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Pick any province across Canada and you’ll find there are outstanding land claims for Aboriginal title. Even in the provinces that have treaties — which account for more than 30% the land mass that makes up Canada — Aboriginal title claims are being advanced. That means a large part of the country is subject to significant Aboriginal influence or control. Aboriginal and treaty rights are especially important because they are the only property rights in Canada protected by the Constitution.
“Generally, Aboriginal law has an impact on resource and land development but that is not just in rural Canada. Some aspect of Aboriginal interests or claims touch each of the major cities across the country,” says Charles Willms, a Band 1 ranked practitioner for aboriginal law and chair of Fasken Martineau DuMoulin LLP’s aboriginal law practice.
“There are claims for Aboriginal title in and around the city of Toronto, the Ottawa Valley, Montreal, throughout the St. Lawrence Valley and into the Maritimes, for example. Aboriginal law affects all Canadians — that’s why it’s so important.”
While the first Aboriginal law case in the books was a family law case that dates back to 1813, the legal fight over land soon followed. It wasn’t until 1968, however, with the transformative Calder case that the courts recognized Aboriginal people had more rights than previously acknowledged. The Supreme Court of Canada was divided on whether or not title had been proved but six of the judges agreed that aboriginal title existed as a common law right.
“That recognition led to a number of cases in the 1970s,” says Robert Janes, principal of Janes Freedman Kyle Law Corp. Chambers Global recognizes Mr. Janes as a First Nations “boutique” practitioner for his native-side work in aboriginal law.
“When the Constitution was repatriated in 1982, one of the big fights was over whether aboriginal rights would be addressed. There was a court battle in England over it; the issue got so much profile that a provision, Section 35, was included in the constitution that protected Aboriginal common law rights. But nobody really knew what it meant.”
In many ways First Nations, governments and the courts are still figuring it out. Not surprisingly, one the biggest challenges before the courts involves the question of aboriginal title, which is essentially the right to control the land First Nations had when the Europeans took control and to benefit economically from it.
For the rest of this article, click here: http://business.financialpost.com/2014/03/28/constitution-puts-aboriginal-front-and-centre-on-resource-projects/