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Distributed for Purich Publishing

An Overview of Aboriginal and Treaty Rights and Compensation for Their Breach

A pressing issue today is how to compensate Aboriginal peoples for the infringement of their rights. Aboriginal rights include more than a title; within the fiduciary relationship between the federal government and Aboriginal peoples is the issue of compensation for the infringement of Aboriginal and treaty rights. In an historical and legal context, Mainville examines Aboriginal and treaty rights origins, major Canadian court decisions that have defined them, the impact of the Canadian Constitution, and the limits to the government’s ability to infringe upon Aboriginal and treaty rights. Mainville argues that while Canadian law can provide guidelines for compensation, expropriation law is inadequate to address the issue fully, and instead provides clear and practical principles for compensation.

Table of Contents


Part I: Defining Aboriginal and Treaty Rights

1. Aboriginal Rights at Common Law
The Marshall Decisions
Historical Case Law|
Contemporary Case Law
The Constitution Act, 1982
The Identification and Content of Aboriginal Rights
Content of Aboriginal Title

2. Treaty Rights
Forms of Treaties and the Capacity to Enter into Treaties
The Nature of Treaty Rights
The Interpretation of Treaties
The Effect of Treaties

3. The Fiduciary Relationship Between Aboriginal Peoples and the Crown
Judicially Enforceable Duties and Obligations
Treaties and the Fiduciary Relationship
The Fiduciary Relationship and the Provincial Crown

4. Federal Common Law and Aboriginal and Treaty Rights
Federal Common Law
Constitutional Division of Powers

5. Legal Principles Governing the Infringement of Aboriginal and Treaty Rights
Extinguishment of Aboriginal and Treaty Rights
Infringement of Aboriginal and Treaty Rights
Infringement and Justification Tests
Principal Factors in the Justification Test

Part II: Principles of Compensation

6. A Review of Compensation in Cases of Expropriation Unrelated to Aboriginal and Treaty Rights
Market Value
Potential Value and Special Adaptability
Intrinsic Value and Equivalent Reinstatement
Consequential Impacts and Injurious Affection

7. The Experience in the United States
Recognized Aboriginal Issues
The Plenary Power of Congress
Fiduciary Obligations
Adequate Compensation

8. A Proposal for Principles of Compensation


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