Major developments in Indigenous law in 2025

In this series, we have reviewed important developments in Indigenous law last year, including new statutes, treaties and cases. In previous instalments, we discussed updates relating to Aboriginal rights; Aboriginal title; and the duty to consult, treaty rights and new legislation.

In our last entry in the series, we will review some recent cases from the start of 2025 and look ahead to what may be in store for the rest of the year.

Recent cases

In the last few months, there have already been several important cases on Indigenous law.

Kebaowek First Nation v. Canadian Nuclear Laboratories

In Kebaowek First Nation v. Canadian Nuclear Laboratories,^[1] the Federal Court of Canada found that the adoption of the United Nations Declaration on the Rights of Indigenous Peoples [PDF] (UNDRIP) into Canadian law via United Nations Declaration on the Rights of Indigenous Peoples Act (UNDA) is a contextual factor that required an enhanced duty to consult in the circumstances.

The case concerned the Canadian Nuclear Safety Commission’s decision to authorize the construction of a nuclear disposal facility at the Chalk River Laboratories site. The Kebaowek First Nation sought judicial review, arguing that the Commission failed to properly apply the UNDRIP and the UNDA in its consultation process.

The Court held that the Commission’s failure to consider UNDRIP, and in particular the standard of “free, prior, and informed consent” in Article 29(2) of the UNDRIP, as a contextual factor in assessing the adequacy of Crown consultation was an error of law and remitted the matter back to the Commission. This case changes the “status quo” application of the section 35 framework, finding that UNDRIP informs the scope and content of the duty to consult and accommodate and, in certain circumstances, that UNDRIP may impose enhanced consultation obligations on the Crown.

Wabauskang First Nation v. Ontario (Natural Resources and Forestry)

Ontario’s Divisional Court dismissed an application for judicial review by Wabauskang First Nation and Lac Seul First Nation of decisions made by the Ministry of Natural Resources and Forestry regarding the transfer of Crown land to the Municipality of Red Lake for development as housing.^[2] The applicants argued that their rights under section 35 were breached due to insufficient consultation and the Ministry’s failure to obtain the First Nations’ consent before the land transfer.

The Court held that Treaty 3 did not impose an obligation to obtain consent from the First Nations prior to land transfers, although it does require consultation. The Court held that the duty to consult was fulfilled, as representatives of the Ministry had held several good-faith meetings with the First Nations about potential development of the land.

Innus de Uashat et de Mani-Utenam c. Hydro-Québec

The Innu First Nation of Uashat and Mani-Utenam successfully sued Hydro-Québec for violations of the honour of the Crown during the construction of the La Romaine hydroelectric complex.^[3]

During the early stages of the dam’s construction, Hydro-Québec offered to pay the First Nation more than $75 million between 2014 and 2073 as compensation for damage caused by the construction of transmission lines over their territory. In 2015, because of financial difficulties, the band agreed to a settlement with Hydro-Québec of just $6 million.

In this judgment, the Quebec Superior Court held that, as an agent of the Crown, Hydro-Québec was bound by the honour of the Crown, which compelled it to negotiate in good faith. The Court held that this duty was not fulfilled, vacated the 2015 settlement and awarded further damages of $5 million. For an in-depth analysis of this decision, see our earlier blog post.

Colville Lake Renewable Resources Council v. Northwest Territories (Minister of Environment and Natural Resources)

The Northwest Territories applied for judicial review of the caribou management system implemented by the local Colville Lake Renewable Resources Council pursuant to the 1993 Sahtu Dene and Metis Comprehensive Land Claim Agreement [PDF].^[4]

Dismissing an appeal from the lower court, the Northwest Territories Court of Appeal held that the Council was entitled to employ Indigenous knowledge in developing a caribou management plan under the treaty. The case illustrates that Indigenous knowledge and practices can be relied upon in the interpretation of treaty rights.

