Indigenous rights before the Canadian courts
Cathy Fox
CHALK RIVER – On Thursday evening, November 7, 125 people convened online to hear from Kebaowek and Gitxaala First Nations representatives about how their active legal challenges are advancing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) through Canadian law.
The Kebaowek’s case against the licensing of the Chalk River Near Surface Disposal Facility (NSDF) is currently going through the courts, as is the Gitxaala’s case against the British Columbia government for issuing mineral claims on the First Nation’s territory without consultation or consent.
UNDRIP was ratified by the UN in 2007 and was adopted into acts in BC in 2019 (DRIPA) and federally in 2021. Participating in the webinar were Justin Roy, Kebaowek First Nation’s council and their lawyer Robert Janes, as well as James Herbert, Gitxaala First nations
senior advisor and their lawyer Ruben Tillman.
Janes noted that although UNDRIP came into force in June 2021, it has to be applied in
court cases to become part of common law. In the Supreme Court judicial review of the Canadian Nuclear Safety Commission’s (CNSC) decision to approve the building of a NSDF in Chalk River, lawyers challenged how the CNSC applied article 28 of UNDRIP, which requires free prior and informed consent from First Nations on whose territory the project exists. This article refers to storage of hazardous material affecting people, flora and fauna.
Roy noted that although Kebaowek provided all environmental impact study results and are
willing to dialogue with CNL and CNSC weekly through calls and emails, he’s becoming frustrated with the lack of progress since initiating the legal process six months ago. The organizations claim they need more time and guidance from the Department of Justice and Natural Resources Canada before moving ahead.
Given that the CNSC is the federal nuclear safety regulating authority, they were asked why they didn’t consider UNDRIP in their decision; they claim they don’t have authority to challenge existing laws which only require consultation. The Crown (federal government) considered Section 35 of the Constitution equal to UNDRIP in protecting treaty rights in this case, referencing cases which used section 35 and required only ‘consulting’ rather than ‘consenting’ in such matters.
Normally, courts pressure governments to change laws, especially when they don’t conform to rights enshrined in the constitution. UNDRIP promotes increased recognition of jurisdiction and ownership (title) in creating common laws that are more inclusive and less colonial compared to existing treaty terms.
If the judge accepts the challenge, the plan to dispose of nuclear waste will be back to the drawing board and it will provide a step forward in enshrining UNDRIP into Canadian law.
The webinar was sponsored by Raven Trust.
