In October 2024, the Superior Court of Quebec released its ruling in a case called Mitchikanibikok Inik First Nation (Algonquins of Barriere Lake) c. Procureur général du Québec. The court found that the Quebec government had failed for decades to fulfill its constitutional duty to consult the Mitchikanibikok Inik First Nation, also known as the Algonquins of Barriere Lake, before granting mining claims on the nation’s territory.
More than a year later, the British Columbia Court of Appeal issued another ruling on the Crown’s duty to consult Indigenous peoples before making decisions or embarking on mining projects that could impact them. In Gitxaala v. British Columbia (Chief Gold Commissioner), the appellate court determined in a split decision that the province’s mineral claim system, which allows individuals and companies to obtain mineral rights and search for minerals on Crown and private land, is inconsistent with the United Nations Declaration on the Rights of Indigenous Peoples. A key reason for the BCCA’s ruling was the fact that the system did not require Indigenous peoples to be consulted or notified before mineral rights were acquired in their territories.
Mitchikanibikok Inik and Gitxaala are among the latest developments in the growing body of case law shaping the Crown’s duty to consult in Canada. Like other court rulings that have come out in the two decades since the Supreme Court of Canada released its so-called Haida trilogy, three landmark rulings that outlined a modern framework for Indigenous consultation, Mitchikanibikok Inik and Gitxaala aim to clarify what consultation must look like in different contexts, including mining projects.
However, project development lawyers say that when it comes to “good” Indigenous consultation – i.e., consultation that fosters strong relationships between project proponents and nations while advancing projects – navigating this growing, complex body of case law is only part of the picture.
“When we’re brought in to help clients go through a permitting process, part of what our clients are looking for from us [is] not just an interpretation of the law and then an application of the law to facts,” says Daniel Bornstein, a Toronto-based lawyer who advises both proponents and Indigenous governments as co-head of McCarthy Tétrault’s Indigenous legal matters and projects group.
“I see this as more social than legal,” Bornstein says. “For me, what you’re looking to develop, regardless of which side you’re on, is a mature relationship where each party feels safe to speak their minds about their concerns.”
Zach Romano, a partner at Fasken in Vancouver who works with Indigenous and project development matters, agrees that relationship-building is key to good consultation.
“Courts have been clear that consultation must be meaningful to be defensible,” he says.
“Ideally, consultation should be occurring after there’s an existing relationship with an Indigenous rights holder, if you can,” Romano adds. “Now, if a proponent or a Crown decision-maker only engages with an Indigenous government when a permit is needed, or a commercial agreement is being negotiated, the dealings start to look a lot less relational and a lot more transactional.”
The duty to consult is an obligation of the Crown, not proponents. The obligation is rooted in s. 35 of the Constitution Act, 1982, which recognizes and affirms “existing Aboriginal and treaty rights of the Aboriginal peoples of Canada.”
While the 1980s and 1990s case law on s. 35 rights recognized that Indigenous consultation is part of the Crown’s duties, it wasn’t until 2004 and 2005, when the Supreme Court of Canada released the Haida trilogy, that Canadian case law explicitly explained the basis for the Crown’s duty to consult and created a framework for consultation activity.
Together, Haida Nation v. British Columbia (Minister of Forests), Taku River Tlingit First Nation v British Columbia (Project Assessment Director), and Mikisew Cree First Nation v Canada (Minister of Canadian Heritage) established that the Crown must consult and, where appropriate, accommodate Indigenous peoples when the government intends to act in a manner that could impact their rights. This duty can arise for both established rights and potential rights that have not yet been proven.
However, the rulings also clarified that while the consultation process must be fair, Indigenous nations do not ultimately have veto power.
In Haida Nation, the high court said the Crown’s duty to consult will look different depending on the circumstances at play. At one end of the spectrum, there are cases where an Indigenous nation’s claim to title – or right to land – “is weak, the Aboriginal right limited, or the potential for infringement minor,” the SCC said in Haida Nation. “In such cases, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice.”
At the other end of the spectrum are cases where an Indigenous nation’s claim to title is strong, “the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high,” the SCC wrote. In these cases, “deep consultation” – which entails finding an interim solution – could be required, the court said. This could involve giving affected Indigenous nations the opportunity to make submissions or formally participate in the decision-making process; the Crown may have to provide written reasons demonstrating that the nations’ concerns were taken into account.
These steps are neither “exhaustive, nor mandatory for every case,” the high court said. It added that the government might want to use mediators or “administrative regimes with impartial decision-makers” in particularly complex cases.
Since the trilogy’s release, numerous court decisions have addressed consultation, adding “incrementally to our understanding of the duty to consult,” Bornstein says. These include rulings that consider to whom, exactly, the duty is owed – is the Crown obligated to consult Indigenous individuals, for example, or Indigenous-owned businesses? – and the types of activities that trigger the duty to consult.
Romano adds that numerous court decisions have clearly explained “that consultation is a two-way street.
“Indigenous rightholders should outline their claims with clarity, focusing on the scope and nature of the rights they exercise and the alleged infringement of those rights,” he says. “Crown governments, on the other hand, must meaningfully consider Indigenous concerns through dialogue with a view to accommodating Indigenous interests and reasonably balancing them with larger societal needs.”
The goal, Romano says, is balancing Indigenous and non-Indigenous interests.
Despite the courts’ expanding body of guidance, however, it is not always clear what level of consultation is required for specific projects. Referencing the spectrum that the SCC lays out in its Haida Nation decision, Bornstein says knowing where a project falls is “always unclear.”
“Once you’ve figured out where you are on the spectrum, there’s enough case law, and there’s enough guidance that you probably can do what the guidance says you should do,” he says. “But the big risk is: where are you on the spectrum?” While proponents do not technically have the duty to consult, their conduct nevertheless plays a critical role in the consultation process, Bornstein argues. “If you [as a proponent] have misinformed yourself about [the level of consultation required for a project] vis-à-vis what the Crown thinks, then you may end up with a significant delay because the Crown is going to go back and say you haven’t done enough, you need to do more,” he says.
Bornstein argues that even when the correct level of consultation is assessed, meeting the minimum requirements is not enough. “It really behooves you just from a risk perspective to do more,” he says.
Romano agrees. “Is complying with the minimum standards enough? The short answer [is] no, and particularly not if you’re trying to get a major project approved today,” he argues.
“Indigenous rights holders increasingly expect consent-seeking as the goal of consultation. Crown decision-makers are increasingly reluctant to make project approval decisions absent Indigenous consent, even if consent isn’t the legal requirement for project approval,” Romano says. “If the Crown is concerned project approval will harm the broader relationship with the Indigenous government, the harder it is to get a project approved, even with a spotless record of consultation.”
In addition to ensuring that the consultation process is “meaningful” – which, to Romano, means consultation that has been conducted in good faith, reflects a genuine effort to understand Indigenous concerns, and gives Indigenous parties sufficient opportunity to participate in decision-making – the lawyer recommends some best practices.
“In all cases, consultation should begin before positions harden, so at the planning stage, not after a project is fully designed or permit applications are well underway,” Romano says. “Your consultation process should respect Indigenous peoples as rights holders and governments, not simply as stakeholders whose concerns just need to be managed.”
Bornstein agrees that facilitating a strong relationship between the proponent and the nation is key to good consultation. But because the duty to consult can arise in so many different contexts, his experience is that achieving good consultation is never a simple “tick-the-box exercise.
“Typically, the issues that we deal with are not black and white,” he says, adding, “It requires open-mindedness on both sides.”
