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Canadian Aboriginal Law: Creating Certainty in Resource Development

Dr. Anthony Knox, Thomas Isaac, Mining Law & Investment in Latin America (2003)

In 2000, a paper entitled “Aboriginal Title and Mineral Development in Canada and Australia” was presented at the 46th Annual Institute of the Rocky Mountain Mineral Law Foundation by one of the co-authors of this paper which compared the state of law relating to mineral development and aboriginal people in Canada and in Australia.1 That paper concluded that Canada and Australia had, in the course of recent decades, both accepted that aboriginal people had rights in the land they had historically occupied. While Canada chose a constitutional approach to protect such rights, Australia, unfettered by express constitutional protection of such rights, dealt with them by legislation and the creation of specialized institutions.

Canada's constitutional “recognition and affirmation” of aboriginal and treaty rights on April 17,1982 was both unprecedented and vague.2 It has taken over twenty years to fashion this constitutional fact into intelligible law that potentially allows fair and certain treatment of all stakeholders in Canadian natural resource development. Extensive litigation dealing with the place of aboriginal and treaty rights in Canadian law has created the basis for a working resolution between aboriginal people and other Canadians which is still growing in clarity, but already gaining general acceptance.

Canada's natural resource industries are becomi