The ‘Inalienable Right’ to Nuclear Energy Under the Nuclear Non-Proliferation Treaty: Indigenous Rights of Consultation, Self-Determination and Environmental Protection of Aboriginal Lands

  • Jonathan Black-BranchEmail author


Successive Supreme Court of Canada rulings recognize governmental fiduciary obligations, of a sui generis nature, regarding the use of lands owned, or claimed, by indigenous peoples. Decisions in cases such as: Calder, Sparrow , Delgamuukw and Tsilhqot’in , and Ktunaxa Nation create both a moral and legal duty to consult, accommodate, and negotiate in good faith with indigenous groups before using their lands for economic development purposes, including mining, logging and hydro-power projects. Although heralded as progress for Canada’s aboriginal populations in their plight for reconciliation for consequences of European settlement, questions remain as to how significant such judicial precedents may be in practice, particularly in relation to nuclear issues. Whilst the courts may have issued important precedents relating to how Government should proceed before developing land and exploiting natural resources, in reality indigenous views may not be heeded, especially regarding uranium mining and nuclear energy considerations. The Nuclear Non-proliferation Treaty 1968 recognizes a country’s ‘inalienable’ right to nuclear energy. Despite the duty to consult and accommodate, questions remain as to how this may play out as it relates to uranium mining, building nuclear power plants or the storage of nuclear waste on indigenous lands. The purpose of this chapter is to provide an analysis of the case of Tsilhqot’in Nation v. British Columbia (2014 SCC 44) with reference to other relevant court rulings, highlighting the importance and the need to consult with indigenous peoples and to accommodate their views regarding the exploration, development and use of their ancestral lands, and questioning the credence given to these rights as it relates to environmental concerns and the right to self-determination within the broader context of the need to consult on nuclear issues.


Environmental Protection Humanitarian Impact Indigenous Rights Self-Determination of Peoples Consultation Uranium Mining Nuclear Non-Proliferation Treaty Canadian Constitutional Law Customary Rights Land Claims 


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Copyright information

© T.M.C. Asser press and the authors 2019

Authors and Affiliations

  1. 1.Faculty of LawUniversity of ManitobaWinnipegCanada

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