Supreme Court Rules Governments Do Not Have A Duty To Consult Indigenous Groups

The Supreme Court of Canada dismissed a key indigenous rights case on Thursday, stating that Canadian governments do not have an explicit duty to consult indigenous groups when developing natural resource and commodity projects.

However, Canada’s top court did state in its decision that governments – federal and provincial / territorial – should weigh the historical rights of indigenous groups when developing future laws. While the court ruled that governments have no explicit requirement to consult indigenous communities in planning major projects or drafting legislation, it said that governments must act with “honor” or risk seeing their laws struck down.

The issue is one that has slowed or quashed development of major Canadian energy projects, including the controversial Trans Mountain pipeline expansion that the federal government purchased from Kinder Morgan Inc. (TSX: KML) for $4.5 billion earlier this year. Thursday’s decision essentially gives governments some leeway in developing laws without indigenous consultation, while also saying it’s not a blank cheque.

"While an aboriginal group will not be able to challenge legislation on the basis that the duty to consult was not fulfilled, other protections may well be recognized in future cases," Supreme Court Justice Andromache Karakatsanis wrote in the decision.

In August, the Federal Court of Appeal nullified permits for the Trans Mountain pipeline project shortly after Ottawa purchased it. The Court of Appeal made its decision, in part, because of a lack of indigenous consultation. The federal government has re-launched indigenous consultations in a bid to get the massive project back on track.