Albert Hudec is a Vancouver-based senior commercial lawyer who regularly advises First Nations in British Columbia on commercial matters relating to major resource projects.
Thursday’s decision of the Supreme Court of Canada in Tsilhqot’in dramatically strengthens the bargaining position of Canada’s First Nations in their dealings with governments and industry. For the first time in history, the Court has granted aboriginal title over large tracts of land regularly used by a First Nation for hunting and fishing and over which the First Nation exercised effective control at the time of the assertion of European sovereignty.
The unanimous ruling clearly rejects the reasoning of B.C.’s Court of Appeal, which took a narrower view that constrained aboriginal title to well-defined areas used on a regular and intensive basis. Examples include village sites and cultivated fields; and, for example, particular rocks used for netting salmon. In the view of the B.C. Court of Appeal, this more limited view was necessary to effectively reconcile the protection of traditional aboriginal uses with the broader interests of Canadian society.
In the past the courts, on various technical grounds, have avoided making sweeping declarations of title, on the basis of their assessment that it was better to leave it to governments and First Nations to achieve reconciliation on the basis of negotiated settlements. Thursday’s decision changes everything, and has major ramifications for both the treaty process and for the process of consulting with and accommodating First Nations interests in respect of major resource development projects.
The decision confers on the Tsilhqot’in Nation the exclusive right, similar to fee simple title, to occupy their land and to decide how their land is used; and the right to benefit from those uses. In understanding the impact of the decision, it is important to understand that, because aboriginal title is defined at the time of sovereignty, it comes with some significant limitations. It is a collective title held not only for the present generation but for all succeeding generations. Use or development cannot be carried out in a way which would substantially deprive future generations of the benefits of the land.
Furthermore, aboriginal title, even if established, does not give a First Nation absolute control over their lands and their consent to resource development is not necessarily required. The lands are still subject to provincial laws of general application. Government incursions to aboriginal title may still be undertaken under Section 35 of the Constitution Act if they are in accordance with the Crown’s procedural duty to consult, are justified on the basis of a compelling and substantial public interest, and are consistent with the Crown’s fiduciary duties to Aboriginals. To be justified, the Court makes clear that an incursion must be necessary to achieve the government’s goal, and must go no further than necessary; and the expected benefits must be proportionate to and not be outweighed by adverse effects on the aboriginal interest.
There are many First Nations and their leaders in Canada who are willing to support and embrace resource and infrastructure projects where such projects provide substantial benefits to First Nations; and where there are sufficient assurances that the project can be carried out in a way that protects aboriginal title, preserves traditional aboriginal cultural values and maintains effective stewardship of lands and environment for future generations. Canadian society generally has an interest in seeing certain of the current array of potential resource development projects proceed, generating employment and other economic benefits for Canada.
To our collective detriment, the Court decision does nothing to help resolve the many real world impediments to effective reconciliation. Achieving consensus with impacted First Nations as to whether a particular project should be permitted or not already involves a complicated and interminable process. The federal government has effectively abdicated its constitutional obligation to consult and is essentially ‘missing in action’ in the day-to-day engagement with First Nations, leaving the process to project proponents, many of whom are major international players who have no idea of what is involved in effective engagement with Canadian First Nations.
In dealing with First Nations, governments and proponents face many obstacles. British Columbia is riddled with overlapping and competing asserted claims of First Nations which are almost impossible to sort out in any reasonable amount of time. Various provisions of the Indian Act, such as its imposition of communal property rules and a two year election cycle, plus the fact that it has created a large number of very small reserves that are simply too small to be administered effectively, create further problems. At least some First Nations have not reconciled the respective role of their traditional hereditary chiefs and their elected band councils, with the result that it is not even clear who should be consulted. None of these issues are addressed or resolved in the decision.
Unfortunately, the impact of the Tsilhqot’in decision will be to further delay resource development as its implication are assessed, even where such development could be carried out to the benefit of aboriginal peoples and the country as a whole.