Kebaowek First Nation and Canadian Nuclear Laboratories (CNL) are racing toward a court-mandated deadline to renew the consultation process for a proposed near surface nuclear waste disposal facility in Deep River, Ontario.

The 2025 ruling marked the first time the Federal Court weighed in on how Canada’s United Nations Declaration on the Rights of Indigenous People (UNDRIP) legislation shapes the legal understanding of free, prior, and informed consent (FPIC) and the duty to consult Indigenous people on major projects. 

Justice Blackhawk found that Canada’s UNDRIP law raises the bar for Crown consultation beyond the traditional duty to consult under Section 35 of the Constitution.

“FPIC is a right to a robust process…[but] it is not a veto or a right to a particular outcome,” she wrote.

She listed actions the nuclear regulator could have taken to accommodate Kebaowek in this case, including reconsidering its “arbitrary time limits for oral submissions” and holding hearings closer to the community.

She gave all parties until September 30, 2026 to renew the consultation process. 

Kebaowek First Nation councillor Justin Roy tells iPolitics meeting that deadline has been quite the undertaking, requiring the community to develop an assessment law and create a committee as part of a 13-step process to reach FPIC. 

That committee is comprised of seven Kebaowek volunteers who have long weekly meetings and full day sessions with CNL. 

“The assessment committee will make a decision whether it’s a yes, a yes with condition, a no or no with condition,” said Roy. “I want them to be as informed as possible.” 

But Roy says the community has ongoing issues with CNL, including outstanding requests for information that date back to September. 

“How can we talk about mitigation and accommodation when people aren’t informed?” asks Roy.

A recent visit to the site of the future disposal facility did not address these concerns, said Roy, adding that the community wants to see baseline data.

Baseline data sets are often contentious issues in duty to consult cases, with proponents typically wanting a baseline that reflects the current state of the land, while First Nations want one that reflects the pre-development state.

READ MORE: Ottawa monitors B.C. Indigenous law, rules out changes at federal level

The baseline data question is all the more important in a parallel case launched by Kebaowek focusing on species at risk, specifically the Blanding’s turtle and two types of bat that live around CNL’s proposed facility.

In that case, the Federal Court of Appeal ruled Thursday that the federal environment minister’s reasons for permitting a facility failed to meet the standards of transparency and justification.

CNL declined an interview request from iPolitics. 

In its action plan for consultation with Kebaowek, the Canadian Nuclear Safety Commission (CNSC) says it plans to, among other things, address and respond to the community’s concerns, questions and requests before making a new decision on the duty to consult.

But even as the September deadline inches closer, CNL and Kebaowek are waiting for the next ruling in the case, with both parties having turned to the Federal Court of Appeal last fall. 

“Let’s not kid ourselves, this is going to end up at the Supreme Court,” said Roy, adding that his community is committed to fighting it all the way, and the “other side is going to do the same thing.” 

Depending on the Federal Court of Appeal ruling, and whether the top court eventually grants leave, the case could end up being heard at the same time as the B.C. mineral rights case. 

READ MORE: B.C. mineral claims case heads to the Supreme Court of Canada

Both cases are about how UNDRIP laws are interpreted, but the one involving Kebaowek is more about how government decision-making should work, whereas the B.C. one is about whether or how legislation should be changed.