Overview of Aboriginal and Treaty Rights and Compensation for Their Breach

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.

• IntroductionPart I: Defining Aboriginal and Treaty Rights1. Aboriginal Rights at Common LawThe Marshall DecisionsHistorical Case Law Contemporary Case LawThe Constitution Act, 1982The Identification and Content of Aboriginal RightsContent of Aboriginal Title2. Treaty RightsForms of Treaties and the Capacity to Enter into TreatiesThe Nature of Treaty RightsThe Interpretation of TreatiesThe Effect of Treaties3. The Fiduciary Relationship Between Aboriginal Peoples and the CrownJudicially Enforceable Duties and ObligationsTreaties and the Fiduciary RelationshipThe Fiduciary Relationship and the Provincial Crown4. Federal Common Law and Aboriginal and Treaty RightsFederal Common LawConstitutional Division of Powers5. Legal Principles Governing the Infringement of Aboriginal and Treaty RightsExtinguishment of Aboriginal and Treaty RightsInfringement of Aboriginal and Treaty RightsInfringement and Justification TestsPrincipal Factors in the Justification TestPart II: Principles of Compensation6. A Review of Compensation in Cases of Expropriation Unrelated to Aboriginal and Treaty RightsMarket ValuePotential Value and Special AdaptabilityIntrinsic Value and Equivalent ReinstatementConsequential Impacts and Injurious Affection7. The Experience in the United StatesRecognized Aboriginal IssuesThe Plenary Power of CongressFiduciary ObligationsAdequate Compensation8. A Proposal for Principles of CompensationNotesIndex