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Historic land-title ruling creates ‘uncertainty’ for development, report says

A traditional first nations dancer opens the press conference of Eagle Spirit Energy Holdings Ltd., and the Aquilini Group announcing their plan to lead a First-Nations headed alternative pipeline to Enbridge's Northern Gateway Pipeline proposal in Vancouver, British Columbia on April 14, 2014.

Ben Nelms/The Globe and Mail

A historic Supreme Court judgment that recognized part of central British Columbia as aboriginal title land will cast a cloud of uncertainty over all current and future development projects in the province, says a new report.

The Fraser Institute published a paper Thursday that says the Tsilhqot'in ruling could suspend or shut down projects that are already underway on land where aboriginal title has been claimed.

That's because the Supreme Court judgment clearly says the need for consent from First Nations to pursue development applies to all future aboriginal title lands, writes author Ravina Bains.

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"In provinces such as British Columbia, where over 100 per cent of the land is under claim by First Nations, there is a possibility that already existing economic development projects may be suspended or shut down," says the report.

"A potential penalty for this infringement may be additional compensation to the First Nation group for the continuation of the economic development project.

"Regardless, the result is increased uncertainty and a potential increase in cost for economic development in British Columbia."

More than 100 per cent of the land in B.C. is under claim because of overlapping claims by First Nations, Bains notes.

The Supreme Court's unanimous decision on the Tsilhqot'in case recognized, for the first time in Canada, aboriginal title to a specific tract of land and set a historic precedent affecting resource rights.

The Tsilhqot'in case essentially made it easier for First Nations to establish title over lands that were regularly used for hunting, fishing and other activities prior to contact with Europeans.

The decision places a greater burden on governments to justify economic development on aboriginal land.

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But title is not absolute. Development can still occur on titled land without aboriginal consent in cases where development is pressing, substantial and meets the Crown's fiduciary duty, the high court ruled.

In the short term, Bains said, the Supreme Court decision will impact treaty negotiations in B.C. and force government to engage more fully with First Nations who have aboriginal title.

"Over the longer term, it will result in an environment of uncertainty for all current and future economic development projects that may end up being recognized as on aboriginal title lands," she wrote.

"Needless to say, this judgment is a real game changer."

The Fraser Institute paper is being released a day before the Supreme Court issues its judgment on a challenge of the Ontario government's right to permit industrial logging on the traditional lands of the Grassy Narrows First Nation.

That decision will further clarify the roles of the federal and provincial governments when it comes to resource development on treaty land.

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Depending on its outcome, the Grassy Narrows case coupled with the Tsilhqot'in ruling could have a big impact on the federal Conservative government's ambitious resource agenda.

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