The 'Duty to Consult' Veto

February 26, 2026

By D. Barry Kirkham K.C.

The courts have created an indigenous veto over elected legislatures

Originally published in the print edition of The Dorchester Review, Winter 2025, pp. 41-47.

Mark Klotz/Flickr

THE "DUTY TO CONSULT" is a judicial invention of the Supreme Court of Canada, dating from the Haida case of 2004 and expanded in subsequent rulings. The court has pronounced that the Crown must consult, and where appropriate, accommodate aboriginal peoples when a Crown action or decision has the potential to adversely affect an aboriginal right or alleged right.

The duty applies to “traditional territories” where aboriginal communities allege that they have historic — but unproven — rights of exclusive occupation (e.g. “aboriginal title”) or the right to carry on practices that were integral to their culture before the date of first European contact on certain areas of those traditional lands (e.g. “aboriginal rights” to hunt or fish or gather). A very substantial portion of Canada constitutes claimed aboriginal “traditional territories.”

Thomas Issac, in Aboriginal Law (5th ed., Thomson Reuters, 2016), the nearest thing to an authoritative text, states at p. 330: “The duty has dominated aboriginal litigation in recent years, has provided aboriginal peoples with a powerful tool to influence government decision making and has had a profound effect on industry and businesses that are dependent upon government approvals and regulation.”

There are several cases in which aboriginal communities have exploited the duty to consult by withholding their consent to a given project until a proponent pays money and benefits, as Peter Best shows in his seminal book There Is No Difference (2nd ed., 2020, cf. ch. 23 to 29). Their demands arguably go far beyond what could be considered reasonable in the context of any disturbance a given project might cause to their claimed title or rights. Mr. Best calls this Danegeld and he makes a compelling case for the use of that strong metaphor. Danegeld, as readers of The Dorchester Review will recall, was tribute or “protection money” paid by the 8th century Anglo-Saxons under Alfred the Great and his successors to appease the Danish invaders who occupied the northern and eastern parts of England.

It is striking to contrast this with how the interests of non-indigenous are handled. Governments in Canada can deleteriously affect any interest of any non-aboriginal Canadians without any legal obligation of prior consultation. A government could, for example, allow a noxious industry to be established in the middle of a residential neighbourhood without any consultation at all. Private property can be expropriated without any prior consultation. Names of streets and cities are being routinely changed to aboriginal names without any requirement to consult with the residents — even those who have lived on the street for many years — as is the case the City of Vancouver renaming Trutch Street into an unpronounceable native name. The NDP Government of B.C. routinely enters into agreements with Indian bands which massively affect existing rights of non-Indians, such as in the Haida Gwaii Agreement where aboriginal title was granted, including over fee simple titles, with no consultation with the fee simple owners whatsoever, despite the potentially massive impact on their private land rights. This is now playing out in the Cowichan case with regard to property owners in Richmond. And the NDP is doing it routinely all over the province. In summary, the duty to consult is owed only to aboriginal people.

The original duty to consult did not grant a veto. The courts have even said that the duty to consult which they have created does not bestow a veto power over government decisions. If all reasonable efforts have been made to consult and accommodate aboriginal claims, and the aboriginal claimant’s consent is still not forthcoming, the project can proceed. Below, I will illustrate just how extensive the attempt to accommodate these claims must be before a court will find the project can be approved without aboriginal consent.

Duty to consult is not a ‘public’ interest; it is an interest only of aboriginal communities to ensure whatever demands they make are accommodated

It has long been the case that the duty to consult is relentlessly applied by the courts to make it extremely difficult to proceed with a project in Canada without consent of aboriginal communities who claim their interests are affected. Perhaps the most notable example of this was the decision cancelling cabinet approval of the Trans-Mountain Pipeline project in 2019.

In Tsleil-Waututh Nation v Canada (2019) 2 FCR 3 (Trans-Mountain) the Federal Court of Appeal cancelled the permit issued by the Government of Canada to Trans-Mountain Pipeline Corp to build an extension to its pipeline from Alberta to Burnaby. The court found that the government had not fulfilled the duty to consult. This case illustrates how extreme the courts have been in enforcing the duty to consult they have invented to protect unproven aboriginal rights and title claims. In practice it can become legalized extortion.

