Key Takeaways
- The Federal Court of Canada has ruled that the Canadian government owes a duty to consult with Indigenous groups outside of Canada, including Lummi Nation, an Indigenous Nation with reservation lands located in Washington state.
- The duty to consult is triggered when an Indigenous group provides enough information to establish a credible claim that it is an Aboriginal people of Canada and has a credible claim to Aboriginal rights or title protected by section 35 of the Constitution.
- The scope of consultation required in a particular case depends on the strength of the Indigenous group’s claim to the right and how serious the adverse impacts of the proposed decision will be.
- The Federal Court determined that the duty owed to Lummi Nation fell in the middle of the Haida spectrum, requiring notice, providing information and opportunities to present concerns, understanding and responding to concerns, and opportunities for discussion and comment.
- The decision in Lummi has important implications for Indigenous groups outside of Canada, including the possibility of establishing claims of Aboriginal title to lands in Canada in future cases.
Introduction to the Case
The Federal Court of Canada released its decision in Lummi Nation v. Canada (Attorney General) on December 17, 2025, which expands on the law related to the duty to consult Indigenous groups outside of Canada. The case involves the Roberts Bank Terminal 2 Project, a new shipping terminal in Delta, British Columbia, which was authorized to proceed by the Cabinet despite significant adverse environmental effects. Lummi Nation, an Indigenous Nation with reservation lands located in Washington state, brought an application for judicial review, claiming that Canada did not fulfill its duty to consult with them on the Project’s impacts before issuing the Order in Council.
Background on the Duty to Consult
The duty to consult was established by the Supreme Court of Canada in Haida Nation v. British Columbia (Minister of Forests) in 2004. The duty requires the Crown to consult with "Aboriginal peoples of Canada" when the Crown has knowledge that established or asserted Aboriginal and Treaty rights protected under section 35 of the Constitution may be adversely affected by a government decision. The Supreme Court of Canada’s decision in R v. Desautel in 2021 opened the door for consultation with Indigenous groups outside of Canada, interpreting the term "Aboriginal peoples of Canada" to mean modern-day successors of Indigenous communities who occupied Canadian territory at European contact.
The Decision in Lummi
The Federal Court considered whether the duty to consult Lummi Nation was triggered and determined that Canada’s duty to consult was triggered by October 2021, when Lummi Nation gave notice to the federal and British Columbia governments that it was the modern-day successor of an Indigenous society that occupied territory in Canada at the time of European contact. The Court found that Lummi Nation provided enough information to establish a credible claim that it was an Aboriginal people of Canada and had a credible claim to Aboriginal rights or title protected by section 35 of the Constitution. The Court then determined that the duty owed to Lummi Nation fell in the middle of the Haida spectrum, requiring notice, providing information and opportunities to present concerns, understanding and responding to concerns, and opportunities for discussion and comment.
The Consultation Process
The Court considered the consultation process and determined that it was not inadequate. Lummi Nation was able to participate in the Project’s environmental assessment by an Independent Review Panel and was given other opportunities to engage directly with government officials. The Panel gathered and considered extensive information about the impacts of the Project, which was shared with each participant. The Court found that the concerns Lummi Nation raised about the Project’s effect on their rights were considered and the Panel’s report addressed them. The Court determined that Canada engaged in meaningful dialogue with an intention to understand Lummi Nation’s rights and address their concerns.
Implications of the Decision
The decision in Lummi has important implications for Indigenous groups outside of Canada. An Indigenous group is not required to definitively prove that it is an Aboriginal people of Canada before the duty to consult is triggered – rather a credible but unproven claim is sufficient. The decision also suggests that the door remains open for Indigenous groups outside Canada to establish claims of Aboriginal title to lands in Canada in future cases. A best practice for Indigenous groups outside Canada seeking to be consulted on Canadian projects is likely to provide direct notice to the level of government responsible for authorizing the project, along with specific details about the Indigenous group’s historic occupation of Canadian territory and asserted Aboriginal rights or title.
Conclusion
The decision in Lummi Nation v. Canada (Attorney General) is a significant development in the law related to the duty to consult Indigenous groups outside of Canada. The decision provides important insights into how the duty to consult Indigenous groups located outside Canada may be assessed in future cases. The MLT Aikins Indigenous practice group will be watching for how the decision in Lummi influences future and ongoing legal issues concerning Indigenous groups located outside of Canada.