Paper: Compensation After Delgamuukw

These materials were prepared by Joanne R. Lysyk of the law firm Blake, Cassels & Graydon, Vancouver, BC for a conference held in Vancouver, BC hosted by Pacific Business & Law Institute, May 13, 1999.

The full paper is available via pdf download at the bottom of this page.

There is only a brief discussion of compensation in the Delgamuukw decision1 itself.
The relevant passage is at paragraphs 169 of the decision, and may conveniently be set
out here in full:

[A]boriginal title, unlike the aboriginal right to fish for food, has an inescapably economic aspect, particularly when one takes into account the modern uses to which lands held pursuant to aboriginal title can be put. The economic aspect of aboriginal title suggests that compensation is relevant to the question of justification as well [as well as consultation and/or consent], a possibility suggested in Sparrow and which I repeated in Gladstone. Indeed, compensation for breaches of fiduciary duty are a well-established part of the landscape of aboriginal rights: Guerin. In keeping with the duty of honour and good faith on the Crown, fair compensation will ordinarily be required when aboriginal title is infringed. The amount of compensation will vary with the nature of the particular aboriginal title affected and the extent to which aboriginal interests were accommodated. Since the issue of damages was severed from the principle action, we received no submissions on the appropriate legal principles that would be relevant to determining the appropriate level of compensation of infringements of aboriginal title. In the circumstances, it is best that we leave those difficult questions to another day.

In this paper I will discuss the conclusions regarding compensation which may be drawn
from this passage, in the context of the Delgamuukw decision as a whole, and in light of
the previous and subsequent case law. I will also address certain questions regarding
compensation which, as yet, remain unanswered.