It’s been two decades since the Supreme Court issued a pair of judgements that affirmed Canada’s “duty to consult” Indigenous Peoples beyond giving them a chance to “blow off steam.”
Since then, Canada’s courts have continued to sketch out the legal contours of Indigenous Rights, one decision at a time — like when they found government consultants must act as more than mere “note-takers” in a case involving the Trans Mountain oil pipeline, or must respect the principle of “free, prior and informed consent” in another about a nuclear waste dump.
The message from these and many other cases is clear: Indigenous Peoples cannot simply be told about projects happening in their territories as an afterthought, or have their concerns brushed aside. They must have the space, time and resources to control their own destiny, as “full partners in Confederation.”
“I think we should learn from the past. We should learn from all the case law. That’s what the case law was meant to do,” Anishinaabe lawyer Sara Mainville, managing partner at JFK Law LLP and former chief of Couchiching First Nation, told The Narwhal.
“Judges tried to give good guidance to Crown governments on how to respect Aboriginal and Treaty Rights, before they get breached — not as they are breaching them.”
This summer, that message is being put to the test.
Politicians are eager to usher in a new wave of industrial development. They say Canada needs to build things — pipelines, ports, highways, railways, airports, power lines — much faster to assert its sovereignty, protect its economy and fight back against a U.S. trade war and an expansionist Trump administration. And to do so, they say they need to toss out the old rules.
The federal government and provincial governments in B.C. and Ontario have moved to grant themselves enormous new powers to fast-track these kinds of projects and exempt them from regular reviews or permit processes meant to examine environmental and Indigenous impacts.
At the same time, if there’s any defined list of preferred projects at this point, they have kept it a secret. (There are no commercial proposals for a new cross-country pipeline currently on the table, for example.)
In May, B.C. passed Bill 15, giving the province the power to declare virtually any project “provincially significant” and potentially exempt it from a full environmental assessment.
This month, Ontario passed Bill 5, empowering the government to create “special economic zones” where designated projects can be exempted from certain provincial or municipal rules.
The federal government also tabled Bill C-5 this month, which if passed would create a five-year period where the government can designate a project in the “national interest.”
Once a project is deemed to be in the national interest, the government’s focus is on getting it built. As Prime Minister Mark Carney put it June 6, rather than asking why a project should go ahead, “we will instead ask ourselves, ‘How?’ ”
For example, the bill states that, for national interest projects, “every determination and finding that has to be made” and “every opinion that has to be formed” in terms of project authorization is considered completed.
In promoting these bills, all three governments have made an attempt to speak to the importance of Indigenous Rights.
At a June 6 press conference, Carney said the federal legislation mandates “meaningful consultation with Indigenous Peoples” during both the process of determining national interest projects, and when the government comes up with the conditions that will be placed on each of those projects.
He said the government will also be incorporating Indigenous expertise through an Indigenous advisory council with First Nations, Métis and Inuit representation, and providing funding for Indigenous participation in the new fast-track process.
B.C. Premier David Eby said in the legislature he understood “you cannot fast-track a project in Canada unless you have the support of First Nations.”
And Ontario Premier Doug Ford’s government added provisions affirming the protection of constitutional Indigenous and Treaty Rights into its bill shortly before passing it. Ontario’s Energy and Mines Minister Stephen Lecce said “we think we can do both” — develop resources and uphold the duty to consult.
Yet each jurisdiction’s leaders have also sought to evoke a halcyon past that could be restored — if Canada can overcome the threats of the present.
“Canada is a country that used to build big things,” Carney said. Now, he said, projects take “too long” and “it’s holding our country back.”
Eby said the province’s “history of building” doesn’t “have to be a tale that our grandparents talk about.” Ford said U.S. President Donald Trump “wants to destroy our economy” and Ontarians “have to get up and fight like we’ve never fought before.”
