UNDRIP And The Building Canada Act: Duty To Consult To Obtain Free Prior And Informed Consent

• Published date: 23 September 2025
• Subject Matter: Government, Public Sector, Constitutional & Administrative Law, Indigenous Peoples
• Law Firm: Phillips Barristers
• Author: Mr Cory Wanless and Ronan Mallovy

Key Takeaways

• The Building Canada Act, which is intended to fast-track projects of 'national interest' by overriding existing law, has been met by fierce resistance by Indigenous communities and regional organizations across Canada.
• This resistance is entirely justified. Legal and political challenges to the Building Canada Act should be pursued and the government should continue to be pressured to repeal the Act.
• Nonetheless, there may be opportunities within the Building Canada Act to entrench the concept of free, prior and informed consent in all consultation with Indigenous groups required by the Building Canada Act.
• The United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14 (the 'UNDRIP Act') requires the Government of Canada to 'take all measures necessary to ensure that the laws of Canada are consistent with the Declaration.'
• The United Nations Declaration on the Rights of Indigenous Peoples (the 'Declaration' or 'UNDRIP') requires states to 'consult and cooperate in good faith with the indigenous peoples ' in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development utilization or exploitation of mineral, water or other resources.'
• As a matter of statutory interpretation, the Building Canada Act, as well as any other legislation passed after the coming into force of the UNDRIP Act on June 21, 2021 that refers to consultation, must be read to require consultation to the standard of free prior and informed consent.
• First Nations and their legal counsel should take the position that, as a matter of Canadian law, the consultation requirement of the Building Canada Act is only met where the free, prior and informed consent of the First Nation has been given, and any consultation that does not meet this standard is defective and in breach of the Building Canada Act and the UNDRIP Act.

Overview

Through the enactment of the UNDRIP Act in June of 2021, the government of Canada imposed upon itself the responsibility to ensure that the laws of Canada are consistent with the United Nations Declaration on the Rights of Indigenous Peoples. The wording of the Act is mandatory: section 5 of the UNDRIP Act requires the government of Canada to 'take all measures necessary to ensure that the laws of Canada are consistent with the Declaration.'¹

The recently enacted Building Canada Act, one of two acts given royal assent as part of the controversial Bill C-5, presents one of the first major tests of the legal efficacy of the UNDRIP Act. With the stated purpose of expediting projects deemed by the responsible Minister to be in the national interest (by and large projects related to...