Indigenous consent is an objective, not a standard, for resource development: Heather Exner-Pirot

Press Release

October 16, 2025

While Indigenous consent is a goal in the permitting and approval of projects, it is not a requirement in Canadian law.

In Canadian resource development, the concept of “consent” has become a litmus test for ideological and philosophical divides. While such debates may be intellectually stimulating, they pose a serious obstacle to project development. Proponents seek clear expectations and standards when committing capital and building things.

The Canadian legal and political systems have plodded along inelegantly on the question of Indigenous consent for two decades. In the wake of the passing of the Building Canada Act in June 2025, the issue has come to a head. It has become essential that Canadians, both Indigenous and non-Indigenous, come to a mutual and consistent understanding of the Crown’s and proponents’ obligations when advancing projects that impact Indigenous rights.

The concept of “Free, Prior Informed Consent” is rooted in international law, and is being applied to Canadian legal frameworks. But while Indigenous consent is a goal in the permitting and approval of projects, it is not a requirement in Canadian law.

That said, the Crown, proponents and Indigenous nations all have an obligation to act in good faith to find solutions to mitigate impacts to treaty and Aboriginal rights before a project goes ahead. This has been achieved hundreds of times in Canada, and is not an insurmountable barrier. But differences still exist, and constantly evolving requirements and expectations have imposed significant economic and political costs.

As mutual understandings around concepts such as consultation, accommodation, and consent are developed, the emphasis should shift from legal, rights-based negotiations to economic, interest-based ones. While the former is often adversarial, the latter can ensure everyone benefits from responsible energy and resource development.

A Shifting Landscape: Duty to Consult and FPIC

Duty to Consult

For many decades, Indigenous rights and interests were rarely or poorly considered when developing new resource projects in Canada. This began to change when Canada adopted the 1982 Constitution Act, which contained a section (s.35) that recognized and affirmed “existing Aboriginal and treaty rights.” Aboriginal rights have been interpreted to encompass the right to land, as well as to fish, to hunt, to practise one’s culture, and to establish treaties.

A series of Supreme Court of Canada decisions in 2004 and 2005 articulated the application of these rights. The Supreme Court determined that the Crown has an obligation to consult rights-holding Indigenous groups when it is contemplating conduct that could impact Aboriginal and treaty rights. If appropriate, it must accommodate those rights. (The “Crown” refers to the state and is the embodiment of governmental authority.) This became known as the duty to consult and accommodate.

Accommodation seeks to harmonize conflicting interests, avoid irreparable harms, and prevent the depletion of resources that are still subject to claims. This requires some balancing of Indigenous concerns with other societal concerns and public and private rights. For both the duty to consult and the duty to accommodate, the test for whether efforts are adequate is if they are deemed reasonable.

The duty to consult doctrine dramatically changed how proponents pursued energy and resource projects in Canada. It took many years for the courts to interpret its meaning in practice and provide guidance to the Crown and proponents to help them avoid or withstand judicial reviews of permits and project approvals. For ideological reasons, environmental and other groups exploited the ambiguity in order to frustrate resource development in Canada. However, the jurisprudence around the duty to consult is now largely settled, with a series of decisions related to the TMX pipeline providing the last pieces of that particular puzzle.

Just as the courts were finishing defining the duty to consult, the Governments of British Columbia and Canada added another layer of consideration and complexity: recognition of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Canadian law.

UNDRIP

In 2007, the General Assembly of the United Nations adopted the Declaration on the Rights of Indigenous Peoples (UNDRIP), an aspirational document focused on basic human rights for Indigenous peoples around the world.

Canada was initially opposed to the Declaration, one of just four states (alongside Australia, New Zealand, and the US) that voted against it. However, in 2016 the Government of Canada endorsed the UN Declaration without qualification and in 2021 it passed the United Nations Declaration on the Rights of Indigenous Peoples Act. The Act: (1) affirmed the Declaration as a universal international human rights instrument with application in Canadian law; and (2) provided a framework for the Government of Canada’s implementation of the Declaration. British Columbia passed its own version of UNDRIP legislation in November 2019, known as DRIPA.

