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Resource projects and Indigenous consultation – What is best practice after a year of uncertainty?

Author(s): Maureen Killoran Q.C., Shawn Denstedt Q.C., Brad Wall, Sean Sutherland

Dec 18, 2018

In 2018, we saw the law of consultation evolve further after the release of new (and highly anticipated) decisions from the Supreme Court of Canada (SCC), the Federal Court of Appeal (FCA), and several provincial superior courts. Courts considered the duty to consult in the context of novel challenges/issues as well as nationally important infrastructure projects. However, despite this further judicial guidance, the uncertainty has increased. Messages from the various courts are not entirely consistent and indeed, our top court appears more internally divided than ever. Those of us who advise in the area are left with more questions than answers. How do proponents of resource and other national projects address the risks of a breach of the Crown’s duty to consult? How are these developments in the law likely to impact investment and confidence in Canada? Is there a clear consultation standard?

Many economic and business commentators have highlighted these uncertainties as key contributors to the marked chilling of Canada’s investment climate. To mitigate the risks of uncertainty...

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