Resource rights of Indigenous Peoples and the judicial practice of their observance in Canada

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Author: Oxana Pimenova

DOI: 10.21128/1812-7126-2022-4-89-109

Keywords: Indigenous Peoples; Indigenous titles; Indigenous consent; the Crown’s consultations; Trans-Mountain Pipeline Expansion Project


Resource rights of Indigenous Peoples form the basis of their Indigenous way of life. To preserve it, the United Nations Declaration of the Rights of Indigenous Peoples calls upon nation states to observe and legally guarantee the resource rights of Indigenous Peoples. In its first section, the paper studies the judicial steps undertaken by Canada to recognize and enforce Indigenous resource rights. Indigenous land rights (titles) receive special attention in the paper’s second section. Focusing on the history of judicial decisions determining Indigenous titles, the paper traces how the Supreme Court of Canada has treated Indigenous titles as an element of the Canadian legal system. To establish the legal boundaries of Indigenous titles, the Court introduced special criteria for evaluating and adjudicating the presence of Indigenous titles. Unfortunately, some of those criteria have not contributed to legal certainty in recognizing Indigenous titles by the Canadian government and actually have restrained Indigenous communities from claiming and possessing these rights on their ancestral lands. The paper reveals these judicial dynamics and connects them with administrative efforts made by the Canadian government to control the use of Indigenous lands, especially as to resource extraction even if this negatively affects the lives of Native Peoples. The third section of the paper studies the constitutionally required consultations with Indigenous peoples, which are in fact used as an administrative tool by the Canadian government for controlling Indigenous engagement in the governmental decision-making process regarding resource development projects that can adversely affect Indigenous resource rights and titles. These consultations are formalistic and do not give Indigenous peoples a real role in evaluating the justification for and safety of natural resource extraction affecting them. Although the United Nations Declaration on the Rights of Indigenous Peoples calls for national governments to conduct Indigenous consultations through the institutions of the Indigenous representative authority, a government agency typically leads and conducts Indigenous consultations through close collaboration with an industry proponent. The paper examines the Indigenous consultations for the Trans-Mountain Pipeline Expansion Project (2018–2019) as an example of agency-led consultations where Indigenous communities were invited to participate but were unable to influence either the agenda or the outcomes of the consultations. As a result of the Native communities’ appeals to the Supreme Court, the Indigenous consultations over the Trans Mountain Pipeline Expansion project were overturned. The Court directed the government to redo them but still was reluctant to recognize that the government had not satisfied the Indigenous communities’ requests but instead had rushed through the consultation procedure for approval of the project. It was obvious that the Court was powerless to protect the natural resource rights of Indigenous peoples when the extraction project is a governmental project.

About the author: Oxana Pimenova – Candidate of Sciences (Ph.D.) in Law, Dagestan State University, Makhachkala, Russia.

Citation: Pimenova О. (2022) Prirodoresursnye prava korennykh narodov i sudebnaya praktika ikh soblyudeniya v Kanade [Resource rights of Indigenous Peoples and the history of their observance in Canada]. Sravnitel’noe konstitutsionnoe obozrenie, vol. 31, no. 4, pp. 89–109. (In Russian).


Bankes N. (2015) The Implications of the Tsilhqot’in (William) and Grassy Narrows (Keewatin) Decisions of the Supreme Court of Canada for the Natural Resources Industries. Journal of Energy and Natural Resources Law, vol. 33, no. 3, pp. 188–217.

Barelli M. (2014) Free, Prior and Informed Consent in the Aftermath of the UN Declaration on the Rights of Indigenous Peoples: Developments and Challenges Ahead. International Journal of Human Rights, vol. 16, no. 1, pp. 1–24.

Barsh R.L., Henderson J.Y. (1997) The Supreme Court’s Van der Peet Triology: Naive Imperialism and Ropes of Sand. McGill Law Journal, vol. 42, no. 4, pp. 993–1009.

