CANADA Law and Practice Contributed by: Darrell Podowski, Jennifer Poirier, Joel Matson and Simi Fagbongbe, Cassels Brock & Blackwell LLP
2.5 Impact of Specially Protected Communities on Mining Projects
Aboriginal rights may be established without surren - der by treaty; the relevant practices may or may not be sufficient to support Aboriginal title and may be sub - ject to, but protected by, treaty terms. Nevertheless, Aboriginal rights are recognised and protected, and will trigger the Crown’s duty to consult (and potentially accommodate) where they may be adversely affected by a Crown decision or action. Justifiable Infringement of Aboriginal Rights The Supreme Court of Canada has affirmed that cer - tain Crown objectives can, in principle, justify the infringement of Aboriginal title or treaty or other Abo - riginal rights, such as: • development of agriculture; • forestry; • mining; • hydroelectric power; • general economic development; • protection of the environment or endangered spe - cies; • building of infrastructure; and • settlement of foreign populations to support these objectives. In order to justify an impairment or infringement of Aboriginal or treaty rights, the Crown must demon - strate a compelling and substantial governmental objective, and demonstrate that its actions are con - sistent with the fiduciary duty it owes to the Indig - enous groups, including appropriate consultation (or attempts to consult) as a precursor to justification of the infringement. Proof that infringement is consist - ent with the Crown’s fiduciary duties to Indigenous peoples involves a three-part test: • rational connection – the infringement must be necessary to achieve the Crown’s objective; • minimal impairment – the Crown must go no further than necessary to achieve its objective; and • proportionality of impact – the benefits expected to flow from the objective must not be outweighed by the adverse effects on the Aboriginal interest. The Supreme Court of Canada has held that provin - cial governments, when acting within their jurisdic -
Indigenous groups are the most notable specially protected community in Canada. Indigenous law in Canada is based on constitutionally protected inher - ent and treaty rights, referred to in Section 35 of the Constitution Act, 1982 as Aboriginal and treaty rights. The Canadian Constitution recognises and affirms the rights of Aboriginal peoples of Canada (eg, Inuit, Métis, First Nations), and both the federal and pro - vincial governments are obliged to “act honourably” when dealing with Aboriginal peoples in light of this constitutional protection. Aboriginal rights legally flow from historic Indigenous occupation and traditional use of land, historic and modern treaties, negotiated claim settlements and court-affirmed rights. Aboriginal Rights, Aboriginal Title, Treaty Rights and Traditional Land Use Rights Aboriginal rights in Canada are based upon and include customs, activities and traditions that have been exercised historically by Aboriginal peoples, including the right to hunt, trap, fish and gather on the land in question, and the protection of related economic, sacred, cultural and archaeological lands, sites, and flora and fauna. Aboriginal title is a form of Aboriginal right that includes the right to the land itself derived from exclusive and unsurrendered occupation and use of land from prior to contact, and encompasses the right to exclusive benefit from and use and occupation of the land for a variety of purposes (not just traditional or cultural uses). Aboriginal title holders have the right to deter - mine how land is used and the right to benefit from those uses. This is the highest order of Aboriginal land rights. Treaty rights are those rights that an Aboriginal group enjoys as a result of having entered into a treaty (a unique legal instrument) setting out such rights with the Crown. Large parts of Canada are subject to trea - ties, while other parts are not (notably, large portions of British Columbia). The applicable treaty will deter - mine which specific rights have been granted and are held.
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