Thomas Isaac is leader of the Aboriginal Law Group at Osler, Hoskin and Harcourt
The Supreme Court of Canada has delivered two significant decisions this summer regarding aboriginal title and treaty rights. In June, the Tsilqhot’in decision affirmed aboriginal title over a discrete area of central British Columbia. In early July, the Keewatin decision confirmed Ontario’s authority to legislate regarding Treaty 3, including over areas such as forestry and mining.
At first the decisions look quite different. They deal with different provinces, different facts and appear to have differing outcomes. However, both decisions are actually consistent with each other and their outcomes similar. Both decisions affirm that governments bear the burden of balancing aboriginal and non-aboriginal interests fairly and reasonably and confirm that governments have the tools to govern.
In Tsilqhot’in, the Supreme Court confirmed the six Tsilqhot’in Bands hold aboriginal title to approximately 1,700 sq. km of remote and sparsely populated land in central British Columbia. As a result, these bands now hold the land and, with a few important restrictions, can use and derive benefits from it. Importantly, the decision confirms that both governments can legislate regarding aboriginal title lands and can infringe aboriginal title, where justified. While Tsilqhot’in is the first decision affirming aboriginal title in Canada, there is actually little new law in it, except that it is now clear that provincial laws can apply to aboriginal title lands and that provinces and the federal government can infringe aboriginal title. Many questions remain that require further guidance from the courts, including what the limits of aboriginal title are, the rights of private parties affected by aboriginal title and whether provinces can extinguish aboriginal title pre-1982.
A few weeks after Tsilqhot’in, the Supreme Court in Keewatin confirmed that provinces can legislate regarding treaty rights and possess the constitutional authority to infringe treaty rights, where justified. This is a significant confirmation from the Court given that one of its other decisions (Morris) suggested that provinces could not infringe treaty rights.
For First Nations Tsilqhot’in is significant in that it represents the first judicially acknowledged aboriginal title and in Keewatin, there was no erosion of treaty rights flowing from Treaty 3. For governments, particularly the provincial governments, both decisions represent significant confirmation from the Supreme Court that provincial laws will continue to apply regarding aboriginal title and treaty rights and that provinces can infringe both, where justified.
At the heart of both decisions is a consistent theme from the Supreme Court of Canada in every decision it has rendered to date on the subject – the federal and provincial governments bear the burden of balancing aboriginal and non-aboriginal interests and can continue to govern the country. Both decisions focus on negotiation and reconciliation between the Crown and aboriginal peoples on one hand and vigorously empower the federal and provincial governments to uphold the public interest on the other hand.
These decisions come at an important time in Canada’s history, as industry and government are working with aboriginal peoples on major projects, such as the Northern Gateway Pipeline from Alberta to the B.C. coast. Some have speculated that Tsilqhot’in will directly affect Northern Gateway. While people have differing views on Northern Gateway, the truth is that Tsilqhot’in has no legal effect on that project.
Over the past decade, Canadian governments have fundamentally changed how they approach decisions that may affect aboriginal peoples – a change most visible in areas such as pipeline development and mining.
Over this time, Canadian businesses – particularly the exploration, mining and energy sectors – have taken a proactive leadership role in developing strong relationships with aboriginal groups across the country. These relationships are resulting in material economic and other benefits for aboriginal peoples, including jobs, training, contracting and business opportunities.
In both Tsilqhot’in and Keewatin the Court places clear responsibility on the federal and provincial governments – not aboriginal peoples, not industry and not the courts – to balance aboriginal interests with the rights of all Canadians and to govern the country with the public interest in mind.
Canada leads the world in protecting aboriginal and treaty rights at law in our Constitution. This constitutional protection on one side, however, equally requires proactive government leadership to balance these rights with the need for Canada to continue to develop its natural resources and serve the public interest of all its citizens – aboriginal and non-aboriginal.
This is a burden that some provincial governments appear reluctant to grasp, but it is absolutely critical not only for the good governance of the country but also in keeping with the Supreme Court’s views of how aboriginal and non-aboriginal interests are to work together, be reconciled and to allow for the overall governance of the country in a reasonable, predictable and affordable manner.