JFK Law LLP

Authored By: Jeff Langlois, Mark Gustafson and Devin Galway Introduction On September 21, 2026 the federal government introduced Bill C-39, the Building Canada Strong Act. The Bill is meant to deliver on Canada’s plan to significantly transform how decisions are made about projects the federal government regulates. It comes only a few years after the Impact Assessment Act came into force in 2019 to modernize federal project review, with decisions that better account for impacts on Indigenous rights, climate change and species at risk. The Act was then significantly narrowed in 2024, after Alberta’s challenge to its scope led the Supreme Court of Canada to find parts of it unconstitutional. Bill C-39 proposes significant changes to impact assessment processes and timelines and will have practical impacts on how Indigenous governments advocate for their rights and interests. It proposes to hand much of the Impact Assessment Agency’s functions to other regulators, including the Canadian Nuclear Safety Commission for nuclear projects. This significantly expands recent changes from earlier this month that gave the Canada Energy Regulator sole assessment authority for pipelines and power lines. Together, the changes proposed in Bill C-39 will reshape how Ottawa makes decisions about resource development, and how Indigenous governments are consulted and engaged on those decisions: The government’s proposal. Canada describes the Bill as “a change in federal process, not standards.” That process is focused around the concepts of one project, one consultation, one year. What Indigenous governments will need to grapple with. Consultation will be compressed into fewer, earlier stages, with fewer chances to raise concerns later at the permit stage. Nations may be dealing with different regulators than before, on tighter timelines. Consultation strategies, capacity funding requests and in-house studies will all need to adapt. The Bill may still change as it moves through Parliament, and this post should be treated as a first pass over the key aspects of the Bill under consideration. Nations should consider opportunities to raise concerns during house and senate committees as this Bill advances. What role will the Impact Assessment Agency still have? Bill C-39 (“Bill”) involves a host of changes to the Impact Assessment Act (“IAA”). Under the Bill, the Impact Assessment Agency of Canada (“IAAC”) will assess fewer kinds of projects but will become the single window for federal permits and consultation on the projects it keeps. Where things stand now. Today, IAAC leads federal impact assessments for most major projects. For pipelines and nuclear projects, it currently shares the work with the Canada Energy Regulator (“CER”) or Canadian Nuclear Safety Commission (“CNSC”) through joint review panels and other cooperative processes. Fewer projects. IAAC loses nuclear projects to the CNSC. Pipelines and power lines already moved to the CER by regulation in September 2026. IAAC keeps mines, dams, ports and other projects that engage a federal interest. A new “one window” role. For the projects it keeps, IAAC coordinates all federal permits and consultation. The Environment Minister issues one decision that covers the assessment and the main federal permits (IAA, 64.2, 65(1)). Departments, like the Department of Fisheries and Oceans, must share information and flag problems early (IAA, ss. 59.1–59.3). Who makes the big call. Each type of IAAC project gets a “designated minister” (IAA, s. 9(6.2)). That Minister and the Environment Minister can decide together that serious harm is justified without going to Cabinet (IAA, s. 60(2)(a)). In making this decision, they must consider: the potential impacts of the project’s likely effects on Indigenous groups and s. 35 rights; the extent to which the project’s likely effects contribute to Canada’s ability to meet its environmental obligations and climate commitments; and the extent to which the project’s likely effects contribute to sustainability. Regional assessments matter more. IAAC’s regional assessments become the first step for designating regions of national interest (see below). Nations should treat any regional assessment in their territory as high-stakes. Which agency will handle nuclear projects? The Canadian Nuclear Safety Commission becomes the lead assessor and decision-maker for nuclear projects, with no review panel and Cabinet as the backstop. Where things stand now. Today, nuclear projects on the federal project list are assessed by an IAAC-CNSC integrated review panel. The IAAC leads this process in consultation with the CNSC. In some cases, like smaller projects, the CNSC conducts its own assessment. The CNSC takes over. Under the Bill, the CNSC runs the impact assessment for nuclear projects from start to finish if those projects are designated under the IAA (IAA, s. 8.3(a)). Every nuclear project on the list gets a full assessment (IAA, s. 17.2), and review panels are no longer an option (IAA, s. 36.1). How decisions get made. The CNSC has 300 days to write its report once the proponent’s studies are complete (IAA, s. 28(2.1)). If the CNSC finds the project could cause serious (“significant”) harm, Cabinet decides within 65 days whether the harm is justified (IAA, ss. 61.1(1), 61.1(2)). The CNSC’s conditions become licence conditions it enforces itself (IAA, s. 67(1)). Why it matters for Nations. This is a significant shift in the work to be done by the CNSC and will require Nations to engage directly with the CNSC to raise concerns. Projects already underway may switch to the CNSC, and the CNSC can allow some early work before its decision (IAA, ss. 7(3)(e)). What is changing for pipelines and power lines? Ottawa has already moved interprovincial and international pipelines and power lines out of the Impact Assessment Act by regulation, before Bill C-39 was introduced. These projects will now be reviewed by the Canada Energy Regulator alone. Where things stand now. On September 3, 2026, Cabinet exempted interprovincial and international pipelines, international and interprovincial power lines, and CER-regulated offshore renewables from impact assessment and CER review by amending the Physical Activities Regulations. Before this, large pipelines and power lines (75 km or more of new right of way) needed a joint IAAC–CER review panel. What a CER review looks like. The CER must consider much the same factors as an impact assessment, including effects on s. 35 rights and Indigenous interests and concerns. How Bill C-39 builds on it. The Bill stops the Minister from pulling CER-regulated projects back into the IAA and makes the CER the sole assessor for pipelines, designated powerlines, and offshore renewable energy projects (IAA, s. 9(7)(c), CERA, 75.1). The Bill also creates a two-track pipeline certificate regime. It shortens CER timelines (450 to 300 days for pipeline certificates; 300 to 180 days for smaller applications), and the Minister can extend by only 90 days, and only to fulfil the duty to consult (CERA, ss. 183(4)-(6), 186(4)-(6)). What Indigenous groups raised. During its engagement with Indigenous peoples, Canada noted concerns about loss of independent review panels, fairness and impartiality, consistency with UNDRIP, and effects on co-management regimes such as in the Mackenzie Valley. Why it matters for Nations. For any pipeline or transmission line in your territory, the CER is now the main venue. Nations should seek intervenor status and CER participant funding early, and push for a consultation agreement covering Crown consultation. How will Crown consultation be coordinated? The Bill coordinates who runs consultation and folds key federal permits into the impact assessment, but it does not change the legal content of the duty to consult. Where things stand now. Today, consultation on a major project often happens in rounds: first during the impact assessment, then again when departments like Fisheries and Oceans Canada issue permits afterward. Each round can involve different officials and different funding. One process per project, per community. The Bill makes coordinating Indigenous consultation part of the IAA’s purpose (IAA, s. 6(1.1)(b)). IAAC coordinates from the first project filing until construction is finished (IAA, 155(b.1)). The CNSC and the CER play the same role for their projects (IAA, s. 165.1(b); CERA, s. 75.1). Permits get decided together. Key federal permits (fisheries, navigable waters, disposal at sea, species at risk) are now decided with the impact assessment, in one decision (IAA, s. 64.2, Schedule 5). That means Nations must raise concerns during the impact assessment process and not wait until later processes that are now eliminated. What doesn’t change. The Crown’s legal duty to consult stays the same, and courts can still review whether it was met. Funding for consultation on the bundled permits is optional, not guaranteed (IAA, 75.1). Practical considerations include whether to enter into a consultation agreement early on, how to secure capacity funding, and developing a workplan built for your Nation. What does the “one-year” timeline actually cover? The one year runs from the notice that the proponent’s studies are complete, not from project filing, and it is a target that can be extended or suspended. Where things stand now. Today, the IAA already sets time limits for each phase, but the clock stops while the proponent prepares its studies. In practice, federal reviews of major projects often take several years from start to finish. The year starts late. The one-year promise starts only once the proponent’s studies are complete (IAA, ss. 19(4), 65(10)). It covers 300 days for the review and 65 days for the decision (IAA, 28(2.1), 37(2), 65(3)). Time before the clock starts. First comes a 180-day planning phase, which can be extended or paused (IAA, ss. 18(1), 18(3), 18(5)). Then the proponent has 365 days to do its studies, and can get more time on request, with no limit (IAA, ss. 19(1)-(2)). From first filing to decision, most projects will still take well over a year. One year is a target, not a deadline. Ministers can grant the IAAC 90-day extensions to conduct the assessment, which Cabinet can extend indefinitely, and time limits can be paused under regulations (IAA, ss. 28(6)–(9)). If the Minister fails to make a decision within the one-year target, they simply post their reasons for this online along with a new timeline (IAA, s. 65(10)). As mentioned above, CER reviews also get accelerated. Why it matters for Nations. Your own studies, including Indigenous knowledge and rights studies, need to happen early, before the clock starts. Once it starts, there is little room to add new evidence. How will impacts on Indigenous rights be assessed? The legal tests for rights impacts are unchanged in substance, but who decides, when, and on what record all shift. Where things stand now. Today, federal impact assessments must look at effects on Indigenous peoples and their s. 35 rights. Where serious harm is found, the Minister or Cabinet decides whether it is justified in the public interest, and impacts on rights are one of the factors they must weigh. The rules on rights stay. Impacts on rights must still be assessed, and proponents must still explain how they will address them (IAA, 22(1), 15(1)). Reports must show how Indigenous knowledge was used, and decisions must give reasons that address impacts on rights (IAA, ss. 28(3.1), 63(a), 65(2)). However, assessment involves fewer decision-makers and less time. As explained above, two ministers can now decide that serious harm is justified, without input from Cabinet. The rights evidence has to fit inside the 300-day assessment. Because permits are now decided at the same time, there is less chance to deal with detailed rights impacts later. Work can start before the decision. Ministers or the CNSC can allow some early work before a project is approved if they think it’s in the public interest (IAA, 7(3)(d)–(e)). This means rights could be affected before consultation is finished. Nations should watch for this and be ready to push back. Does the Bill address UNDRIP and free, prior and informed consent? No. The Bill does not mention the UN Declaration on the Rights of Indigenous Peoples (“UNDRIP”), the United Nations Declaration on the Rights of Indigenous Peoples Act (“UNDA”), or free, prior and informed consent (“FPIC”). Where things stand now. Under UNDA, Canada must take all measures necessary, in consultation and cooperation with Indigenous peoples, to make federal laws consistent with UNDRIP ( 5(open in a new tab)). Article 32(2) of UNDRIP calls for governments to obtain FPIC before approving projects affecting Indigenous lands and resources. The current IAA already states that Canada is committed to implementing UNDRIP. What the Bill does and doesn’t do. The Bill leaves the existing IAA preamble in place but adds nothing that gives effect to UNDRIP or FPIC. The new timelines, early-works powers, bundled permit decisions and deemed approvals in regions of national interest are all designed around speed and certainty for proponents. None of them build in a consent-based process or a decision-making role for Indigenous governments. From a practical perspective, Nations seeking consent processes will face pressure to undertake those processes in the face of highly constrained timelines. What Indigenous participants told Canada. Some Indigenous peoples who participated in the engagement process supported a single consultation process, but they noted that timelines must still respect rights and support meaningful consultation and FPIC. Tools that already exist. The IAA already allows cooperation with, and delegation of parts of an assessment to, Indigenous governing bodies and some time limits can be extended at a jurisdiction’s request (IAA, s. 18(3)). Nations can use these to press for Nation-led or co-led assessments that operate on consent-based principles. What Nations can ask for. Parliament could add a clause requiring the Act to be applied consistently with UNDA, along with a clause building in more time for consent-based pathway for Nations that want one. Nations can raise s. 5 of UNDA in committee submissions, and in consultation on the regulations still to come. Will project approvals change under the Building Canada Act? Bill C-39 is also changing the Building Canada Act(open in a new tab), which passed in 2025 (“BCA”). Notably, it will establish “regions of national interest.” Regions of national interest move the key fight from each project to a regional assessment: once a region is designated, eligible projects get pre-approved findings and a single deemed permit document. Where things stand now. Today, the BCA lets Cabinet name individual “national interest projects” for a faster approval track. But there is no way to designate a whole region, and regional assessments under the IAA don’t approve anything on their own. How a region gets designated. Under the Bill, Cabinet can define a region, setting out its boundaries, which kinds of projects qualify, and the criteria they must meet (BCA, s. 8.2(1)). A regional assessment must be done first, and Cabinet must consider any report that comes from that process (BCA, s. 8.2(5)). What regions have been designated. Canada has not yet announced what areas will be designated as regions of national interest. However, the Bill lays out factors that Cabinet may consider. These are: strengthening Canada’s autonomy, resilience, and security; providing economic or other benefits to Canada; having a high likelihood of successful execution; advancing the interests of Indigenous peoples; and contributing to clean growth and to meeting Canada’s objectives with respect to climate change (BCA, s. 8.2(6)). Consultation happens twice. Before a region is named, the Minister must be satisfied that Indigenous peoples whose rights could be affected were adequately consulted (BCA, s. 8.2(7)). Nations must be consulted again before each project’s approval document is issued, and before its conditions change (BCA, ss. 8.4(2)(d), 8.5(3)(b)). What