The court stated: “As a constitutional imperative, the duty to consult gives rise to a special public interest that supersedes other concerns considered by tribunals tasked with assessing the public interest.” (my emphasis)

To call the duty to consult a “public” interest is misleading. It is an interest only of aboriginal communities, who want to hold up a project until whatever demands they make are accommodated. And this case illustrates how the courts have indeed superseded all other public interests on the altar of the duty to consult, which the courts euphemistically justify on the need to achieve “Reconciliation.”

Trans-Mountain filed its application for a permit in 2013. They proposed to expand an existing pipeline which had operated for over 50 years without a single problem. A reasonably objective observer might think that adding another 200 feet or so to an existing right of way could not create any existential issues apart perhaps from the green lobby’s demand that oil and gas be curtailed. That concern was fully lobbied by the green industry, including the Government of B.C. Aboriginal communities had no unique perspective on this issue. The expansion proposal did not create any opportunity to question the original right of way. Trans-Mountain would continue to deliver oil to Burnaby, to be picked up by oil tankers, regardless.

Trans-Mountain was first required to obtain the approval of the National Energy Board (“NEB”). There were lengthy hearings. TM was required to fund several Indian bands who opposed the project. Some bands hired experts. The position of every band was fully heard. After a two year process the NEB recommended that the federal cabinet approve the project.

The court found the NEB hearings had been a fair and full review that was not flawed in any way (apart from an unrelated issue about how extra tankers would navigate Georgia Straight, which is not relevant to my discussion of the duty to consult).

The next step was to obtain approval from the federal cabinet. Despite the full process conducted before the NEB, the cabinet, mindful of the threat of judicial interference, decided to engage in another lengthy process of consultation. Again, funding was provided to the aboriginal communities so they could repeat everything they had presented to the NEB. Teams from the federal government were sent out to meet with every aboriginal community who wanted to be heard. Detailed notes were taken of all concerns.

The notes were then sent out to each aboriginal community for review and approval as to their accuracy. The notes were then sent to the cabinet. The statute provided that the cabinet was to make a decision within 3 months of receiving the NEB recommendation. A four-month extension was ordered by cabinet so consultations could be exhausted. Cabinet prepared a “Crown Consultation Report” which contained a fulsome summary of all relevant facts and issues. It was circulated to all aboriginal communities involved and they were given the opportunity to submit additional comments.

To summarize, every community had four opportunities to present every concern it had:

Hearings before the NEB;
Personal consultations with cabinet representatives send out to hear their concerns;
Receipt of the detailed notes made by the representatives, and the opportunity to correct or supplement the notes; and
Receipt of the “Crown Consultation Report” and the opportunity to make yet further submissions on its contents.

On Nov. 29, 2016, after three and a half years of exhaustive consultations, cabinet approved the project.

It could not be argued that the aboriginal communities had not been fully consulted, and it could not be denied that every possible concern that any of the consulted communities had was documented repeatedly. Yet the court cancelled the cabinet approval of the project on the ground that the (judge-invented) duty to consult had not been complied with. How could this be?

THE COURT FOUND the people sent out from Ottawa to consult were not “decision makers.” The court thereby invented a whole new requirement. It held that the duty to consult could only be met if the “decision makers,” meaning cabinet ministers themselves, personally met and “grappled” with each community’s concerns. So that is what the cabinet did. But that changed little and cabinet again approved the project.

The Squamish Band again went to court claiming the duty to consult had not still been met, notwithstanding the blueprint laid down by the court was rigorously followed. This time the court, surprisingly enough considering their subservience to indigenous whim, rejected the claim. I suppose this verifies the judicial claim that the duty to consult does not include a veto. But the process the court required to be followed is so extreme and unreasonable that it is doubtful any proponent will ever proceed with another project, unless all affected aboriginal groups consent ahead of time — effectively a veto.

In any event the judge-made duty to consult, as applied to the TM pipeline, sets a very high bar. The project was delayed for years. The cost of building it increased from less about $6 billion to over $30 billion, a cost which was entirely borne by the taxpayers of Canada when the proponent of the project quit in the face of the aboriginal opposition.

