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Canadian Aboriginal Rights and Mineral and Energy Development: Risks and Related Strategies

Caroline Findlay, Proceedings of 56th Annual Rocky Mountain Mineral Law Institute (2010)

I venture the conclusion that no area of Canadian law has been so transformed in such a short period of time as the law of Aboriginal rights. Rights that were undefined and barely recognized in 1973, and were in any case vulnerable to legislative and constitutional extinguishment, have in the short space of little more than 30 years become powerful, constitutionally protected rights.1
Canada's First Nations or aboriginal peoples,2 who today consist of about one million people, occupy a central place in the history and cultural life of Canada. Although the vast majority of energy and mineral resources are located on public lands and are owned by the Crown,3 First Nations [5B-3] have aboriginal rights, claims, and interests4 that are integral to the access, use, and development of these public lands. Most importantly, from a legal perspective, when Canada undertook the patriation of its Constitution in 1982, a fundamental political decision was made to constitutionally protect the rights of aboriginal communities, as follows: “35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.... (3) For greater certainty, in subsection (1) ‘treaty rights’ includes rights that now exist by way of land claims agreements or may be so acquired.”5
This constitutional protection marked the end of the era of denying aborigin