Description
The heart of this book, An Overview of Aboriginal and Treaty Rights and Compensation for Their Breach, deals with the complex question of compensation for the infringement of Aboriginal and treaty rights. The author begins with the Canadian law of expropriation but argues that, while these principles can provide guidelines for compensation, expropriation law is inadequate to address the issue fully. He then examines American jurisprudence and concludes that the American experience, which involves complex legal maneuverings and narrowly applied principles, has not always led to justice for Native Americans. Against this background, lawyer Robert Mainville sets out clear and practical principles for determining appropriate compensation when Aboriginal or treaty rights are breached. These principles include: considering the government's fiduciary obligation; applying compensation uniformly across the country; adequately assessing the impact of the breach on the Aboriginal community as a whole; considering the benefits derived by the Crown and third parties; the need for structured compensation schemes that do not necessarily meet mathematically accurate tests; and assessing third-party responsibility for compensation.