Constitutional change, Aboriginal rights, and mining policy in Canada

Abstract

In 1982 an Aboriginal rights provision (Section 35) was added to the Canadian Constitution. This article identifies and assesses two impacts of this provision on Canadian mining policies. First, Section 35 has shattered the legal certainty that characterised policymaking in this field. Second, the traditional approach to mining policy in Canada – an approach that allowed both government and industry to ignore the interests of Aboriginal peoples – is no longer viable. The article concludes by making the case that while Section 35 has undermined the traditional norms of policymaking in this area it is too soon to say whether the emerging modus operandi will provide the means for Aboriginal peoples to secure their interests.

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