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BC Supreme Court reaffirms that Crown consultation obligations to Indigenous peoples can evolve over the life of a long-delayed project and trigger fresh obligations even as the “substantial start” determination stage nears
On June 8, 2026, the BC Supreme Court released its decision in Tsetsaut Skii Km Lax Ha Nation v British Columbia (Environment and Parks), 2026 BCSC 1042. The case concerned whether the Crown had breached its duty to consult the Tsetsaut Skii Km Lax Ha Nation regarding the Province’s 2024 decision that the Kerr-Sulphurets-Mitchell project (the “Project”), a proposed open pit and underground gold, copper, silver and molybdenum mine, had been “substantially started.” The effect of that decision was to allow the Project’s environmental assessment certificate to remain in effect for the mine’s life. The Court quashed the decision and remitted it for redetermination following renewed consultation with the Tsetsaut Skii Km Lax Ha.
The decision carries important lessons for project proponents, Indigenous communities, and government actors involved in BC environmental assessments:
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Indigenous consent reduces major project risks:
Though the issue of consent is not mentioned once, this case highlights the practical importance of obtaining Indigenous consent for major projects. Although from a legal perspective consultation is not a “veto” and does not require the Crown to reach agreement, this case nonetheless reinforces an existing practical lesson: as the Supreme Court of Canada observed in Tsilhqot’in Nation, proponents can avoid allegations of infringement or inadequate consultation by obtaining the consent of affected Indigenous nations. Securing consent is important for major projects like the one at issue in this case, where there may be lengthy commercial delays, and the Crown’s understanding of the strength of an Indigenous claim may evolve in the meantime. Where consent has not been obtained, evolving Crown consultation obligations may remain a live issue when pursuing a substantial start decision. Agreements directed to securing and maintaining Indigenous consent therefore may provide a critical lifeline where circumstances change, while also setting the stage for mutually beneficial relationships over the full life of a multi-decade project.
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Preserving rights under BC Environmental Assessment certificates:
Relatedly, this case highlights the precarious nature of rights held under environmental assessment certificates. A certificate expires unless the project is “substantially started” by the relevant deadline; only once a substantial start determination is made do the rights it grants fully crystallize and remain in effect for the life of the project. The case therefore emphasizes the importance of proponents moving with dispatch, and where they cannot, having agreements in place with terms directed to changes in circumstances (in this case, the fundamentally changed strength of claim). Finally, this case reaffirms that while a substantial start determination is primarily concerned with “boots-on-the-ground” physical activity, the inquiry is contextual in nature and may be informed by non-physical factors, such as financial expenditures and progress in obtaining other permits.
Background
The Project is a proposed mine located in the asserted traditional territory of several First Nations, including the Tsetsaut Skii Km Lax Ha. The Province has designated it a major project for critical minerals. Considered one of the world’s largest undeveloped gold and copper deposits, the Project would operate for up to 52 years.
As noted above, the Project initially received a certificate in July 2014. Under section 18 of the legislation in force at the time, the Environmental Assessment Act (2002) (the “EAA 2002”), the EAC required the project to be “substantially started” by 2019.
The Province granted two extensions to the substantial start deadline: one to allow the proponent to pursue new commercial arrangements, and one due to COVID-19 disruptions. The substantial start requirement is critical: if the Minister finds a project has not substantially started by the deadline, the certificate lapses and the project faces potentially indeterminate delay.
In July 2024, the Minister decided that the Project had been substantially started. The Tsetsaut Skii Km Lax Ha and SkeenaWild Conservation Trust (a public interest organization) sought judicial review of that decision, focusing on arguments that the Minister’s finding that the Project had been substantially started was unreasonable and the Crown had not fulfilled its duty to consult the Tsetsaut Skii Km Lax Ha on that decision.
Duty to consult on a substantial start decision
The Court primarily focused on the issue of whether the Crown had met its duty to consult the Tsetsaut Skii Km Lax Ha in the context of determining whether the Project had been substantially started.
The Crown’s duty to consult exists along a spectrum “proportionate to the strength of the claim and to the seriousness of the adverse impact the contemplated governmental action would have on the claimed right.”1 At one end of the spectrum are cases where a claim is weak or the potential infringement is minor. At the other end of the spectrum lie cases “where a strong prima facie case for the claim is established […].”2
In this case, the Province originally did not consider that the Tsetsaut Skii Km Lax Ha had a strong prima facie claim to the lands that would be impacted by the Project.3 However, the Province’s understanding in this regard evolved before the substantial start determination. Because the Province’s consultation process did not account for its increased understanding of the strength of claim, and failed to consult at a deeper level, the Crown failed to satisfy its duty to consult the Tsetsaut Skii Km Lax Ha.
Previously, the Project context had regarded the Tsetsaut Skii Km Lax Ha as part of the Gitxsan Nation, whose traditional territory lies further east. The Tsetsaut Skii Km Lax Ha disputed this understanding, asserting an independent claim to rights and title over the area relevant to the Project. The Province had conducted an initial strength of claim assessment before the environmental assessment process that led to the 2014 issuance of an environmental assessment certificate.4 Both that assessment and the substantial start analysis then proceeded on the basis that the Project did not overlap territory to which the Tsetsaut Skii Km Lax Ha held a strong prima facie claim.5
In December 2021, just one month after the Project received its second extension, the Tsetsaut Skii Km Lax Ha received a long-awaited updated ethnohistoric report revealing the Province’s revised understanding of their territory. Notably, it showed that the proposed location of the Project’s “massive” tailings facility, in an area that had not previously been considered Tsetsaut Skii Km Lax Ha territory, was in fact within it.6 In 2023, the Province formally updated its consultation database to reflect this changed understanding.