Affirming UNDRIP’s application in Canadian law before reviewing and amending Canadian law accordingly was certainly putting the cart before the horse. As Jody Wilson Raybould, former regional chief of the BC Assembly of First Nations and federal minister of justice from 2015–19 asserted in a speech to the Assembly of First Nations (AFN) in 2016: “Simplistic approaches such as adopting the United Nations declaration as being Canadian law are unworkable and, respectfully, a political distraction to undertaking the hard work actually required to implement it back home in communities.”

That is because UNDRIP, as an aspirational international declaration, is written in a manner that puts it in tension with the Canadian Constitution. In particular, it potentially conflicts with the Crown’s responsibility to make decisions in the public interest; Canadian property law; and federal-provincial divisions of power. The federal UNDRIP legislation’s reference to “Canadian law” instead of “federal law” further muddied the waters.

Most of the rights mentioned in UNDRIP cover basic human rights that are not only compatible with Canadian law but already protected, such as the right to life (Article 7), freedom from discrimination (Article 2), the right to social and cultural development (Article 3), and the right to access health services (Article 24).

It is the concept of free, prior, and informed consent, commonly referred to as FPIC, that has emerged as the most discussed – and most controversial – principle in UNDRIP. It has raised concerns that it could imply a veto right by Indigenous peoples over development activities within their traditional territories. Many Indigenous peoples and groups have asserted it does: if you can grant consent you can surely withhold it as well.

Both at the United Nations and in Canada, authorities have gone to pains to clarify that FPIC does not imply a veto. In his report to the General Assembly on July 15, 2009, UN Special Rapporteur on the Rights of Indigenous Peoples James Anaya asserted that FPIC “should not be regarded as according Indigenous peoples a general ‘veto power’ over decisions that may affect them, but rather as establishing consent as the objectives of consultations.” He further suggested that “the strength or importance of the objective of achieving consent varies according to the circumstances and the Indigenous interests involved.”

Former Minister of Justice David Lametti, the sponsor of the UNDRIP Act, further clarified in the House of Commons in February 2021, as the Act was making its way through Parliament, that “free, prior, and informed consent is a way of working together to establish a consensus through dialogue and other means and of enabling indigenous peoples to meaningfully influence decision-making. Free, prior, and informed consent does not constitute veto power over the government’s decision-making process.”

This was consistent with Canadian law. The Federal Court of Appeal’s (FCA) decision with respect to consultation on the Trans Mountain Expansion pipeline, Coldwater First Nation v. Canada (Attorney General) (Coldwater), released on February 4, 2020, determined that: “Reconciliation does not dictate any particular substantive outcome. Were it otherwise, Indigenous peoples would effectively have a veto over projects such as this one. The law is clear that no such veto exists. At some juncture, a decision has to be made about a project and the adequacy of the consultation. Where there is genuine disagreement about whether a project is in the public interest, the law does not require that the interests of Indigenous peoples prevail.”

The Supreme Court effectively upheld the decision by dismissing an application for leave to appeal it in July 2020.

However, it seems to be taboo for federal politicians to point this out. Amidst some contention around the Building Canada Act, on June 3, 2025 the Assembly of First Nations reminded Prime Minister Mark Carney of his legal obligations to consult and obtain the consent of affected communities when drawing up the legislation to fast-track projects at a First Ministers meeting in Saskatoon. In response to a question from a reporter on whether Indigenous peoples have a veto on major projects the next day, Justice Minister Sean Fraser stated that: “In most circumstances, I think it demands a very deep level of, of engagement and understanding of the rights that may be impacted. And to the extent that those rights can be accommodated, we should make every effort to. The explicit nature of a veto – so from my understanding – is it stops short of a complete veto.”

While legally accurate, his comments stoked fears from Indigenous leaders that fast track legislation was intended to bypass Indigenous rights. Fraser was forced to walk back his statement and apologize the following day.

Interestingly, UNDRIP itself does not assert a right to free, prior, and informed consent. Rather, it obliges states to seek it. The Article in question, 32(2), states: “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior, and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploration of mineral, water or other resources.”

This is consistent with the duty to consult and accommodate, which preceded UNDRIP by two years. The principle of acting “in good faith” is aligned with the obligation of provincial and federal governments in Canada to “uphold the honour of the Crown,” which requires acting with honour, integrity, good faith, and fairness in all of its dealings with Indigenous peoples.

