The tariff threats from the United States government, along with the pursuit of decarbonization and carbon neutrality, have prompted Canada to prioritize critical minerals, major projects, and new infrastructure developments. The federal government and some provincial governments, including those of British Columbia (BC) and Ontario, have enacted major legislation designed to streamline, fast-track, and prioritize large-scale infrastructure, energy, and mining projects.

While this legislation seeks to address the current socioeconomic crisis in Canada, it poses significant risks to First Nations, as most mining, energy, and infrastructure projects are located on their traditional territories. Although these federal and provincial legislation include provisions for consultation with Indigenous Peoples, they often follow minimal procedural models. These models typically exclude First Nations from early-stage discussions and ensure that the Crown retains final authority over decisions.

The British Columbia Court of Appeal’s decision in Gitxaala v. British Columbia represents a notable shift, challenging previous practices of Indigenous engagement and consultation in mineral resource development. This ruling indicates a movement toward more substantive consultation and exposes the limitations of current major project legislation. Although Section 35 of the Constitution Act, 1982, establishes a foundation for Indigenous consultation, alongside the duty to consult and accommodate doctrine through landmark judicial decisions like Haida Nation v. British Columbia (Minister of Forests) (Haida Nation), consultation does not grant Indigenous Peoples veto power over development projects within their territories.

The Gitxaala decision highlights the flaws in the government’s consultation frameworks. It raises important questions about consultation and consent in the context of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the BC Declaration on the Rights of Indigenous Peoples Act (DRIPA), respectively adopted in Canada in 2021 and in BC in 2019. Governments are working to speed up project approvals for critical minerals and energy transition initiatives while also enhancing their reconciliation commitments to First Nations. At the same time, as Indigenous Peoples increasingly assert their jurisdiction and decision-making authority over their territories and demand meaningful implementation of UNDRIP, the tension between major projects legislation and Indigenous rights becomes more apparent.

Canada’s Consultation Framework and Its Limits

Section 35 of the Constitution Act, 1982, recognizes and affirms existing Aboriginal and treaty rights, providing a framework for the consultation of Indigenous Peoples. This constitutional basis has been further developed by landmark judicial decisions, including the Supreme Court of Canada’s rulings in Haida Nation and Taku River Tlingit First Nation v. British Columbia (Project Assessment Director).

In the Haida Nation case, the Supreme Court held that the Crown (comprising federal and provincial governments) has a constitutional obligation to consult with Indigenous Peoples and accommodate their interests when contemplating actions that might adversely affect unresolved claims to land titles. The Court noted that consultation and accommodation before final claims resolution preserve the Aboriginal interests and are a necessary part of the honourable reconciliation process required by Section 35 of the Constitution Act.

However, while the Crown is required to consult with Indigenous Peoples, it does not have a duty to reach an agreement with them. The Crown is only required to demonstrate a commitment to a meaningful consultation process conducted in good faith. The duty to consult and accommodate varies depending on the circumstances. The central consideration is what is necessary to uphold the honour of the Crown and advance reconciliation with Indigenous Peoples in light of the interests at stake.

The consultation process described in Section 35 of the Constitution, 1982, and its judicial interpretation tends to focus on procedural aspects rather than the collaborative governance mechanism that Indigenous Peoples anticipated. This framework ultimately grants the Crown the final decision-making authority, while Indigenous Peoples lack the power to veto development projects that may infringe upon their rights and titles.

As a result, the management of mineral resources and the approval processes for development projects remain under Crown control, often disregarding Indigenous consent-based decision-making. Current processes governing mineral resources and project development operate within Crown-controlled systems, such as mineral tenure, environmental assessments, and permitting regimes, which typically involve minimal Indigenous input and offer no decision-making power to Indigenous communities.

The Gitxaala Decision and the Shift Toward Substantive Consultation

While BC’s DRIPA and the federal government’s United Nations Declaration on the Rights of Indigenous Peoples Act (UNDA), which aims to align federal laws with UNDRIP, marked an important political commitment to implementing UNDRIP at various levels of government, questions arose about how UNDRIP principles would practically impact existing mineral resource management and project approval processes.

In 2023, the Gitxaala case became the first significant test of the provincial legislation that implements UNDRIP in British Columbia. In this case, the Gitxaala Nation and the Ehattesaht First Nation challenged BC’s mineral tenure regime, specifically the province’s “free entry” system that allowed mineral claims to be registered online without prior consultation with affected First Nations. They argued that the mineral tenure system operated in violation of the Crown’s duty to consult with First Nations. Moreover, Article 32(2) of UNDRIP provides that governments should consult and cooperate in good faith with Indigenous Peoples to obtain their free, prior, and informed consent (FPIC) before approving projects that affect Indigenous lands or resources.

The Court in BC ruled that the issuance of mineral claims triggered a duty to consult, given the adverse impacts on areas of cultural and spiritual importance to Indigenous Peoples and their rights to minerals in asserted territories. This duty to consult arises from Section 35 of the Constitution and the test established in Haida Nation. The Court rejected the province’s argument that granting mineral claims was temporary and caused minimal impacts, thus not triggering consultation obligations. Instead, they recognized that issuing mineral rights without consultation leads to physical impacts, including the loss of mineral rights and physical disturbance, which constitute adverse effects, based on the Supreme Court’s framework in Haida Nation.

