Welcome to “Cases That Should Have Gone to the Supreme Court of Canada, But Didn’t!”
In this episode, Kyla Lee from Acumen Law Corporation discusses a case involving the Huron-Wendat First Nation and the Canadian government’s constitutional duty to consult. While the Nation’s main application—arguing they were not adequately consulted on a development project—was waiting to be heard in Superior Court, the government attempted to move forward with the project. The Huron-Wendat First Nation sought an interim stay to pause the project until the issue of consultation could be resolved. The court refused, and the Supreme Court of Canada declined to hear the case. This decision raises serious concerns about how Canada’s duty to consult is respected—or disregarded—in practice.
Key Points Discussed
The Huron-Wendat First Nation argued they had not been properly consulted regarding a development project that could impact their traditional lands and rights. They brought an application to court, but while it was pending, the government tried to proceed with the project.
The Nation filed a separate request asking for the project to be temporarily halted while the court considered the issue of consultation. The court denied that request, effectively allowing the government to move forward with the project despite unresolved constitutional questions.
Why This Case Matters
The duty to consult and accommodate Indigenous peoples is not optional. It is a constitutionally protected obligation. Allowing the government to proceed with projects while consultation claims are unresolved undermines that obligation and risks turning the consultation process into little more than a box-checking exercise.
Interim injunctions are a key tool to preserve Indigenous rights while legal processes unfold. If they are not granted—even when credible claims are raised—it diminishes the practical power of the duty to consult.
Missed Opportunity for a National Standard
The Supreme Court could have issued much-needed guidance on how and when courts should pause government projects while consultation disputes are pending. Such guidance could have clarified:
– When interim stays should be granted to protect Indigenous rights
– What level of harm to First Nations justifies delaying a project
– How to balance government timelines against unresolved constitutional duties
– The responsibility of governments to act with care when consultation may be insufficient
Need for Clarity and Accountability
Canada’s courts are backlogged. Cases involving the duty to consult can take years to be fully heard. If governments are allowed to proceed with projects during that time, the duty to consult loses its teeth.
A clear framework from the Supreme Court would encourage governments to take consultation seriously from the start—rather than race ahead and risk irreparable harm. Without that framework, more First Nations will be forced into court, more injunctions will be needed, and more trust will be eroded.
Topics Covered
– Duty to consult and accommodate
– Interim injunctions in Indigenous rights litigation
– Section 35 constitutional protections
– Project development on traditional Indigenous territories
– The limits of judicial remedies in protecting First Nations interests