designation does for a project. If a project fits the region’s criteria, the findings needed for its federal permits are treated as already made in its favour (BCA, s. 8.3). The Minister is then required to issue an approval document that counts as all the project’s permits (BCA, s. 8.4). If the project has also been designated under the IAA, the assessment can’t revisit any effects the regional assessment already covered (BCA, s. 19(2)). Why it matters for Nations. Since the IAA was introduced in 2019, many Nations have requested regional assessment so that cumulative effects of regional development can be meaningfully considered before piecemeal approvals are granted. However, only a small handful of regional assessments have been completed over 7 years. Under the Bill, regional assessments, if they do take place, become a critical way for Nations to seek a lead or co-lead role, get their rights evidence into the regional record, and push for criteria that reflect their conditions. What changes for fisheries and species at risk permits? The Bill adds changes that could have a significant impact on how federal decision-makers handle harm to fish, fish habitat, and species at risk. In particular, the Bill proposes to add a feasibility test for permit conditions, open the door to paying fees to offset harm to fish habitat, and move key Fisheries Act rule-making from Cabinet to the Minister of Department of Fisheries and Oceans. Where things stand now. Today, the Department of Fisheries and Oceans issues Fisheries Act authorizations for projects that harm fish or fish habitat, and species at risk permits come from the responsible minister. Permit conditions are set to protect fish and species, and offsetting harm is mostly done by the proponent itself. Conditions must be “feasible.” The Bill proposes limits on the Crown in setting permit conditions. Before setting a condition, the relevant Ministers must consider whether they are technically, economically and practically feasible (Fisheries Act, s. 35.01; SARA, s. 73.1). This applies even when the permits are decided inside of an impact assessment. In other words, costs for proponents could weaken conditions that protect fish and species at risk. Paying to offset harm. New regulations could also let proponents pay a fee instead of fixing harm to fish habitat themselves (Fisheries Act, s. 43.31(1)(b), (h)). The money goes into a general federal fund (s. 16.1), with no rule that it be spent in the affected watershed or territory. These regulations are not part of the present Bill but Nations should watch for their development. Habitat banking opens up. Currently, organizations involved in restoring fish habitat may earn “credits” for their work to offset impacts on fish habitat. The Bill creates a pathway for the Minister to create a system for organizations to sell those credits to project proponents (Fisheries Act, s. 42.01(1)(a)). Credits can only be used in the service area where the habitat bank is located (Fisheries Act, s. 42.03). This could be an opportunity for Nation-led habitat banks, but also a risk if service areas are drawn very large. This may also lead to promised mitigation that does not work in practice or that does not address Indigenous specific concerns. Can work start before a project is approved? The Bill may let the Minister—or the CNSC for nuclear projects—allow parts of a project to start before the project is approved if they think this would be in the public interest. Where things stand now. Today, the IAA generally bars a proponent from starting work that could cause certain effects, including effects to Indigenous peoples, until the project is approved (IAA, s. 7(1)). What the Bill allows. For IAAC projects, the Minister will be able to issue an order allowing specified activities to take place before the decision if the Minister considers it in the public interest (IAA, s. 7(3)(d)). For nuclear projects, the CNSC can do the same (IAA, 7(3)(e)). Federal departments can then issue permits and funding for that early work (IAA, ss. 8(d), 8.2(c), 64.1). The limits. Early works can never cover the whole project (IAA, s. 7(7)) and the Minister or CNSC must set conditions requiring the proponent to fix any harm the early work causes (IAA, s. 7(6)). No express consultation step. The Bill does not say Nations must be consulted before early works are allowed. But because early works can affect rights, the Crown’s duty to consult still applies before the order is made. Nations should ask for notice of any early-works request, a chance to respond, and reasons. Why it matters for Nations. Early works can create facts on the ground before the rights assessment is finished, and make a later “no” harder. Clearing, access roads and site preparation are the kinds of work to watch. This is likely to be one of the most contested parts of the Bill, in negotiations and in court. Will projects already under review be affected? Whether a project already in the federal process moves to the new rules depends on how far along it is on the day the changes come into force. Where things stand now. Today, projects already in the federal process are being reviewed under the current IAA and CERA. Nothing changes until Cabinet brings the new rules into force by order, on a date not yet set (Bill C-39, cls. 93 and 158). IAAC projects. Projects where IAAC has already started the assessment—meaning where a notice of commencement has been posted, or a substitution has been approved—will stay under the current rules (IAA, s. 189). Projects that already have a decision stay under the current rules, too (IAA, s. 190). However, projects still in the planning phase appear to move to the new rules. Nuclear projects. Pending nuclear projects shift to the CNSC depending on their stage, as set out in the table below (IAA, ss. 191–193). In two of the three situations, the proponent can choose to stay with IAAC if it asks within 30 days. Pipelines and power lines. CER applications that have already found to be complete stay under the current CERA framework, including timelines (Bill C-39, cl. 155). New applications get the shorter timelines. Why it matters for Nations. Nations should list every project in their territory that is in a federal process now and map which rules it will fall under. For nuclear projects, watch for a proponent’s election to stay or switch. One last change: where court challenges get heard The Bill also moves judicial review of certain Cabinet orders up a level. Challenges to orders naming a national interest project, or designating a region of national interest, would go directly to the Federal Court of Appeal instead of starting in the Federal Court (Federal Courts Act, s. 28(1)(a)). Applications already filed in the Federal Court when the change takes effect will be transferred up, and any interim orders already made will be treated as orders of the Court of Appeal (Bill C-39, cl. 115). A parallel change applies to certain Cabinet orders under the CERA (Federal Courts Act, s. 28(1)(g)). In practice this removes a rung from the ladder. A challenge is heard once, by a three-judge panel, with any further appeal only to the Supreme Court of Canada and only with permission. That may mean faster access to appellate courts, but it also means fewer chances to correct a result, and no ability to build a robust record of the evidence at the trial level. For Nations this means that the evidence to support opposition to these designations must be prepared and submitted during the short consultations taking place relating to these designations. It will be very difficult to bring new evidence to the court for these challenges where it did not form part of the consultation record leading to these designations. Conclusion At the time of publication, the Bill is still being debated, with the first reading completed yesterday, September 21, 2026. The final contours of the Bill may change, but as proposed these changes will reshape decision making and put pressure on Nations to participate in new engagements and consultations processes with yet to be defined timelines and processes. Key abbreviations • Bill = Bill C-39, An Act respecting certain measures to strengthen the economy(open in a new tab), 1st Sess, 45th Parl, 2026 (first reading) • IAA = Impact Assessment Act(open in a new tab), SC 2019, c 28, s 1 • IAAC = Impact Assessment Agency of Canada • CERA = Canadian Energy Regulator Act(open in a new tab), SC 2019, c 28, s 10 • CER = Canada Energy Regulator • CNSC = Canadian Nuclear Safety Commission • BCA = Building Canada Act(open in a new tab), SC 2025, c 2

Authored By: Tim Dickson and Christina Joynt Introduction On July 2, 2026, the federal government, British Columbia and Alberta made a series of coordinated announcements intended to advance a new oil pipeline from Alberta to British Columbia’s south coast. Together, the announcements, including the Canada–British Columbia Cooperative Prosperity Agreement and Alberta’s submission of the proposed West Coast Oil Pipeline Project to the federal Major Projects Office, represent one of the most significant developments in Canadian energy infrastructure policy since the completion of the Trans Mountain Expansion Project. The announcements consist of two key components: 1. Canada-British Columbia Cooperative Prosperity Agreement: Canada and British Columbia entered into the Canada-British Columbia Prosperity Agreement, under which British Columbia agreed to participate in the routing and permitting of a new interprovincial pipeline, while Canada committed to maintaining the North Coast tanker ban, supporting Indigenous equity participation, establishing an environmental liability framework and undertaking consultation with First Nations. Second, Alberta formally submitted its proposed West Coast. 2. West Coast Oil Pipeline Project Submission: Alberta formally submitted its proposed West Coast Oil Pipeline Project to the federal Major Projects Office as a proposed Project of National Interest under the Building Canada Act. The proposal contemplates a new pipeline running from Bruderheim, Alberta to Roberts Bank in Delta, British Columbia, generally following the existing Trans Mountain corridor. Much of the public discussion has focused on the political significance of these announcements and what they mean for Canada’s energy sector. However, there are significant legal and practical issues raised for Indigenous communities. Alberta’s proposal would cross the traditional territories of approximately 90 to 125 Indigenous communities, and both Canada and Alberta have placed emphasis on Indigenous equity participation and economic partnership as part of the project’s development. These commitments warrant careful scrutiny. Opportunities for equity ownership and economic participation do not alter the Crown’s constitutional obligations. The duty to consult remains a distinct legal obligation that cannot be satisfied through economic participation. Similarly, many of the assumptions underlying Alberta’s proposal, including the final route, mitigation measures, environmental impacts and climate rationale, remain preliminary. This blog post summarizes the two announcements and highlights several legal and practical issues that are likely to shape the next phase of the proposed West Coast Oil Pipeline Project. BACKGROUND Yesterday’s announcements consisted of two closely connected developments: one intergovernmental agreement and one project submission. First, the federal government and British Columbia entered into a Canada-British Columbia Cooperative Prosperity Agreement, a broad agreement respecting major infrastructure, trade and resource development. The agreement addresses several priorities, including critical minerals, liquefied natural gas, electricity transmission, transportation infrastructure and port development. It also establishes a political framework for a new interprovincial pipeline between Alberta and British Columbia.[1] Second, Alberta formally submitted its proposed West Coast Oil Pipeline Project to the federal Major Projects Office for consideration as a Project of National Interest under the Building Canada Act.[2] The proposal contemplates a new interprovincial pipeline capable of transporting approximately one million barrels of heavy crude oil per day from Bruderheim, Alberta to a marine export terminal at Roberts Bank in Delta, British Columbia.[3] The pipeline has two potential routes that have been identified, with only small variation between them (see Figure 1 for the “original corridor” and “optimized corridor” routes). The project would be advanced through a partnership involving the Alberta Petroleum Marketing Commission, Trans Mountain Corporation and Pembina Pipeline Corporation, with Trans Mountain leading project development, construction and operations.[4] While the project remains at an early stage, Alberta estimates construction costs between $35.2 billion and $43.7 billion and proposes an accelerated timeline that could see early works begin as soon as 2027, subject to regulatory approvals.[6] THE TWO ANNOUCEMENTS: WHAT THEY DO AND WHY THEY MATTER Although announced on the same day, the two announcements operate at different levels. The Canada–British Columbia Cooperative Prosperity Agreement establishes the political and intergovernmental framework under which a new interprovincial pipeline could proceed. Alberta’s West Coast Oil Pipeline Project submission, by contrast, is the first detailed proposal for the project itself. Together, they outline not only the governments’ vision for a new west coast pipeline, but also the legal, regulatory and policy assumptions on which that vision depends. For Indigenous communities, understanding the distinction between these two documents is important. The Prosperity Agreement describes the political commitments made between governments, while Alberta’s submission provides insight into how the project is expected to proceed, including its proposed route, Indigenous participation strategy, environmental rationale and consultation framework. It is also the document that raises many of the legal and practical questions likely to shape the project’s future. 1. Canada-British Columbia Prosperity Agreement The Canada-British Columbia Prosperity Agreement establishes the political and intergovernmental framework under which the project would proceed. In particular, British Columbia acknowledges Canada’s constitutional jurisdiction over interprovincial pipelines and commits to acting in good faith through provincial routing and permitting processes, rather than seek to prevent a federally approved pipeline through litigation. In exchange, Canada agreed to: maintain the federal North Coast tanker ban; undertake early, consistent and meaningful consultation with First Nations; support Indigenous equity participation through federal loan guarantees; negotiate an economic and revenue-sharing framework with British Columbia; establish an environmental liability and emergency response fund accessible by British Columbia and First Nations; and, work cooperatively with British Columbia on permitting and approvals.[7] 2. West Coast Oil Pipeline Project Submission Unlike the Canada-British Columbia Cooperative Prosperity Agreement, which establishes the political framework for the project, Alberta’s West Coast Oil Pipeline Project submission provides the first detailed description of the proposed pipeline itself. The submission sets out Alberta’s rationale for the project, its proposed route, anticipated environmental and economic benefits, Indigenous participation strategy and proposed development timeline. The submission raises several legal and practical questions that are likely to become central as the project proceeds through consultation and regulatory review. a) The Existing Corridor Does Not Eliminate Legal or Environmental Concerns A central feature of Alberta’s proposal is that the pipeline would largely follow the existing Trans Mountain corridor. Alberta emphasizes that approximately 90% of the proposed route would utilize existing transportation or utility corridors, reducing the need for new rights-of-way and limiting additional land disturbance.