January 01, 2012

About the Author

  • Bob Adkins, Q.C.

    Bob has a business law practice focusing on commercial real estate, real estate development, commercial leasing, municipal law, zoning, property assessment, and administrative law.

    (204) 934-2483

  • Sacha R. Paul

    Sacha practices primarily in two areas of law - Aboriginal law and Public/Administrative law. Pronouns are he/him.

    (204) 934-2571

Since at least 2004, Aboriginal law has centered on consultation and accommodation. Hundreds of cases, articles, seminars and conferences have been dedicated to this undeniably important topic. Other related Aboriginal law issues have not received as much attention in the courts. One such area is the role of compensatory damages as a potential remedy for impacts on Indigenous rights.

Outside of the courts, compensation for impacts on Indigenous rights has routinely been raised and addressed in consultations between Aboriginal groups and the Crown as well as with third party resource developers. Generally, the parties have worked out agreements, such as Adverse Effects Agreements (AEA’s) or Impact Benefit Agreements (IBA’s), that address the impacts of a proposed project in a way that is
acceptable to the Aboriginal Group and which allows the project to proceed. Where such an agreement has not been reached, the parties have found themselves in court on issues related to the duty of consultation, not entitlement to compensation.

Clearly compensation is a tool in accommodation but is it an appropriate remedy for breaches. This issue will ultimately come before the courts but in the absence of any significant jurisprudence, the concept of compensatory damages for impacts on Indigenous rights raises a host of difficult issues, which do not have ready answers.

This article is presented for informational purposes only. The content does not constitute legal advice or solicitation and does not create a solicitor client relationship. The views expressed are solely the authors’ and should not be attributed to any other party, including Thompson Dorfman Sweatman LLP (TDS), its affiliate companies or its clients. The authors make no guarantees regarding the accuracy or adequacy of the information contained herein or linked to via this article. The authors are not able to provide free legal advice. If you are seeking advice on specific matters, please contact Keith LaBossiere, CEO & Managing Partner at kdl@tdslaw.com, or 204.934.2587. Please be aware that any unsolicited information sent to the author(s) cannot be considered to be solicitor-client privileged.

While care is taken to ensure the accuracy for the purposes stated, before relying upon these articles, you should seek and be guided by legal advice based on your specific circumstances. We would be pleased to provide you with our assistance on any of the issues raised in these articles.