This decision marked a significant shift in the mineral claims process by bringing consultation obligations earlier into the regulatory framework, rather than restricting them to later stages of project approval. It transforms Indigenous consultation from a procedural process focused on information sharing after the start of a development project to one that acknowledges the inherent rights and interests of Indigenous Peoples, necessitating their engagement from the outset. Although the Court did not define the exact content of, or establish a legal requirement for, FPIC under Article 32(2) of UNDRIP, it did affirm that the duty to consult Indigenous Peoples is widely accepted as a matter of international law, aligning with the principles of early engagement found in UNDRIP.

UNDRIP, Major Projects Legislation, and the Future of Resource Development

The province of British Columbia’s implementation of UNDRIP through the DRIPA and the decision in the Gitxaala case raise important questions about Indigenous rights and governance over their territories, particularly regarding mineral resource development and infrastructure projects. While the Gitxaala decision is considered persuasive rather than binding outside of British Columbia, the logic of the ruling regarding Indigenous consultation can still be applied across Canada to help ensure that its laws are compliant with UNDRIP.

Moreover, the government’s plans to accelerate critical mineral, energy transition, and major infrastructure projects through major project legislation (see Building Canada Act) highlight a disconnect between the constitutional consultation framework and UNDRIP commitments. This situation creates uncertainties regarding the potential continuation of inadequate procedural consultation mechanisms.

The federal Impact Assessment Act is the primary piece of legislation governing major project development across Canada. This Act mandates the federal government to facilitate Indigenous participation and early engagement in the impact assessment process. Provincial environmental assessment mechanisms similarly provide for Indigenous consultation and participation. However, the impact assessment processes, whether federal or provincial, emphasize meaningful Crown consultation with Indigenous Peoples only after activities that create underlying interests, such as mineral claims or land dispositions, have already taken place in Indigenous Peoples’ territories.

The Gitxaala decision addressed this issue by concluding that granting mineral rights without prior consultation causes Indigenous Peoples to experience adverse physical impacts, including the loss of mineral rights and physical disturbances. The Court recognized that this erosion of Indigenous rights resulting in adverse effects emanates from activities that occur before environmental assessment is considered. Consequently, this ruling highlights the limitations of both federal and provincial consultation frameworks, which only begin after project proponents or governments have acquired some form of interest.

The Gitxaala decision’s implications extend beyond mining and mineral resource development; it also applies to forestry, energy, transportation, hydroelectric, and other major infrastructure projects where governments may allocate Indigenous lands and resource interests prior to meaningful consultation with Indigenous communities. Although the decision does not grant Indigenous Peoples outright veto power over mining or other development projects, it underscores that minimal consultation that occurs only after significant decisions have been made is insufficient for meaningful engagement.

This raises pressing questions about how governments will meet the constitutional requirement to consult Indigenous Peoples while hastening decisions on major projects. On 8 May 2026, the federal government released a discussion paper titled “Getting Major Projects Built in Canada,” which focuses on expediting government decisions related to major projects. One proposal includes creating a one-Crown consultation process, which would involve establishing a Crown Consultation Hub within the Impact Assessment Agency of Canada. This hub would coordinate with federal departments and agencies to ensure that each Indigenous group affected by a major project undergoes one clear and streamlined consultation process for each project.

While this proposal aims to simplify the consultation process, it remains anchored in a Crown-dominated framework that prioritizes procedural consultation over genuine, consent-based decision-making. Canada’s major project legislation risks perpetuating an inadequate consultation framework that undermines the UNDRIP principles of free, prior, and informed consent.

Toward Shared Decision-Making?

The Gitxaala decision highlights the growing divide between Canada’s constitutional consultation framework and its commitments under UNDRIP. This decision reveals a growing recognition that procedural consultation is no longer sufficient to meet the evolving legal expectations for meaningful engagement with Indigenous Peoples, especially in light of UNDRIP’s principles of free, prior, and informed consent.

As Canada seeks to strengthen its economy and enhance regulatory efficiency by eliminating duplication and streamlining assessment processes, the government is also attempting to accelerate approvals for critical mineral and energy transition projects while advancing reconciliation commitments. Conversely, Indigenous Peoples continue to emphasize the need for a more effective consultation framework grounded in shared governance, one that acknowledges Indigenous authority over their territories, lands, and resources.

The reasoning in the Gitxaala decision should guide the federal government’s proposed legislative, regulatory, and policy reforms aimed at facilitating the construction of major projects in Canada. In addition to streamlining and compressing timelines, the Canadian government should design major project approval systems to ensure that Indigenous consultation occurs before any significant legal and economic interests are established. This approach, prioritizing substantive consultation, will bring Canada’s mineral resource and major project legislative framework closer to the principles outlined in UNDRIP.