[8] From a project planning perspective, this approach has obvious advantages. Existing rights-of-way, engineering information and operational experience may reduce certain construction impacts and avoid many of the political challenges that accompanied earlier proposals for a northern route. However, the submission itself demonstrates that this remains an exceptionally large infrastructure project. Alberta proposes constructing approximately 1,200 to 1,250 kilometres of new pipeline, together with approximately 11 pump stations, new storage terminals at both ends of the pipeline and a major marine export facility at Roberts Bank capable of accommodating very large crude carriers.[9] The project would also require approximately 500 megawatts of electrical capacity and expanded marine spill response infrastructure.[10] Moreover, the project will pass through the traditional territories of approximately 90-125 Indigenous communities, cross approximately 9-11 First Nation reserves in British Columbia, and terminate within Tsawwassen First Nation Treaty settlement lands.[11] Accordingly, while the use of an existing corridor may reduce certain impacts, it does not eliminate the constitutional issues that arise where Crown decisions may adversely affect Aboriginal or Treaty rights. Nor does it eliminate broader concerns regarding cumulative effects in territories that have already experienced decades of industrial development. b) Consultation has Been Promised, But Much of the Detail Remains Outstanding The submission recognizes that the project will require consultation with approximately 23 Indigenous communities in Alberta, and 85 Indigenous communities in British Columbia, and it identifies a range of priorities raised during preliminary engagement, including protection of land and marine ecosystems, water quality, fish and wildlife habitat, cultural resources, emergency preparedness, pipeline integrity and the impacts associated with large temporary workforces.[12] The submission also notes concerns identified through engagement with Alberta’s Premier’s Council on Missing and Murdered Indigenous Women and Girls and Two Spirit Plus People regarding the risks associated with transient workforces.[13] However, the submission remains preliminary in many respects. Final routing has not yet been determined. The precise list of affected Indigenous communities may change as the route selection progresses. Mitigation measures remain largely conceptual. And a great many environmental studies have yet to be completed. Throughout the submission, consultation is described as work that will occur as the project advances, rather than as a process that has already been substantially undertaken.[14] c) Economic Participation is Not the Same as Constitutional Consultation One of the most notable aspects of Alberta’s proposal is the emphasis placed on Indigenous economic participation. The submission describes Indigenous participation as a foundational component of the project and proposes opportunities for equity ownership, employment, procurement, contracting and business development.[15] These opportunities may be significant for many First Nations and reflect the broader evolution of major project development in Canada, where Indigenous ownership is increasingly viewed as an important component of economic reconciliation. However, it is important to distinguish economic participation from the Crown’s constitutional obligations. The duty to consult and, where appropriate, accommodate arises where Crown conduct may adversely affect Aboriginal and Treaty rights. It exists independently of whether a Nation ultimately supports a project, opposes it, or chooses to become an equity partner. Opportunities for ownership, contracting or employment may form part of an accommodation package in some circumstances, but they do not replace the Crown’s duty to consult. This distinction is likely to become increasingly important as governments continue to pair Indigenous equity participation with accelerated approvals for major projects. d) The Project’s Climate Case Depends on the Proposed Pathways Project The submission also places significant reliance on the proposed Pathways Project as part of its climate rationale.[16] Alberta repeatedly links the proposed pipeline with the Pathways Project, suggesting that carbon capture and storage will enable continued growth in oil sands production while substantially reducing upstream greenhouse gas emissions.[17] That assumption deserves careful scrutiny. The Pathways Project remains a proposed project. Although it has been under development for several years, it has not completed Alberta’s regulatory approval process and remains subject to ongoing regulatory review, permitting requirements and commercial negotiations. Its timing, ultimate design, and effectiveness therefore remain uncertain. To the extent that Alberta’s environmental case for the pipeline depends upon the successful implementation of the Pathways Project, those assumptions should be understood as contingent, rather than established. It is also important to distinguish what carbon capture is intended to achieve, and what it is not. The Pathways Project proposes to capture a portion of greenhouse gas emissions generated during oil sands production and permanently store those emissions underground. It does not address the greenhouse gas emissions generated when the oil transported through the pipeline is ultimately refined and combusted by end users. Nor does it eliminate many of the broader environmental effects associated with expanded oil production, pipeline construction, increased tanker traffic or cumulative industrial development. Indeed, Alberta’s submission estimates that increased oil production associated with the project could generate approximately 15.5 to 18.2 megatonnes of additional upstream greenhouse gas emissions annually between 2032 and 2041 before accounting for proposed mitigation measures.[18] The submissions argue that these emissions may be offset, in part, through carbon capture technologies, lower transportation emissions relative to rail and the displacement of higher-emitting crude in international markets.[19] That reasoning is already the subject of a vigorous scientific, policy and regulatory debate. For many Indigenous communities involved in consultation and regulatory processes, these issues likely warrant close attention. If the climate benefits of the proposed pipeline depend in significant part upon another major project that has yet to receive regulatory approval, there will likely be questions regarding how those assumptions have been incorporated into the project’s environmental assessment and the extent to which they can properly be relied upon in evaluating the pipeline’s overall environmental effects. NEXT STEPS The July 2 announcements are significant political developments, but they should not be mistaken for legal or regulatory approval of the proposed pipeline. Much of Alberta’s submission remains conceptual and many of the issues that will determine whether, and in what form, the project ultimately proceeds have yet to be addressed. Perhaps the most immediate issue is consultation. Although Alberta’s submission repeatedly emphasizes its commitment to engaging with First Nations, it also makes clear that many of the project’s defining features remain unresolved. The final route has not been selected. Environmental studies have yet to be completed. Mitigation measures remain largely conceptual. The precise list of affected First Nations may change as routing decisions are made. In many respects, the submission contemplates consultation as a process that will occur in the future, rather than one that has already meaningfully informed the project’s design. For First Nations whose Aboriginal or Treaty rights may be affected, an important question will be whether consultation can genuinely shape project planning, or whether it will occur after key strategic decisions have effectively been made. The July 2 announcements therefore mark the beginning, not the conclusion, of the legal and regulatory process. The project’s ultimate success will not depend solely on financing, engineering or political support. It will also depend on whether governments can demonstrate that the project has been planned, assessed and advanced in a manner that meaningfully addresses cumulative effects, withstands environmental scrutiny, and satisfies the Crown’s constitutional obligations to affected Indigenous communities. ———— [1] Prime Minister of Canada, Canada-British Columbia Prosperity Agreement, online: https://www.pm.gc.ca/en/news/backgrounders/2026/07/02/canada-british-columbia-cooperative-prosperity-agreement(open in a new tab) [2] Alberta Government, West Coast Oil Pipeline Project: Plain Language Summary of the Submission by the Government of Alberta to the Major Projects Office for Listing Under the Building Canada Act, online: https://open.alberta.ca/dataset/a529e3da-6368-43d7-af43-74b1773be517/resource/c6269884-58fd-40fa-bb52-01d0c0360bc2/download/west-coast-oil-pipeline-project-submission-to-mpo-plain-language-summary.pdf(open in a new tab) at p. 4. [3] Alberta Government, West Coast Oil Pipeline Project: Plain Language Summary of the Submission by the Government of Alberta to the Major Projects Office for Listing Under the Building Canada Act, online: https://open.alberta.ca/dataset/a529e3da-6368-43d7-af43-74b1773be517/resource/c6269884-58fd-40fa-bb52-01d0c0360bc2/download/west-coast-oil-pipeline-project-submission-to-mpo-plain-language-summary.pdf(open in a new tab) at p. 4-5. [4] Alberta Government, West Coast Oil Pipeline Project: Plain Language Summary of the Submission by the Government of Alberta to the Major Projects Office for Listing Under the Building Canada Act, online: https://open.alberta.ca/dataset/a529e3da-6368-43d7-af43-74b1773be517/resource/c6269884-58fd-40fa-bb52-01d0c0360bc2/download/west-coast-oil-pipeline-project-submission-to-mpo-plain-language-summary.pdf(open in a new tab) at p. 4, 11. [5] Alberta Government, West Coast Oil Pipeline Project: Submissions by the Government of Alberta to the Major Projects Office for Listing Under the Building Canada Act, online: https://open.alberta.ca/dataset/a529e3da-6368-43d7-af43-74b1773be517/resource/6e43e4b4-3dfe-4c28-b723-116b6cab19ea/download/west-coast-oil-pipeline-project-submission-to-mpo.pdf(open in a new tab) at p. 12. [6] Alberta Government, West Coast Oil Pipeline Project: Plain Language Summary of the Submission by the Government of Alberta to the Major Projects Office for Listing Under the Building Canada Act, online: https://open.alberta.ca/dataset/a529e3da-6368-43d7-af43-74b1773be517/resource/c6269884-58fd-40fa-bb52-01d0c0360bc2/download/west-coast-oil-pipeline-project-submission-to-mpo-plain-language-summary.pdf(open in a new tab) at p. 12. [7] Prime Minister of Canada, Canada-British Columbia Prosperity Agreement, online: https://www.pm.gc.ca/en/news/backgrounders/2026/07/02/canada-british-columbia-cooperative-prosperity-agreement(open in a new tab) [8] Alberta Government, West Coast Oil Pipeline Project: Plain Language Summary of the Submission by the Government of Alberta to the Major Projects Office for Listing Under the Building Canada Act, online: https://open.alberta.ca/dataset/a529e3da-6368-43d7-af43-74b1773be517/resource/c6269884-58fd-40fa-bb52-01d0c0360bc2/download/west-coast-oil-pipeline-project-submission-to-mpo-plain-language-summary.pdf(open in a new tab) at p. 5-6. [9] Alberta Government, West Coast Oil Pipeline Project: Plain Language Summary of the Submission by the Government of Alberta to the Major Projects Office for Listing Under the Building Canada Act, online: https://open.alberta.ca/dataset/a529e3da-6368-43d7-af43-74b1773be517/resource/c6269884-58fd-40fa-bb52-01d0c0360bc2/download/west-coast-oil-pipeline-project-submission-to-mpo-plain-language-summary.pdf(open in a new tab) at p. 5-6. [10] Alberta Government, West Coast Oil Pipeline Project: Plain Language Summary of the Submission by the Government of Alberta to the Major Projects Office for Listing Under the Building Canada Act, online: https://open.alberta.ca/dataset/a529e3da-6368-43d7-af43-74b1773be517/resource/c6269884-58fd-40fa-bb52-01d0c0360bc2/download/west-coast-oil-pipeline-project-submission-to-mpo-plain-language-summary.pdf(open in a new tab) at p. 5. [11] Alberta Government, West Coast Oil Pipeline Project: Plain Language Summary of the Submission by the Government of Alberta to the Major Projects Office for Listing Under the Building Canada Act, online: https://open.alberta.ca/dataset/a529e3da-6368-43d7-af43-74b1773be517/resource/c6269884-58fd-40fa-bb52-01d0c0360bc2/download/west-coast-oil-pipeline-project-submission-to-mpo-plain-language-summary.pdf(open in a new tab) at p. 7. [12] Alberta Government, West Coast Oil Pipeline Project: Plain Language Summary of the Submission by the Government of Alberta to the Major Projects Office for Listing Under the Building Canada Act, online: https://open.alberta.ca/dataset/a529e3da-6368-43d7-af43-74b1773be517/resource/c6269884-58fd-40fa-bb52-01d0c0360bc2/download/west-coast-oil-pipeline-project-submission-to-mpo-plain-language-summary.pdf(open in a new tab) at p.13-15. [13] Alberta Government, West Coast Oil Pipeline Project: Plain Language Summary of the Submission by the Government of Alberta to the Major Projects Office for Listing Under the Building Canada Act, online: https://open.alberta.ca/dataset/a529e3da-6368-43d7-af43-74b1773be517/resource/c6269884-58fd-40fa-bb52-01d0c0360bc2/download/west-coast-oil-pipeline-project-submission-to-mpo-plain-language-summary.pdf(open in a new tab) at p. 14. [14] Alberta Government, West Coast Oil Pipeline Project: Plain Language Summary of the Submission by the Government of Alberta to the Major Projects Office for Listing Under the Building Canada Act, online: https://open.alberta.ca/dataset/a529e3da-6368-43d7-af43-74b1773be517/resource/c6269884-58fd-40fa-bb52-01d0c0360bc2/download/west-coast-oil-pipeline-project-submission-to-mpo-plain-language-summary.pdf(open in a new tab) at p. 6-8, 13, 15. [15] Alberta Government, West Coast Oil Pipeline Project: Plain Language Summary of the Submission by the Government of Alberta to the Major Projects Office for Listing Under the Building Canada Act, online: https://open.alberta.ca/dataset/a529e3da-6368-43d7-af43-74b1773be517/resource/c6269884-58fd-40fa-bb52-01d0c0360bc2/download/west-coast-oil-pipeline-project-submission-to-mpo-plain-language-summary.pdf(open in a new tab) at p. 14. [16] CBC News, How the Pathways carbon storage project would work, if built, online: https://www.cbc.ca/news/canada/calgary/alberta-mou-pathways-carbon-storage-9.7211543(open in a new tab). [17] Alberta Government, West Coast Oil Pipeline Project: Plain Language Summary of the Submission by the Government of Alberta to the Major Projects Office for Listing Under the Building Canada Act, online: https://open.alberta.ca/dataset/a529e3da-6368-43d7-af43-74b1773be517/resource/c6269884-58fd-40fa-bb52-01d0c0360bc2/download/west-coast-oil-pipeline-project-submission-to-mpo-plain-language-summary.pdf(open in a new tab) at p. 10, 16-17. [18] Alberta Government, West Coast Oil Pipeline Project: Plain Language Summary of the Submission by the Government of Alberta to the Major Projects Office for Listing Under the Building Canada Act, online: https://open.alberta.ca/dataset/a529e3da-6368-43d7-af43-74b1773be517/resource/c6269884-58fd-40fa-bb52-01d0c0360bc2/download/west-coast-oil-pipeline-project-submission-to-mpo-plain-language-summary.pdf(open in a new tab) at p. 16. [19] Alberta Government, West Coast Oil Pipeline Project: Plain Language Summary of the Submission by the Government of Alberta to the Major Projects Office for Listing Under the Building Canada Act, online: https://open.alberta.ca/dataset/a529e3da-6368-43d7-af43-74b1773be517/resource/c6269884-58fd-40fa-bb52-01d0c0360bc2/download/west-coast-oil-pipeline-project-submission-to-mpo-plain-language-summary.pdf(open in a new tab) at p. 16-17.

