Treaty Rights to Carbon Offsets within the Proposed Cap-and-Trade Regime in Ontario
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The Government of Ontario has announced that it will join the Western Climate Initiative's cap-and-trade program, with the first compliance period starting as soon as January 1, 2017. The program will include the use of carbon offsets and establish an offset registry. This paper examines the question of whether Ontario's treaties with First Nations in Northern Ontario create a right to ownership and control of carbon offsets situated on traditional territories. First, I discuss the cap-and-trade regime as a whole, and the criteria for carbon offsets specifically. Then I explore some of the overarching obligations of the Crown in relation to aboriginal communities generally and the more specific rights of First Nations communities in Northern Ontario. Finally, I provide three arguments that First Nations could use to assert a right to a sui generis ownership of the carbon sequestration capabilities of their traditional territories. The first argument relies on an incidental right to the enumerated treaty rights, the second is framed as a right to harvest carbon offsets, and the third deals with the expansion of the interpretation of the treaties to include sharing in the benefits of the land. Though tenuous, these arguments provide some tools for First Nations to use in negotiations with the Crown during the development of offset protocols and regulations surrounding the offset market.