CANADA Law and Practice Contributed by: Darrell Podowski, Brian Dominique, Joel Matson and Christa Alvernaz, Cassels Brock & Blackwell LLP
2.5 Impact of Specially Protected Communities on Mining Projects Indigenous groups are the most notable special - ly protected community in Canada. Indigenous law in Canada is based on constitutionally pro - tected inherent and treaty rights, referred to in Section 35 of the Constitution Act, 1982 as Abo - riginal and treaty rights. The Canadian Constitu - tion recognises and affirms the rights of Abo - riginal peoples of Canada (eg, Inuit, Métis, First Nations), and both the federal and provincial 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 pro - tection 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 encom - passes 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 Aborigi - nal 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 treaties, while other parts are not (notably, large portions of British Colum - bia). The applicable treaty will determine which specific rights have been granted and are held. Aboriginal rights are based upon and include customs, activities and traditions that have been exercised historically by Aboriginal peoples, without surrender by treaty; they may or may not be sufficient to support Aboriginal title and may be subject 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 deci - sion or action. Justifiable Infringement of Aboriginal Rights The Supreme Court of Canada has affirmed that certain Crown objectives can, in principle, justify the infringement of Aboriginal title or treaty or • forestry; • mining; • hydroelectric power; • general economic development; • the protection of the environment or endan - gered species; • the building of infrastructure; and • the settlement of foreign populations to sup - port these objectives. In order to justify an impairment or infringement of Aboriginal or treaty rights, the Crown must demonstrate a compelling and substantial gov - ernmental objective, and demonstrate that its other Aboriginal rights, such as: • the development of agriculture;
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