Authored By: Tim Dickson and Soudeh Alikhani The Supreme Court of British Columbia has approved the settlement of a class action brought on behalf of 3,458 former female WestJet flight attendants who worked for the airline between April 4, 2014 and February 28, 2021. The Court’s decision is available here: Lewis v. WestJet Airlines Ltd., 2026 BCSC 1547 (Settlement Approval Decision). The settlement brings to an end a decade of difficult and heavily contested litigation. The case survived an application to strike, an appeal and a contested certification process. It involved thousands of documents, extensive examinations and expert evidence from both sides. The parties reached a settlement shortly before a trial that was scheduled to last 38 days. The Court described the case as having been “hard fought at every turn”. Its achievements should not be understated. But to understand those achievements, and the settlement itself, it is important to understand the unusual claim at the heart of the case. This was not a conventional harassment case The class action was not a collection of individual claims for workplace harassment or sexual assault. It did not ask the Court to decide whether particular incidents had occurred or to compensate class members for the personal harm caused by those incidents. It was a class-wide breach-of-contract case. The action alleged that WestJet had made a contractual promise to provide its flight attendants with an effective anti-harassment program, and that it had failed to fulfil that promise. The alleged promise included measures such as appropriate training, safe reporting channels, proper investigations and meaningful responses to complaints. The claim was systemic. Every class member was alleged to be entitled to the benefit of that program, whether or not she had personally experienced or reported harassment. The alleged wrong was the failure to provide a common workplace benefit promised to all class members. That distinction explains both the remedy sought in the lawsuit and the way the settlement funds will be distributed. Each eligible class member is entitled to the same share based on her membership in the class. She does not have to prove that she experienced harassment or suffered personal harm. As Justice Hughes explained, some objections reflected a misunderstanding of the nature of the certified claim and the significant hurdles it faced (Settlement Approval Decision, para 32). The Court emphasized that the litigation “was not about individual allegations of sexual assault and not intended to provide compensation for personal injury.” It was limited to a contractual claim and a novel theory for recovering WestJet’s alleged cost savings. A claim without prior Canadian precedent When the action began, there was no Canadian precedent for a class action framed in this way. The case asked whether an employer’s commitments about its workplace program could form part of its employment contracts; if so, what the program required; whether WestJet had failed to deliver the promised program; whether it had saved money as a result; and whether those savings could be recovered for the class. The proposed remedy was as novel as the claim itself. Rather than seeking compensation for individual experiences of harassment, the plaintiff sought to recover the costs WestJet allegedly saved by failing to provide the anti-harassment program it had promised, after deducting what WestJet actually spent on the measures it did provide. A simple hypothetical illustrates the theory. Suppose an employer promised to provide annual training at a cost of $1 million but provided that training only once every two years. The employer would have saved an average of $500,000 per year. The plaintiff’s position was that cost savings of this kind should be recovered for the class. This proposed remedy, known as disgorgement, was untested in this context. The Court did not decide whether WestJet had made the alleged contractual promise, whether it had broken that promise or whether its alleged cost savings could be recovered. WestJet hotly disputed the existence of a contractual promise and denied liability. The case settled before trial without any admission or finding of wrongdoing. Even so, what the case achieved before settlement was significant. The claim survived WestJet’s application to strike and the resulting appeal. It was then certified as a class action following another contested appeal. At each stage, WestJet argued that the claim should not be permitted to proceed in the form proposed. Surviving those challenges did not prove the claim. It did, however, allow the plaintiff to take a previously unrecognized class-wide contractual theory toward trial. The courts permitted common questions about the alleged promise, its breach, WestJet’s alleged cost savings and the available remedies to be decided for the class as a whole. That opened a legal path that had not previously existed in a Canadian class proceeding. It demonstrated that, in appropriate circumstances, an employer’s workplace commitments may have legal significance beyond the words of an internal policy, and may support a contractual claim on behalf of an entire class of employees. What the settlement provides WestJet will pay $4.5 million, inclusive of legal fees, litigation expenses, taxes, administration costs and the Representative Plaintiff’s honorarium. The Court estimated that approximately $1.61 million would remain for class members, or approximately $465 for each eligible member, subject to the settlement’s distribution process. The payment is only one part of the result. WestJet must also retain and fund an independent, qualified third party to assess: the prevalence of workplace harassment; the extent to which harassment may go unreported; the barriers employees may face in deciding whether to report it; the effectiveness of WestJet’s reporting and response systems; and how those systems could be improved. A summary of the assessment’s findings will be shared with employees. That assessment is important because complaint records tell only part of the story. A low number of formal complaints may mean there were few incidents. It may also mean that employees did not feel able to report what occurred. Fear of retaliation, concern about career consequences, uncertainty about the process or a lack of confidence in the response can all affect whether someone comes forward. The assessment will look beyond the number of reported complaints. It will examine present workplace conditions, underreporting and the effectiveness of the systems intended to prevent and address harassment. That creates an opportunity for independent scrutiny, greater transparency and further workplace improvement. This is also an outcome the class could not have obtained through a judgment in the class action. Even if the claim had succeeded at trial, the remedies sought through the certified contractual claim were monetary. The Court was not being asked to order WestJet to conduct an independent workplace assessment or share its findings with employees. The settlement therefore achieved forward-looking relief that was not otherwise available through the claim as framed. The settlement’s release also has an important limit. It does not release tort claims against natural persons for sexual assault, sexual battery or other intentional sexual misconduct. To the extent such claims exist and are not otherwise barred by law, class members retain the right to pursue them against the individuals involved. The risks were real Certification allowed the class action to proceed. It did not establish that WestJet had breached a contract or that the class was entitled to damages. At trial, the plaintiff would still have had to prove what WestJet contractually promised, what an effective anti-harassment program required over a period of almost seven years, how WestJet’s practices fell short at different points in that period and what costs, if any, WestJet saved as a result. The remedy was legally uncertain. There was no assurance that the Court would order WestJet to give up any alleged cost savings, even if a breach were established. There were also major differences between the parties’ expert evidence about how those savings could be calculated (Settlement Approval Decision, paras. 23-24). The evidence changed over time as well. As the Court noted, shortly after the action began, WestJet retained Ernst & Young to review its harassment-prevention and response practices and later made material improvements in response to that review (Settlement Approval Decision, para 25). The plaintiff learned about the review and resulting changes through discovery as the parties prepared for trial. Those changes were positive, but they made it more difficult to prove a continuing breach throughout the entire class period. Proceeding to trial would have required many more months of work, followed by the possibility of appeals. There was a genuine risk that the class could recover less than the settlement – or nothing at all (Settlement Approval Decision, paras. 51-52). The settlement replaced those risks with an immediate monetary recovery and an independent workplace assessment. The approval was not automatic or uncontested. The Court independently assessed the settlement over approximately two and a half days of hearing, spread across several appearances. Thirteen class members filed objections, and several were represented by independent legal counsel. The Court heard their concerns about notice, compensation, the release, the workplace assessment, legal fees and the proposed distribution of the settlement funds. It required additional notice to the class and considered revisions made in response to concerns raised during the process. After that scrutiny, the Court approved the settlement as fair, reasonable and in the best interests of the class. Justice Hughes went further, describing the monetary compensation and the behaviour change achieved through the workplace assessment as “an excellent result”, particularly given the significant risk that the class might recover nothing (Settlement Approval Decision, para 52). Class members helped strengthen the settlement Some class members objected to aspects of the proposed settlement, including the amount of compensation, the breadth of the release and the level of transparency surrounding the workplace assessment. Those concerns were part of the approval process and led to meaningful changes. The release was revised, class members received fresh notice and WestJet agreed that employees would receive a summary of the independent assessment. The Court then considered the settlement in its revised form, together with the objections and the different views expressed by class members. For class members who experienced harassment or assault, a payment tied to a systemic contractual claim may feel far removed from the harm they experienced. The absence of an admission of wrongdoing may also be disappointing. Those reactions are understandable. They can coexist with a fair assessment of what this particular case was capable of achieving. Access to justice – and the trade-off The case was built around the idea that the legal response to workplace harassment is often reactive. It usually requires an individual to experience harassment and pursue a claim after the harm has already occurred. This case took a different approach. It focused on the workplace program WestJet allegedly promised to provide to every class member. The claim asked whether WestJet failed to provide that program and, if so, whether it should give up any money it saved as a result. That approach made it possible to bring one claim on behalf of thousands of employees without requiring each class member to prove that she had experienced harassment or suffered harm. Class counsel knew from the outset that this approach could result in a modest damage award. JFK Law took the case on despite that risk because its importance was not measured only by the amount of compensation. It mattered because it sought to place accountability where it belonged: on the employer’s obligation to provide an effective anti-harassment program, rather than on individual women having to prove that they had been harmed before the law would respond. The trade-off was that, because the case focused on the program as a whole, it could not provide compensation for the individual harm some women experienced. The case was pursued on a contingency basis for approximately ten years. Class members did not have to finance the litigation, and class counsel assumed the risk that, if the case failed, counsel would not be paid. Without a class proceeding and contingency funding, a claim of this size and novelty would not have been realistically possible. The Court independently reviewed and approved class counsel’s fee after considering the length, complexity and substantial risk of the case. Counsel recorded more than 10,000 hours over ten years. The approved fee represented approximately 41% of the value of that time (Settlement Approval Decision, para. 49). Recognizing the full achievement No settlement can provide every form of justice that every class member may seek. This settlement did not decide individual allegations, compensate class members for personal injuries or produce an admission of liability. It should not be presented as though it did. Doing so would mischaracterize the case and risk diminishing the distinct experiences and harms of individual class members. But the achievements of this different kind of case should not be minimized. The litigation advanced a contractual theory for which there was no prior Canadian class-action precedent, survived repeated challenges, obtained compensation for thousands of women and secured an independent assessment of harassment and barriers to reporting. Those achievements should be understood within the boundaries of the claim – but they remain significant. Recognizing the Representative Plaintiff and the class The case required sustained courage and an extraordinary commitment from the Representative Plaintiff. For approximately ten years, she carried the responsibilities of representing thousands of women through contested applications, appeals, certification, document production, extensive examinations, expert evidence, preparation for trial and difficult settlement negotiations. The Court recognized the substantial time she devoted to the case, as well as the personal and emotional toll of revisiting her own trauma and the experiences of other class members. Her courage in bringing the claim and her sustained commitment to the litigation deserve recognition. Other class members also contributed by sharing their experiences, participating in the process and raising concerns about the proposed settlement. Their involvement ensured that different perspectives were heard and contributed to the final terms. A proper understanding of the claim does not diminish its legacy. It allows that legacy to be assessed on its own terms: as a novel and difficult class action that opened a new legal path, produced both monetary and systemic relief, and resulted in an independent examination of a major employer’s current workplace systems. Those are meaningful achievements, made possible by the courage and commitment of the Representative Plaintiff and the participation of the class.

