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Sheiner, Paul --- "Book Review - An Overview of Aboriginal and Treaty Rights and Compensation for Breach" [2002] IndigLawB 38; (2002) 5(17) Indigenous Law Bulletin 27

Book Review

An Overview of Aboriginal and Treaty Rights and Compensation for Breach

by Robert Mainville
Purich Publishing 2001
192 p
RRP $27

reviewed by Paul Sheiner

The question of how to assess compensation for loss or interference with native title is an important one for native title holders, developers and governments alike. Native title legislation in Australia imposes an obligation on the federal, state and territory governments to pay compensation for past and intermediate period acts, as well as certain future acts that affect native title.

In Canada, as in Australia, the existing case law relating to compensation for loss or extinguishment of Aboriginal rights is limited. In Delgamuukw v British Columbia[1], the Canadian Supreme Court simply decided to leave the ‘difficult’ issue of how to assess appropriate compensation for infringement of Aboriginal or treaty rights ‘for another day’.

Mainville ‘modestly attempts to address’ these compensation issues by working from first principles. He starts by examining the law of Aboriginal rights, providing an overview of the early native title cases in North America. He goes on to trace the development of these first principles all the way to the current legal framework, focusing on how the constitutional division of powers between the federal parliament and provincial legislatures in Canada operates to protect Aboriginal rights. It is only after providing this overview that the author develops his proposed principles of compensation.

The author raises a number of questions in relation to compensation for breach of Aboriginal rights and title that have resonance for native title law in Australia. For instance, he asks in what context will regulation, as opposed to extinguishment, of a right be compensable? This issue will assume increased importance in Australia depending on the decision handed down by the High Court in Ward v Western Australia.[2]

In developing principles of compensation the author rejects both the framework of private property law and the law of torts. Instead Mainville believes:

... the doctrine of Aboriginal rights is tied to history and to the process of nation building. Infringements of Aboriginal and treaty rights must be viewed in this historical context and in the context of the underlying public law concepts surrounding Crown interactions with Aboriginal peoples.

Mainville then argues that any methodology for determining compensation should take into account the principles of fiduciary law. As he points out, in Canada the application of fiduciary remedies in cases of unlawful or unjustified interference with Aboriginal rights has been well established through cases such as Guerin v The Queen.[3] If fiduciary principles are taken into account, Mainville suggests that relevant factors in assessing compensation include the impact of the act on the Aboriginal community and the benefit derived by the Crown and third parties from the infringement.

In Australia, Mainville’s proposed approach finds support in Mabo v Queensland (No 2).[4] The judgments of Justices Deane and Gaudron, and Justice Toohey in that case suggest that equitable or restitutionary remedies may be available for loss or interference with native title.

Another important question discussed by Mainville is ‘who pays the compensation?’ He argues that where the interference with Aboriginal rights is or was unlawful, liability for the payment of compensation may rest with the third party. Again this question is yet to be answered conclusively in Australia. It remains unclear whether or not third parties who have benefited from acts that were otherwise unlawful but validated under the Native Title Act 1993 (Cth) and related legislation, have a liability along with government for the compensation payable to the native title holders.

The fact that Mainville’s book focuses on an overseas jurisdiction does not diminish its relevance for an Australian audience. It provides some clear and valuable insights into a difficult area of law in which there is little existing jurisprudence. At the very least, it will assist in broadening the scope of current debate in this area and identifying key questions for the future, both in Canada and Australia.

Paul Sheiner is a solicitor at Tottle Christensen in Perth.

[1] [1997] 3 SCR 1010.

[2] This case was heard on 14 March 2001.

[3] [1984] 2 SCR 335.

[4] [1992] HCA 23; (1992) 175 CLR 1.


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