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

J.R. (Jim) Miller is Canada Research Chair of History at the University
of Saskatchewan. He is the author of Skyscrapers Hide in the Heavens: A
History of Indian-White Relations in Canada and co-editor of the
Canadian Historical Review.

When Aboriginal groups establish through the courts that their
treaty-based or Aboriginal rights have been abridged, how should the
legal system go about compensating them for the breach? David Mainville,
a private-practice lawyer in Montreal who has experience with Native
cases and with university teaching, addresses this question in An
Overview of Aboriginal and Treaty Rights and Compensation for Their
Breach. Mainville explains that, in spite of the importance of
Aboriginal cases in Canadian law over the past three decades, the courts
have not yet developed criteria and standards by which compensation for
breaches of Aboriginal and treaty rights might be awarded. Furthermore,
the existing criteria for losses from the law of expropriation, an
apparent parallel, are not applicable to losses by Aboriginal people
because of the unique nature of Aboriginal rights. His objective is to
review the issue and propose not a firm set of compensation criteria,
but rather principles to govern jurists’ consideration of
compensation.

Mainville’s method is to review Aboriginal and treaty rights, their
legal roots in common law, and the legal principles that have developed
governing the infringement of Aboriginal and treaty rights. The four
chapters on these topics are complex and technical, but Mainville’s
clear style and patient explanations render them as accessible as such
difficult matters are ever likely to be. The last three chapters review
principles of compensation for expropriation and relevant American
experience, and, finally, sketch the author’s preferences. His
proposed “Principles of Compensation” embrace the special
obligations of the Crown in dealing with Aboriginal peoples, the
benefits that third parties derive from breaches, the need for
uniformity of compensation principles across Canada, and the necessity
to structure and pay compensation in ways that respond to the special
circumstances of Aboriginal people.

Mainville’s analysis and proposal is by no means a facile
prescription or even an easy read. However, the legal issues he tackles
are important, his treatment of them commendably clear, and his
suggestions, however tentatively advanced, compelling.