VANCOUVER — The Federal Court of Appeal allowed Canadian Nuclear Laboratories’ appeal Friday, restoring federal approval for a near-surface disposal facility for low-level radioactive waste at Chalk River and highlighting a key difference between Ottawa and BC in how they interpret the UN Declaration on the Rights of Indigenous Peoples.
The court held that the federal United Nations Declaration on the Rights of Indigenous Peoples Act, better known as UNDRIP, establishes a framework for aligning Canadian laws with the declaration over time. It does not require the commission to apply free, prior and informed consent when deciding a licence amendment.
Parliament passed the federal United Nations Declaration on the Rights of Indigenous Peoples Act under Prime Minister Justin Trudeau on June 21, 2021.
The legislation received relatively little sustained public scrutiny compared with the legal and political fallout now facing BC over its own implementation of the declaration.
The Federal Court of Appeal’s ruling highlights why the distinction matters: Ottawa adopted a framework for aligning laws with the declaration, while BC added a separate provisional piece of legislation directing courts to interpret every provincial act and regulation as consistent with it.
The key difference is section 8.1(3) of BC’s Interpretation Act. Added through Bill 29 in November 2021, when David Eby was attorney general, the provision requires every act and regulation to be construed as consistent with the declaration.
At the time, then-BC Liberal opposition critic Mike de Jong pressed Eby on what the new duty would mean for statutory decision-makers applying the public interest. After less the 15 minutes of discussion, the government closed debate and passed the bill that sitting.
Federal laws in Canada contains no equivalent provision.
“The discussion and the conclusions of the British Columbia Court of Appeal related to subsection 8.1(3) of the B.C. Interpretation Act are not relevant in this appeal,” Justice Webb wrote, singling out that law as a deciding factor in why the Federal Court of Appeal reached a different conclusion that the BC Court of Appeal had in the Gitxaala case.
In December 2025, the BC Court of Appeal ruled in Gitxaala v. British Columbia that the provincial Declaration Act, along with Eby's Interpretation Act, incorporates the declaration into the province’s positive law with "immediate legal effect," taking DRIPA from an aspirational UN document to a binding law with real teeth and consequences.
In response, Eby himself said this decision would have profound consequences on the economy on British Columbia, criticized the courts for their decision, said the government intended to appeal, and had openly suggested he would need to repeal or amend DRIPA to avoid similar issues in the future.
He later backed down on that commitment.