Kebaowek

Regardless of whether the judge-made rules of consultation are met, it now seems that the Declaration on the Rights of Indian People Act, SC 2021 c. 14, which adopted the U.N. declaration into Canadian law, has elevated the duty to consult into a virtual veto. And a veto seems to be available to whatever aboriginal community claims to have unproven aboriginal interests in a given project, regardless of how many other aboriginal communities have consented to the project: Kebaowek First Nation v. Canadian Nuclear Laboratories 2025 FC 319 Federal Court of Canada.

The case arises from a proposal concerning storage of nuclear waste. Since the 1940s the Chalk River site in Ontario has been utilized for such storage. It has been fenced off. The site cannot be used for any other purpose for centuries. Current storage practices are not in accordance with modern international standards.

The operator of the site is Canadian Nuclear Laboratories (CNL), an entity of the federal government. It operates the facility through a licence issued by the regulator, the Canadian Nuclear Safety Commission (NSC). The license is to expire in 2028.

In 2015 CNL applied to the NSC for an amendment to its licence. CNL proposes to build a new facility for storing nuclear waste to bring the site into compliance with modern standards. There was never any question that the proposed facility would reduce the costs and risks of managing storage of nuclear waste. Indeed, the court accepted that as a proven fact.

If there is ever a project that is a “no-brainer,” it is this project. How could anyone oppose construction on the site of a facility for safer storage of nuclear waste on land that has not had and never will have any other purpose?

As it turns out, the Kebaowek case provides litmus-test proof that no project can ever be built in Canada now without unanimous aboriginal consent. That is true regardless of the merit of the project and the complete absence of any specific aboriginal interest different than the interests of Canadians generally. And it appears aboriginal consent is obtained only when every separate aboriginal community or aboriginal collective agrees. In this case one tiny aboriginal community obtained the cancellation of a permit for a project which represents a vital national interest without demonstrating any distinctive indigenous interest, and which was supported by other aboriginal communities in the area. The decision is under appeal.

CNL recognized it had a duty to consult. The court held at para. 152 that “CNL attempted to ensure that all Nations and communities were consulted.”

THE KABAOWEK Indian band is one of 11 recognized members of the Algonquin Anishbinabeq First Nation. The Kebaowek band has a population of 1,100 souls, 600 of whom actually live on reserve. The court asserts that Kebaowek is a “First Nation” but so is the larger Anishbinabeq First Nation. So Kebaowek and the other 10 members are all nations within a nation, all within the nation of Quebec, which is within the nation of Canada. (It does get a bit confusing.)

The site was not within any area claimed to be aboriginal title land. But, as is the case for huge swaths of Canada, Kebaowek claimed the site was within its “traditional territories.” This is despite the fact that the storage site is 150 km distant from its reserve.

CNL engaged in extensive consultations not only with the Anishbinabeq but Kebaowek specifically. In particular:

funding was provided to the Anishbinabeq so that it could hire its own experts;
consultation commenced in 2016 and there were numerous meetings;
in 2020 Kebaowek demanded a formal “Consultation Framework Agreement (CFA) be made with it in advance of any further consultations; a CFA was concluded in 2022.

In 2024 the CSC approved the project. Several other members of Anishbinabeq First Nation consented to the issuance of the permit. But Kebaowek held out. It appears that Kebaowek was the only Indian band which opposed the permit. The 80-page decision does not reveal a single substantive ground on which Kebaowek did so. Nor does the judgment reveal whether the other bands who consented to the permit were closer to the site than Kebaowek, which applied to the Federal Court to quash the permit on grounds the duty to consult had not been discharged.

When an application is made to the court the chief justice assigns a judge to hear it. Out of dozens of judges to choose from, the chief justice appointed Madam Justice Blackhawk, a recent appointment to the bench. She is a member of a First Nation, as is her husband. Her 20 odd years of practice were devoted to advancing aboriginal interests. It is hard to imagine a judge who would be more receptive to any argument advanced in favour of an application by an aboriginal community to increase their power to oppose any project. Apparently, the government parties did not challenge the judge on the grounds of reasonable apprehension of bias. In my opinion, having spent a career in the courts, there were ample grounds for such a challenge. But in litigation between governments and aboriginals, it is becoming clear that the normal rules do not apply. Increasingly the normal rules are bent or changed to support aboriginal litigants.

Justice Blackhawk first considered whether the Supreme Court of Canada’s duty to consult had been complied with. She reviewed the extensive consultation that had taken place and found that it was reasonable (para. 199) in accordance with legal standards of prior case law. That is, the extensive consultation required by the Trans-Mountain case was undertaken.

