Canada: Projects On Land Claimed By Indigenous Peoples: Undertaking Discussions

Last Updated: June 27 2016
Article by Yvan Biron

Only a short distance from Québec's urban centres lies land claimed by Indigenous nations. Before planning any type of activity on claimed territory, including natural resource development projects, it is important to be aware of the potential impacts of Indigenous rights.

Greater recognition for Indigenous rights was granted in the 1982 Constitution Act and the need to respect these rights has been expressed in various court rulings. There are numerous types of Indigenous rights, from traditional land use rights, such as hunting, trapping, fishing and gathering, to ancestral rights akin to property ownership rights.

In some parts of Canada, ancestral rights claims have become subject to regulations in contemporary and historical treaties. However, several territories that are not mentioned in treaties have been claimed by different Indigenous nations. These claims often pertain to the exclusive occupation and use of the land. To obtain such recognition, an Indigenous nation must demonstrate that it was the sole group to occupy the land before the Crown asserted its sovereignty. Recognition of these rights provides exclusive occupation and use of the land for purposes that need not be solely traditional or specific (Tsilhqot'in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 256).

The Crown therefore has the obligation to consult Indigenous groups—and accommodate them whenever required—when installations or activities could impact their rights. Project proponents seeking to develop claimed land must undertake discussions with local Indigenous nations to establish accommodations to each party's satisfaction. These discussions aim to address the concerns expressed by Indigenous groups and implement a project development framework. The process often leads to agreements that entail benefits for the Indigenous group (e.g. employment opportunities, contracts and royalty payments). In exchange, the proponent will obtain guarantees to develop the project.

Failing to initiate discussions with Indigenous nations can lead to unfortunate consequences. In fact, groups have often cited their ancestral rights to seek injunctions against proponents, forcing them into negotiations leading to complex, lengthy and costly legal challenges.

Traditions and practices cause nations themselves to take legal action but band chiefs, elders and individuals who use the land may also do so, possibly complicating discussions on accommodations in view of a settlement. In fact, certain individuals may pursue land claims along with an Indigenous nation.

While the Supreme Court has already recognized that Indigenous title is communal (Tsilhqot'in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 256), the Superior Court indicated that there is a community interest in asserting an Indigenous title and that elders, families and family members cannot bring about the failure of a land use agreement concluded with the community.

In Les Uashaunnuat (Les Innus de Uashat et de Mani-Utenam) et autres v. La Procureure générale du Québec et autres (Superior Court, February 23, 2016, no. 500-17-050868-093 (Thomas M. Davis, J.C.S.); appeal still possible at the time of writing), a Superior Court justice clarified how the rights of an individual and those of a traditional group stand. In this particular case, the Innu of Uashat Mani Utenam (hereinafter, UM), the Innu Takuaikan Uashat Mak Mani Utenam band, the band chief and council members and certain elders and their family members took legal action to block Hydro-Québec's Romaine hydroelectric project in Côte Nord. Following a series of negotiations, a tentative agreement was reached in February 2014 between the crown corporation and the UM Innu nation. The agreement, which came on the heels of other attempts that had been rejected by the community, was approved by referendum.

Under the terms of the agreement, the band was granted certain benefits, such as the obligation to negotiate with Innu firms at certain phases in the project and the payment of sums to the community. In exchange, the UM Innu agreed not to hinder the initiative and discontinue certain actions pertaining to the Romaine project. A group of elders, families and family members listed as co-plaintiffs in the action opposed the agreement.

In the case, the Court granted a motion to dismiss the action against the dissident families. The judge declared that it would be abusive and go against the interests of justice for the families to counter an agreement that was negotiated and accepted by the community, insisting on the fact that the accord was specific and did not take away the UM Innu's ancestral or treaty rights on the territory in other actions. But if the dissident families had demonstrated the eventual existence of traditional land use rights, the judge may not have granted the motion.

In essence, the lesson learned here is that it is critical to identify the nation that is claiming land rights on a territory slated for project development and determine whether families or individuals use the land for traditional purposes. This approach is key to undertaking discussions with stakeholders when seeking to set out an agreement in order to move forward with a project on Indigenous land.

About Mackrell International - Canada - Prévost Fortin D'Aoust is a Quebec based business law firm with offices in Montreal, Saint-Jérôme, Boisbriand, Sainte-Agathe-des-Monts and Laval, and a member of Mackrell International. Mackrell International - Canada is comprised of four independent law firms in Alberta, British Columbia, Ontario and Quebec. Each firm is regionally based and well-connected in our communities, an advantage shared with our clients. With close relations amongst our Canadian member firms, we are committed to working with clients who have legal needs in multiple jurisdictions within Canada.

This article is intended to be an overview and is for informational purposes only.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions