The Duty To Consult Indigenous Groups Outside Canada

On December 17, 2025, the Federal Court released its decision in Lummi Nation v. Canada (Attorney General), 2025 FC 1986 (Lummi). The decision expands on the law related to the duty to consult Indigenous groups outside of Canada. In Lummi, the Federal Court determined that the Canadian government owed a duty to consult with Lummi Nation, an Indigenous Nation with reservation lands located in Washington state.

Background

The Roberts Bank Terminal 2 Project, a new shipping terminal in Delta, British Columbia, is a major project proposed by the Vancouver Fraser Port Authority. The environmental assessment for the Project identified significant adverse effects. In a 2023 Order in Council, Cabinet decided that the significant adverse environmental effects of the Project were justified in the circumstances. The Order in Council indicated that Cabinet was satisfied that the consultation process for the Project was consistent with the honour of the Crown and that Aboriginal and Treaty rights had been appropriately accommodated. The Project was authorized to proceed, subject to certain conditions.

Lummi Nation brought an application for judicial review asking the Federal Court to set aside the Order in Council. Lummi Nation claimed that Canada did not fulfill its duty to consult with them on the Project's impacts before issuing the Order in Council. Lummi Nation asserted unextinguished Aboriginal rights and title in Canada based on its members' historic use and occupation of lands and waters within Canada, including lands and waters adjacent to the Project. Lummi Nation's traditional territory is located in the Salish Sea and includes sites on both sides of the Canada-United States border. Lummi Nation claimed that the Project would impact its asserted Aboriginal rights in Canada and raised concerns about the Project's impact on salmon populations, southern resident killer whales and fishing boats.

Desautel and the duty to consult Indigenous groups outside Canada

The Supreme Court of Canada established the duty to consult in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (Haida). The duty to consult 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, 2021 SCC 17 (Desautel) opened the door for consultation with Indigenous groups outside of Canada. In Desautel, the term "Aboriginal peoples of Canada" in section 35 of the Constitution was interpreted to mean modern-day successors of Indigenous communities who occupied Canadian territory at European contact. This may include Indigenous groups who are now located outside of Canada. Since Indigenous groups outside Canada may exercise Aboriginal rights within Canada, they may need to be consulted on government decisions that could adversely impact those rights. Desautel left open questions about the impacts on the consultation process when the rights holder is not located in Canada.

Desautel also raised the possibility of Indigenous groups outside Canada holding Aboriginal title to land in Canada. If an Indigenous group outside Canada can establish that it is an "Aboriginal peoples of Canada" as a result of historic occupancy of Canadian territory, then it stands to reason that the Indigenous group may be able to establish Aboriginal title, which requires proof of exclusive occupation of territory at the assertion of Crown sovereignty. The test for Aboriginal title was recently discussed in detail in the BC Supreme Court's landmark ruling on Cowichan Aboriginal title. However, since there was no Aboriginal title claim in Desautel, the issue was left for another day.

Canada had a duty to consult Lummi Nation and the duty was met

First, the Court considered whether the duty to consult Lummi Nation was triggered. The Court added a new threshold step for cases where there is a question about whether an Indigenous group is an "Aboriginal people of Canada." To determine if the duty in Haida is triggered, the courts must consider both whether the Indigenous group has:

• Provided enough information to establish a credible claim that it is an Aboriginal people of Canada
• A credible claim to Aboriginal rights or title protected by section 35 of the Constitution

If both of the above elements are met, the duty to consult is triggered. The Court found that Canada's duty to consult Lummi Nation was triggered by October 2021, which is 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. Lummi Nation also requested consultation on matters that could impact its asserted section 35 rights, including asserted Aboriginal rights and title. Lummi Nation wrote a separate letter to the Minister of Environment and Climate Change Canada specifically requesting to be consulted on the Project. The Court's view was that these letters provided the Crown with knowledge that Lummi Nation had a credible claim to exercise Aboriginal rights or title in Canada and the Cabinet decision to approve the Project could adversely impact Lummi Nation's claim.

The Court specifically noted that finding a credible claim that triggered the duty to consult did not mean that the legal tests for establishing Aboriginal rights or title would be met. However, the finding that Lummi Nation established a credible claim to Aboriginal title, specifically, builds on the Supreme Court of Canada's conclusions in Desautel that an Indigenous group outside Canada could potentially establish Aboriginal title to lands in Canada.

After a court finds that the duty to consult was triggered, it must determine where the duty falls on the Haida spectrum and then determine if consultation was adequate. 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 Court noted that Desautel does not mandate a specific process or steps for consultation.

Lummi Nation asserted that they presented evidence of a strong claim that required consultation on the high end of the Haida spectrum. The Federal Court determined that the duty owed to Lummi Nation fell no higher than the middle of the spectrum because:

• Lummi Nation has no established Aboriginal rights or title in Canada and relied solely on asserted rights
• Lummi Nation did not claim any exclusive Aboriginal rights, other than the asserted Aboriginal title claim
• The Project's potential adverse effects on Lummi Nation's Aboriginal rights were not serious after mitigation and there was no evidence of adverse impacts on the Aboriginal title claim
• Lummi Nation's members do not currently exercise rights in Canada and have not done so for many years
• There was no established risk of non-compensable damage to Lummi Nation's rights

In this case, 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 that was shared with each participant. During the Panel process, extensive information was gathered about the potential impacts which the Court found "provided a solid foundation for consultation."

The Panel also explained:

• Its mandate to gather information from Indigenous groups about the potential environmental effects of the Project
• That the Crown would rely on the Panel's process to fulfill the duty to consult
• That the Panel had issued information requests to Vancouver Fraser Port Authority and government departments on topics that concerned Lummi Nation

The Court considered that the Panel invited Lummi Nation to communicate its views and provide information on the Project's adverse effects. Lummi Nation gave evidence and provided written and oral submissions during the Panel. 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 report analyzed and made findings on the Project's impacts on Lummi Nation, including the transboundary effects of the Project. The Court determined that the Panel phase was not rushed and Lummi Nation was not prejudiced by the timeline.

The Federal Court concluded that although there were imperfections in the process, the consultation process was not inadequate and satisfied what the middle of the spectrum required, including notice, providing information and opportunities to present concerns, understanding and responding to concerns, and opportunities for discussion and comment.

The Court determined that Canada engaged in meaningful dialogue with an intention to understand Lummi Nation's rights and address their concerns. Although Lummi Nation was not given the same opportunities as Indigenous groups in Canada and was not granted capacity funding, this did not necessarily mean consultation was inadequate. The Court found that it was Lummi Nation who did not meet its obligation to fully participate in the consultation process. The Court determined that Lummi Nation was provided with opportunities to comment on proposed measures to address Project impacts but failed to do so.

Implications of the Federal Court's decision

Lummi is the first reported decision following Desautel where a Canadian court has considered the duty to consult an Indigenous group outside of Canada and has important implications:

• 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
• Even if the consultation process may differ for Indigenous groups outside of Canada, this alone will not mean consultation is inadequate
• 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

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