But some big projects of the past polluted the lands and rivers Indigenous Peoples relied on for generations. Many First Nations have spent decades grappling with the toxic legacies of industrial development, with no end in sight.
Stopping this from happening all over again means putting First Nations in the “driver’s seat” this time, Mainville said.
The bills have upset several First Nations leaders, who worry their rights will be trampled on in the rush to stand up big industrial projects.
Ontario’s Bill 5 “erodes trust” and will “only delay planning and development because there is no shortcut around First Nations’ Rights,” Moose Cree First Nation Chief Peter Wesley said in a statement.
Don Tom, Chief of the Tsartlip First Nation and vice-president of the Union of B.C. Indian Chiefs, called on B.C. to “immediately withdraw” Bill 15.
Assembly of First Nations National Chief Cindy Woodhouse said the group was “deeply concerned” about the federal legislation, “especially given the potentially massive impact on the rights of First Nations.”
The Narwhal spoke with several experts in Indigenous law, who warned a botched rollout of all these fast-tracking bills could trash years of hard-won trust between Indigenous leadership and the Crown.
Mainville said the bills left her wondering whether recent efforts on reconciliation, like the Trudeau government’s overhaul of Canada’s environmental assessment regime in 2016 in order to focus more on Indigenous Rights, Knowledge and engagement, was all “just a dream.”
Notwithstanding the issues she had with that Trudeau-era legislation, she said, the new bills were “just such a step backwards for reconciliation.”
“I think what’s getting everybody’s ire up, is it always seems to be, ‘trust us’ … the legislation is the giveaway that First Nations cannot trust these governments to do the right thing.”
A spokesperson for Intergovernmental Affairs Minister Dominic LeBlanc, who is the minister responsible for the One Canadian Economy policies, told The Narwhal the proposed legislation “recognizes that meaningful Indigenous consultation and partnership are essential to building projects in the national interest.”
To that end, they said, “there is no possibility of any government” overriding constitutional rights. “This legislation acknowledges that and considers Indigenous consultation and partnership as integral,” the spokesperson said.
B.C.’s Infrastructure Minister Bowinn Ma, in a statement sent to The Narwhal, said “I acknowledge that our engagement process for the Infrastructure Projects Act was shorter than we would have liked. But I want to be very clear, the Act can’t be used to shortcut Indigenous participation.”
Ma said this was guaranteed by the way the legislation was written as well as another provincial law that ensures alignment with the Declaration of the Rights of Indigenous Peoples Act and the constitution.
“The new tools in this legislation are focused on provincial processes and do not change our government’s commitment to reconciliation,” Ma said. “We are committed to working collaboratively with Indigenous Peoples as we develop regulations to implement the Infrastructure Projects Act and deliver projects for communities.”
If they don’t proceed with caution, governments may wind up watching their attempts to speed things up backfire as projects land in court, said Métis lawyer Paul Seaman, a partner at Gowling WLG and the firm’s national leader of Indigenous law and member of its environmental law group.
The duty to consult is a constitutional imperative derived from Section 35 of the Constitution Act, 1982. That section recognizes and affirms Aboriginal and Treaty Rights of First Nations, Inuit and Métis.
It’s also linked to a constitutional principle known as the “honour of the Crown,” which compels Canada to act honourably and in good faith in all its relationships with Indigenous Peoples.
That means a lack of consultation “amounts to a constitutional vice,” the Supreme Court said in a 2010 case that involved hydro development on the traditional territory of Carrier Sekani Tribal Council First Nations.
It follows that “a project authorization that breaches the constitutionally protected rights of Indigenous Peoples cannot serve the public interest,” the Supreme Court made clear seven years later.
That was a case brought by Inuit of Clyde River, Nvt. and the Nammautaq Hunters and Trappers Organization, to protect their community from underwater seismic blasting in search of oil and gas.
Ultimately, this means it’s up to governments to ensure their projects are not “prematurely approved, only to be subjected to litigation,” the court wrote — including by proactively fixing their own laws or regulations.
