Canada: Indigenous Consultation In 2019: An Outlook For Project Proponents

Last Updated: January 29 2019
Article by Michael J. Fortier

In taking stock of their large projects in Canada and considering what 2019 will hold, many proponents will likely focus on their project's consultation with Indigenous peoples.

This consultation can be critical to the success of a project for many reasons, including:

  • reaping the benefits of creating a "win-win" scenario where both the proponent and any potentially affected Indigenous people want the project to proceed and thrive for its lifetime;
  • ensuring the proponent's consultation team, project management team and board of directors are all aligned with an accurate view on consultation; and/or
  • reducing the risk that the issuances of approvals are delayed or denied by a government or successfully challenged on judicial review.

And for many projects that have not yet received their key approvals, proponents thinking about the year ahead will want to ask these three crucial questions relevant to the consultation:

  1. Has "meaningful consultation" occurred, or will it occur, with respect to the project?
  2. How may Canada's implementation of the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP) affect the project's consultation?
  3. How may other change to a government's general approach to consultations affect the project's consultation?

This article unpacks issues underlying these questions for proponents looking to move their projects forward in the year ahead.

Meaningful consultation

In recent years, the issuance of approvals for large energy, mining and infrastructure projects in Canada have repeatedly been delayed, denied or quashed due to a lack of "meaningful consultation" with Indigenous peoples. While the federal or provincial government (Crown) is responsible for discharging its duty to consult Indigenous peoples, the proponent often bears most of the consequences if the issuance of an approval is delayed, denied or quashed. As a result, both the Crown and proponent share an interest in ensuring that meaningful consultation occurs.

Since the Crown is responsible for discharging the duty to consult and assessing that this duty has been discharged, proponents may not have sufficient visibility into whether meaningful consultation has occurred. In scenarios where the Crown has delegated procedural aspects of the consultation to proponents, they will have better visibility regarding at least those aspects. However, it is critical that proponents "see" enough of the consultation process if they are to effectively assess whether meaningful consultation has occurred. In our experience, proponents typically either have a sufficient view of the consultation or can it obtain it, although this visibility aspect is sometimes not fully appreciated.

If meaningful consultation has not occurred... it may be time to consider how meaningful consultation can be achieved and what work may need to be done with the Crown and any potentially affected Indigenous people to achieve this.

Once a sufficient view of the consultation is obtained, the determination of whether meaningful consultation has occurred requires careful consideration and analysis. This determination is context specific and includes understanding the strength of the right or title claim, and the seriousness of the potentially adverse effect on the right or title claimed.1 Proponents and consultation teams may conduct this determination formally or informally in real time or at set times. Given the importance of this determination, some proponents seek an independent perspective both to calibrate consultation and their assessment of the consultation.

If meaningful consultation has occurred, proponents may want to consider how this would be demonstrated if required in a judicial review. If meaningful consultation has not occurred, proponents may want to consider whether any further planned steps are expected to achieve meaningful consultation and if not, it may be time to consider how meaningful consultation can be achieved and what work may need to be done with the Crown and any potentially affected Indigenous people to achieve this.

The effect of UNDRIP on consultation

Increasingly, UNDRIP is being raised in consultations and UNDRIP's implementation in Canada may affect some consultations. While a detailed discussion of this important topic is beyond the scope of this article, for the purpose of identifying this as an issue for further consideration, we provide the following highlights:

  • UNDRIP addresses, among other things, circumstances where states must consult Indigenous peoples with the aim of obtaining their free, prior and informed consent and circumstances where states may be required to refrain from action if consent is not obtained.
  • As a resolution (not a treaty), UNDRIP is not binding as a matter of Canadian law. However, UNDRIP is widely viewed as representing international consensus regarding the minimum set of rights for Indigenous peoples.2
  • Through various measures (such as, Bill C-262 and British Columbia's Bill 51), UNDRIP and/or its concepts are being incorporated into Canadian law.
  • UNDRIP and some of the related measures are subject to multiple interpretations. Thus, there is uncertainty regarding how, among other things, consultations in Canada may be affected.

As a result, proponents may want to consider the implications of UNDRIP and measures implementing it that may be relevant to their projects. Given the importance and complexity of such issues, proponents may benefit from considering such issues before they are raised in the consultations (to avoid delays and limiting proponents to a reactive approach).

Other changes to Crown's consultation approach

While the courts have specified minimum standards for consultation, the Crown's approach can greatly affect how consultation is conducted beyond those standards. For example, the Crown's approach to consultation can affect the time period over which the consultation is conducted, the extent to which the proponent is involved in the consultation and how information is communicated during the consultation. As a result, changes to the Crown's consultation approach may affect a project in a variety ways.

Change in the Crown's consultation approach often occur with new governments or the Crown's evolution in policy (such as, British Columbia's Bill 51). With elections scheduled in 2019 across Canada, both federally, and provincially in Alberta, Newfoundland and Labrador, Northwest Territories and Prince Edward Island, the Crown's approach to Indigenous consultation in various jurisdictions may change this year or shortly afterwards, which creates uncertainty for proponents and the potential for consultations to be delayed.

In scenarios where the project's consultation can be completed prior to such changes being implemented, proponents may be eager to facilitate meaningful consultation to avoid the uncertainty and delay related to such changes. For projects where that is not feasible, the pursuit of meaningful consultation may still be the best way to mitigate a project's consultation risks of uncertainty and delay.


Proponents of large projects in Canada may want to consider in 2019 the three questions described above, including to ensure key internal stakeholders like the consultation team, project management team and board of directors all have aligned, accurate views on the project's consultation. Considering these questions can also identify strategic opportunities or consultation shortcomings that a proponent may want to address as soon as possible with the Crown and/or any potentially affected Indigenous people.


1 See, for example, Haida Nation v. British Columbia (Minister of Forests) 2004 SCC 73 at para. 39.

2 The Honourable Frank Iacobucci, et al., " History and Development of the Principles of Free, Prior and Informed Consent" para. 35 and 36.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions