Close this search box.
Nelligan News
Reading Time: 2 minutes

Lanise Hayes spoke at the Aboriginal Mawi’omi conference in December 2014. This post covers part 1 of her presentation. One may often wonder how impact benefit agreements fit in the Aboriginal context. The seminal cases listed below established the fiduciary duty of the Crown toward Indigenous peoples and how this actually translates in day-to-day dealings with Indigenous peoples.

The four following seminal cases establish the fiduciary duty of the Crown toward Indigenous peoples:

  • R. v. Sparrow – restraint on exercise of government power that impacts government rights
  • Delgamuukw v. British Columbia – Aboriginal titles include exclusive use and occupation of land
  • Haida Nation v. British Columbia – duty to consult and accommodate even where title not established
  • Tsilhqot’in Nation v. British Columbiaduty to consult proportionate to strength of assertion but consent when title established

In Sparrow, the SCC decided that federal legislative powers must be reconciled with the Crown’s fiduciary duty such that any infringement of Aboriginal rights must be justified.

Delgamuukw dealt with Aboriginal title and the SCC determined that title includes the right to exclusive use and occupation of the land, it is sui generis and cannot be sold or transferred to anyone. The SCC also decided that the use cannot be irreconcilable with the nature of the Indigenous group’s attachment to the land.

Haida established the duty to consult and accommodate as integral to the honour of the Crown. This means that the Crown cannot ignore Aboriginal interests where a claim is being pursued or title has been established when contemplating some action that might adversely affect the claim or title.

The most recent decision in Tsilhquot’in essentially reiterates past decisions respecting title. Once title is established, the SCC appears to impose an obligation to obtain consent on government and third parties.

So essentially, impact benefit agreements are a tool that enables business and government to ensure that the duty to consult and accommodate Indigenous peoples is satisfied. Not only that, but impact benefit agreements are a way for Indigenous peoples to engage with business and government so that development of resources on their lands respects their way of life, procures sustainable economic benefits for them, and minimally impacts their enjoyment of their lands.


No data was found

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

Have Questions?

Enjoy this article?
Don’t forget to share.

Related Posts

Indigenous Law
Reading time: < 1 mins
June is National Indigenous History Month. It is time to honour the history, heritage and diversity of Indigenous peoples in[...]
Indigenous Law
Reading time: 7 mins
On Canada’s first National Truth and Reconciliation Day, our goal is to amplify Indigenous voices in honour of the lost[...]
Indigenous Law
Reading time: < 1 mins
Audrey DeMarsico, associate lawyer in our Indigenous practice group was recently interviewed by Aboriginal Peoples Television Network (APTN) discussing recent[...]