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Indigenous - United Nations Declaration on the Rights of Indigenous Peoples Act (UNDA) (2). CNL Ltd. v. Kebaowek First Nation et al.
In CNL Ltd. v. Kebaowek First Nation et al. (Fed CA, 2026) the Federal Court of Appeal allowed an appeal (from a JR), this over whether the Canadian Nuclear Safety Commission "erred in failing to consider the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the free, prior and informed consent (FPIC) standard as stipulated therein in relation to the approval" of "the proposed near surface disposal facility (NSDF) on the Chalk River Laboratories site (the Site) that would be used to store low-level radioactive waste (LLW)".
Here the court considers the BC Court of Appeal ruling in Gitxaala v. British Columbia (Chief Gold Commissioner) (BCCA, 2025) which "addressed the interpretation of the Declaration on the Rights of Indigenous Peoples Act, S.B.C. 2019, c. 44 (the Declaration Act)", which was passed after UNDRIP and is "substantially similar" to the later-passed federal United Nations Declaration on the Rights of Indigenous Peoples Act (UNDA):[31] In Gitxaala, the Court addressed the interpretation of the Declaration on the Rights of Indigenous Peoples Act, S.B.C. 2019, c. 44 (the Declaration Act). The Declaration Act was adopted in British Columbia in relation to the laws of British Columbia, prior to the adoption of the UNDA. The Declaration Act and the UNDA are . The issue in Gitxaala was, on the one hand, an alleged inconsistency between the rights recognized in the Declaration Act and UNDRIP and, on the other hand, the operation of the provincial Mineral Tenure Act, R.S.B.C. 1996, c. 292, regime. The claims of the petitioners and the decision of the Chambers Judge are summarized in paragraphs 5 and 6:[5] The appellant First Nations assert Aboriginal and Indigenous rights in and title to certain territories in British Columbia. Following the grant of mineral claims in those territories, they brought petitions below challenging the mineral tenure system then operated under the Mineral Tenure Act, R.S.B.C. 1996, c. 292. The appellants contended that the operation of an automated online registry permitting “free miners” to register claims to mineral rights on Crown land prior to consultation with affected First Nations (the “Mineral Claims Regime”) was inconsistent with the Crown’s duties under s. 35 of the Constitution Act, 1982 [“Constitution Act”], the honour of the Crown, s. 3 of the Declaration Act, and their rights recognized in UNDRIP and the Declaration Act. Together with other relief, they sought declarations with respect to the alleged inconsistencies.
[6] The chambers judge accepted that the Crown’s s. 35 duty to consult was triggered by the grant of mineral claims based on the test established in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 [Haida]. He held that the absence of a system for pre-registration consultation breached that duty to consult. As a result, the judge granted related declarations, but he suspended them to allow for the design and implementation of a system providing for consultation prior to issuance of mineral claims. However, he concluded that, while the Declaration Act contemplates a forward-looking process of consultation and cooperation to address the objectives of UNDRIP, it does not “implement” UNDRIP into British Columbia law, and he stated that UNDRIP “remains a non-binding international instrument”. He also concluded that s. 3 of the Declaration Act “does not create justiciable rights”; therefore, he declined to adjudicate the question of whether the Mineral Claims Regime was consistent with UNDRIP. In the result, he dismissed the appellants’ claims for related declaratory relief, from which orders they appeal. [32] The British Columbia Court of Appeal elaborated on the petitions in paragraphs 14 to 17:[14] Gitxaala and Ehattesaht brought similar, though not identical, challenges to the operation of the Mineral Claims Regime, or, alternatively, the validity of the underlying legislation. Gitxaala filed their petition in October 2021. Ehattesaht filed their petition in June 2022.
[15] In their Further Amended Petition, Gitxaala sought declarations in relation to the duty to consult, the honour of the Crown, and the constitutional validity of s. 4 of the Mineral Tenure Act Regulation, B.C. Reg. 529/2004, together with orders quashing specified mineral claims and injunctive relief in connection with the operation of the Mineral Claims Regime. Gitxaala also sought “for the purposes of, or pursuant to, section 3 of the [Declaration Act]”, declarations that the Mineral Claims Regime’s operation “is not consistent” with UNDRIP, and the Crown “has a statutory duty to consult and cooperate with Gitxaala concerning measures necessary to ensure the laws of British Columbia, as they relate to mineral titles within Title Lands, are consistent with the Declaration”.
[16] In their Further Amended Petition, Ehattesaht similarly sought declarations in relation to the duty to consult, the honour of the Crown, the validity and applicability of aspects of the statutory scheme, orders quashing specified mineral claims, and injunctive relief. As to UNDRIP and the Declaration Act, Ehattesaht sought declarations that the operation of the Mineral Claims Regime is inapplicable to the extent it operates without consultation or consent in a manner contrary to “the indigenous rights of Ehattesaht and/or First Nations recognized in UNDRIP and [the Declaration Act]”.
[17] Both petitioners described the statutory basis for the Mineral Claims Regime, the way in which it operated, and its alleged adverse impacts on their rights and title. Both pleaded that the Crown had failed to fulfil its duty to consult prior to the grant of mineral claims, and both relied on common law precedents and principles relating to the honour of the Crown and the duty to consult, the Interpretation Act, R.S.B.C. 1996, c. 238, the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, the Declaration Act, and UNDRIP. [33] The judgment that was ultimately issued by the British Columbia Court of Appeal was a single declaration related to the inconsistency between the mineral claims system and UNDRIP: "“the CGC’s [Chief Gold Commissioner of British Columbia’s] conduct in establishing an online system allowing for automatic registration of mineral claims without requiring prior consultation and cooperation of affected Indigenous peoples is inconsistent with article 32(2) of ""UNDRIP”" (paragraph 200 of the reasons).
[34] In his dissent, Justice Riley differed on the role that the Court should play:[201] I agree with my colleague Justice Dickson that the judge erred in holding that the Declaration Act does not implement UNDRIP into British Columbia law. The judge was in error in concluding that, despite the Legislature’s passage of the Declaration Act into law, UNDRIP remains a non-binding international instrument. I concur with my colleague’s conclusion that the Declaration Act incorporates UNDRIP into the positive law of British Columbia, with immediate legal effect. However, I part company with her as to the nature of the Declaration Act’s legal effect, and the role that courts can and should play in achieving its aims.
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[250] I conclude that the question of inconsistency between UNDRIP and specific British Columbia laws at any fixed point in time is not a justiciable matter. This is a function of the Legislature’s intent in enacting the Declaration Act as a framework for legislative reconciliation, which is a form of law reform within the domain of the executive and legislative branches.
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