An Overview of Aboriginal and Treaty Rights and Compensation for Their Breach: (Purich's Aboriginal Issues Series)

A pressing issue today is how to compensate Aboriginal peoples for the infringement of their rights. Aboriginal rights include more than a title; within the fiduciary relationship between the federal government and Aboriginal peoples is the issue of compensation for the infringement of Aboriginal and treaty rights. In an historical and legal context, Mainville examines Aboriginal and treaty rights origins, major Canadian court decisions that have defined them, the impact of the Canadian Constitution, and the limits to the government's ability to infringe upon Aboriginal and treaty rights. Mainville argues that while Canadian law can provide guidelines for compensation, expropriation law is inadequate to address the issue fully, and instead provides clear and practical principles for compensation.

Table of Contents:
Introduction Part I: Defining Aboriginal and Treaty Rights 1. Aboriginal Rights at Common Law The Marshall Decisions Historical Case Law Contemporary Case Law The Constitution Act, 1982 The Identification and Content of Aboriginal Rights Content of Aboriginal Title 2. Treaty Rights Forms of Treaties and the Capacity to Enter into Treaties The Nature of Treaty Rights The Interpretation of Treaties The Effect of Treaties 3. The Fiduciary Relationship Between Aboriginal Peoples and the Crown Judicially Enforceable Duties and Obligations Treaties and the Fiduciary Relationship The Fiduciary Relationship and the Provincial Crown 4. Federal Common Law and Aboriginal and Treaty Rights Federal Common Law Constitutional Division of Powers 5. Legal Principles Governing the Infringement of Aboriginal and Treaty Rights Extinguishment of Aboriginal and Treaty Rights Infringement of Aboriginal and Treaty Rights Infringement and Justification Tests Principal Factors in the Justification Test Part II: Principles of Compensation 6. A Review of Compensation in Cases of Expropriation Unrelated to Aboriginal and Treaty Rights Market Value Potential Value and Special Adaptability Intrinsic Value and Equivalent Reinstatement Consequential Impacts and Injurious Affection 7. The Experience in the United States Recognized Aboriginal Issues The Plenary Power of Congress Fiduciary Obligations Adequate Compensation 8. A Proposal for Principles of Compensation Notes Index

About the Author :
Robert Mainville practiced law in Montreal and represented Aboriginal peoples and First Nations for nearly thirty years. He was appointed a judge of the Federal Court of Canada in 2009. He has also lectured on Aboriginal rights in the law faculties at both McGill University and the Université du Québec á Montréal. He has written and lectured extensively on Aboriginal rights issues. He holds his first law degree from the Université de Montréal and his Masters in Law from McGill.