Recent decisions on the duty to consult, treaty rights and legislative updates Recent decisions on the duty to consult, treaty rights and legislative updates

The duty to consult

The duty to consult flows from the honour of the Crown, an unwritten constitutional principle that requires the government to deal honourably with Indigenous Peoples. The duty to consult arises when the Crown has knowledge — real or constructive — of the potential existence of an Aboriginal right or title and contemplates conduct that might adversely affect it. The extent of the required consultation depends on the severity of the impact on the rights at stake.^[1] Canadian courts made several important rulings on the nature and extent of the duty to consult in 2024.

Association of Iroquois and Allied Indians v. Ontario

The applicants in Association of Iroquois and Allied Indians v. Ontario^[2] challenged two actions taken by the Ontario government: the revocation of MNR-75, Environmental Assessment Requirements for Forest Management on Crown Lands in Ontario, and the amendments to the Environmental Assessment Act made by Bill 197, which created certain exemptions from otherwise applicable environmental assessment procedures.

The Ontario Court of Appeal held that the duty to consult was not triggered in either case. With respect to Bill 197, the Court held that the duty to consult does not apply to the law-making process. If legislation adversely impacts Aboriginal interests protected under section 35 of the Constitution Act, 1982, then the proper avenue for redress is a constitutional challenge to the legislation.

As for MNR-75, the Court found that the applicants had not proven that Aboriginal rights would be impacted by the repeal of MNR-75, because its environmental protections were already incorporated into the legally binding Forest Management Planning Manual [PDF]. The Court’s decision confirms that the duty to consult will not arise when new legislation is passed or when regulatory amendments do not lead to new impacts on Aboriginal rights.

Metis Settlements General Council v. Canada (Crown-Indigenous Relations) and Innu Nation Inc. v. Canada (Crown-Indigenous Relations)

In both of these cases, the Minister of Crown-Indigenous Relations entered into agreements with groups claiming to represent Indigenous communities. In Metis Settlements General Council v. Canada (Crown-Indigenous Relations)^[3], the Minister agreed to recognize the Métis Nation of Alberta (MNA) as the exclusive representative of the Métis Nation within Alberta. In Innu Nation Inc. v Canada (Crown-Indigenous Relations)^[4], the Minister had entered into a Memorandum of Understanding (MOU) with a self-described Inuit governing body, the NunatuKavut Community Council. The applicants in these cases were other Indigenous organizations, and they argued that the duty to consult had been violated because the Minister had not contacted them before entering into these agreements.

In Metis Settlements, Grammond J. held that the duty to consult had been violated. By granting a monopoly on representation of the Métis Nation to the MNA — including the power to make claims based on Aboriginal rights under section 35 — the Minister’s decision had the potential to prejudice the Aboriginal rights of the applicants, triggering the duty to consult. In contrast, in Innu Nation, Strickland J. held that there was no duty to consult, because the MOU did not create, recognize or deny any legal rights and was intended only as an expression of goodwill and political commitment.

These cases illustrate that the duty to consult is triggered by real effects on rights, not simply political or symbolic commitments.

First Nation of Na-Cho Nyäk Dun v. Yukon (Government of)

In 2021, Yukon authorized a mineral exploration project in the Tsé Tagé (Beaver River) watershed under the Yukon Environmental and Socio-economic Assessment Act to proceed to the regulatory approval and permitting stage. This watershed forms part of the territory of the Na-Cho Nyäk Dun First Nation. The First Nation applied for judicial review on the grounds that the duty to consult had not been satisfied.

In First Nation of Na-Cho Nyäk Dun v. Yukon (Government of),^[5] the Yukon Court of Appeal held that the duty to consult had not been fulfilled and quashed the approval. The Court noted that Yukon had failed to engage with the First Nation’s position that the project should not go forward until local land use planning was complete, and that Yukon had failed to provide any justification for not performing any community consultation before reaching its decision. Na-Cho Nyäk Dun underlines that to fulfill the duty to consult, the government must meaningfully grapple with key issues or central arguments raised by the affected Indigenous group.