Authored By: Ivan da Fonseca and Jane Fallis Cooper Introduction How did the Indian Act historically treat Métis identity, and how do the government’s actions and intentions in the 1880s continue to affect registration under the Indian Act today? Those questions are at the heart of the decades-long struggle by Ms. Sharon Bocchini and her mother, Ms. Bertha Isbister, who have since passed away, to obtain Indian status based on their ancestor, St. Pierre Cook. St. Pierre was a member of the Sandy Bay Band in Manitoba, and he allegedly lost his status as a minor when his grandfather withdrew from treaty in 1886. The case continues today in the name of Sharon’s son, Raymond Bocchini, in his capacity as trustee of his mother’s estate. On October 22, 2026, the Supreme Court of Canada granted leave(open in a new tab) to appeal from the Ontario Court of Appeal decision(open in a new tab) which had denied status to the descendants of St. Pierre. This divided Court of Appeal decision raised significant questions about the interpretation of historical versions of the Indian Act, including the nature of the government’s actions and intentions toward Métis people in the 19th century. Historical Background In response to the Métis-led resistance in what is now Manitoba and in exchange for the extinguishment of “the Indian Title”, the government allotted 1.4 million acres to the children of the Métis through the Manitoba Act.[1] Due to the government’s underestimation of the number of children entitled to land, amid an implementation marred by neglect and delays, it was later provided that these Métis would instead be given scrip, redeemable for $240 or 240 acres of land.[2] The Indian Act, introduced in 1876, excluded Métis from its scope, defining them as those who had received or were allotted lands or money scrip.[3] In 1879, the government allowed Métis who had previously adhered to treaty and would have been subject to the Indian Act to change their status by withdrawing from treaty and taking scrip. The case concerns the appropriate interpretation of this withdrawal provision, s. 13 of the Indian Act. Case Background Records indicate that, when St. Pierre Cook was approximately 17 years old, his grandfather and head of his family, Mr. Baptiste Spence Sr., withdrew himself and allegedly his grandson St. Pierre, from Treaty No. 1. St. Pierre also later received Métis scrip. Canada argues that these events resulted in the loss of status for St. Pierre and, consequently, his descendants, including Sharon and Bertha. Sharon’s estate argues that St. Pierre was a minor at the time and that the law in force in 1886 did not permit the withdrawal of treaty rights by the head of a household. Sharon and Bertha’s entitlement to status has been reconsidered several times over the past two decades. They were initially denied registration in 2006, later registered in 2007, then removed from the Indian Register after the Registrar reviewed the historical record in 2009. They formally protested the Registrar’s decision in 2011 and, after those protests were denied in 2014, appealed to the Ontario Superior Court. On May 4, 2021, Brown J. made an order, on consent, setting aside the decisions and remitting them to the Registrar for reconsideration and further investigation. The Registrar’s new decision was issued on November 16, 2021. He found that Mr. Baptiste Spence Sr. had the power to legally withdraw St. Pierre, then aged 17, as he was the head of the family by virtue of the Indian Act as it existed in 1888. He also rejected evidence that was alleged to be indicative of scrip fraud. Sharon and Bertha appealed this decision. Ontario Superior Court Decision In 2024 ONSC 4181(open in a new tab), the Ontario Superior Court ruled in favour of Sharon and Bertha. The appeal judge found that the Registrar had relied on the wrong version of the Indian Act and that the legislation in force in 1886, as opposed to the 1888 version, did not clearly provide for the automatic withdrawal of minor children when a head of household withdrew from treaty. The Court also identified a palpable and overriding error committed by the Registrar regarding St. Pierre’s age and criticized the Registrar’s near total disregard of the evidence regarding the likelihood of scrip fraud. Ontario Court of Appeal Majority In 2026 ONCA 55(open in a new tab), a divided Ontario Court of Appeal overturned that decision and ruled in favour of Canada. The 2–1 majority found that despite the Registrar’s mistaken reliance on the 1888 version of the Indian Act, he reached the correct interpretation of s. 13 of the Indian Act as it applied in 1886.[4] The basic question of this appeal was framed as whether the decision of the head of a family to withdraw from treaty resulted in the withdrawal of dependent family members.[5] Statutory interpretation According to the majority, the predecessor of s. 13 in the 1876 Indian Act[6] was enacted with the purpose of regularizing the distinction between Métis and First Nations, where the former received land allotments – and later, money scrip – through the Manitoba Act and the latter received treaty benefits, but neither should receive both. An amendment in 1879 allowed Métis to withdraw from treaty and participate in the Manitoba Act land distribution. In 1884, Parliament removed the requirement that applicants repay the treaty benefits they had received.[7] The majority considered that this withdrawal provision pursued two purposes, which were both advanced by interpreting s. 13 as allowing a head of the family to withdraw the entire family. For the Métis, it served to facilitate access to the benefits of the Manitoba Act. Children would therefore have to be withdrawn with their parents since the children were the ones entitled to the benefits under the Manitoba Act.[8] For the government, it served to encourage enterprise by those capable of supporting themselves, thereby lessening the financial burden on the state. That goal would not be achieved if Métis children remained entitled to treaty annuities despite their parents’ withdrawal.[9] Regarding the context of the provision, the majority relied heavily on the Manitoba Act. It considered how Parliament dealt with Métis in family groups[10] and viewed the family structure as a unit in which one or more persons had authority over the others.[11] It also considered the absence of an age restriction on receiving land, which would create an “anomalous distinction” between Métis if those admitted to treaty could not be withdrawn prior to reaching the age of 18.[12] Further, an age restriction on withdrawal would be problematic given that the government had set a deadline by which all eligible Métis had to apply for scrip.[13] Findings of fact As for the appeal judge’s findings regarding the Registrar’s analysis of the evidence, the majority concluded that the errors identified were not palpable and overriding and did not warrant interference by the appeal judge.[14] First, the majority found that the Registrar did consider the evidence regarding the likelihood of scrip fraud. Even though the improvident sale of scrip by St. Pierre to a speculator did “raise questions”, the Registrar was entitled to conclude that St. Pierre and his grandfather were not victims of fraud.[15] Second, the error committed by the Registrar regarding the age of St. Pierre did not affect the outcome of the decision.[16] Ontario Court of Appeal Dissent George J.A., dissenting, disagreed on the interpretation of s. 13 of the Indian Act 1886 and the conclusion that St. Pierre Cook was automatically withdrawn from treaty upon the withdrawal of his grandfather, Baptiste Spence Sr. He agreed with the majority on the issues of scrip fraud and St. Pierre’s age.[17] The dissent’s main disagreement concerned the objective of the withdrawal provision, which was not, in his view, tethered to the objective of the Manitoba Act. On the contrary, the legislative evolution of the withdrawal provision reveals that its objectives were a moving target.[18] The initial purpose of the withdrawal provision “was to allow ‘half-breeds’ to become ‘whites’, and to reduce the financial burden on the government by eliminating treaty benefits to those ‘capable of taking care of themselves’”.[19] However, the 1884 amendment which introduced formality requirements sought to impose procedural controls and prevent imprudent withdrawals, which were believed to enable people to waste scrip money or land, fraudulently return to treaty and repeat the process to collect both benefits. These two seemingly discordant objectives coexisted, and the court could not favour one over the other to improve the efficiency of the Manitoba Act.[20] It was also unclear whether withdrawals from treaty would have facilitated implementation of the Manitoba Act given that no evidence reveals that any significant number of people eligible for land grants were under treaty at all. [21] Further, the deadlines to apply for scrip mentioned by the majority were extended several times[22] and not strictly enforced[23]. According to the dissenting judge, the purpose of the withdrawal provision should accord with the Indian Act’s protection of treaty entitlements. Considering the “aggressively paternalistic” nature of that Act, Parliament could hardly have intended to allow minors to opt out of their entitlements and purportedly necessary protections or to allow parents to make such decisions for their children.[24] The text of the provision, such as the requirements of a signature, two witnesses, certification on oath by the witnesses, and the presence of someone with authority, must be read as connoting a sense of legal capacity of those withdrawing from treaty, which supports the interpretation of an age restriction.[25] It was also noted that several sections of the Indian Act at the time relied on the age of 21 as a threshold for important decisions, including enfranchisement, which was the legal process for an Indian to relinquish their status.[26] Lastly, and importantly, the dissenting judge found that, if the provision were found to be ambiguous, any ambiguity should be resolved in favour of preserving Aboriginal and treaty rights. Impact of this Case This appeal is significant because it concerns the circumstances in which treaty rights and Indian status can be lost and how the courts should interpret the government’s historical intentions regarding Indigenous peoples. Many families continue to be affected by historical processes such as enfranchisement, treaty withdrawal, and the issuance of Métis scrip. The Supreme Court’s decision may provide guidance on how courts should assess those historical events, including the weight which courts should give to the government’s then-prevailing objectives of reducing the number of people with Indian status and reducing the financial burden of its treaty obligations. The case may be particularly important because it concerns a minor. The Court will have an opportunity to consider whether a child could lose treaty rights and their ability to be a status Indian because of decisions made by another family member. More broadly, the decision may clarify the principle that legislation affecting Indigenous peoples should be interpreted in a manner that protects, rather than limits, Aboriginal and treaty rights where the law is ambiguous.   [1] Bocchini Estate v. Canada (Attorney General), 2026 ONCA 55, para 7. See also Manitoba Metis Federation Inc. v. Canada, 2013 SCC 14, paras 19-39 [2] Bocchini Estate, paras 7 and 98, citing Order-in-Council dated April 20, 1885. [3] The Indian Act, 1876, S.C. 1876, c. 18, s. 3(3)(e); The Indian Act, S.C. 1951, c. 29, s.12(1)(a)(ii); Indian Act, 1985, s. 6(1)(a). [4] Bocchini Estate, para 32. [5] Bocchini Estate, para 4. [6] The Indian Act, 1876, S.C. 1876, c. 18, s. 3(3)(e) [7] Bocchini Estate, para. 39. [8] Bocchini Estate, para. 41-42. [9] Id. [10] Bocchini Estate, para 45. [11] Bocchini Estate, para 46. [12] Bocchini Estate, para 48-49. [13] Bocchini Estate, para. 50 [14] Bocchini Estate, para 61. [15] Bocchini Estate. paras 63-69. [16] Bocchini Estate, para. 77. [17] Bocchini Estate, para. 84. [18] Bocchini Estate, para 110-111. [19] Bocchini Estate, para 113. [20] Bocchini Estate, para 121. [21] Bocchini Estate, para. 119. [22] Bocchini Estate, para 98. [23] Bocchini Estate, para 120. [24] Bocchini Estate, para 126. [25] Bocchini Estate, para 124-127. [26] Bocchini Estate, para 136, citing The Indian Act, 1886, s. 83.