Saskatchewan (Environment) v. Métis Nation – Saskatchewan

The Supreme Court of Canada considered the doctrine of abuse of process in the context of multiple legal proceedings involving Aboriginal claims.^[5] This case centered on the Métis Nation – Saskatchewan’s application for judicial review of uranium exploration permits issued by the province, claiming that the province failed in its duty to consult. In separate proceedings, the Métis Nation was also litigating the existence of Aboriginal rights and title.

The decision confirms that Indigenous communities may seek judicial review of particular Crown decisions on the basis of the duty to consult while simultaneously litigating the existence of the asserted rights or title foundational to the Crown’s consultation obligations. The decision also clarifies that multiple legal proceedings related to the same Aboriginal claims do not automatically infringe the doctrine of abuse of process.

What’s in store for the rest of 2025

There are many important Indigenous law issues to keep an eye on in the year ahead.

Previous instalments in this series have discussed several pieces of litigation that will continue to progress through the courts this year. These include appeals from superior court decisions in Montour, Wolastoqey Nations and The Nuchatlaht; appeals to the Supreme Court of Canada in Chippewas of Saugeen and Wesley v. Alberta; and Alberta’s most recent constitutional challenge to the Impact Assessment Act.

On December 16, 2024, the Government of Ontario applied to the Supreme Court of Canada for leave to appeal in the case Mathur v. Ontario, a constitutional challenge to Ontario’s climate policy, following the October 2024 decision of the Ontario Court of Appeal, which we reported on in a previous Osler Update. One of the issues in the case which was flagged for further review in the lower court by the Court of Appeal was whether climate policy engages Aboriginal rights under section 35. It remains to be seen whether Mathur will be taken up by the Supreme Court of Canada or whether leave to appeal will be refused, sending the case back to the Superior Court for reconsideration.

In 2025, constitutional challenges to Ontario’s Mining Act may also be heard. Applicants in these cases argue that the registration of mining claims triggers the duty to consult. This litigation follows similar challenges that succeeded at the British Columbia Supreme Court in 2023, as we discussed in a previous Osler Update. In January 2025, the British Columbia Court of Appeal heard an appeal from that 2023 decision, but has not rendered its decision yet.

In British Columbia, litigation surrounding the Blueberry River Implementation Agreement [PDF] (BRIA), which created a shared decision-making regime over land-use planning between British Columbia and the Blueberry River First Nations (BRFN), continues. In May 2024, working under the BRIA, the province and the BRFN Chief agreed to the Gundy Plan, a land-use plan which would control development over an area of 53,000 hectares. However, as we discussed in a previous Osler Update, in July 2024 the BRFN sued to prevent the Gundy Plan from taking effect. The claim argues that the Gundy Plan violates the BRIA because the Chief lacked the legal authority to negotiate the Gundy Plan on behalf of BRFN. Until this litigation is settled, unpredictability will surround any development in BRFN’s territory, which covers a large portion of northeastern British Columbia.

At the federal level, uncertainty has been created by the prorogation of Parliament and this year’s upcoming general election. Prorogation jeopardizes the passage of several bills that the current government had introduced, as they will need to be reintroduced in a future session of Parliament. The agreements signed by Canada with the Red River Métis, Haida Nation and Nunavut will also not take effect until Parliament passes enabling legislation. It remains to be seen whether these legislative matters will be taken up before the next federal election.

We will continue to monitor these developments.

[1] Kebaowek First Nation v. Canadian Nuclear Laboratories, 2025 FC 319.

[2] Wabauskang First Nation v. Ontario (Natural Resources and Forestry), 2025 ONSC 316 (Div. Ct.).

[3] Innus de Uashat et de Mani-Utenam c. Hydro-Québec, 2025 QCCS 40.

[4] Colville Lake Renewable Resources Council v. Northwest Territories (Minister of Environment and Natural Resources), 2025 NWTCA 1.

[5] Saskatchewan (Environment) v. Métis Nation – Saskatchewan, 2025 SCC 4.