Brenda L Gunn, “More Than Money: Using International Law of Reparations to Determine Fair Compensation for Infringements of Aboriginal Title”

Working Abstract

The constitutional protection of Aboriginal title is not absolute. Governments can justify their infringements if several conditions are met, including the payment of fair compensation. “Fair compensation” must be interpreted in a robust manner to fulfill the purpose of s. 35(1), uphold the honour of the Crown, and give the maximum protection to Indigenous peoples’ land rights. This article argues that “fair compensation” should be interpreted in line with the reparation orders issued for infringements of Indigenous peoples’ land rights in international law. This article explores two possible avenues to sustain this argument: proving that Indigenous land rights are part of customary international law thus obligating Canada to interpret fair compensation to require full reparations be provided and using the presumption of conformity to interpret Canadian law in line with emerging international norms. Each approach has strengths and potential drawbacks, but they are both relevant to advancing Canadian jurisprudence on justifying infringements of Aboriginal title.

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