Authored by By Sara Mainville, Verukah Poirier and Bryce Lansdell Introduction I. Overview On March 30, 2026, the Canadian Human Rights CHRT (“CHRT”) issued a letter‑decision approving, without condition, the Ontario Final Agreement on Long‑Term Reform of the First Nations Child and Family Services Program (the “Ontario Final Agreement” or “OFA”). Full written reasons will follow. The CHRT issued its decision prior to the end of this fiscal year in letter form in order to avoid significant prejudice First Nations children, families, and First Nations in Ontario that would result from further delay in receiving written reasons. While the decision is expressly described as a summary, it is binding and provides authoritative guidance on the scope of the CHRT’s orders, the interpretation of the OFA, and the continuing nature of Canada’s human rights obligations. II. Approval of the Ontario Final Agreement The CHRT granted the joint motion brought by Canada, Chiefs of Ontario (“COO”), and Nishnawbe Aski Nation (“NAN”), approving the OFA without condition for Ontario. Crucially, the CHRT confirmed that its forthcoming reasons will include the interpretation and explanations of the OFA provided by the parties who negotiated it—namely Canada, COO, and NAN—to resolve ambiguity and ensure the Agreement operates in a manner consistent with the CHRT’s remedial orders. The CHRT rejected calls to reopen negotiations, concluding that further delay would undermine urgently needed reform and disregard the decisions made by Ontario Chiefs-in-Assembly, exercising their authority over matters affecting their children. III. Self‑Determination as a Central Feature of the CHRT’s Analysis Self‑determination occupies a central role in the CHRT’s approval of the OFA. Throughout the decision, the CHRT situates the OFA within a broader legal and historical context marked by colonial displacement of First Nations authority over their children. The CHRT reaffirmed its long‑standing finding that the mass removal of First Nations children from their families, communities, and Nations constitutes the gravest harm addressed by these proceedings.[4] The OFA was approved because it meaningfully responds to that harm by returning decision‑making authority to First Nations, particularly in areas relating to prevention and community‑based solutions. The CHRT emphasized that the right to self‑determination is not merely a policy objective, but a fundamental human right recognized in international law and affirmed repeatedly in the CHRT’s own jurisprudence.[5] In approving the OFA, the CHRT accepted that First Nations in Ontario—acting through their representative political bodies—have chosen to exercise that right by requesting the implementation of the Agreement for their children. The CHRT expressly rejected the notion that individual and collective rights are in tension in this context. Instead, it reaffirmed that First Nations children’s individual rights are inseparable from their collective rights to culture, family, and Nationhood, a principle that aligns with the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) and that allows individuals to be represented by their Chiefs.[6] IV. Rejecting Colonial Conceptions of the “Best Interests of the Child” In language consistent with its earlier decisions, the CHRT again critiqued the historically colonial application of the “best interests of the child” principle, observing that it has too often been used to justify external control, assimilation, and removal rather than protection.[7] The CHRT reaffirmed that the best interests of First Nations children must be understood and applied through an Indigenous lens, grounded in the knowledge, laws, and priorities of their own communities.[8] The OFA was approved because it reflects this understanding by enabling First Nations to shape prevention services, determine funding allocations, and adapt services to their own circumstances. As the CHRT noted, reconciliation in this context requires moving away from systems that presume state superiority in child‑rearing decisions and toward structures that recognize First Nations as the rightful decision‑makers for their own children.[9] V. Substantive Equality and Differentiated Solutions The CHRT grounded its approval of the OFA in the principle of substantive equality, emphasizing that identical treatment is insufficient where communities face distinct historical, geographic, and socio‑economic circumstances.[10] This principle informed several key aspects of the decision: The CHRT’s acceptance that a region‑specific agreement may proceed independently of national reform; CHRT’s insistence that Canada’s obligations endure beyond the OFA’s expiry; and The CHRT’s decision to exempt Georgina Island First Nation and Taykwa Tagamou Nation from the OFA’s application. In respect of those two Nations, the CHRT found that imposing the OFA despite their objections would undermine both substantive equality and self‑determination.[11] Instead, Canada is required to develop interim, Nation‑specific solutions that are no less generous than existing CHRT orders, pending longer‑term arrangements. VI. The Cease‑and‑Desist Order Is Permanent A core element of this decision is the CHRT’s unequivocal confirmation that its order that Canada eliminate discrimination against First Nations children and prevent its recurrence, remains permanent, injunction‑like, and fully enforceable. The CHRT rejected any suggestion that the OFA replaces or extinguishes that order. While the OFA satisfies the CHRT’s remedial requirements for Ontario during its term, Canada’s obligation to eliminate systemic discrimination and prevent its recurrence survives the Agreement.[12] The CHRT reiterated that Canada cannot contract out of its obligations under the Canadian Human Rights Act and that enforcement mechanisms—including recourse to the Federal Court—remain available to ensure compliance.[13] VII. Impact on interim CHRT Orders The OFA supersedes all interim remedial orders of the CHRT in Ontario, including actuals funding applications for Capital Assets, Prevention, Post-Majority Support Services, and First Nations Representative Services on-reserve. A. CHRT 41 Regarding Capital Assets (CHRT 41), for any applications in which solely feasibility funding has been approved as of the Effective Date, any requests for funding in design, construction, and completion phases will be processed under the OFA capital approvals process. For projects with approved design funding as of the Effective Date, subsequent requests for construction and completion funding will continue to be assessed under the 2021 CHRT 41 approval process and will not be subject to the OFA “Priority Ranking Framework” capital process. However, regardless of which process is used, any funding approved by ISC on or after the Effective Date will be drawn from the OFA’s capital amount of $455 million, rather than a separate actuals funding stream.[14] The OFA does not impact Jordan’s Principle, consequently, Jordan’s Principle capital will continue to operate under the existing CHRT 41 actuals process. B. First Nations Representative Services The OFA supersedes CHRT orders requiring actuals funding for First Nations Representative Services (“FNRS”) on-reserve. After the Effective date, First Nations will no longer be eligible to submit applications for actuals funding but will receive funding representing the highest annual amount of FNRS funding received over five fiscal years, from fiscal year 2019-2020 to fiscal year 2023-2024, adjusted for inflation and population growth. The OFA does not address FNRS funding off-reserve, which Canada, in a separate Trilateral Agreement, has agreed to fund at actuals until March 31, 2027.[15] VIII. Conclusion The approval of the Ontario Final Agreement marks a significant moment in the long‑running First Nations Child and Family Caring Society v. Attorney General of Canada proceedings before the Canadian Human Rights Tribunal. It enables immediate implementation of long‑term reform for First Nations child and family services in Ontario while preserving the CHRT’s core findings, principles, and permanent orders. Above all, the decision affirms that self‑determination, substantive equality, and accountability are not aspirational concepts, but binding legal principles shaping Canada’s obligations to First Nations children, families, and Nations—now and into the future. Footnotes: First Nations Child and Family Caring Society et al. v. Canada (Attorney General), March 30, 2026 (“Decision”); “Purpose for a Letter-decision on the join motion for the approval of the OFA,” p. 1 Decision; “Decision” and “Further Orders,” pgs. 6 and 13 Decision; “Decision,” p. 5-6 First Nations Child and Family Caring Society et al. v. Canada (Attorney General), 2018 CHRT 4 at paras 47, 133; 2019 CHRT 39 at para 13 Decision, “Self‑determination and human rights,” p. 4 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295 (2007), preamble Decision, “The Nishnawbe Aski Nation called on the CHRT to give peace a chance and we agree,” p. 2; see also 2018 CHRT 4 Decision, “Decision,” p. 6 Decision, “The Nishnawbe Aski Nation called on the CHRT to give peace a chance and we agree”; see also Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12 First Nations Child and Family Caring Society et al. v. Canada (Attorney General), 2016 CHRT 2 at paras 403, 455 “Georgina Island First Nation” and “Taykwa Tagamou First Nation” pgs. 12-13 Decision; “The systemic racial discrimination must end permanently,” p. 10; First Nations Child and Family Caring Society et al. v. Canada (Attorney General), 2025 CHRT 6 at paras 66–67 Canadian Human Rights Act, RSC 1985, c H‑6, s 57 Final Agreement on Long-Term Reform of the First Nations Child and Family Services Program in Ontario, Chiefs of Ontario, Nishnawbe Aski Nation & Attorney General of Canada, 26 February 2025, Appendix 11 See 2018 CHRT 4; 2021 CHRT 41; 2022 CHRT 8.

