On June 26, the Supreme Court of Canada awarded title to a piece of B.C.’s interior roughly the size of Prince Edward Island to the 3,000-member T’silhqot’in First Nation. Initial reaction from government and business commentators characterized the decision as merely a clarification of previous lower-court judgments.
That was before it became clear that the land claim entitlement criteria set out in the court’s 37-page decision, written by Chief Justice Beverley McLachlin, exceeded the worst-case scenario of both governments and industry.
Under previous lower-court judgments, the “basis of occupation” to be used in establishing aboriginal title was limited to the immediate environs around settlements. The Supreme Court has vastly expanded the basis of occupation: “Aboriginal title … extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the group exercised effective control at the time of assertion of European sovereignty” (the mid-1800s).
The court justifies this breathtakingly extreme interpretation by stating “what is required is a culturally sensitive approach to sufficiency of occupation based on the dual perspectives of the aboriginal group in question … and the common-law notion of possession as a basis for title.”
With these words, the court has, in effect, established a separate legal structure for aboriginals and non-aboriginals that has implications far beyond land entitlements.
Having established the broadest possible criteria for transforming land claims into formal title, the court goes on to define its nature and limitations: “Aboriginal title means that governments and others seeking to use the land must obtain the consent of the aboriginal title holders.” The lone exception is when, after consulting and attempting to accommodate, proceeding without consent is backed by “a compelling and substantial objective.”
In addressing the question of what might qualify as such an objective, the court refers to the 1991 Delgamuukw decision: “The development of forestry, mining and hydroelectric power; the general economic development of the interior of British Columbia; protection of the environment or endangered species; the building of infrastructure; and the settlement of foreign [non-aboriginal?] populations in support of those aims …”
Since natural gas and oil pipelines are transportation infrastructure, this section might prove crucial to both the liquefied natural gas projects and the Northern Gateway project.
Here in British Columbia, where much of the province is subject to claims by hundreds of aboriginal groups, consternation over the decision’s impact on vital resource development projects was captured by a newspaper columnist, whose column was headlined, “Is this the end of B.C. as we know it?”
In a column published in the Times Colonist on July 6, Saskatchewan aboriginal writer Doug Cuthand urges governments to negotiate resource agreements with First Nations “while they still can.” But even highly motivated government efforts to do so are likely to stop many First Nations from filing for court-ordered aboriginal titles.
Unfortunately, the Supreme Court judgment actually encourages such precipitous legal actions: “Prior to establishment of aboriginal title by court declaration or agreement, the Crown is required to consult in good faith. … The level of consultation and accommodation required varies with the strength of the aboriginal group’s claim to the land.” This raises the question as to how the “strength” of such claims can be determined outside of the courts.
As if all of this uncertainty isn’t enough to deter investment in B.C.’s resource-dependent economy, the court decision also states: “If the Crown begins a project without consent prior to aboriginal title being established, it may be required to cancel the project upon establishment of the title.”
The word “consent” appears many times in the judgment, but nowhere does it set out what constitutes consent. Is consent of the chief or band council sufficient? Or, since the judgment refers to “collective rights,” is the consent of other band members required? And given the prospect of extracting enrichments from industry in return for consent, how many aboriginals living off-reserve will return to join that collective?
Where there is divided opinion among band members, the answers to these questions will require lengthy court cases, thereby delaying or killing projects offering opportunities for First Nation groups to lift themselves out of poverty.
When Canada’s Constitution was brought home from Britain in 1982, the sentence “Existing treaty and aboriginal rights are hereby recognized and affirmed” was added. Three decades and myriad court cases later, interpretation of those 10 words has become a recipe for interminable investment-killing litigation.
It’s a windfall for lawyers, but economic poison for our country.
Gwyn Morgan is a retired Canadian business leader who has been a director of five global corporations.
