Recent Indigenous rights cases relevant to major project development

 
Ongoing international trade tensions have caused Canada to focus on building a more resilient economy at home. In this environment, major project development is at the top of the agenda. Consideration of these judicial developments relating to Indigenous rights is essential for the development of major projects in Canada.

Does UNDRIP modify the duty to consult and accommodate?

In 2019 and 2021, British Columbia and Canada each passed legislation putting in place frameworks to align their laws with UNDRIP. Each statute contemplated further legislative action, taken in consultation with Indigenous groups and various stakeholders—but the question remained whether UNDRIP’s provisions were implemented into law under these statutes, before additional legislative action was taken.

Two recent decisions have answered that question: Kebaowek First Nation v. Canadian Nuclear Laboratories¹ from the Federal Court, and Gitxaala v. British Columbia (Chief Gold Commissioner)² from the Court of Appeal for British Columbia. These courts found that UNDRIP and the principles of FPIC were implemented into federal and provincial law without requiring more specific steps to reconcile existing laws with UNDRIP’s provisions:

• In Kebaowek, the Federal Court held that, though additional steps had not yet been taken to reconcile UNDRIP’s free, prior and informed consent provisions with the duty to consult and accommodate, UNDRIP and FPIC are an important “interpretive aid” for understanding the duty to consult. The Court found that FPIC, in connection with the disposal of nuclear waste, requires “a deep level of consultation and negotiations geared toward a mutually accepted arrangement”, while stating that “the FPIC standard is not a veto”³.
• In Gitxaala, the BC Court of Appeal went further. The Court emphasized that UNDRIP has “immediate legal effect” under both federal and BC law, domestic law is presumed to conform to UNDRIP, and that UNDRIP forms the “minimum standards” against which laws should be assessed⁴.

These cases have sparked significant commentary on what role the courts and legislatures have in respect of UNDRIP implementation. In response to Gitxaala, Premier Eby signalled that BC would consider amending legislation to clarify these roles⁵. An appeal in Kebaowek is currently under reserve at the Federal Court of Appeal, and leave to appeal to the Supreme Court may be sought in Gitxaala.

Importantly, both cases address circumstances where consultation was undertaken at the low end of the procedural spectrum, or not at all. Even if these decisions are upheld, it remains an open question whether and how FPIC modifies consultation requirements at the “deep end” (i.e., the more demanding end) of the procedural spectrum. In the context of this uncertainty, proponents—particularly those working under federal and BC law—may wish to consider whether it is appropriate in their circumstances to err on the side of deeper consultation.

Can Aboriginal title be declared in respect of privately-held lands?

Until 2025, just two decisions of Canadian courts had found that Aboriginal title was established. Both decisions pertained to Crown lands in relatively remote areas of British Columbia, and both had excluded privately-held lands from their scope. Against this backdrop, commentators have discussed whether Aboriginal title can be recognized in respect of privately-held lands.

Two recent decisions—one in British Columbia and one in New Brunswick—have reached opposite conclusions on this issue. In Cowichan Tribes v. Canada (Attorney General)⁶, the Supreme Court of British Columbia granted a declaration of Aboriginal title over an area of Richmond, BC which includes both government-held and privately-held lands. In contrast, in JD Irving Limited et al. v. Wolastoqey Nation⁷, the New Brunswick Court of Appeal held that, in the context of an Aboriginal title claim for the western half of the province, a declaration of Aboriginal title is not available for privately-held lands (for more, read our analysis of these decisions). The Court left open the possibility of a “finding” of Aboriginal title for privately-held lands, which could ground damages paid by the Crown without affecting private property rights.

Appeals are being pursued in both cases, and it may be several years before the Supreme Court of Canada resolves the apparent conflict in approaches. But in both cases, private property rights were not immediately affected. In Cowichan Tribes, although the Court ordered that government‑held lands be returned to the Cowichan, it declined to make a similar order in respect of privately-held lands. Instead, the Court ordered the Crown to negotiate with the Cowichan the reconciliation of private interests with the Cowichan’s Aboriginal title. If the decision is upheld on appeal, that reconciliation may take a variety of forms, including compensation to the Cowichan in lieu of returning lands, expropriating privately-owned lands and compensating the private landowners, or other options.

In view of this uncertainty, proponents should consider key landholdings for project development that are subject to Aboriginal title claims, and identify ways in which related risks can be mitigated to avoid impacting project development.