The recent Decision by the Supreme Court of Canada [2014 SCC 44] released on June 26, 2014, declaring the Tsilhqot'in Nation to hold aboriginal land title over portions of the Cariboo-Chilcotin area of B.C. has raised a number of questions related to the implications for businesses, legal professionals and treaty negotiations. Vancouver lawyer George Cadman, Q.C. discusses the Decision's importance, the factors that make this case unique, and how the Decision may impact resolution of other First Nations land disputes.
Question: Why is this Decision important?
The Decision in Tsilhqot'in Nation brings together a number of principles developed over three decades of decision-making in this area of the law. It provides significant guidance to both the legal profession and the business community as to what key principles will govern relationships between the Government of Canada, the Provincial Government, First Nations and business interests. It will impact treaty negotiations, negotiations of business arrangements with both government and First Nations and aboriginal title claim disputes for many years to come.
In its unanimous decision, the Supreme Court of Canada has confirmed not only what First Nations must establish legally to obtain a declaration of Aboriginal title, but also what the consequences of such a declaration are. It recognizes that
a) Aboriginal title is held by the Crown for the collective benefit of the First Nation involved;
b) benefits flowing from the use of resources or the territory itself must flow to the First Nation; and,
c) most significantly, the incursion of Government on Aboriginal title can only occur if there is "a compelling and substantial governmental objective" that provides a proper basis for "government action that is consistent with the fiduciary duty owed by the Crown to the Aboriginal group".
Furthermore, the Court has made very clear statements as to the obligations that rest with government in three key areas where the law was less than clear:
- when the duty to consult with First Nations arises,
- what form that consultation should take and
- how First Nations interests are to be accommodated,
all in circumstances where Aboriginal title may not yet have been established but is already claimed over specific lands and territory.
Question: How will it impact existing treaty negotiations? What about future treaty negotiations?
For those who are already at the treaty table, while the Decision will prove to be helpful, it will not significantly alter the current bargaining. In some circumstances, however, it may well enhance the particular bargaining power of a First Nation where government negotiators have been hesitant to conclude some arrangements pending release of this Decision.
First Nations not yet at the treaty table or at a very preliminary stage may well be aided by the Decision if they are able to satisfy the threshold legal tests that allow for a claim of Aboriginal title to be proven in Court.
Question: How will this impact resource projects already in the "pipeline"?
For many in the business community and at varying levels in government, particularly provincially, this Decision simply reinforces the broader duty to consult and reach an accommodation with First Nations. In many areas of this province the concerns of First Nations are already being addressed (to a greater or lesser degree) either directly by business or government or often both together.
On the major proposed pipeline corridors, the Provincial Government has been clear (and continues to be so) that First Nations must be active participants in mapping out the way forward to keep resource projects moving ahead. For Northern Gateway, consultation with and involvement of First Nations in decision-making was one of the five key principles that Premier Christy Clark laid out almost two years ago. Nothing in that regard has been changed by this Decision.
Of course, the principles articulated by the Court in the Decision apply across the board to all resource sectors (forestry, mining, fishing, power generation), not just pipeline projects.
Question: Is there any unique feature to this Decision?
Proving Aboriginal title through the courts is a lengthy and expensive process. It is significant in this case that there were no competing territorial claims by other First Nations over the lands claimed by the Tsilhquot'in. In many areas of the province that is not the case. Often, there are competing territorial claims over the same lands where one or more First Nations claim Aboriginal title.
That is one of the unique features of this case that sets it apart on its facts from other situations. Where there are competing claims to the same areas, this obviously may complicate (and has for a number of years) negotiations between government, the affected First Nations and interested third parties.
It is important to understand that this does not lessen the obligations of government to ensure that all appropriate and meaningful consultation takes place and, where necessary, that First Nations are an active player in resource decision-making, even if claims have not been settled or are still in dispute.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.