On December 17, 2025, the Federal Court released a decision dismissing a judicial review application by the Lummi Nation against the Attorney General of Canada and the Vancouver Fraser Port Authority (“VFPA”). Lummi Nation is a Coast Salish Indigenous Nation based in Washington State with treaty rights in the United States and asserted but unproven Aboriginal rights in Canada. Lummi challenged Canada’s approval of the VFPA’s application to build and operate a new shipping terminal at Roberts Bank in Delta, BC, on the basis of a failure to adequately consult with Lummi on the project. The Court held that Lummi was owed a duty to consult, but that Canada had fulfilled that duty.
The impact of Desautel
This is the first case since R v Desautel, 2021 SCC 17 (“Desautel”) to address whether the Crown owes a duty to consult an Indigenous group whose community and administration is located outside of Canada. The Court in Desautel found that such Indigenous groups can hold Aboriginal rights under section 35 of the Constitution Act, 1982. While Desautel was not a duty to consult case, the Court noted that one consequence of its decision is that a duty to consult may arise when such groups outside Canada assert or establish section 35 rights within Canada.
The duty to consult was triggered
Applying Desautel, the Court in Lummi set out the test to be applied to determine whether the Crown owes a duty to consult with an Indigenous group outside Canada: the duty to consult is triggered when the Crown has knowledge that meets the Haida threshold of a “credible claim” that the group is an Aboriginal people of Canada that holds specific Aboriginal rights or title within Canada.
The Court found that Canada’s duty to consult with Lummi Nation was triggered in October 2021, when Canada had real or constructive knowledge of a credible but unproven claim to rights within Canada and knew that it was contemplating conduct that might adversely affect these rights. Lummi Nation wrote two letters that provided the basis for this finding. One letter was to the Minister of Crown-Indigenous Relations stating that the Lummi Nation was a modern-day successor of an Aboriginal society that occupied Canadian territory at the time of contact, and the Lummi Nation was therefore an Aboriginal people of Canada to whom Canada owes a duty to consult and accommodate. This letter described asserted section 35 rights but was not specific to the proposed project. The second letter was to the Minister responsible for the project’s environmental assessment, requesting formal consultation on the VFPA’s project specifically.
Consultation was reasonable, meaningful, and honourable
While the Lummi Nation asserted that this was a “no consultation” case, the Court found that Canada’s duty to consult had been fulfilled, and consultation was reasonable, meaningful, and honourable. Lummi was involved at the panel phase of the 10-year environmental assessment process for the VFPA’s project, in which it gave evidence and provided written and oral submissions. Lummi Nation was not offered capacity funding or given the same opportunities as Indigenous Nations resident in Canada and alleged that the consultation focused only on transboundary impacts of the project. However, the Court found that differences from the process followed with Canada-based Indigenous groups did not render Lummi’s consultations insufficient, and that the consultation was not solely transboundary focused.
The Court found that although there were imperfections in the process, the consultation was adequate, and more than satisfied what the middle of the Haida spectrum required, which included providing notice, opportunities to present concerns, responding to those concerns, and providing opportunities for discussion and comment. The Court observed that Canada engaged with the Lummi Nation on the project’s potential impacts with the intention and willingness to understand the full scope of Lummi’s section 35 rights, grapple with its concerns, and substantially address them. The Court observed that Lummi failed to respond to several invitations to comment during the environmental assessment for the project and refused meetings offered to continue consultation. In the Court’s view, Lummi’s failure to meet its reciprocal obligations under the duty to consult affected the process more than imperfections in Canada’s consultation efforts.
Takeaways
The Haida threshold of a “credible claim” for triggering the duty to consult applies to an Indigenous group outside of Canada for all aspects of their claim – the claim that it is an Aboriginal people of Canada, and the claim that it holds specific Aboriginal rights or title within Canada. This clarifies the framework for other Indigenous groups based in the United States in asserting claims within Canada. Although the consultation process followed may vary from that followed with Indigenous groups based in Canada, this does not necessarily render the consultation inadequate.
This case summary provides our general comments on the case discussed and should not be relied on as legal advice.
See CanLII for the Reasons for Judgment.
