CHAPTER 9 Canadian Aboriginal Law: Creating Certainty In Resource Development
| Jurisdiction | Derecho Internacional |
(April 2003)
Canadian Aboriginal Law: Creating Certainty In Resource Development
Thomas Isaac
McCarthy Tétrault LLP
Vancouver, British Columbia, Canada
§1.01 Introduction
§1.02 Background — Canadian Aboriginal law
[1] Division of Powers
[2] Pre-1982 Law
[3] Constitution Act, 1982
§1.03 The Crown's Duty to Consult Aboriginal People
[1] Introduction
[2] Source of the Crown's Duty to Consult Aboriginal People
[3] Nature of the Crown's Duty to Consult Aboriginal People
[4] Engagement of the Crown's Duty to Consult?
[5] Application of the Crown's Duty to Consult
[6] Duty to Consult — Conclusion
§1.04 Agreements Between Resource Developers and Aboriginal People
[1] Introduction
[2] Impact and Benefit Agreements
[3] Negotiating IBAs
[4] IBAs — Conclusion
§1.05 The Crown's Fiduciary Relationship with Aboriginal People
[1] Introduction
[2] Source of the Crown's Fiduciary Relationship with Aboriginal People
[3] Nature of the Crown's Fiduciary Relationship with Aboriginal People
[4] Fiduciary Duty — Conclusion
§1.06 Conclusion — Aboriginal Law as Part of General Canadian Law
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§1.01 Introduction
In 2000, a paper entitled "Aboriginal Title and Mineral Development in Canada and Australia" was presented at the 46th Annual Institute of the Rocky Mountain Mineral Law Foundation by one of the co-authors of this paper which compared the state of law relating to mineral development and aboriginal people in Canada and in Australia.1 That paper concluded that Canada and Australia had, in the course of recent decades, both accepted that aboriginal people had rights in the land they had historically occupied. While Canada chose a constitutional
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approach to protect such rights, Australia, unfettered by express constitutional protection of such rights, dealt with them by legislation and the creation of specialized institutions.
Canada's constitutional "recognition and affirmation" of aboriginal and treaty rights on April 17,1982 was both unprecedented and vague.2 It has taken over twenty years to fashion this constitutional fact into intelligible law that potentially allows fair and certain treatment of all stakeholders in Canadian natural resource development. Extensive litigation dealing with the place of aboriginal and treaty rights in Canadian law has created the basis for a working resolution between aboriginal people and other Canadians which is still growing in clarity, but already gaining general acceptance.
Canada's natural resource industries are becoming increasingly comfortable with new legal doctrines developed in the courts to give certainty to what in 1982 was unclear. Aboriginal people also have increasing comfort with these doctrines, although suspicion remains that a system ostensibly based on fair procedures, fair decisions and negotiated agreements dealing with the impacts and benefits of development may not, in fact, operate fairly in respect of the aboriginal participants. Probably the least developed appreciation that an issue of enormous importance to Canadian resource development is fundamentally resolved resides with the federal and most of the thirteen provincial and territorial governments of Canada. However, some of these governments are beginning to adopt guidelines that recognize that government is the key actor in bringing legal and practical certainty to resource development in circumstances in which conflicting aboriginal or treaty rights are an issue.3
This paper seeks to describe the corpus of Canadian law uniquely developed to deal with the fair resolution of issues arising from the conflict between aboriginal and treaty rights and the rights of natural resource developers. It will first review key concepts in Canadian aboriginal law. It will then explain the three principal legal developments which have begun to introduce certainty into resolution of such conflict, namely: (a) the doctrine of the Crown's duty to consult aboriginal people, (b) the practice of regulating relations between resource developers and their aboriginal neighbours in contractual documents, and (c) the judicial clarification of the doctrine of the Crown's fiduciary relationship with aboriginal people.
§1.02 Background - Canadian Aboriginal Law
It is not possible to understand how Canada has dealt with the question of conflict between the interests of natural resource developers and neighbouring aboriginal communities without understanding the basic concepts of Canadian law relating to aboriginal people.
