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Federal Court Sets Test for Duty to Consult US Tribes
In Lummi Nation v Attorney General of Canada, 2025 FC 1986 ("Lummi"), the Federal Court found that Canada owed Lummi Nation a duty to consult with respect to the expansion of the Roberts Bank Terminal in Delta, British Columbia, and met that duty. Lummi Nation is a Coast Salish Indigenous tribe located in Washington State. This is the first case to consider the duty to consult US Tribes since the Supreme Court of Canada's decision in R v Desautel, 2021 SCC 17, which recognized that US Tribes can hold section 35 rights.
The Federal Court found that while Canada proceeded with consultation presuming (but not determining or accepting) that the duty existed, it nonetheless fulfilled the duty. The process afforded to Lummi Nation differed from the process provided to Indigenous groups resident in Canada, but this did not render it inadequate. Canada was not required to follow a formulaic approach, and its approach was reasonable, meaningful and honourable.
As a result of this conclusion, the Court upheld the Governor in Council's decision issued to the Vancouver Fraser Port Authority ("VFPA") allowing the Robert's Bank Terminal 2 project ("RBT2") to proceed. A Fasken team represented the VFPA in this proceeding, led by Bridget Gilbride with support from Geoff Cowper, KC, Julia Kindrachuk, Sam Geisterfer, and Niall Rand.
Background
RBT2 is a proposed expansion of the existing container facility in Delta, British Columbia, that will increase VFPA's total container capacity by about one-third, thereby improving supply chain resiliency and facilitating trade across the country. In May 2024, the federal Governor in Council decided the project's significant adverse effects were justified in the circumstances. The Governor in Council noted that it considered the interests of Indigenous Nations and was satisfied that the consultation was consistent with the honour of the Crown and that potential impacts were appropriately accommodated.
Lummi Nation challenged this decision, asserting section 35 rights in the project area. Lummi Nation sought a declaration that Canada failed to discharge its duty to consult, arguing that Canada's engagement with them was not consultation.
The Desautel Decision
In October 2021, the Supreme Court of Canada released the Desautel decision, finding that Indigenous groups located outside of Canada can hold Aboriginal rights under section 35 of the Constitution. The case did not deal with the duty to consult, but noted that "the duty to consult may well operate differently as regards those outside Canada" and because groups outside Canada are not implicated to the same degree in the process of fair dealing and reconciliation arising from the Crown's assertion of sovereignty, "the scope of the Crown's duty to consult, and the manner in which it is given effect, may differ." The Lummi decision is the first to directly address this issue.
The Lummi Decision
Lummi Nation challenged the Governor in Council's approval of the RBT2 project made under the Canadian Environmental Assessment Act 2012, following an environmental assessment that lasted approximately 10 years. Lummi participated in the panel hearings, but was not offered capacity funding or afforded the same opportunities as Indigenous nations resident in Canada. Lummi argued that, at least as of October 2021, Canada ought to have, and failed to, consult meaningfully, relying on statements that Canada presumed a duty to consult without admitting one.
While the court found there were "imperfections in the process", they did not render the consultation inadequate. Overall, Canada consulted with an intent to understand and address Lummi's concerns, affording Lummi a process that exceeded the middle of the Haida spectrum. The Court further agreed with VFPA that, in any event, quashing the decision and sending it back for further consultation would only serve to provide Lummi with opportunities that it already had.
Key Take Aways – the Test for Triggering the Duty to Consult for US Tribes
This is the first post-Desautel decision to consider whether the Crown owed a duty to consult with a group located outside of Canada. As such, the Federal Court devised a test to apply in these circumstances, where an Indigenous group located outside of Canada asserts unproven section 35 rights and has not yet proven that it is an "Aboriginal people of Canada." The Court found the Haida threshold for triggering the duty to consult applies to both issues – the asserted unproven section 35 rights, and the assertion that the group is an "Aboriginal people of Canada" capable of holding section 35 rights because they were exercising rights in what is now Canada before European settlement. This is a low threshold requiring only a credible claim on each of these issues. Both Crown policy and ongoing litigation initiated by US Tribes will surely be influenced by this decision.
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