Abstract
Abstract What has the addition of aboriginal rights to the Canadian constitution in 1982 meant for the place of First Nations’ interests in the Canadian constitutional order? This article considers this question in the context of natural resource exploitation – specifically, the exploitation of the oil or tar sands in Alberta. It details some of the leading jurisprudence surrounding Section 35 of the Constitution Act 1982, the section of the Constitution recognizing existing aboriginal and treaty rights. Arguably, Section 35 represented an important effort to improve the status of aboriginal peoples in Canada, to enhance the extent to which Canada included and respected the values and interests of First Nations. The article specifically considers how the judicial interpretation of the Crown’s duty to consult and accommodate aboriginal peoples is related to the theme of inclusivity. It argues that the general thrust of judicial interpretation has promoted a thin, or procedural, version of inclusiveness rather than a substantive, or thicker, one. Such a thicker version of inclusiveness would be one in which the pace of oil sands exploitation is moderated or halted in order to allow First Nations to engage in traditional activities connected intimately with aboriginal and treaty rights.
Highlights
Following the patriation and amendment of the Canadian Constitution in 1982, 17 distinguished Canadian academics assessed the politics and substance of the Constitution Act 1982
In light of the historic failure of the regulatory process to ever delay or deny an oil sands application due to First Nations’ interests, the Athabasca Chipewyan First Nation (ACFN) lawyer wrote: ‘While ACFN does not object to this Integrated Application, it hopes that future ERCB and joint panels will take an active role in ensuring – prior to project approval – that the federal and provincial Crowns have met their constitutional duties to First Nations.’66 Alberta responded by saying that it was unfortunate that both the ACFN and the Mikisew Cree First Nation (MCFN) had decided not to participate meaningfully in the Joslyn hearing
The history of duty to consult and accommodate litigation in the oil sands is recent. It has been very ineffective from the point of view of promoting a thicker version of inclusiveness, one where the pace of oil sands exploitation is moderated or halted in order to preserve the ability of Treaty 8 First Nations to engage in the activities flowing from traditional aboriginal and treaty rights
Summary
Following the patriation and amendment of the Canadian Constitution in 1982, 17 distinguished Canadian academics assessed the politics and substance of the Constitution Act 1982. In light of the historic failure of the regulatory process to ever delay or deny an oil sands application due to First Nations’ interests, the ACFN lawyer wrote: ‘While ACFN does not object to this Integrated Application, it hopes that future ERCB and joint panels will take an active role in ensuring – prior to project approval – that the federal and provincial Crowns have met their constitutional duties to First Nations.’ Alberta responded by saying that it was unfortunate that both the ACFN and the MCFN had decided not to participate meaningfully in the Joslyn hearing. To an important extent First Nations have chosen to accommodate tar sands exploitation on their traditional lands
Sign-in/Register to view highlights & summary Sign-in/Register to access full text options 
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a callDisclaimer: All third-party content on this website/platform is and will remain the property of their respective owners and is provided on "as is" basis without any warranties, express or implied. Use of third-party content does not indicate any affiliation, sponsorship with or endorsement by them. Any references to third-party content is to identify the corresponding services and shall be considered fair use under The CopyrightLaw.
