APPROPRIATE LEGAL PRINCIPLES FOR DETERMINATION OF COMPENSATION FOR INFRINGEMENTS OF ABORIGINAL TITLE IN CANADA

This thesis explores the appropriate legal principles that should inform monetary compensation for infringements of Aboriginal title in Canada. The research does not extend to other forms of remedies that may be applicable where Aboriginal title is infringed. The focus is on the unresolved issues of the measure of compensation for infringement of Aboriginal title. This is premised on the fact that Aboriginal title is sui generis and the general principles for the determination of compensation for infringements of real property may not readily augur well with the nature of Aboriginal title. The focus on monetary compensation does not imply that compensation is the only remedy available for infringement of Aboriginal title as other remedies may be viable where Aboriginal title is infringed. For the limited scope of this research, there is enough to deal with here on compensation as one can only do so much for one thesis. The research provides scholarly insight into the possible challenges of determining compensation that will remedy the loss of an Aboriginal group whose land rights and interests are infringed. The main challenge faced in the determination of compensation appears to be the difficulty in the valuation of both the economic and non-economic dimensions of Aboriginal title which should ordinarily determine the amount of compensation payable when it is infringed. This research aims to provide innovative and original potential solutions to the issue of calculation of compensation for infringements of Aboriginal title. In designing the mechanism that should inform compensation, the work draws from the experiences in Australia, Malaysia, the international arena and some of the extant persuasive principles tenable in Canada. It argues that one of the possible solutions to the issue of compensation is the adoption of a bifurcated approach in the determination of compensation. This approach entails the separation of the incalculable component of the value of Aboriginal title from the calculable component. It contends that the danger of a holistic measurement of the value of the infringed rights and interests in lands subject to Aboriginal title is that the rights and interest may become wholly incalculable. Hence, in practical terms, the solution to that danger is to separate the calculable component from the incalculable component; calculate the value of the calculable component and award a solatium for the incalculable component. This thesis goes on to recommend the use of assessors with indigenous backgrounds in the determination of compensation. This will bring Aboriginal perspective in the determination of compensation. Finally, recognizing that some of the potential solutions may need legislative action, this thesis recommends the enactment of legislation that will set out the appropriate legal principles for the determination of compensation for infringement of Aboriginal title in Canada