Key Takeaways
- The Building Canada Act, which is intended to fast-track projects of “national interest” by overriding existing law, has been met by fierce resistance by Indigenous communities and regional organizations across Canada.
- This resistance is entirely justified. Legal and political challenges to the Building Canada Act should be pursued, and the government should continue to be pressured to repeal the Act.
- Nonetheless, there may be opportunities within the Building Canada Act to entrench the concept of free, prior and informed consent in all consultation with Indigenous groups required by the Building Canada Act.
- The United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14 (the “UNDRIP Act”) requires the Government of Canada to “take all measures necessary to ensure that the laws of Canada are consistent with the Declaration.”
- The United Nations Declaration on the Rights of Indigenous Peoples (the “Declaration” or “UNDRIP”) requires states to “consult and cooperate in good faith with the indigenous peoples … in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”
- As a matter of statutory interpretation, the Building Canada Act, as well as any other legislation passed after the coming into force of the UNDRIP Act on June 21, 2021 that refers to consultation, must be read to require consultation to the standard of free prior and informed consent.
- First Nations and their legal counsel should take the position that, as a matter of Canadian law, the consultation requirement of the Building Canada Act is only met where the free, prior and informed consent of the First Nation has been given, and any consultation that does not meet this standard is defective and in breach of the Building Canada Act and the UNDRIP Act.
Overview
Through the enactment of the UNDRIP Act in June of 2021, the government of Canada imposed upon itself the responsibility to ensure that the laws of Canada are consistent with the United Nations Declaration on the Rights of Indigenous Peoples. The wording of the Act is mandatory: section 5 of the UNDRIP Act requires the government of Canada to “take all measures necessary to ensure that the laws of Canada are consistent with the Declaration.”1
The recently enacted Building Canada Act, one of two acts given royal assent as part of the controversial Bill C-5, presents one of the first major tests of the legal efficacy of the UNDRIP Act. With the stated purpose of expediting projects deemed by the responsible Minister to be in the national interest (by and large projects related to Canada's energy interests),2 the Building Canada Act allows the federal government to dispense with regulatory processes that would otherwise be necessary prior to the commencement of a project. It is through these processes that Canada normally satisfies its constitutional obligation to consult with and accommodate Indigenous peoples whose rights may be affected by proposed projects. While an alternative consultation requirement is built into the Building Canada Act's streamlined approval process, neither the form that consultation will take, nor the objectives of this consultation are set out in the Act. Similarly, the BCA is silent on the standard that will apply to consultation required under the Act.
This article argues that the standard of consultation owed under the Building Canada Act is that which is required under UNDRIP, namely the free, prior, and informed consent of affected Indigenous peoples.3 Given the binding commitment set out in the UNDRIP Act to align Canadian law with the Declaration, the consultation requirements set out in the BCA must be interpreted to have the same objective. This interpretation of Canada's obligations under the UNDRIP Act establishes a far more robust consultation obligation than existed prior to the Act's enactment.
Below, the new consultation and consent framework established by UNDRIP and the UNDRIP Act is discussed further, as is the relationship between the UNDRIP Act and the Building Canada Act.
The Language of the UNDRIP Act
The key provision of the UNDRIP Act is section 5, which states:
5 The Government of Canada must, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with the Declaration.
Section 5 is a mandatory clause. “All measures necessary to ensure” imposes a very high standard on the Government of Canada. In other contexts, the Supreme Court has held that “ensure” means “to make certain”, and its usage imposes a “sweeping” and “undeniably strict” duty.4
Courts and the Canadian public are entitled to presume that the Canadian Government is acting in compliance with its own laws. Via the UNDRIP Act, UNDRIP “has been incorporated into the country's positive law.”5 With regard to legislation passed after the coming into force of UNDRIPA on June 21, 2021, it should be presumed that the Canadian Government has, in fact, taken “all measures necessary to ensure” that that the legislation in question is consistent with the Declaration, and as a result of these steps, the legislation in question is in fact consistent with the Declaration. In other words, consistency of legislation passed after June 21, 2021 with the Declaration should be presumed. Wherever possible, courts must interpret legislative enactments in a manner that holds the government to its obligations under the UNDRIP Act.
