On Obligations and Contamination: The Crown-Aboriginal Relationship in the Context of Internationally-Sourced Infringements

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Mercury, Biocontamination, Crown Obligations, Aboriginal Rights, Harvesting, Pollution


This paper considers and questions several aspects of how the jurisprudence has come to conventionalize approaches to Aboriginal rights and Crown obligations. Although intended as an exploratory work, this paper is grounded in the case study of mercury biocontamination of "country food," which provides physical and cultural sustenance to northern Aboriginal peoples. I selected this case study for the very reason that it seems to fall outside the scope that the traditional analysis of Aboriginal rights and Crown obligations embraces. Although the tight relationship between cultural integrity and practices of collecting and sharing food in the north would surely substantiate a s. 35(1) rights claim, there is no particular domestic Canadian law or regulation that can be meaningfully targeted as the infringing "smoking gun" due to the contaminant having multiple international sources. Mercury contamination arises as a general byproduct of world-wide fossil fuel based industrial activity and is also being released from Arctic sinks as a result of climate change. This fact pattern differs considerably from those that have come before Canadian courts, and so it can ground a speculative engagement concerning where the principles of s. 35(1) take us when the Crown is not responsible, per se, for a situation which threatens Aboriginal rights, but where the Crown has the power to act to try to change the situation. Within my analysis, I consider and try to address some of the inconsistencies potentially operating in the logic of how Aboriginal rights claims are often framed.