Canadian court rules that Free, Prior and Informed Consent does not constitute consent in land development but instead a “right to a robust process.”

The Federal Court’s recent ruling in Kebaowek First Nation v. Canadian Nuclear Laboratories, 2025 FC 319, underscores ongoing systemic discrimination within Canada’s legal framework regarding Indigenous rights. The decision affirms that while free, prior, and informed consent (FPIC) informs the Crown’s duty to consult, it does not equate to giving Indigenous people the right to grant or withhold consent.

In Canada, the principle of consent is only upheld when it serves to protect settler populations, particularly in the criminal context. Indigenous peoples, however, are denied the same recognition, as the definition of consent—and even its most basic meaning—is not applied equally to them.

This ruling reinforces a persistent double standard—when it comes to Indigenous peoples as rightsholders and regulators in land development, consent is not equal. 

Chalk River Laboratories, now Canadian Nuclear Laboratories (CNL) was built in 1945 on the shorelines of the traditional, unceded territory of the Kebaowek Nation. Since its construction, the facility has faced opposition from the Anishnaabeg people, with tensions reaching a peak when an application to expand the facility to include a nuclear waste site was approved.

Challenging this approval, Federal courts sided with the Chiefs of the Kebaowek Nation, agreeing that the United Nations Declaration of Rights for Indigenous People, the international instrument that embodies FPIC in its core, was not considered part of the Crown’s obligation to consult and accommodate the rights of the Kebaowek Nation. 

While this ruling deepens the Crown’s duties of consultation, it does not allow for Indigenous peoples to grant or withhold free prior informed consent to development on their territory.  In other words, the court ruled in a tortured manner that  “FPIC is a right to a robust process,” but it is not a right to consent. 

In Canada, Indigenous Peoples are not rights holders nor regulators  

Approving the expansion of a nuclear facility is not easy. Numerous approvals from federal regulators are required to necessitate the responsible expansion of CNLs. Federal regulators such as the Impact Assessment Agency of Canada and Canadian Nuclear Safety Commission have the power to deny nuclear energy projects. In the case of CNL, these regulators are able to cease the expansion of the nuclear waste facility, necessitating a redesign of project plans to be better in line with the safety, environmental or social standards of their legislated institutions. 

The Federal Court’s decision effectively weakens the standard for Indigenous peoples as rightsholders and regulators on land development within traditional and treaty territories.

Unlike other jurisdictions, Indigenous nations are not afforded the same leverage in asserting consent under Section 35, as their consent is treated as flexible within consultation processes. This means that on their own lands, Indigenous peoples are denied the authority to reject projects that conflict with the cultural, environmental, and social standards upheld by their own governing institutions. 

Conclusion 

While the Federal Court’s decision in Kebaowek First Nation v. Canadian Nuclear Laboratories may look like a step forward in terms of recognizing Indigenous rights it is actually a dramatic step away from a reasoned and rational approach to FPIC.

It is a continuation of a historical pattern of discrimination. It affirms that consent in Canadian law is conditional: absolute for some, negotiable for others.

The same legal system that demands absolute and informed consent in regulatory bodies that guide Canadian reconciliation and environmental efforts becomes flexible when Indigenous nations oppose development projects on their land.  

This ruling should be widely condemned by legal experts, Indigenous rights advocates, and policymakers committed to reconciliation. Canada cannot claim to support Indigenous reconciliation while simultaneously upholding a legal system that disregards Indigenous consent and regulation. True reconciliation requires that when Indigenous peoples say no, their answer must carry the same weight as it would for anyone else.