Calculating the Incalculable: Principles for Compensating Impacts to Aboriginal Title

Abstract

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.

UNDRIP as a Framework for Reconciliation in Canada: Challenges and Opportunities for Major Energy and Natural Resources Projects

“…147 Article 32 does not contemplate creating a right to "veto" by Indigenous peoples in Canada. 148 Section 35, as it is currently understood by the Canadian courts, can be reconciled with the principles of FPIC put forth in article 32 of UNDRIP.…”