Lawyers specializing in both mining and aboriginal law expect a raft of new cases to test the limits of aboriginal title in the wake of the Supreme Court of Canada’s June 26 Tsilhqot’in Nation v. British Columbia ruling — the Tahltan First Nations in northern British Columbia jumped right in with a title claim that it launched hours after Tsilhqot’in came in. The lawyers also say any attempts from governments to argue the public benefit of a proposed development justifies infringing on aboriginal rights will prompt a new round of suits that will likely go all the way to the Supreme Court, probably delaying projects well beyond the time frame a company may be prepared to see.
In Tsilhqot’in, the Supreme Court issued its first declaration of aboriginal title, ruling the band holds title to land in the interior of British Columbia it has used over generations, and it can prevent forestry activities there. The decision confirms a new category in the land ownership lexicon, adding “title land” to the existing Crown land and private land.
The case has broad implications for those provinces where First Nations have no treaties dealing with land use, including parts of Quebec and the Maritimes as well as British Columbia, the resource-rich home to some 200 of Canada’s 600 First Nations groups. It gives governments the right to infringe on native title if it’s in the broader public interest, but also strongly reinforces the view it’s better to reach a deal with an aboriginal group than to launch into a costly legal process that may take more than a decade to be resolved.
Yet for companies already focused on consultation and accommodation — paying for the privilege of operating on aboriginal lands — most things will stay the same. “It’s business as usual, but I think it will slow things down, for sure, on the aboriginal title side,” says Brian Dominique, a partner at Cassels Brock & Blackwell LLP in Toronto. “The negotiations will get tougher, and the accommodations will get more expensive.”
He says the difficulties of reaching a deal increase exponentially as the number of groups involved rises. As companies seek to open up mines in more remote areas, even relatively non-intrusive proposals like transmission lines could run up against opposition. “In the mining industry, it’s going to open the door to more claims about aboriginal title . . . and it will probably shift the balance of power in the negotiations in existing claims between First Nations and the Crown. That will create a little bit more uncertainty and it’s going to require governments and proponents of mining projects to have to consult with aboriginal parties and potentially accommodate.”
Keith Bergner, a partner and an aboriginal law expert at Lawson Lundell LLP in Vancouver, says the mining sector had long recognized the need to negotiate with First Nations, a concept the court reinforced as its favoured approach in this ruling. “Industry is already out there seeking the consent of aboriginal groups through various means, including the negotiation of impact-benefit agreements,” he says. “That’s what the court says. You can avoid all this uncertainty by seeking the consent of the aboriginal group.”
Even after Tsilhqot’in, claiming title is not a straightforward issue for aboriginal groups, given overlapping territories and the need to demonstrate exclusive use of the land where title is being claimed. As well, because existing British Columbia legislation deals with private land and land owned by the Crown rather than title land, the province will need to draw up new laws, or amend existing ones. With no pattern to copy from other provinces, legal experts agree that’s likely to take time. “The next step will be government’s response, specifically from British Columbia,” says Sam Adkins, a partner and member of the global aboriginal and mining groups at McCarthy Tétrault LLP. “I think before you will see multiple title cases coming forward, you will see some sort of response from the B.C. government. I hope that it is a measured response.”
Thomas Isaac, head of the aboriginal law group at Osler Hoskin & Harcourt LLP, sees the ruling as an endorsement of provincial authority, cementing the view provincial laws do apply in respect to aboriginal title lands. He says British Columbia needs to think carefully about its response, rather than racing to a politically expedient solution. “Whatever the reaction to this is, the only answer has to be long-term and sustainable and ultimately affordable and for the public good,” he says. “That flies in the face of what we’ve seen some governments doing from time to time across the country in terms of short-term, election-cycle thinking so as not to have to deal with the tough issues.”
He adds: “There’s a certain degree of risk in dealing with aboriginal issues. This decision in many ways doesn’t necessarily increase those risks, but what would increase those risks is the lack of a thoughtful reaction from the government of British Columbia.”
The provincial government has offered few clues to how it will change its laws. “The decision provides additional certainty around processes and tests that are applied to the relationship between the province and aboriginal peoples,” Justice Minister Suzanne Anton said on the day of the ruling. “We will take the time required to fully analyze it and work with First Nations, industry and all of our stakeholders as we do so.”
The focus on provincial authority in Tsilhqot’in was reinforced in a separate Supreme Court ruling on aboriginal treaty lands, delivered in July after an unusually short review period.
Known as the Keewatin case, in Grassy Narrows First Nation v. Ontario (Natural Resources) the Supreme Court agreed with the lower court that Ontario did not need to consult with the federal government before taking up land in a tract included in Treaty 3 of 1873. As did Tsilhqot’in, the Keewatin decision also offered governments the chance to overrule aboriginal land rights if it’s in the public interest to do so. But that will be a tough hurdle, given a raft of conditions that must be met for public interest to take precedence. “The Supreme Court of Canada has gone out of its way to clarify the regime for the integration of Crown and common law rights with aboriginal rights and treaty rights,” says Dominique. “They took this case because they knew they had the Tsilhqot’in case and the issue of infringement, and they applied the same principles to treaty and non-treaty lands. . . . It leaves no scope for misinterpretation, that’s for sure.”
But Tsilhqot’in could also offer hope for First Nations that did sign treaties, adding to uncertainty and raising the possibility of additional lawsuits. “What will be interesting to see is how those First Nations who have signed treaties will try to use the [Tsilhqot’in] decision in their favour, more from a political standpoint than from a legal one,” says Pierre-Christian Labeau, a partner at Norton Rose Fulbright Canada LLP with experience in native, constitutional, and administrative law. “It will give new ammunition to First Nations, because clearly they signed treaties in the 19th century when there were not many activities on their traditional lands, and now they see all those developments going on, and they will certainly feel that the treaties . . . do not give them a real say on how their traditional lands are developed. But of course they signed treaties, so they have to work with them.”
Many First Nations have long argued the treaties they signed were flawed and one-sided, and the Assembly of First Nations expressed deep disappointment with the Keewatin ruling. “I remain unconvinced that justice will be achieved through Canada’s domestic courts when it comes to the interpretation of our international treaties,” said Saskatchewan regional chief Perry Bellegarde, who holds the AFN treaty portfolio. “We are dismayed that the Supreme Court failed to recognize the First Nations’ understanding of Treaty 3 including First Nations’ jurisdiction over this territory.
. . . Given the snail’s pace at which the provinces are moving on their duty to consult and accommodate, this also needs to be addressed according to international standards as affirmed in the United Nations Declaration on the Rights of Indigenous Peoples.”