Consultation and Free Prior and Informed Consent
The duty to consult has long been part of Canada's constitutional framework and has as its source Canada's obligations under section 35 of the Constitution Act, 1982. In Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, the Supreme Court described the duty to consult as existing on a spectrum.6 At one end, “where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor,” the requirements of consultation are minimal.7 Conversely, in cases “where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high,” a “deep consultation” and accommodation will be required.8 In cases where rights are proven, the Supreme Court has acknowledged that consent of the Indigenous group affected may be necessary.9
Together, UNDRIP and UNDRIPA offer a second and more stringent source for the duty to consult based not on a constitutional requirement, but as a matter of statute. Consultation is addressed twice in the text of UNDRIP, first in Article 19, which reads:
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
Consultation is addressed again at Article 32.2:
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
Taken together, these articles require states to consult with Indigenous peoples both when drafting legislation and before carrying out proposed developments on their lands and territories. In both cases, free, prior and informed consent is the required outcome of such consultation.
Consultation Under the Building Canada Act
It is a well-established principle of statutory interpretation that, wherever possible, overlapping laws ought to be interpreted so as to avoid any conflict between them: “If the overlapping laws can both apply, it is presumed that they are meant to apply.”10 In the case of the Building Canada Act and UNDRIP Act, only a clear indication within the text of the Building Canada Act that something less than FPIC is the most that is required could displace the presumption that FPIC is necessary, as mandated by the UNDRIP Act.
Consultation is addressed in the following sections of the Building Canada Act. First, before designating a project as a “national interest project”, the Minister must consult with Indigenous peoples:
5(7) Before recommending that an order be made under any of subsections (1), (3) and (4), the Minister must consult with any other federal minister and any provincial or territorial government that the Minister considers appropriate and with Indigenous peoples whose rights recognized and affirmed by section 35 of the Constitution Act, 1982 may be adversely affected by the carrying out of the project to which the order relates.
After a project has been designated, the Minister must once again consult with Indigenous peoples prior to issuing the blanket approval document required for the project. The consultation is described in the following two subsections:
7(2)(c) Indigenous peoples whose rights recognized and affirmed by section 35 of the Constitution Act, 1982 may be adversely affected by the carrying out of the project to which the document relates must be consulted;
7(2.1) For the purposes of consultations required under paragraph (2)(c), the Minister must ensure that a process is established that allows for the active and meaningful participation of the affected Indigenous peoples and that a report of the consultation process and results is made available to the public within 60 days after the day on which a document is issued under subsection (1).
While the second stage of consultation does require the Minister to “ensure that a process is established,” nowhere in the Act itself are any parameters for this process prescribed, aside from the issuance of a report. Significantly, the outcome of consultation is not mandated. As part of the government's duty to “take all measures necessary” to align Canadian law with UNDRIP, the Minister would therefore be obligated to ensure that any consultation process devised is compliant with Article 32.2 of UNDRIP and has as its outcome the FPIC of affected Indigenous Peoples.
Courts have yet to interpret the requirements set out in the UNDRIP Act to any great extent. It is unclear how they would respond to a First Nation advancing a claim under the Act on the basis that their FPIC had not been obtained in relation to a project affecting their rights, whether advanced through the Building Canada Act or otherwise. However, if the UNDRIP Act is to be interpreted as the binding piece of legislation that it is, courts will have to grapple with the fact that, wherever possible, Canadian laws must be interpreted in compliance with UNDRIP. If the language of the UNDRIP Act is read plainly and applied in good faith, nothing less than the free, prior, and informed consent of impacted Indigenous peoples will satisfy the requirements of consultation,
Footnotes
1. United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14 [UNDRIP Act], s 5, emphasis added.
2. Building Canada Act, SC 2025, c 2, s 4 [BCA], preamble.
3. United Nations Declaration on the Rights of Indigenous Peoples, UNGA, 2007, A/RES/61/295 [UNDRIP], Arts 19, 32.2.
4. R v Greater Sudbury (City), 2023 SCC 28 at para 27.
5. Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 at para 4.
6. Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 SCR 511 at para 43 [Haida Nation]
7. Ibid.
8. Ibid at para 44.
9. Delgamuukw v British Columbia (1997), 153 DLR 193 at para 168 (Can SCC).
10. Thibodeau v Air Canada, 2014 SCC 67, [2014] 3 SCR 340 at paras 98-99.
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.
