice Blackhawk said, without explanation or rationale, that the Chalk River nuclear waste storage site was within the “traditional lands” of the “nation” of KFN, over which KFN was an historic “caretaker”.
Not.
The KFN reserve village, with its population of 600 residents, (a further 500 reserve members live assimilated lives off the reserve), is situated 150 kms. north of Chalk River, in inland Quebec. There was no evidence before the Court that KFN ever visited the Chalk River area or exercised any caretaker function over the area or the site itself, the latter of which has been off-limits to all Canadians since it was constructed in the 1940’s.
This is another example, like failing to define “public interest” in Sparrow (above), of our judiciary being derelict in its duty to clearly set out the law.
In Aboriginal law cases, as in this KFN case, the judiciary has carelessly used the term “traditional lands” to describe the ambit of a First Nation’s physical area of section 35 legal concern, which area is always beyond the boundaries of its own reserve.
Yet, as in this case, the judiciary has never taken the time and effort to place any geographical or other limits on what a particular First Nation should be able to reasonably claim to be its “traditional lands.” The result has been that First Nations have been able to say that their traditional lands are whatever they say they are. And this is never challenged. Just as in claimed Aboriginal title areas in the country, the result has been, as in the Ottawa River valley, a multitude of overlapping, duplicative, competing claims, resulting in legal confusion and investment uncertainty.
And, with respect to Justice Blackhawk calling KFN a “nation” with “inherent self-government rights”, a village of 600 residents, with the other 500 “citizens” living off-reserve, with zero institutions and zero institutional capacity, can never be correctly described as a “nation”.
The KFN decision further infantilizes Aboriginal people and furthers an unreal specific and general narrative
Fourthly, the KFN decision continues the judiciary’s dispiriting tendency to romanticize and infantilize Aboriginal Canadians, who are as intelligent and able as any other group of Canadians, but who are continually treated like children who, as purportedly such, should not be expected to shoulder any of the normal burdens and responsibilities of adults.
KFN had 7 years of consultation. They were paid twice to participate in the consultation, once as part of AANTC and once on their own. They did participate in it, through AANTC and on their own. They received indulgences like time extensions.
They had 7 years to explain to the NDSC all about how their “Indigenous perspective” worked, and all about their “laws, knowledge and practices”, which, if these things still exist, they could certainly have been explained fully to the NDSC in a few short hours.
Why would they need “capacity funding” to simply explain what is in their hearts and minds about their culture?
The fact that they chose not to do any of these commonsense things was an unreasonable decision that, as adults, they should bear the consequences of, not NDSC and all the citizens of Canada, who now have to wait at least another 18 months to get the safest nuclear waste storage facility possible.
The concept of “Indigenous law” is mythical.
If KFN couldn’t come up with an explanation of these so-called “Indigenous laws, knowledge and practices” within that 7-year period, the explanation lies in the fact that they probably no longer exist.
In any event the Court was wrong to baby them. It ought to have held them accountable for their unreasonable 7-year failure to actively and in good faith participate in the consultation process in the manner stated above.
New UNDRIP-FPIC standard or not, the Court should have refused to delay the start of the project for the romantic, infantilizing, unreal reasons it gave.
The Court decision showed the usual appearance of bias that is typical of Aboriginal law cases.
Fifthly, a minor but important point to note, the Court in this KFN decision continues the judiciary’s improper and irritating trend to appear to show bias in favour of Aboriginal litigants by their choice of non-neutral, socially trendy, seemingly deliberate, but legally unsupported in the evidence, “pro-Aboriginal” terminology.
In this case, Justice Blackhawk twice called the Ottawa River “Kichi-Sibi”, putting “Ottawa River” in secondary, explanatory parentheses.
She actually somewhat apologized to KFN for using proper, legal terminology, saying:
“The terms “Indian” and “Aboriginal” appear in the Constitution Act, 1982 and in many other pieces of Canadian legislation, policy, jurisprudence, and reports that are relevant to the issues in this application. I acknowledge that the terms “Indigenous”, “First Nation”, “Métis”, and “Inuit”, as appropriate, have largely supplanted the use of these earlier terms. Where these reasons reference specific legislation, policy, jurisprudence, or a report, the terminology from those sources is used. I do not intend any disrespect by my use of such terminology.”
In the Restoule case the trial judge voluntarily called Sault Ste. Marie “Bawaating”, when most of the historical record before her referred to Sault Ste. Marie. She closed her Reasons for Decision with “Migwetch, Migwetch, Migwetch”.
In other cases, judges have used false terms, nowhere supported in the evidence adduced in the case before them, such as “cultural genocide”, “systemic racism” and “forced to attend” (residential schools), and used the trendy, non-legal terms “Indigenous” and “First Nations” when the relevant historical and court records before them spoke of “Indians” and “Indian bands”.
Summary
KFN v. Canadian Nuclear is a terrible legal decision – one that is gravely harmful to the national interest.
But to be fair to Justice Blacklock, it basically applies the clear legislative wording of former Prime Minister Trudeau’s Panglossian UNDA, and follows, as a lower court should, terrible and gravely harmful Supreme Court of Canada jurisprudence.
KFN v. Canadian Nuclear is a continuation of the Canadian judiciary’s distressing tendency to decide virtually every Aboriginal law case in a manner that further and seriously impairs necessary and beneficial sole Crown sovereignty, that further harms the Canadian economy, and that further creates social divisions between Canadians based on the noxious concept of race.
At least Canadians have the small consolation that the foundation of the case, UNDA with its Aboriginal FPIC requirement, is statute-based in nature and, as such, can be repealed by a more enlightened and national security-national interest conscious federal legislature.
Even if UNDA was repealed, Canada would still be left with the constitutional shackles of “consult and accommodate” and Aboriginal title to contend with, which only a constitutional amendment or the Supreme Court reversing years of its decisions could alter or erase.
UNDA is harmful to the national interest and must be repealed, so that projects in the national interest like the AEC nuclear waste storage site can be completed as quickly and as cheaply as possible, without the expensive and unreasonable delays and uncertainties caused by UNDA and its FPIC, de facto Aboriginal veto.
Doing so would open up a long-suppressed conversation about all of these nation harming, apartheid-like, “separate but equal” race laws, and would start Canada on the long and difficult, but absolutely necessary, road to eliminating them.
Peter Best
February 28, 2025
thereisnodifference.ca
