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Canadian Aboriginal Law Update: Establishing Certainty For Mining and Exploration

Thomas Isaac, Natural Resources Development in Indian Country (2005)

Major legal developments have occurred in Canada in 2004 and 2005 that directly affect mining and exploration in this country. This paper focuses on three decisions from the Supreme Court of Canada (“SCC”) dealing with the constitutionally protected rights of aboriginal peoples and their access to, or influence on, resources and the ability of the federal and provincial governments (together, the “Crown”) to govern in the face of such rights. The three decisions are (a) Haida Nation v. B.C. and Weyerhaeuser, 1 (b) Taku River Tlingit First Nation v. B.C. (Project Assessment Director), 2 and (c) R. v. Marshall; R. v. Bernard. 3

These recent legal developments have increased the level of legal certainty in aboriginal law generally, and the authority of government to regulate and provide access to resources. These developments have also clearly confirmed that governments cannot pursue such regulation or access without considering the affects of such actions on the rights of aboriginal peoples. While these developments offer a certain level of progress for the resource development community, the extent of this progress will only be known once governments fully engage in implementing their constitutional obligations to aboriginal peoples in a manner that also preserves governments' authority to govern and manage natural resources.