Treaties and First Nations laws

Treaty interpretation: Ontario (Attorney General) v. Restoule

In July 2024, the Supreme Court of Canada issued its decision in Ontario (Attorney General) v. Restoule,^[6] clarifying important aspects of Crown-Indigenous treaty interpretation. Restoule deals with the Robinson Treaties of 1850, signed with the Anishinaabe of Lake Huron and Lake Superior. These treaties included an “augmentation clause” under which annuities paid to the Anishinaabe could increase over time at the Crown’s discretion. The annuities were increased to $4 per person per year in 1875 and have remained at that amount since then. The Crown conceded that it had breached its duties under the treaties. The Anishinaabe of Lake Huron settled past compensation in 2023 for $10 billion. The Lake Superior plaintiffs continue to pursue their claims in court.

The Supreme Court of Canada heard an appeal on the interpretation of the treaties. The Court held unanimously that although no fiduciary duty arose in this case in respect of the augmentation clause, the honour of the Crown required diligent implementation of the augmentation clause, which was not fulfilled here. The Court ordered that further proceedings before the Superior Court be stayed for six months to allow the parties to negotiate a settlement.

Haida Title Lands Agreement

On April 14, 2024, British Columbia entered into an agreement with the Council of the Haida Nation [PDF], recognizing that the Haida Nation has Aboriginal title to the entirety of Haida Gwaii, as we discussed in a previous Osler Update. The agreement also creates a transition process to reconcile overlapping jurisdiction between B.C. and the Haida Nation over Haida Gwaii. On February 17, 2025, the Government of Canada announced that it had also recognized the Haida Nation’s Aboriginal title to Haida Gwaii in its own agreement setting out a transition process over the land. These are the first agreements where any Crown (federal or provincial) has proactively acknowledged Aboriginal title to an area without reservation and are significant developments in B.C.’s and Canada’s implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The Haida Nation’s Aboriginal title litigation, which is scheduled for a hearing in 2026, will proceed to address issues not covered by this agreement, such as compensation from the Crown.

Red River Métis Treaty

On November 30, 2024, Canada and the Manitoba Métis Federation (MMF) signed a landmark self-government treaty which formally recognizes the MMF as the government of the Red River Métis, as we discussed in a previous Osler Update. The Red River Métis Self-Government Recognition and Implementation Treaty is the first modern treaty which Canada has signed with a Métis nation. The treaty recognizes the MMF as the sole representative of the Red River Métis and affirms their jurisdiction to make laws regarding citizenship in the Red River Métis. However, the treaty will not come into force until Parliament passes enabling legislation.

Nunavut Lands and Resources Devolution Agreement

On January 18, 2024, as we discussed in a previous Osler Update, the federal government, Nunavut and Nunavut Tunngavik Inc. (NTI) signed the Nunavut Lands and Resources Devolution Agreement. Under the agreement, control of Crown lands in the territory will be transferred to Nunavut’s territorial government and NTI, which is the representative entity that manages the rights and responsibilities of the Inuit Peoples of Nunavut. Although the agreement envisions a transfer of control on April 1, 2027, this date is dependent on the passage of new federal legislation to repeal and replace the Nunavut Act.

If and when completed, the Nunavut transfer will be the final handover of decision-making authority for land, water, mines and minerals in Canada’s northern territories. Following similar devolution agreements in Yukon and the Northwest Territories, resource investments in those jurisdictions increased dramatically. The same may well occur in Nunavut as the territorial government looks to increase its revenue through resource development.

Innu of Pessamit Framework Agreement

On February 15, 2024, the government of Québec and the Innu of Pessamit concluded a framework agreement regarding the territory claimed by the group, which extends about 400 kilometres north of the St. Lawrence River towards the border with Labrador. The framework agreement grants a provisional $45-million payment to the Pessamit until a final agreement is negotiated on issues such as resource development. The Pessamit had sued the government of Québec and Hydro-Québec for environmental damage caused by the construction of several dams on the territory in the 1960s and 1970s. The framework agreement suspends that claim.

While the text of the framework agreement has not yet been made public, this framework agreement will set the stage for the first modern treaty in Québec since 2010.

Final instalment

In the final instalment in our series, we will review some key cases that have already been decided in 2025 and look ahead to the rest of the year.

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[1] Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73.

[2] Association of Iroquois and Allied Indians v. Ontario, 2024 ONCA 436.

[3] Metis Settlements General Council v. Canada (Crown-Indigenous Relations), 2024 FC 487.

[4] Innu Nation Inc. v Canada (Crown-Indigenous Relations), 2024 FC 896.

[5] First Nation of Na-Cho Nyäk Dun v. Yukon (Government of), 2024 YKCA 5.

[6] Ontario (Attorney General) v. Restoule, 2024 SCC 27.