The Courts have similarly affirmed that Indigenous groups have a “reciprocal duty” to consult in good faith. This means participating constructively, providing relevant information about rights and interests, and responding to the Crown’s efforts to consult and accommodate rather than obstructing or refusing dialogue. Courts have looked poorly on refusals by rights holders to engage with the Crown and proponents, and on intentional delays.

There is plenty of jurisprudence on the duty to consult and accommodate, and growing case law on consent and the application of UNDRIP in Canadian law. Some recent cases affirm what the Courts think is a reasonable standard, and others raise more questions that will need to be clarified in higher courts or in subsequent cases.

Areas of ongoing tension

While political support for reconciliation is high in Canada, its legal application often brings in competing or contradictory interests. Building a relationship and engaging early on in a process is important, but it is not a panacea. In some cases, differences cannot be settled and the law is required to weigh in.

Some of the thornier issues raised with regards to consultation, accommodation and consent involve:

• Overlapping claims between Indigenous groups, especially in areas where treaties and land claims are still being negotiated, or where there are self-identified communities and established rights holders;
• The adequacy of consultation, including determining when a proponent and/or the Crown has provided sufficient information and time for review, but also determining who bears the responsibility for ensuring an impacted nation has adequate capacity to review a proposed project so that they can provide informed consent;
• The sufficiency of mitigation of impacts and the reasonableness of accommodations, when proponents will generally seek less arduous and expensive accommodations and rights holders will generally seek more;
• Who has the authority to provide consent on behalf of rights holders, whether a decision of elected band councils, negotiations with hereditary or spiritual leaders, or via community referendum;
• The strength of claim of different nations in a particular territory, and how accommodations and benefits are distributed between those whose rights are impacted a great deal and those who are impacted only minimally. This informs the scope of consultation; regulators have often elected maximalist interpretations such that dozens of nations, some of them hundreds of kilometres away from a proposed project, may be required to be consulted and accommodated, often making a venture uncompetitive or impractical, or drawing benefits away from the most impacted nations.

While it is generally supposed that the differences are between the Crown and Indigenous groups, or industry and Indigenous groups, it must be noted that sometimes, even increasingly, the difference is between Indigenous groups themselves. This is a trend that will only grow as Indigenous groups themselves become owners and proponents of resource projects. A few recent examples in BC illustrate the trend.

One is the Prince Rupert Gas Transmission (PRGT), a proposed 900-kilometre pipeline to transport natural gas from northeastern British Columbia to the Ksi Lisims LNG facility on the northwest coast. The Nisga’a Nation is an owner and co-proponent of the joint projects.

As the projects have neared a Final Investment Decision (and thus construction), opposition from neighbouring First Nations and environmental groups has intensified. On August 20, 2025, the BC Supreme Court rejected a challenge by the Skeena Watershed Conservation Coalition, the Kispiox Valley Community Centre Association, and the Kispiox Band for a section of pipe that did not have an updated cumulative effects assessment. Amongst other things, the judge found the Kispiox Band was not the proper rights holder of the Gitxsan people, whose hereditary chiefs have a project agreement for PRGT, and that it was not affected by that particular section of pipe.

For its part, the BC Environmental Assessment Office (EAO) approved a shorter route for PRGT on August 28, 2025, following a nine-month review process. The EAO could not reach a consensus with all eight impacted First Nations, but the Chief Executive Assessment Officer was satisfied they made sufficient efforts to engage with them, and that the new route would result in “minimal changes” to the project’s potential environmental effects.

Further south, British Columbia approved a plan on August 28, 2025, to deepen and extend the Springer pit at the Mount Polley copper-gold mine despite the opposition of the Xatśūll First Nation. The BC government assessed that the impacts on the First Nation were “appropriately mitigated” and “although consensus was not reached with Xatśūll First Nation, we are satisfied that the process was of appropriate depth and scope and sufficient to inform our decision on consent for the Springer expansion.” Of note, the neighbouring Williams Lake First Nation supported the expansion, along with the economic benefits it will bring.

Such competing interests are not solely found with extractive projects. There was much enthusiasm around BC Hydro’s recent call for wind power and commitment that all approved projects should have a minimum of 25 per cent Indigenous ownership. Indeed, nine of the ten projects selected had a 51 per cent First Nations ownership stake.