Authored By: Jeff Langlois and Soudeh Alikhani Introduction The Supreme Court of Canada’s recent decision in Democracy Watch v. Canada (Attorney General)[1] brings renewed focus to a familiar feature of administrative statutes: provisions known as “privative clauses,” which seek to limit court oversight of the legality of actions and decisions taken by statutory bodies such as administrative boards and tribunals. The question is: how far can legislatures go in restricting judicial review before they interfere with the courts’ constitutionally guaranteed supervisory role? The Supreme Court’s answer is clear: privative clauses that purport to limit what the Court called “legality review” are unconstitutional, and all aspects of an administrative decision are potentially subject to judicial review where they bear on legality.[2] This ruling has practical consequences for legislatures that draft privative clauses, regulators and governmental decision-makers that operate under them, and affected parties, including Indigenous governments involved in resource development and environmental processes, who rely on judicial review by the courts to hold public power to its limits. A number of provincial laws, particularly in Alberta, contain clauses that attempt to restrict the grounds on which administrative decisions may be reviewed by a court. After Democracy Watch, those provisions must be re-examined where they are being used to shield aspects of administrative decision-making from legality review. The significance of Democracy Watch is broader than access to courts alone. By clarifying that exercises of public power remain legally accountable despite statutory efforts to narrow judicial review, the decision reinforces the need for transparent, legally grounded, and well-reasoned administrative and regulatory decision-making. 1. What Democracy Watch v. Canada Was About Democracy Watch began with the Conflict of Interest and Ethics Commissioner’s review of then Prime Minister Justin Trudeau’s participation in two funding decisions involving WE Charity. Following an investigation, the Commissioner concluded that the Prime Minister had not contravened the Conflict of Interest Act, SC 2006, c 9, s 2. Democracy Watch sought judicial review by the Federal Court of Appeal, arguing that the Commissioner had made errors of fact and law in interpreting and applying the Conflict of Interest Act. Canada moved to strike the application. One of its central arguments was that the clause found in section 66 of the Conflict of Interest Act barred the application because it made the Commissioner’s decisions final, except on limited grounds under the Federal Courts Act. In response, Democracy Watch argued that section 66 cannot be read as shielding the Commissioner from oversight by limiting judicial review, because the reasonableness standard of review, as defined in Vavilov, would be constitutionally entrenched. The Federal Court of Appeal granted Canada’s motion to strike, ending Democracy Watch’s application before it reached a merits hearing. It held that the Conflict of Interest Act’s statutory scheme provided for dual parliamentary and judicial oversight of the Commissioner’s activities, and that “political oversight,” particularly through the Commissioner’s reporting obligations to Parliament, was an adequate alternative to judicial review. The Supreme Court of Canada disagreed. In allowing Democracy Watch’s appeal, it addressed two questions with implications well beyond the ethics context: when courts may decline judicial review because another remedy exists, and how far legislatures may go in limiting judicial review through privative clauses.[3] 2. What the Supreme Court of Canada Decided The Supreme Court allowed the appeal unanimously and sent the matter back to the Federal Court of Appeal to proceed. The decision turns on two related points: political accountability cannot substitute for judicial review unless it provides an alternative forum in which the legality of the decision can be adequately reviewed and a similar remedy ordered,[4] and Parliament or the legislature cannot use a partial privative clause to exclude review of errors of fact and law where they bear on legality.[5] Political oversight was not an adequate alternative to judicial review The Court first held that the Federal Court of Appeal erred in its application of the doctrine of adequate alternative remedy as established in previous cases.[6] While judicial review remains discretionary and courts may decline to hear an application where another process can adequately address the applicant’s concern, that inquiry must focus on whether the alternative process is suitable in the circumstances, including the forum it provides and the remedy it makes available. That was not the case under the Conflict of Interest Act. The Commissioner’s report could be politically scrutinized through reporting requirements, but Democracy Watch had no statutory vehicle to ask Parliament, or anyone other than the courts, to review the legality of the Commissioner’s conclusions. The statute explicitly provided that those conclusions could not be altered by anyone, while section 66 purported to prevent those conclusions from being reviewed on questions of fact and law. Political oversight was therefore not an adequate substitute for judicial supervision of legality. Privative clauses cannot stop constitutionally guaranteed “legality review” The Court then turned to the constitutionality of the partial privative clause in section 66 of the Conflict of Interest Act. Section 66 provided that every order or decision of the Commissioner was final and could be questioned or reviewed only on the limited grounds listed in the Federal Courts Act. That meant review remained available for jurisdictional errors, procedural fairness breaches, fraud, or perjured evidence[7], but not for errors of law, perverse or capricious factual findings, or other unlawful conduct.[8] The question was whether Parliament could constitutionally draw that line. The Supreme Court grounded its analysis in a simple constitutional proposition: public power must remain answerable to the courts because judicial review of the administrative state is an essential aspect of the courts’ constitutional role. Administrative decision-makers exercise delegated authority. That authority may be broad, specialized, and policy-laden, but it is never unlimited. Under the rule of law, every exercise of delegated authority must stay within the legal boundaries set by statute, the common law or civil law, and the Constitution. Writing for a unanimous court, Chief Justice Wagner held that the availability of judicial review for legality is constitutionally guaranteed by sections 96 to 101 of the Constitution Act, 1867.[9] Those provisions protect the superior courts’ core constitutional role as guardians of the rule of law, including where that supervisory jurisdiction is exclusively exercised by the Federal Courts under the Federal Courts Act. The result is that “legality review” must remain available for exercises of delegated public power. That review is not confined to narrow “jurisdictional” questions. Because rationality is one boundary of legality, legality review may extend to any aspect of an administrative decision, including questions of fact and law, where that aspect bears on whether the decision-maker stayed within legal limits.[10] As a result, privative clauses that, like section 66 of the Conflict of Interest Act, purport to shield aspects of an administrative decision from legality review are unconstitutional and, to that extent, of no force and effect.[11] Importantly, however, the Supreme Court did not agree that the reasonableness review mandated by Vavilov — which asks whether an administrative decision is justified, transparent, and intelligible in light of the legal and factual constraints bearing on it[12] — is itself constitutionally protected. Instead, it held that what is constitutionally guaranteed is the availability of “legality review” — that is, review for legality of any aspect of an administrative decision, regardless of whether the alleged error concerns law, fact, fairness, or some other feature of the decision.[13] The Court left for another day the question of what minimum standard of review the Constitution requires.[14] 3. Why Democracy Watch Matters for Aboriginal Consultation and Environmental Decision-Making Under statutory regimes governing resource development and environmental protection — where public decisions often engage ecological sustainability, public health and safety, lands, waters, species and ecosystems, and, critically, the cumulative effects of development on Aboriginal and treaty rights and interests — the constitutional guarantee of legality review articulated in Democracy Watch strengthens accountability in two interrelated ways: It preserves and, in some cases, could restore access to courts where statutory schemes, as drafted or interpreted, limit or effectively prevent the courts’ review of public decisions. Just as importantly, it also reinforces what lawful decision-making requires from administrative decision-makers and regulatory bodies whose decisions have been to some extent shielded from judicial review: better reasons, better records, and more factually informed decisions. Preserving access to courts where statutory schemes interfere with legality review Administrative decision-makers under environmental and resource-related laws typically exercise broad discretionary powers in matters that may have profound impacts on ecological sustainability, public health and safety, lands, waters, species and ecosystems, and the protection of Aboriginal and treaty rights. Those decisions are often highly fact-driven, requiring findings of fact and the application of legal tests and standards to those facts. A number of environmental and resource development-related statutes across Canadian jurisdictions contain full or partial privative clauses in favour of administrative decision-makers that purport to shield their fact-finding exercises, or other aspects of their decision-making, from judicial scrutiny. To give a few significant examples, these include the Alberta Responsible Energy Development Act (“REDA”), the Alberta Utilities Commission Act, Manitoba’s Contaminated Sites Remediation Act, Saskatchewan’s Oil and Gas Conservation Act, and the Canadian Energy Regulator Act, among others.[15] In some cases, such as under REDA,[16] those statutes provide for statutory appeals, with leave of the Court, that are typically limited to questions of law or jurisdiction and do not permit judicial intervention where questions of fact or mixed fact and law are involved.[17] As a result, First Nations and other communities seeking to challenge decisions of the Alberta Energy Regulator (“AER”) regarding pipelines, processing plants, or other energy and mineral development on duty-to-consult grounds have faced barriers to seeking judicial review or successfully appealing those decisions, due to the limited scope of the statutory appeal under REDA. This was the case in proceedings involving the Stoney Nakoda Nations and Piikani Nation in relation to the Grassy Mountain coal mine, where the limited statutory appeal mechanism under REDA constrained the courts’ ability to review aspects of the AER’s decision-making beyond questions of law or jurisdiction.[18] The same issue can arise where First Nations seek to challenge the AER’s issuance of coal exploration permits in the Rocky Mountains foothills. Although an internal regulatory appeal lies to the AER itself[19], court review under the REDA has been limited to a statutory appeal that does not permit review of questions of fact or mixed fact and law, including the AER’s application of the 1976 Coal Development Policy for Alberta. After Democracy Watch, similar privative clauses may be unconstitutional and of no force and effect to the extent they limit the availability of full-spectrum legality review. At minimum, statutory schemes that seek to prevent courts from reviewing whether a decision-maker stayed within the legal limits of its authority, including when deciding issues of fact or mixed fact and law, will now face renewed constitutional scrutiny. This is significant because, unlike alleged infringements of rights protected under the Canadian Charter of Rights and Freedoms, which are directly subject to constitutional remedies,[20] challenges based on breaches of the Crown’s constitutional duty to consult may be more vulnerable to legislative choices about the forum, scope, and availability of judicial review in respect of resource development and environmental administrative decision-making. In Democracy Watch, the Supreme Court of Canada distinguished between permissible statutory design (such as legislation that sets procedures, timelines, forums, or standards for judicial review) and an impermissible ouster of the courts’ supervisory jurisdiction, which occurs where legality review is “functionally foreclosed.”[21] Because the presumption of constitutionality remains a guiding principle of statutory interpretation,[22] courts may continue to interpret statutory limits on judicial review in a manner consistent with the constitutional guarantee of legality review where the text permits. But where the statute cannot bear a constitutionally compliant interpretation, Democracy Watch confirms that those limits cannot stand to the extent they functionally foreclose legality review. In practice, the decision is likely to prompt legislative amendments to provisions that channel disputes into narrow statutory appeals, particularly where those appeals exclude review of factual findings or mixed questions that bear on legality. Better reasons, better records, and more disciplined fact-finding Where legality review remains available despite a privative clause, administrative decision-makers and regulatory bodies will need to be more attentive to the evidentiary foundations of their decisions. This is especially important in resource development, energy regulation, and environmental decision-making, where decisions often turn less on pure questions of law than on findings of fact, assessments of future impacts, and the application of statutory criteria to complex records. For administrative decision-makers, like the AER, that means it will not be enough to invoke expertise or rely on a broad or insulated statutory mandate. The record must show that the decision-maker grappled with the evidence before it, including evidence about environmental effects, impacts on lands and waters, and potential adverse or cumulative effects on Aboriginal and treaty rights and interests. Democracy Watch preserves space for deference, statutory design, and administrative expertise, but it confirms that deference is not immunity from review. If a decision rests on factual findings that are unsupported, arbitrary, or disconnected from the statutory purpose, legality review ensures there remains a judicial forum to test whether the decision stayed within the prescribed legal limits. Over time, that constitutional floor should encourage better records, clearer reasons, and better supported fact-finding. [1] Democracy Watch v. Canada (Attorney General), 2026 SCC 28(open in a new tab) (“Democracy Watch”). [2] Democracy Watch at para 8, 44, 76. [3] Democracy Watch at para 14. [4] Democracy Watch at para 20, 29, 34. [5] Democracy Watch at para 8, 40-44. [6] Democracy Watch at para 17-21, 29. [7] Paragraphs 18.1(4)(a), (b), and (e) of the Federal Courts Act, RSC 1985, c F-7. [8] Paragraphs 18.1(4)(c), (d), and (f) of the Federal Courts Act. [9] Democracy Watch at 3,7, 39-41, 85. [10] Democracy Watch at para 69. [11] Democracy Watch at para 8, 59-76, 85. [12] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65(open in a new tab), at paras 99-100. [13] Democracy Watch at para 44, 71-76. [14] Democracy Watch at para 70. [15] Responsible Energy Development Act, SA 2012, c R-17.3 (“REDA”), s. 56; The Contaminated Sites Remediation Act, CCSM c C205 (“CSRA”), s. 52; The Oil and Gas Conservation Act, RSS 1978, c O-2, subs. 6.2(2), Canadian Energy Regulator Act, SC 2019, c 28, s 10, subs. 70(1) and s. 72; See also Environmental Protection and Enhancement Act, RSA 2000, c E-12, s. 102; Natural Resources Conservation Board Act, RSA 2000, c N-3 (“NRCBA”), s. 32; Alberta Utilities Commission Act, SA 2007, c A-37.2 (“AUCA”), s. 30. [16] REDA, s. 45. [17] See also AUCA, subs. 29(1); NRCBA, s. 31(1); CSRA, subs. 48(1)(b) and 48(2). [18] See for example, Stoney Nakoda Nations v His Majesty the King in Right of Alberta as Represented by the Minister of Aboriginal Relations (Aboriginal Consultation Office), 2023 ABKB 700(open in a new tab); affirmed in Northback Holdings Corporation v Alberta Energy Regulator, 2025 ABCA 186(open in a new tab), leave to appeal to SCC denied (41874 (open in a new tab)and 41876(open in a new tab)). [19] REDA, ss. 38 to 41. [20] Canadian Charter of Rights and Freedoms, subs. 24(1), Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11; Constitution Act, 1982, s. 52. [21] Democracy Watch supra note 1 at para 75-76. [22] Reference re Impact Assessment Act, 2023 SCC 23(open in a new tab), paras 71-74.

