La théorie du choix rationnel et l’influence des droits constitutionnels reconnus aux peuples autochtones canadiens sur le comportement des acteurs impliqués dans la réalisation de projets d’exploitation des ressources naturelles

The effects of the constitutional entrenchment of Aboriginal and treaty rights in Canada, provided for by subsection 35(1) of the Constitution Act, 1982, are not well known among legal scholars. This essay, mobilizing the rational choice framework relied upon in economics, aims to draw up hypotheses concerning the way in which this constitutional provision influences the conduct of corporations, State governments and indigenous communities in the context of natural resource exploitation developments that have the potential to impact the rights protected by subsection 35(1).  The mobilization of the rational choice framework allows us to state some hypotheses that apply for each type of right recognized by subsection 35(1). Firstly, the remedies crafted by the courts in the case of violations of these rights impose sufficient costs on corporations and governments to force these two actors to attempt to abide by this constitutional provision. In so doing, State governments and corporations will incur costs which flow from the rights recognized by this provision. However, the uncertainty that characterizes the scope of the rights recognized by subsection 35(1) imposes another cost to corporations and State governments in the form of a risk that, despite their attempts to respect the requirements of this constitutional provision, its conduct may be contested by the indigenous community whose rights are infringed by a natural resource project. Therefore, it may sometimes be less costly to try to obtain the consent of this community affected by the planned natural resource exploitation project. As long as the various forms of accommodation required to obtain the consent of the indigenous community give rise to costs that inferior to those incurred by governments and corporations when they merely try to respect the requirements set forth by subsection 35(1), they should try to conclude an agreement with the indigenous community affected by its conduct.  The indigenous community, for its part, benefits from the remedies that flow from the rights recognized by subsection 35(1). The indigenous community’s valuation of these benefits, however, is also subject to the uncertainty that characterizes the scope of its constitutional rights. Therefore, when it considers the possibility of consenting to a natural resource development, the indigenous community will weigh the benefits deriving from any agreement that might be offered by a corporation or state government and those that it may gain by challenging its conduct before a court of law, considering the uncertainty surrounding this second category of benefits. On the other hand, when state governments and corporations only attempt to narrowly abide by the standards of subsection 35(1), the indigenous community will have to evaluate the benefits that it gains from the conduct of these two actors and those that could be gained through legal action, considering the costs and uncertainty that characterize this second option.

Keyphrases: Indigenous rights, Subsection 35(1) of the Constitution Act, 1982, Rational choice, Uncertainty, Natural Resource Exploitation