Stuck In The Middle: Managing Litigation With First Nations

Challenges by First Nations of resource project approvals have become part of the legal landscape facing the mining industry in Canada. Project proponents find themselves stuck in the middle of a dispute that is legally between First Nations and the Crown. Such litigation is typically based on the allegation that the government (i.e. the "Crown") has breached its constitutional duty to consult a First Nation(s) whose interests may be affected by the government approval in issue. The government is often the primary defendant in the litigation, with the resource company named as a secondary party (or in a position to insist that it be named as a party) simply on the basis that its rights would be affected by the relief sought (which is generally to cancel, or suspend the effect of, the approval granted). While the company will have the right to introduce evidence and make legal arguments, the approval generally stands or falls based on the Court's assessment of whether