In five of those projects, neighbouring First Nations raised objections based on overlapping claims to their territories. Although equity is often heralded as a solution to Indigenous consent, it does not necessarily prevent objection or garner support from other nations that are not equity owners.

These cases, and this trend, add an important dimension to discussions about Indigenous consent and veto even amongst those who argue Indigenous rights should have primacy: UNDRIP rights cannot be absolute because oftentimes there will be multiple Indigenous groups involved with distinct or competing rights. Furthermore, it is not evident that groups that want to say “no” to a project should have higher standing than groups that want to say “yes,” as UNDRIP also affirms a right to development and livelihood, as does the Canadian Constitution.

Areas of ongoing uncertainty

Proponents and investors crave certainty in order to develop business cases, attract investors, and make final investment decisions. However, policymakers and courts keep changing the expectations and requirements for interactions with impacted Indigenous rightsholders.

During the development process for UNDRIP, critics argued that while the principles were sound, the legislation was vague and incompatible with other Canadian laws, and would lead to years of uncertainty and lawsuits.

This is now unfolding. In February 2025, in Kebaowek First Nation v. Canadian Nuclear Laboratories (CNL), the Federal Court found that UNDRIP is already a part of Canadian law, and nothing further is required to make it so. It further found that UNDRIP and FPIC inform the scope and content of the duty to consult, and require deep consultation informed by the Indigenous group’s perspectives, traditions, and laws, with the aim of consent.

The case is being appealed by CNL, but for now, a new legal standard has been introduced. The Department of Justice’s current backgrounder on the duty to consult and accommodate itself explains: “The United Nations Declaration on the Rights of Indigenous Peoples Act now requires that the Government of Canada ‘consult and co-operate’ with Indigenous peoples on legislative and regulatory initiatives that affect them. This statutory obligation is distinct from the duty to consult … The meaning of ‘consult and co-operate’ has not yet been considered by Canadian courts, but has been understood (in international commentary) to refer to the importance of involving Indigenous peoples and their representative organizations early in the development of laws or regulations which may impact significantly on their rights or interests.”

Following decades of effort to establish parameters for the constitutional duty to consult and accommodate, a new, untested standard has been introduced: to “consult and co-operate.” Clearly, Canada must further define the standards by which the Crown and proponents must engage with Indigenous rights holders, and this will continue to impose uncertainty in project development.

From rights to interests

Proponents have been unable to enjoy consistency or certainty from Canadian political and legal systems. However, the most sophisticated amongst them have found new ways to engage with impacted Indigenous nations in ways that impart mutual benefits, using tools such as benefit agreements, employment and procurement targets, various types of revenue sharing, and equity. These are meant at some level to insulate proponents from legal and political challenges, although other aspirational or ethical objectives may also hold.

While Indigenous leaders have tended to focus on articulating and defending rights and treaty commitments in the past five decades, and found many successes, the strategy has predisposed the advancing and settling of disputes in the courts. The Canadian legal system is by its nature adversarial, and produces winners and losers. It is also time-consuming and expensive for all parties. Business negotiations, on the other hand, are intended to impart benefits to both parties and produce win-win situations.

Many nations are themselves concluding that court-driven strategies aren’t always the best path to self-determination. This is precipitating a change from how to stop a project, to how to ensure support can be achieved. The latter combines protections and benefits and can be a manifestation of self-determination.

A shift from asking: whether and to what extent rights are impacted, to: whether and to what extent interests are being met, is likely to lead to more good projects being developed in ways that impart more benefits to Indigenous peoples and Canadians alike. This model treats Indigenous nations less as external rightsholders to be accommodated, and more as partners or co-developers.

The way forward needn’t be binary. A hybrid approach that starts from a rights-based foundation but emphasizes interest-based partnerships may be the most practical way forward. As Canada seeks to build more projects and develop more resources, switching the emphasis from adversarial legal battles to partnerships between proponents with Indigenous peoples will provide benefits for everyone.

About the author

Heather Exner-Pirot is Director of Energy, Natural Resources, and Environment at the Macdonald-Laurier Institute in Ottawa.

IBF5