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the power to infringe upon Aboriginal titleprovided the infringement is justifiable.To be constitutionally justifiable, the Crownmust demonstrate, in a two-part test, that:An infringement of Aboriginal titlemust be pursuant to compelling andsubstantial objectives. This includesdevelopment of agriculture, forestry,mining, hydroelectric power andother land resources; andThe actions comprising theinfringement must be consistent withthe federal government’s fiduciaryduty toward Aboriginal people.These fiduciary obligations includethe duty to consult with Aboriginalgroups. A review of some of AtlanticCanada’s current consultations withAboriginal groups is included later inthe chapter.TREATY RIGHTSMost of Atlantic Canada’s Aboriginal treatieshave existed for over 250 years. They raisemany unique and complex historical andinterpretative issues, and litigation overthose rights tends to be prolonged andexpensive.In the last 25 years, Canadian courts haveprovided guidance on the nature and scopeof the Aboriginal rights conferred by thesetreaties in several important cases.However, many questions about the extentof those rights and their implementationhave yet to be answered. Negotiationprocesses designed to address these andother issues are underway in all the AtlanticProvinces, but they are in their early stages.Under Canadian law, any written agreementbetween the Crown and competentrepresentatives of an Aboriginal peoplewhich imposes mutually binding obligationsis a “treaty”. The Supreme Court of Canadahas, however, emphasized that FirstNations treaties are more than merecontracts – they contain an exchange ofsolemn promises of a special, public, nature– and must be interpreted broadly, in theirfull historical context, and in a manner mostfavourable to Aboriginal people.All Aboriginal treaty rights existing as ofApril 17, 1982 are protected by s. 35 of theConstitution Act. To be covered by thissection, a treaty right must not have beensurrendered or expressly extinguished bythe Canadian government before that date.Even a constitutionally protected treaty rightis not absolute. The Canadian andprovincial governments can continue toenact statutes and regulations, and makedecisions, that affect these rights as long asthey can be “justified” (i.e. for conservationor other compelling and substantial publicinterest reasons). In order to establishjustification, government must also fulfill itsduty to consult.There are two main types of Aboriginaltreaties in Canada – “historic” and “modern”.Between 1713 and 1779, the British Crownentered into several “historic” treaties withrepresentatives of the Aboriginalcommunities which occupied AtlanticCanada at the time. Over the past 30 years,Canadian governments have alsoconcluded several much morecomprehensive and detailed “modern”Aboriginal treaties with First Nations acrossthe country.Aboriginal Law 149