While the Province argued that the Tsetsaut Skii Km Lax Ha had already been consulted about the Project leading up to the 2014 issuance of the certificate, and could be consulted in future processes, the Court disagreed with this framing, pointing to the reasoning from Taku River Tlingit First Nation v British Columbia (Minister of Environment), 2014 BCSC 1278, the leading case on the intersection of substantial start decisions and the duty to consult in British Columbia: “[w]hat the Petitioners seek here is not repeat consultation on the impact of the project, but limited consultation on the narrow and new question of whether the project can still proceed in the face of so many years of delay, when measured against the time-sensitive provisions of [EAA 2002].”7
While other recent decisions have emphasized the importance of timely regulatory approvals for major projects (e.g. the Bay du Nord Project), this case sends a clear message: proponents who have received a certificate must move forward promptly.
Here, using the Province’s new understanding of the location of the tailings facility vis-à-vis Tsetsaut Skii Km Lax Ha territory as a stark example, the Court found the honour of the Crown gave rise to fresh obligations requiring the Province to reassess the level of consultation needed, and only then proceed with the substantial start determination.8
The substantial start decision test
EAA 2002 required a deadline to be set of three to five years after issuance by which a project must be “substantially started.” The successor legislation is similar but sets no minimum and allows up to 10 years. Neither statute defines “substantially started” nor provides a test for it, leaving this to administrative interpretation.
The Court reviewed two prior cases that have considered this issue: Taku River and Glacier Resorts Ltd. v British Columbia (Minister of Environment), 2019 BCCA 289.
These decisions hold that because “substantial start” is undefined, the question “must be determined in the context of the case.”9 Taku River clarified the decision maker should focus on physical work, though non-physical aspects such as issuance of permits and financial expenditures may also be considered.10 Ultimately, the inquiry is directed to whether the project “[has] been started in its essentials, in a real and tangible way.”11 Notably, in Glacier Resorts, the Court of Appeal found it appropriate for the decision maker to consider “efforts in planning and obtaining regulatory approvals,” and not just physical work, even though the certificate at issue required the proponent to have “substantially started the construction of the Project within five years.”12 In this case, the Court again reinforced these existing principles.13
This test may invite debate as to whether physical work was the predominant consideration in a given case. The Court acknowledged this uncertainty but emphasized deference to administrative decision-makers on issues of fact and statutory interpretation,14 noting that the “deferential standard of reasonableness largely insulates” such determinations from challenge.15 The bar to successfully challenge a substantial start determination is therefore high.
Conclusion
This decision is a reminder that environmental assessments and Indigenous consultation are not static exercises. Here, the Court did not disturb the substantial start finding itself; it deferred to the Minister on that question. But it held that, in the context of a looming decision on substantial start, the Province had failed to adjust its consultation approach to match its evolved understanding of the Tsetsaut Skii Km Lax Ha’s strength of claim vis-à-vis the Project.
For proponents and the Province alike, this case’s practical message is twofold. First, it highlights the importance of securing Indigenous support over the entire life of the project. This consideration is arguably even more important for large-scale, multi-year projects because fulsome agreements with Indigenous nations might include terms directed to changed circumstances such as those encountered by the Project in this case. Second, environmental assessment certificates carry inherent uncertainty until substantial start is confirmed, meaning project proponents must move with dispatch, and further emphasizing the importance of the first practical message, securing agreements with provisions directed to maintaining Indigenous consent and achieving long-term regulatory certainty.
Footnotes
1. Tsilhqot’in Nation v British Columbia, 2014 SCC 44 [Tsilhqot’in] at para 79; citing Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 [Haida Nation].
2. Haida Nation at para 44.
3. Tsetsaut Skii Km Lax Ha Nation v British Columbia (Environment and Parks), 2026 BCSC 1042 [Tsetsaut Skii Km Lax Ha Nation] at para 156.
4. Tsetsaut Skii Km Lax Ha Nation at paras 153-54.
5. Tsetsaut Skii Km Lax Ha Nation at para 156.
6. Tsetsaut Skii Km Lax Ha Nation at para 65.
7. Taku River Tlingit First Nation v British Columbia (Minister of Environment), 2014 BCSC 1278 [Taku River] at para 70.
8. Tsetsaut Skii Km Lax Ha Nation at paras 230, 235.
9. Glacier Resorts Ltd. v British Columbia (Minister of Environment), 2019 BCCA 289 [Glacier Resorts] at para 48.
10. Taku River at para 34.
11. Taku River at para 37.
12. Glacier Resorts at paras 49-50 [emphasis original].
13. Tsetsaut Skii Km Lax Ha Nation at para 260.
14. Tsetsaut Skii Km Lax Ha Nation at para 265; citing Glacier Resorts at para 46.
15. Tsetsaut Skii Km Lax Ha Nation at para 265.
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