Booth A., Skelton N.W. (2011) “We Are Fighting for Ourselves” – First Nations’ Evaluation of British Columbia and Canadian Environmental Assessment Processes. Journal of Environmental Assessment Policy and Management, vol. 13, no. 3, pp. 367–404.

Borrows J. (2005) Tracking Trajectories: Aboriginal Governance as an Aboriginal Right. University of British Columbia Law Review, vol. 38, no. 2, pp. 285–314.

Boutilier S. (2017) Free, Prior, and Informed Consent and Reconciliation in Canada: Proposals to Implement Articles 19 and 32 of the UN Declaration on the Rights of Indigenous Peoples. Western Journal of Legal Studies, vol. 7, no. 1, pp. 1–21.

Coates K.S., Favel B. (2016) Understanding FPIC: From Assertion and Assumption on “Free, Prior and Informed Consent” to a New Model for Indigenous Engagement on Resource Development. Available at: (accessed: 28.06.2022).

Coates K., Newman D. (2014) The End Is Not Night: Reason Over Alarmism in Analysing the Tsilhqot’in Decision. Available at: (accessed: 28.06.2022).

Do M. (2020) Throughput Legitimacy and the Duty to Consult: The Limits of the Law to Produce Quality Interactions in British Columbia’s EA Process. Canadian Journal of Political Science, vol. 53, no. 3, pp. 577–595.

Doyle C.M. (2014) Indigenous Peoples, Title to Territory, Rights and Resources: The Transformative Role of Free Prior and Informed Consent, New York: Routledge.

Eisenberg A. (2005) The Distinctive Culture Test. Available at: (accessed: 28.06.2022).

Eisenberg A. (2013) Indigenous Cultural Rights and Identity Politics in Canada // Review of Constitutional Studies, vol. 18, no. 1, pp. 89–109.

Favel B., Coates K.S. (2016) Understanding UNDRIP: Choosing Action on Priorities Over Sweeping Claims about the United Nations Declaration on the Rights of Indigenous Peoples. Available at: (accessed: 28.06.2022).

Foster H., Raven H., Webber J. (2007) Let Right Be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights, Vancouver: UBC Press.

Kulchyski P. (1994) Unjust Relations: Aboriginal Rights in Canadian Courts, Toronto: Oxford University Press.

Lake H. (2019) Insiders Reveal How Canada Used Dubious Research to Approve Major Industrial Projects. Canada’s National Observer, 21 June. Available at: (accessed: 05.07.2022).

Lawrence B. (2004) “Real” Indians and Others: Mixed-Blood Urban Native Peoples and Indigenous Nationhood, Vancouver: UBC Press.

Markusoff J. (2017) Why Justin Trudeau Used the C-Word – “Colonialism” – in His Apology. Maclean’s, 24 November. Available at (accessed: 28.06.2022).

Murphy M.A. (2008) Representing Indigenous Self-Determination. University of Toronto Law Journal, vol. 58, no. 2, pp. 185–216.

Napoleon V. (2005) Delgamuukw: A Legal Straightjacket for Oral Histories? Canadian Journal of Law and Society, vol. 20, no. 2, pp. 123–155.

Pimenova O. (2022) The Trans-Mountain Pipeline Expansion Project: Path Dependency in the Crown’s Reasoning. American Review of Canadian Studies, vol. 51, no. 4, pp. 649–665.

Poelzer G., Coates K. (2015) From Treaty Peoples to Treaty Nation: A Road Map for All Canadians, Vancouver; Toronto: UBC Press.

Slattery B. (1987) Understanding Aboriginal Rights. Canadian Bar Review, vol. 66, no. 4, pp. 727–783.

Steckley J., Cummins B. (2008) Full Circle. Canada’s First Nations, Toronto: Pearson Prentice Hall.

Tennant P. (1990) Aboriginal People and Politics: The Indian Land Question in British Columbia 1849–1989, Vancouver: UBC Press.