Available in Russian
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).
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