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[1] Division of Powers
Aboriginal law in Canada is influenced by the constitutional division of powers between the federal and provincial levels of government. Canada's Constitution divides the constitutional authority to enact legislation between the federal Parliament ("Parliament") and the ten provincial legislatures (collectively, the "Legislatures")- The division of federal and provincial powers is primarily found in the Constitution Act, 1867 (the "CA1867"),4 specifically in section 91 (federal powers) and section 92 (provincial powers). Canada is a constitutional monarchy. It is normal to refer to the federal government of Canada as the "Crown in right of Canada" and the provincial governments within Canada as the "Crown in right of, the relevant province, together in this paper referred to as "the Crown".
There are three territories in northern Canada that are distinct from provinces: the Yukon Territory, the Northwest Territories and Nunavut. Territorial governments, while similar in function to provincial governments in having a Premier, cabinet and elected legislature: (a) are jurisdictionally subject to Parliament, (b) do not have distinct constitutional status, and (c) have more limited authority than the provinces. Aboriginal people form a majority of the residents in much of the large area of northern Canada included in these three territories.
Parliament has exclusive authority to legislate in relation to: (a) "Indians", and (b) "lands reserved for the Indians".5 For the purposes of s. 91(24) of the CA 1867 ("s,9l(24)"), the Inuit of Canada's far north are also included within the definition of "Indian" and, therefore, come within Parliament's jurisdiction.6 To date, the Supreme Court of Canada ("SCC") has not determined whether the Métis, "aboriginal people" of varied aboriginal and non-aboriginal ancestry, are also included within Parliament's jurisdiction under s. 91(24).
Canada's Indian Act (the "Act")7 defines the term "Indian" for the purposes of the Act and establishes a register to record the names of individuals qualified to be registered as "Indians." Registered Indians may live on Indian reserves and possess other privileges set out in the Act. Persons of Indian, Inuit and Métis ancestry not registered under the Act are not "Indians" for purposes of the Act. Indian reserve lands are lands held by Canada for the "use and benefit" of Indians and do not fall under the jurisdiction of the Legislatures. Canada's Department of Indian Affairs and Northern Development oversees Canada's responsibilities with respect to Indians, administers the Act and plays a considerable role in the management of the three northern territories.
With some limited exceptions, the Provinces own the underlying legal title to land within their geographic boundaries. Each province exercises powers related to inter alia property and civil rights, as well as local works and undertakings and matters of a generally local or private nature, and natural resources, in such province. Normally, provincial legislation only applies to Indians or Indian reserve lands if it (a) is of a general nature, (b) does not deal specifically with Indians or lands reserved for the Indians, and (c) there is no federal legislation dealing with
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Indians or Indian reserves that would conflict with the provincial legislation. Provincial legislation is also subject to other limitations in this regard including aboriginal and treaty rights recognized and affirmed by s.35(1) of the CA 1982 ("s.35(1)").
[2] Pre-1982 Law
Until the express recognition and affirmation of existing aboriginal and treaty rights in s,35(l), their legal status in Canada had been fluid and vulnerable. Although aboriginal rights existed at common law prior to 1982, they were subject to extensive restriction by the Crown and could be extinguished unilaterally by the Crown, if a clear and plain intention of such extinguishment could be demonstrated. Jurisprudence after 1982 has shown that key elements of aboriginal law not much examined before 1982 did exist before 1982. Clearly, "the honour of the Crown" had existed from at least 1763 and aboriginal people have been recompensed for breaches of the Crown's fiduciary duty to them which happened before 1982.8 Canadian law prior to 1982 respecting treaty rights and their vulnerability was succinctly stated by the SCC in R. v. Moosehunter. "The Government of Canada can alter the rights of Indians granted under treaties.... Provinces cannot."9
[3] Constitution Act, 1982
Aboriginal and treaty rights not extinguished prior to April 17,1982 are deemed to be "existing" under Canada's 1982 constitutional amendments.10 The CA 1982 defines "aboriginal people of Canada" as including the Indian, Inuit and Métis peoples of Canada.
"Aboriginal rights" are those rights held by aboriginal people that relate to activities that are an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming such rights. They may include rights related to activities which of necessity take place on land or relate to land such as hunting, fishing and trapping, and aboriginal title.11 "Aboriginal title" is (a) a sub-category of aboriginal rights, (b) a right to the land itself, and (c) the...
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