FPIC in focus: implications of a recent Canadian Federal Court decision for Australian stakeholders

Exploring the 'gold standard' in Indigenous engagement 4 min read

The principle of 'free, prior and informed consent' (FPIC) is recognised as a 'gold standard' for engaging with First Nations communities in the context of environmental, social and governance (ESG) considerations.

FPIC is encompassed in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which, although ratified by Australia, has not yet been incorporated into domestic law. FPIC is prominent as a consideration for project proponents consulting with First Nations stakeholders in relation to native title approvals for project development, and protection of cultural heritage. Notably, in its current review of the future act regime under the Native Title Act 1993 (Cth) the Australian Law Reform Commission (ALRC) is examining whether the future acts regime adequately reflects internationally recognised principles of human rights, including FPIC.¹

In this Insight, we consider a recent Canadian decision on FPIC and explore its potential impact on FPIC considerations in Australia.

Status of UNDRIP in Canada

In contrast to Australia, Canada has incorporated UNDRIP into its domestic law. As one of the first countries to enact domestic legislation implementing UNDRIP through the United Nations Declaration on the Rights of Indigenous Peoples Act (S.C. 2021, c. 14) (UNDA), Canada has been at the forefront of developments in Indigenous rights and consultation.

In Kebaowek First Nation v Canadian Nuclear Laboratories 2025 FC 319, the Federal Court of Canada recently provided clarification on the application of the UNDRIP and FPIC in Canadian law. This decision has the potential to influence how FPIC is approached by other countries, including Australia.

Background

Canadian Nuclear Laboratories Ltd (CNL) sought to amend its operating licence for the Chalk River Laboratories site to modernise its nuclear waste disposal facility. The site is situated in Kebaowek First Nation’s traditional territory.

In January 2024, the Canadian Nuclear Safety Commission granted CNL’s application. Kebaowek First Nation challenged this decision, including on the ground that the Commission (as an agent of the Crown) failed to consider UNDRIP's implications in relation to the duty to consult and accommodate the Indigenous owners.

The court's decision

Federal Court Justice Blackhawk agreed with the Kebaowek First Nation, finding that the Commission's failure to consider the UNDRIP as an important contextual factor in assessing the adequacy of Crown consultation was an error of law.² The court emphasised that with Canada's enactment of UNDA, UNDRIP now serves as an interpretative lens in determining whether the relevant duty to consult and accommodate had been discharged.³

Importantly, having considered international scholarship, Justice Blackhawk held that FPIC does not grant a substantive veto right. While FPIC mandates a robust process, this does not extend to a right to a particular outcome.⁴

The court found that the consultation necessary to give effect to FPIC does, however, place 'a heightened emphasis on the need for a deep level of consultation and negotiations geared toward a mutually accepted arrangement'⁵ and requires 'significant robust processes tailored to consider the impacted Indigenous Nations laws, knowledge and practices'.⁶

Concerning CNL's application, the Court found it would have been consistent with the FPIC standard for the Commission to modify the consultation process to address some of the Kebaowek’s suggestions.⁷

The Court quashed the decision and remitted the matter back to the Commission.

Implications for the Australian context

The Canadian Federal Court decision clearly articulates that FPIC under UNDRIP necessitates a deep level of consultation with First Nations peoples, but does not extend to a power of veto. This is contrary to the views of some commentators, First Nations peoples and NGOs on UNDRIP, particularly in the context of Article 29.2, which concerns the storage or disposal of hazardous waste (which was of particular relevance in the Keboawek case). Notwithstanding the divergence in views, for Australia, where ALRC discussions around implementing similar standards continue, this case provides insight into how the integration of FPIC into domestic law might be approached.

The Issues Paper released by the ALRC in November 2024 notes that suggestions for reform of the future act regime include 'more clearly incorporating international law principles such as FPIC in the future acts regime'.⁸ In light of the Keboawek case, it will be preferrable if—as part of any such integration—the parameters of FPIC are clearly delineated, such that litigation is not required for clarification.

Stakeholders will have the opportunity to make submissions on the ALRC reforms when the Discussion Paper is released in May. The ALRC is due to provide its final report to the Attorney-General by 8 December 2025.