One would have thought that would be the end of it. But one would be wrong. In fact Justice Blackhawk quashed the permit. How could that be?

The judge found authority to quash the permit in the Declaration on the Rights of Indigenous Peoples Act. That statute was introduced into Parliament in the midst of Justin Trudeau’s taking a knee and flying the flag at half mast as a result of the claim by the Kamloops Indian Band that it had discovered the “bodies” of 215 (revised to 200) murdered children near a residential school. That claim has been disproven. However, UNDRIP lives on in Canadian law. The only other jurisdictions in the world to have adopted UNDRIP are British Columbia and the Northwest Territories.

One tiny aboriginal community can get a permit cancelled for a project that is a vital national interest without demonstrating any distinctive indigenous interest.

THE JUDGE STARTED her analysis by the usual judicial genuflection: “This application tests our commitment as Canadians to Reconciliation” (para 10). She later added that the Free, Prior and Informed Consent requirement of UNDRIP “is essential for the protection of Indigenous peoples’ human rights in the face of major development projects” (para. 109). This is evidence, I suggest, of demonstrable bias.

She came to the unique, and what I say is totally perverse and unmanageable, decision that Parliament’s adoption of UNDRIP has set a whole new standard for how the duty to consult must be discharged (para 218). Compliance with the duty to consult standard established by the Supreme Court of Canada is no longer sufficient. The “free, prior and informed consent” (FPIC) standard of UNDRIP now requires more. While paying lip service to the notion that FPIC does not bestow a veto, the outcome of this case demonstrates that consent of every potentially affected aboriginal community must be obtained for any project under Canada’s jurisdiction to proceed. This also applies to British Columbia.

In the course of her reasoning, which ought to have been based on the law but was not, the judge saw fit to cite from the Truth and Reconciliation Commission and the Murdered and Missing Indian Women Inquiry’s reference to the need “to end genocide against Indian women and girls.” Justice Blackhawk graciously recognized there were some difficulties in discharging the duty to consult given that it was “impractical” to consult with 635 recognized band councils (para. 635). In response to the question of how a project could proceed when certain bands disagreed, she conceded there “is no apparent solution” (par. 146-50).

Thus, Justice Blackhawk quashed the permit and ordered new consultations with Kebaowek according to these guidelines which she imposed:

Kebaowek must be provided separate funding (which of course means that in addition to the substantial funding that had been granted to the Algonquin First Nation, funding must also be provided to each of the other ten bands that compose it, and also for every other Indian band that claims an interest in the outcome, which in any given case could be dozens);
The consultation must “incorporate Kebaowek law, knowledge and practices into the process” (para. 233); the judge presumed that the “law, knowledge and practices” of an Indian band consisting of 1,100 people, of whom 600 lived on the reserve, could be determined and applied as relevant to the outcome of a decision on storage of nuclear waste 150 km distant from the reserve; further the judge seems to have assumed that the law, knowledge or practices of each Indian band is unique and that in a case involving dozens or more bands, each must be fully investigated, determined and applied;
Any process under UNDRIP “must be considered from the perspective of the rights holding collective and must consider the customs, tradition and laws of the rights holding collective”; apparently a Canadian perspective is deemed not to exist and in any case is irrelevant.
Consultation must include holding hearings in the Kebaowek village so each member of the band (i.e. 600 persons or perhaps 1,100) could provide an opinion, with no limit to submissions, about how a nuclear storage site is to be managed).

At para. 233 the judge issued her order to Canadian Nuclear Laboratories as to how it must conduct itself: “CNL are directed to resume the process (of consultation) with a view to incorporate Kebaowek law, knowledge, and practices towards achieving an agreement.” This demonstrates that without obtaining the agreement of not just the “Nation” (in this case being the Algonquin First Nation) but every single one of the 11 bands within the nation, plus the agreement of any other band that purports to claim an interest in the outcome, FPIC can never be obtained.