Authored By: Louise Kyle, Lara Koerner-Yeo and Isabelle Boisvert-Chastenay Introduction What does Canada’s commitment to implementing the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) mean if it does not change how Crown decisions affecting Indigenous peoples’ rights and territories are made? The Federal Court of Appeal’s decision in Kebaowek brings the gap between legislative recognition and practical protection into sharp focus. This preliminary summary is the first in a series about the Federal Court of Appeal’s decision. As shared in our previous post, the Federal Court’s decision in Kebaowek First Nation v Canadian Nuclear Laboratories, 2025 FC 319, recognized UNDRIP, as incorporated by the United Nations Declaration on the Rights of Indigenous Peoples Act[1] (“UNDA”), as an interpretive lens informing the duty to consult and accommodate. The Court held that the Canadian Nuclear Safety Commission (the “Commission”) had erred by failing to consider UNDRIP and the standard of free, prior and informed consent when assessing the adequacy of consultation in its administrative decision-making. The Federal Court required the Commission to reconsider consultation through the interpretive lens of UNDRIP. Its decision gave concrete significance to Canada’s legislative commitments: UNDRIP must inform the assessment of whether the Crown had fulfilled its obligations to Kebaowek. Canadian Nuclear Laboratories appealed, and the Federal Court of Appeal released its decision[2] today. The Federal Court of Appeal’s Decision On October 16, 2026, writing for a unanimous panel, Justice Webb found that the Commission did not err in finding that it “is not empowered to determine how to implement UNDRIP in Canadian law and must be guided by the current law on the duty to consult”.[3] The Federal Court of Appeal allowed the appeal, set aside the Federal Court’s judgment and dismissed Kebaowek’s application for judicial review.[4] The Court also dismissed Kebaowek’s cross-appeal.[5] According to the Federal Court of Appeal, the central issue was the interpretation of UNDA including whether the various articles of UNDRIP have been implemented or the Commission had the authority to implement them.[6] The Federal Court of Appeal determined that the interpretation of the UNDA is a general question of law of central importance to the legal system as a whole and, therefore, applied the standard of review of correctness. The Court organized its analysis around three questions:[7] a general overview of the duty to consult and accommodate, which the Commission determined had been satisfied; an interpretation of the UNDA to determine how it applies and, in particular, whether Article 29(2) has been implemented (and therefore would be engaged); and a determination of whether the Commission is the Government of Canada for the purposes of section 5 of the UNDA. The duty to consult and accommodate The Court did not question that consultation was required.[8] The Commission acknowledged that it had a duty to consult with Indigenous Nations and communities, including Kebaowek.[9] The Commission applied the “existing” Haida consultation framework, emphasizing that the content of consultation depends on the strength of the asserted rights and the seriousness of the potential adverse effects.[10] In this matter, the Federal Court of Appeal placed the duty at the low end of the spectrum, relying on the absence of an Aboriginal title claim covering the project site and the Federal Court’s findings concerning the absence of new adverse impacts beyond those associated with the original taking of the lands for nuclear development in the 1940s.[11] This reasoning is particularly troubling given the site’s history and the permanent changes to the lands now being contemplated. Lands were taken for nuclear development without consultation, and the resulting damage has prevented Indigenous peoples from using them for generations. Relying on that history to support a lower level of consultation today risks allowing the consequences of past dispossession to diminish the protections available against present-day decisions. Does UNDA implement Article 29(2) of UNDRIP? The Federal Court of Appeal considered whether UNDA implemented UNDRIP’s articles into Canadian law or instead established a process for their future implementation. The analysis focused on Article 29(2) of UNDRIP, which specifically addresses the storage or disposal of hazardous materials: 2. States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent. The Court treated the implementation question as applying equally to Article 32(2), which addresses consultation and cooperation to obtain consent before approving projects affecting Indigenous lands and resources.[12] Reading UNDA’s text, context, and purpose, the Court concluded that UNDA provides a framework for implementation rather than implementing UNDRIP’s articles into Canda’s laws now.[13] It acknowledged the Supreme Court of Canada’s statement in the Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 (the “Bill C-92 Reference”), that UNDRIP had been incorporated into Canada’s positive law.[14] Nevertheless, the Court ultimately concluded that UNDA does not implement UNDRIP articles domestically and therefore does not incorporate UNDRIP into federal law.[15] The Court also considered the British Columbia Court of Appeal’s decision in Gitxaala v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430, which addressed substantially similar provincial legislation. In Gitxaala, the Court of Appeal recognized UNDRIP’s incorporation into British Columbia’s positive law and declared that the establishment of an automatic mineral claims registration system without prior consultation and cooperation was inconsistent with Article 32(2).[16] The Federal Court of Appeal distinguished the analysis concerning British Columbia’s express statutory requirement that provincial enactments be interpreted consistently with UNDRIP, emphasizing that the federal Interpretation Act contains no equivalent provision.[17] The Federal Court of Appeal concluded that “the UNDA does not immediately implement the articles as set out in UNDRIP but rather provides a framework for the implementation of the various articles as set out in UNDRIP and sets out a process for the resolution of inconsistencies between UNDRIP and the laws of Canada, which may include the federal common law”.[18] Is the Commission the Government of Canada for the purposes of section 5 of the UNDA? The Court also held that the Commission, when deciding whether to authorize this project, was not the “Government of Canada” for the purposes of section 5 of UNDA.[19] Although the Court accepted that the Commission’s decisions can constitute Crown conduct triggering the constitutional duty to consult and that previous case law from the Supreme Court of Canada has highlighted the interchangeable nature of “government action” and “Crown conduct”, the Court held that this did not necessarily bring the Commission within section 5’s implementation obligation.[20] The result is a problematic accountability gap. The Commission can exercise statutory authority to authorize a project, and its decision can constitute Crown conduct for the purposes of consultation, yet it falls outside the UNDRIP implementation obligation imposed on the “Government of Canada”. UNDRIP is not a binding treaty in Canada Relying on the Bill C-92 Reference, the Court noted that: “UNDRIP is not binding as a treaty in Canada and therefore, as a UN general assembly resolution, would not be an international obligation to which Canada has agreed. Furthermore, since the UNDA did not immediately implement the articles of UNDRIP into Canadian law and since the Commission is not the Government of Canada for the purposes of resolving any inconsistency between UNDRIP and the laws of Canada, there is no obligation on the Commission to implement UNDRIP in the course of deciding whether to approve the construction of the project”.[21] UNDRIP and Indigenous Lands: Questions Left Open The Court made additional observations about Article 29(2), which addresses the storage or disposal of hazardous materials on Indigenous peoples’ lands or territories without their free, prior and informed consent.[22] It questioned whether that provision would apply to the Chalk River site, given the historical taking of the lands, and discussed its relationship with Article 28’s provisions concerning redress for lands taken without consent. It raised similar questions about Article 32(2).[23] These observations should be distinguished from the Court’s conclusions on UNDA. The Court did not finally determine the meaning of Indigenous “lands or territories” under these articles or decide a claim for compensation. Nevertheless, its discussion raises consequential questions about the relationship between historical dispossession and the protections recognized by UNDRIP. The suggestion that the historical taking of lands could limit the application of UNDRIP’s consent protections is especially concerning. It risks allowing the very dispossession that UNDRIP seeks to address to become a reason for limiting its protections. What Does This Mean for Indigenous Nations? The decision significantly limits reliance on UNDA as a basis for requiring federal regulators to apply additional UNDRIP-based consultation obligations in individual project approvals. It reveals a serious and alarming gap between Canada’s legislative commitment to implementing UNDRIP and the enforceable obligations governing decisions that affect Indigenous peoples’ rights and territories. Future posts in this series will further unpack the Federal Court of Appeal’s decision and its implications. [1] SC 2021, c. 14. [2] Canadian Nuclear Laboratories v Kebaowek First Nation, 2026 FCA 174. [3] Para 116. [4] Para 117. [5] Para 117. [6] Para 37. [7] Para 43. [8] Para 4. [9] Para 4, 18. [10] Paras 19. [11] Paras 47-52. [12] Para 42. [13] Paras 55-59. [14] Para 60. [15] Paras 61-63. [16] Paras 30-34. [17] Paras 72-78. [18] Para 82. [19] Para 101. [20] Paras 96-101. [21] Para 103. [22] Para 104. [23] Paras 104-115.

Authored By: Kaelan Unrau The founders of the Drug User Liberation Front (DULF) have won a major constitutional challenge(open in a new tab) against the Controlled Drugs and Substances Act, which prohibited the implementation of their non-medicalized safer supply program in the context of the toxic drug crisis. DULF’s founders, Jeremy Kalicum and Eris Nyx, were represented by Tim Dickson and Kaelan Unrau of JFK Law LLP, and by Stephanie Dickson of SND Law. What Is the Case About? The Toxic Drug Crisis It has been 10 years since the Province of British Columbia first declared a public health emergency in response to the toxic drug crisis. The immediate driver of the crisis is not in dispute. The street drug supply is increasingly contaminated with fentanyl, benzodiazepines, and other volatile adulterants. When a person – even someone experienced with drug use – consumes a dose that is more potent than expected, the result is too often an overdose. The scale of the crisis is immense. More than 16,000 British Columbians have died from toxic drugs since the public health emergency was declared. There were 2,585 confirmed deaths in 2023 alone – an average of more than seven people dying each day. Anyone who relies on the unregulated drug supply is at risk of death and other serious harms. DULF’s Compassion Club In 2021, following expert calls for non-medicalized safer supply, DULF applied to Health Canada for approval to operate a “compassion club” in Vancouver’s Downtown Eastside neighbourhood – one of the communities hit hardest by the crisis. DULF’s proposal was to secure alternative sources of heroin, methamphetamine, and cocaine; subject those substances to the highest-quality drug testing available; and distribute the tested drugs to a closed group of club members at cost. The proposed model contemplated sourcing the drugs from established pharmaceutical suppliers. Failing that, DULF proposed sourcing the drugs from the dark web. While not the preferred option, this approach would allow DULF to obtain drugs from higher up the supply chain, reducing the risk of later contamination, and avoid direct engagement with street-level illegal markets. Health Canada denied the request in 2022. DULF challenged that decision(open in a new tab) in the Federal Court. Although the matter was heard in early 2024, the Federal Court’s decision remains under reserve. DULF Operated Without Federal Approval in a Bid to Save Lives With no approval from Health Canada, and no effective recourse through the courts, DULF proceeded to operate its compassion club from the summer of 2022 until October 2023, when the Vancouver Police Department raided the club’s site. During that time, DULF collected data on the club’s effectiveness; met regularly with law enforcement and provincial public health officials; and published several peer-reviewed papers(open in a new tab) detailing its findings. Jeremy Kalicum and Eris Nyx were ultimately charged with possession for the purpose of trafficking under the federal Controlled Drugs and Substances Act. In response, they challenged the constitutionality of Canada’s drug laws, arguing that they infringed the constitutional rights to life, liberty, and security of the person, as well as the right to equality. What Did the Court Decide? Following a lengthy trial, which included extensive expert evidence, the court agreed with DULF that Canada’s drug laws are unconstitutional to the extent that they criminalize non-medicalized safer supply, thereby exposing people who use drugs in the Downtown Eastside – a particularly vulnerable population – to serious risks of harm and death. The decision rests on several key findings: A non-medicalized safer supply program is urgently needed to save lives. In reaching this conclusion, the court highlighted the limits of existing interventions, including drug checking services, supervised consumption sites, and prescription-based safer supply models. It also emphasized the broad consensus among experts, including government advisory bodies, in favour of non-medicalized safer supply initiatives. DULF reduced the harms associated with the toxic drug crisis. In particular, the program enabled members to access drugs of known potency and composition, thereby reducing the risk of overdose. There was no evidence that DULF caused any negative impacts to the community or public safety. The court specifically considered the impact of DULF on organized crime, appreciating that members would otherwise be accessing illegal street markets, and concluded that no impact (whether positive or negative) had been established on the evidence. There is no practical and lawful source of drugs available under the existing regulatory regime to support non-medicalized safer supply. Among other things, the court noted the significant barriers to obtaining authorization to sell and distribute pharmaceutical-grade drugs under Canada’s complex regulatory framework. The court concluded that the prohibition on possession for the purposes of trafficking – section 5(2) of the Controlled Drugs and Substances Act – unjustifiably infringes the Canadian Charter of Rights and Freedoms. It gave Parliament six months to cure the constitutional defects in the regime. It also entered judicial stays of proceedings in recognition of the fact that DULF’s founders had acted in the public interest and at considerable personal cost. What Happens Next? While the Crown may appeal the decision, the court’s reasons are detailed and firmly grounded in the extensive evidentiary record developed over the course of the trial. So long as the ruling stands, Parliament will need to reform the regulatory regime to address the defects identified by the trial court. Among other things, this will likely require: Creating a workable mechanism to exempt non-medicalized safer supply programs from the Food and Drugs Act. The Food and Drugs Act operates alongside the Controlled Drugs and Substances Act to regulate the distribution of drugs in Canada. Based on the extensive evidentiary record at trial, including testimony from Health Canada officials called by the Crown, the court found that a program such as DULF engaged prohibitions under both statutes. However, there is currently no mechanism through which such a program can obtain an exemption from the Food and Drugs Act. Revising the exemption process under the Controlled Drugs and Substances Act to ensure timely and responsive decision-making. The court specifically observed that the current exemption and approval process is entirely discretionary, susceptible to political pressure, and capable of accommodating delays that are fundamentally incompatible with the realities of an ongoing public health emergency. Drug policy remains a highly contentious political issue, and debates are often driven more by ideology than by evidence. The DULF trial provided the court with a rare opportunity to engage with a comprehensive evidentiary record concerning the toxic drug crisis and the role of non-medicalized safer supply. The result is a landmark decision that is likely to shape future discussions of Canadian drug policy for years to come.