Wednesday, September 17, 2014
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Court’s land claims ruling harms Canada’s business environment

Gwyn Morgan

Special to The Globe and Mail

On June 26, the Supreme Court of Canada awarded title to a piece of the B.C. Interior roughly the size of Prince Edward Island to the 3,000-member T’silhqot’in First Nation. Initial government and business reaction 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 37-page decision, written by Chief Justice Beverley McLachlin, exceeded the worst-case scenario of both governments and industry.

Under previous legal rulings, 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 that, saying: “[A]boriginal 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” (that is, the mid-1800s). The court justifies this 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.”

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 broad criteria for transforming land claims into formal title, the court defines its nature and limitations, saying: “[A]boriginal 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, citing “the development of agriculture, 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 populations in support of those aims …” Because natural gas and oil pipelines are transportation infrastructure, this section may prove crucial to both the LNG projects and the proposed Northern Gateway oil project.

In British Columbia, much of the province is subject to claims by hundreds of aboriginal groups. Consternation about the impact of the top court’s ruling on resource development projects was captured by Black Press columnist Tom Fletcher, who asked, “Will British Columbia exist as we know it by the end of this century?”

In a July 6 Saskatoon Star Phoenix column, 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 unlikely to stop many First Nations from filing for court-ordered aboriginal titles. Unfortunately, the Supreme Court decision encourages such precipitous legal actions: “Prior to establishment of title, the Crown is required to consult in good faith with any Aboriginal groups asserting title to the land … The level of consultation and accommodation required varies with the strength of the Aboriginal group’s claim to the land …” And how would the “strength” of such claims be determined outisde the courts?

As if the resulting uncertainty isn’t enough to deter investment in B.C.’s resource-dependent economy, the 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? Is the consent of collective band members required? And how many aboriginals living off-reserve might return to become part of that collective? The answers to such questions might have to be settled by the courts, possibly undermining projects that could help First Nations lift themselves out of poverty.

When the 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 many court cases later, interpretation of those 10 words has become a recipe for investment-killing litigation. A windfall for lawyers, but economic poison for the country.

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