Left unexplored by the judge was how it can be determined just when the requisite consent of a given band is obtained if there is disagreement among aboriginal groups. Prior to the construction of the natural gas pipeline to Kitimat the proponent obtained the consent of every one of the nine bands whose lands were to be crossed by the pipeline. That consent came from the elected councils of each band, which under the Indian Act, are deemed to speak for the bands. Then a couple of “hereditary” chiefs decided they did not want the project. That was sufficient for a massive outcry and aboriginal protest against the project, which led, among other things, to the shutdown of the two national railways in Feb. 2020.

TO THIS DAY NO one has resolved the question of who speaks for an Indian band: is it the elected councils or the hereditary chiefs? The Indians insist that this question can be decided only by them. But they have not and will probably never come up with an answer.

And apart from the 600-plus separate Indian bands in Canada there are a multitude of organizations that claim the right to be consulted under UNDRIP, and each can now argue its consent is required for federal and provincial decisions that affect millions of Canadians.

For non-aboriginal people there is a recognized legal system to determine how “consent” is achieved in law. It is through our parliamentary system in which political parties achieve a majority vote in Parliament, and a binding law is enacted. A cabinet, which enjoys majority support in Parliament, implements that law.

For indigenous Canadians there is no system to obtain a binding outcome for anything. Indigenous “consent” is a chimera.

Under UNDRIP, aboriginal community leaders claim not just veto power over any project but also to the introduction of bills into Parliament. PM Carney was elected on the promise to legislate a bill which would fast track Canadian projects, bypassing the massive obstructive walls created by his predecessors. True to his word, Carney last spring introduced a bill into Parliament which would carry out his mandate. Certain aboriginal leaders erupted in protest on grounds they had not been consulted on the bill prior to its introduction into Parliament. In short, they claim pursuant to UNDRIP that they have a veto on a bill prior to its consideration by our elected representatives.

Thinking perhaps to clarify matters and support the government’s freedom of action, the Attorney-General, Sean Fraser, explained that indigenous people do not have “a blanket veto power.” (APTN, June 4.) Once again, there was aboriginal outrage. Fraser backed down and apologized.

Carney then convened a “First Nations summit,” inviting “First Nation chiefs, modern-treaty and self-governing First Nations, First Nations regional organizations, tribal councils, the Assembly of First Nations and regional chiefs.” (National Post, July 15). AFN National Chief Cindy Woodhouse then proclaimed that the summit was only “the beginning of a longer process.” It was not a matter of “stuffing potentially hundreds of people into a room and expecting to come to a consensus. That’s not the way to properly engage with people that you are saying are your partners in this work.”

Chief Woodhouse stated the attendees had a “range of views” with some anxious to proceed quickly with projects and resource revenue-sharing agreements, and others opposed. But they were all committed to the concept that the priority of any project must be to close the perceived “infrastructure gap” that is alleged to exist between First Nations and the rest of Canada. In other words, a condition of aboriginal consent would be that most of the benefits would go to them.

The Prime Minister then announced that no project would go ahead without aboriginal “consent.” However, no guidance has been or could be provided on what will be deemed the requisite “consent” in the event that various aboriginal parties disagree, which is almost inevitable.

About 5% of Canada’s population is Indigenous. UNDRIP has empowered the 5% to claim astonishing control of the legislative agenda and also on the achievement of any project which the 95% have, through a legally binding process, deemed to be in the national interest. How can any country operate under such restraints?

IT IS PLAIN AND obvious that the repeal of UNDRIP, both by Canada and B.C., is absolutely necessary if a functioning democracy is to survive. Ottawa’s current plan to have major projects built quickly in Canada is not achievable without that repeal. And yet no federal party has advocated for repeal.

In B.C. both the provincial Conservative Party led by John Rustad and the splinter party, OneBC, led by Dallas Brodie, which was polling at 5% in October, are committed to repeal. The NDP government is rapturous in its support of UNDRIP and never fails to advance aboriginal interests as a centrepiece of its agenda. It even failed to argue extinguishment in defence of the Cowichan Indian Band’s recent successful claim to aboriginal title over a part of Richmond which included fee simple titles, a defence which had substantial merit. They have therefore sacrificed the interests of all non-aboriginal citizens of the province in the name of “reconciliation.”

However, even if any government elected in the future were to have the intestinal fortitude to withstand the massive backlash — a big “if” — the repeal of UNDRIP would leave in place the judge-made duty to consult, which in and of itself is a mountain to climb for any proponent of a sustainable Canada. The courts have really tied our hands in knots this time.