Aboriginal Rights at the Crossroads of Public and Private Law: The Case of the Extractive Industry

This article examines the impact of Aboriginal rights on the legal relationship between indigenous peoples and the extractive industry in Quebec. The first part of the article deals with Impact and Benefit Agreements (IBAs) between resource extractors and indigenous peoples, while the second part looks at the companies' civil liability for any detrimental effects their activities may have on the exercise of Aboriginal rights. The overall finding is that the relationship between industry players and indigenous peoples holding or claiming Aboriginal rights with respect to land and resources lies at the meeting-point of public and private law. The author shows that Quebec law on civil liability, including the Charter of Human Rights and Freedoms, has a role to play in protecting indigenous peoples' Aboriginal rights over the land and its resources. Without impairing the sui generis public law aspects of aboriginal rights, Quebec private law is capable of acknowledging and protecting such rights in its own distinctive way. In addition, there is no obstacle in public law to the signing of specific contractual agreements such as IBAs, even when they restrict the exercise of activities arising from Aboriginal rights. In fact, contract law appears to be one of the means available to an indigenous people to exercise its decision-making authority inherent in Aboriginal rights and pursue its economic and social development. Enduring uncertainty about the identity of the group holding Aboriginal rights may, however, undermine such agreements if they fail to respect indigenous land tenure systems.