“That’s the principle that the Supreme Court was trying to leave lawyers and governments with, was saying ‘Look, nobody benefits from this when you’re just trying to ram something through, subject to some court case,” Seaman said.
Corey Shefman, a partner at Olthuis Kleer Townshend LLP who provides general counsel to First Nations, said the fast-tracking bills appear to be a part of a category of legislation where governments are “taking away triggers for consultation.”
“Every time the Crown considers issuing a license, or a permit or approving an environmental assessment … generally speaking, that is a trigger for the duty to consult,” he said.
“What (the bills) say is, if you want to build a mine, or a pipeline, or a power line, or whatever, in this geographic area then you don’t need a permit — then they’re taking away opportunities for consultation.”
But as many cases have demonstrated, the duty to consult is not easily side-stepped.
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), an international human rights standard, has now been incorporated into federal law, as well as provincial acts in B.C. and Northwest Territories.
In 2023, the Supreme Court of British Columbia addressed the role of the Declaration of the Rights of Indigenous Peoples Act, when it found the province has a duty to consult Indigenous groups when registering mineral claims, in a case involving the Gitxaala Nation and the Ehattesaht Nation.
This year, the Federal Court also addressed the role of the United Nations declaration in the context of the duty to consult, in a case centring around Kebaowek First Nation’s battle against a nearby nuclear waste disposal facility.
The court found the declaration’s prominence in Canadian law meant consultations needed to be more robust.
“You can’t talk about these pieces of legislation and the consultation duties without also talking about that next step, which is the right to free, prior and informed consent,” Shefman said.
In the Carrier Sekani case around hydro development, the Supreme Court affirmed the duty to consult is not limited to the point in time when governments actually carry out their decisions, but also earlier in the process when they make “strategic, higher-level decisions” about projects.
That means the Crown can’t adjust the sequence of events for project approvals in order to escape its constitutional obligation to consult.
Doing so would be “rearranging the deck chairs on the Titanic, so to speak,” Seaman said.
While speaking to the centrality of Indigenous Rights, B.C., Ontario and the federal government have also rushed to entrench their new powers in law before the legislative summer break, despite calls for a pause from First Nations leaders.
Federal officials outlined the new bill to Indigenous leaders on May 23 and gave them until May 30 to respond, according to remarks from Chapleau Cree First Nation Chief Keith Corston in The Globe and Mail.
Carney wants Bill C-5 passed before the House of Commons rises in the next two weeks and is prepared to extend Parliament’s sitting into the summer to do so.
B.C. waved off requests to delay its legislation until the fall, even though Eby had to acknowledge his government had failed to follow its own standard in B.C.’s Declaration on the Rights of Indigenous Peoples Act.
Meanwhile, the Ford government in Ontario used a time allocation motion to shut down debate and speed its bill through the legislative process while First Nations and supporters rallied outside Queen’s Park.
Ontario’s Indigenous Affairs Minister Greg Rickford has argued the duty to consult begins after legislation is tabled, while demonstrators have insisted the province should have consulted sooner.
A Supreme Court decision in 2018 found Parliament doesn’t have to consult when drafting laws, because the separation of powers means the legislative branch develops and passes laws itself.
But it’s worth noting the judges on the case also disagreed about how the duty to consult applied to the lawmaking process. Some judges argued that Parliament’s duty to uphold the honour of the Crown includes a duty to consult Indigenous groups when making laws.
“It’s a bit of a mess of a case because there were so many opinions inside of that case,” Mainville argued.
But even when taking into account how the constitution works and the separation of powers, Mainville said, “there’s an importance to talk to First Nations when you’re changing legislation.”
As governments roll out their fast-tracking laws, they need to “rethink the playbook” and forge stronger relationships with Indigenous communities, Mainville said.
“There has to be a reasonable process going forward, and not the continuing exploitation of First Nations territories at their expense, and with very little benefit going back to them.”
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