IndigenousIt’s shaping to be a big case with far-reaching implications for industry and project proponents under federal jurisdiction as Kebaowek First Nation faces off against Canada’s premier nuclear organization at the Federal Court of Appeal in Ottawa.Kebaowek is leading court fight against nuclear waste landfill, says UNDRIP must be consideredBrett Forester · CBC News · Posted: Oct 08, 2025 2:00 PM EDT | Last Updated: 2 hours agoKebaowek Chief Lance Haymond, centre, is flanked by supporters outside the Federal Court building in downtown Ottawa. To his right are Algonquin Elder Claudette Commanda, Kebaowek Councillor Justin Roy and Bloc Québécois MP Sébastien Lemire. (Brett Forester/CBC)Kebaowek First Nation is facing off against Canada’s premier nuclear organization Wednesday at the Federal Court of Appeal in Ottawa, in what’s shaping up to be a big case with far-reaching implications for industry and project proponents under federal jurisdiction.The case’s main question is simple: was Kebaowek adequately consulted about a planned landfill for radioactive waste at the Chalk River facility near Deep River, Ont., 150 kilometres northwest of Ottawa, before the project was approved? Simple, however, the legal issues are not.The case has morphed into a debate about how the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) applies in Canadian law, specifically whether government decision-makers are required to consider its articles when greenlighting projects.On one side, Canadian Nuclear Laboratories argues UNDRIP is a non-binding interpretive lens of limited relevance that cannot alter Canada’s clearly articulated constitutional duty to consult Indigenous peoples.On the other side, Kebaowek contends Canada’s nuclear regulator was required to consider the provisions of UNDRIP when consulting the First Nation following the Trudeau government’s passage of the UNDRIP Act in 2021.Chief Lance Haymond from the Kebaowek First Nation speaks during a news conference in Montreal in May. (The Canadian Press/Graham Hughes)The Federal Court sided with Kebaowek, and the community is preparing to fight all the way to the Supreme Court of Canada, if needed, given the high stakes.“This is not only a legal challenge: it is a test of Canada’s commitment to reconciliation,” Kebaowek Chief Lance Haymond said Tuesday at a news conference in Ottawa.The landfill, or “near-surface disposal facility,” would be built about one kilometre away from the Ottawa River, a source of drinking water for two million people. It would house up to one million cubic metres of low-level radioactive waste, equal to about 400 Olympic-sized swimming pools.Kebaowek is an Algonquin community in Quebec about 300 kilometres northwest of Ottawa and has received backing from the Bloc Québécois, the Green Party, the provincial Québec solidaire political party, community and civil society groups and the Assembly of First Nations (AFN).“We fully support the chiefs of the Algonquin Nation in opposing the nuclear landfill at Chalk River,” AFN National Chief Cindy Woodhouse-Nepinak told reporters Tuesday. “The Assembly of First Nations will be hand in hand beside them all the way to the Supreme Court.”An ‘added layer’ to consultation processThe Canadian Nuclear Safety Commission approved the project in January 2024 but Kebaowek launched a successful legal challenge against that decision.In February 2025, Federal Court Justice Julie Blackhawk found the safety commission failed to consider UNDRIP when consulting Kebaowek, rendering the approval both unreasonable and incorrect.Blackhawk found the UNDRIP law created a “new added layer” to the consultation process that requires the Crown to consider the declaration’s standard of free, prior and informed consent.In its written argument, Canadian Nuclear Laboratories, a private consortium under contract to manage federal nuclear sites, calls this an “approach that imposes significant burdens on the Crown and greater Canadian society.” These burdens “are disproportionate to the potential adverse effect on the Indigenous party,” CNL adds.The organization contends further that the depth of consultation owed to Kebaowek was “minimal” and that after an eight-year process where Kebaowek received more than $235,000 to participate, the consultation was adequate.CNL’s lawyer Thomas Isaac, of Cassels Brock and Blackwell, told the three-judge appeal panel that Blackhawk used the UNDRIP law to “improperly alter the constitutional duty to consult.”CNL has not yet replied to an interview request from CBC Indigenous sent Wednesday morning.The appeal is attracting interveners on both sides: the Mining Association of Canada, the Canadian Nuclear Association, the Algonquins of Pikwakanagan First Nation and Saugeen Ojibway Nation.The mining and nuclear associations argue Parliament never intended to alter the duty to consult when passing the UNDRIP legislation.Pikwakanagan, the closest First Nation to Chalk River, says in its written argument that it gave consent for the project, though it supports Kebaowek on the UNDRIP question.Pikwakangan argues the duty to consult and UNDRIP should be seen as complementary, as the First Nation outlines a vision for a new, more robust process.A view of the Chalk River Laboratories research facility from the water. (Reno Patry/CBC)“At minimum, the Crown must always seek to obtain the free, prior, and informed consent of the Indigenous group before contemplating conduct that might adversely impact their rights,” says Pikwakangan’s written argument filed in court.“When there is a strong rights claim or established right, and a high risk of adverse impact, consent must not only be sought, it is required.”Industry groups and others have raised concerns that the consent standard in UNDRIP gives Indigenous peoples a “veto” to shoot down projects, but the Algonquin communities contend a veto and consent are not synonymous.Pikwakanagan argues a veto may be exercised arbitrarily while consent might only be required for a project to go forward in limited circumstances.Kebaowek elected Councillor Justin Roy similarly said “consent is not a veto” during the news conference Tuesday. “It’s an invitation to do better together, to build trust, not tension,” he said.In her decision, Blackhawk did not quash the project’s approval entirely. She ordered more robust consultation aimed at reaching an agreement to be completed by September 2026. Kebaowek is cross-appealing her decision, meaning the First Nation still wants the appeal court to cancel the approval altogether. ABOUT THE AUTHORBrett Forester is a reporter with CBC Indigenous in Ottawa. He is a member of the Chippewas of Kettle and Stony Point First Nation in southern Ontario who previously worked as a journalist with the Aboriginal Peoples Television Network.
Algonquin First Nations urge appeal court to expand duty to consult in Chalk River case
