Pipeline prospects take a hit as Supreme Court grants land title to B.C. First Nation
Dwight Newman, Financial Post, June 26, 2014
The Supreme Court of Canada has just released its latest take on the rules on Aboriginal title – and the first declaration of Aboriginal title in Canadian history. Its groundbreaking decision concerning the Tsilhqot’in Nation’s claims has the potential to reshape aspects of Canadian resource development more broadly. To understand why, we need to back up a bit to understand what the case has changed on Aboriginal title and why that matters.
Aboriginal title is the form of ownership Aboriginal communities hold over unceded lands that they regularly and exclusively used in the past. It is not identical to but is analogous to the fee simple title that private landowners hold, with the important difference that the courts have always considered Aboriginal title land to be collectively owned by a particular Aboriginal community.
The potential for Aboriginal ownership claims of this sort was first suggested by the Supreme Court of Canada in its 1973 decision in the Calder case. The addition of an Aboriginal rights section in the 1982 constitutional amendments committed Canada to such land rights being constitutionally guaranteed – with very little clear sense as to the implications that would result.
In the Tsilhqot’in case, which has been making its way through the courts over the past decade, the trial judge suggested that the test developed in past decisions was too strict and would unjustly reduce the scope of Aboriginal title to lands the size of “postage stamps.” Although procedural aspects of the case prevented him from making a declaration of Aboriginal title, his judgment came the closest to doing so that any Canadian court has – until now.
The Supreme Court’s judgment now says that Aboriginal title will be established based on regular and exclusive use of land prior to Canadian sovereignty. That regular and exclusive use may even have been semi-nomadic in nature. In areas where land claims have not been settled – such as much of British Columbia – this decision has major implications. Various Aboriginal communities’ land claims suddenly look much more legally viable.
Where title exists, development would normally take place on that land with the consent of the community. That said, the Court has a dozen paragraphs in which it carefully enunciates a test for when government can, in certain circumstances, override Aboriginal title based on a compelling and substantial public interest.
Government can, in certain circumstances, override Aboriginal title
Where title has not yet been proven but a viable claim exists, the duty to consult means that government must take that title claim into account and, as that claim is stronger, engage in potentially significant accommodation of the title claim.
This case significantly strengthens the ability of Aboriginal communities with title claims to reject resource development on their lands. That does not mean they will choose to do so. Many Aboriginal communities wish to participate in economic development. However, they have more control after this decision than before so as to come to their own decisions.
At the same time, governments have a clear ability to override Aboriginal title where there is a genuinely compelling public interest and where they are ready to do so transparently and in accordance with the legal hurdles required.
What this means for resource development, though, is probably three things: a strengthened role for Aboriginal communities in approving or rejecting some projects; an increased challenge for resource companies that have not developed sufficiently strong relationships with Aboriginal communities; and a need to build even stronger public approval around megaprojects like pipelines that interact with many Aboriginal communities if they are to move forward in the face of continued disagreement by some communities.
In turn, what those things mean for those involved in the resource sector is that they need, even more than before, to continue realizing that the challenging parts of resource extraction may not be the physical ones but the broader set of social and human questions associated with resource development. That has implications for business strategy and business practices. It has implications, as well, that there should be a call out to the younger generation interested in sophisticated work balancing the various facets of responsible development — there is work in Canadian industry for them. How Canada responds will shape its future.
The Supreme Court of Canada, as Canada’s final appellate court, is tasked with a tremendously delicate balancing act as between Aboriginal title claims, the claims of provinces to the use of provincial natural resources, and the economic development potential in Canada’s natural resource wealth. In its historic Aboriginal title decision in the Tsilhqot’in case, it has meaningfully reshaped that balance in ways that will need further analysis in the time ahead but that will arguably reshape Canada’s future in the years and decades to come.
Dwight Newman is Professor of Law & Canada Research Chair in Indigenous Rights in Constitutional and International Law at the University of Saskatchewan, and author of Revisiting the Duty to Consult Aboriginal Peoples (Purich Publishing 2014).