There continues to be significant uncertainty over the scope of Aboriginal rights in Canada, which results in significant uncertainty for infrastructure development in the energy sector. Developing a framework for determining fair and reasonable compensation for potential impacts to Aboriginal title is therefore a pressing need for governments as well as proponents. This article explores options on how to ensure greater certainty in the process of determining appropriate compensation for impacts to Aboriginal title. It conducts an analysis of the nature of Aboriginal title, the present compensation methodology for all land types, and the Australian experience with these matters. The article is intended to consider compensation for impacts to Aboriginal title, although it is recognized that impacts to Aboriginal title are not the sole challenges arising from energy infrastructure development in Canada. Also, the proposed framework does not suggest that all infringements to Aboriginal title can be justified with appropriate compensation and there may be situations where no level of payment can compensate for the impact to the community's way of life. The article concludes there are at least three potential approaches to determine appropriate compensation for impacts to Aboriginal title, and regardless of the method chosen all will require extensive reform from the present approach.

Project reviews have become the primary forum to discuss cumulative impacts of energy and resource development on Aboriginal and treaty rights. After thoroughly reviewing the case law and legislation, the authors assert that these impacts cannot be resolved through piecemeal measures like individual permitting decisions. Governments need to use broader actions such as effective land-use planning, regional assessments, and separate forums to address specific concerns with at-risk species. Further, clear policy and regulatory guidelines must be created with careful attention to promoting responsible development and avoiding stifling investment in Canada. By doing so, governments will be in a better position to consider environmental, Aboriginal rights, and treaty rights issues while establishing certainty for project proponents.