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TABLE OF CONTENTS Jul 7 - 13, 2014 Volume 100 Number 21 - 1 comment

Editorial: In Tsilhqot'in decision, 'duty to consult' becomes 'requirement for consent'

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By: John Cumming

As everyone involved in natural resource extraction in B.C. is now well aware, the June 26 decision by the Supreme Court of Canada declaring that the small Tsilhqot’in First Nation holds aboriginal title over 1,750 sq. km in central B.C. is a precedent-setter that effectively remakes the regulatory environment in B.C., and has ramifications across Canada where aboriginal land claims are unsettled.

In the case of Tsilhqot’in Nation v. British Columbia, the vast, sparsely populated stretch of land in question west of Williams Lake is no longer Crown land but title land held communally by the Tsilhqot’in First Nation, which has the right to exclusive use and occupation of the land, and the right to its economic benefits.

For the first time, the decision clarifies how a nomadic or semi-nomadic aboriginal group such as the Tsilhqot’in can establish title to land they occupied before contact with Western colonialists and continue to use to the present day — or "sufficient, continuous and exclusive occupation" in the parlance of the court.

But determining the geographical boundaries of title land is by no means a quick process: just the trial portion of this 25-year-long legal process lasted 339 days in court, spanning almost five years.

As many commentators have correctly pointed out, this Supreme Court decision means that the old regulatory era of provincial and federal governments only having a vague "duty to consult" aboriginal groups with respect to development on "traditional land" has been replaced with a "requirement for consent" by the governments from an aboriginal group when it comes to "title land."

And make no mistake: this decision relates to who controls and benefits from the economic development of land, and is not a more narrow question of aboriginal rights with respect to fishing or hunting, etc.

Equally significant, this decision also means any economic development of the communal title land must not restrict future generations of Tsilhqot’in from benefiting from the land.

Further, the Crown now has only a limited ability in situations of "compelling and substantial public purpose" to authorize economic development on title land without the First Nation’s consent. In today’s Canada, it’s hard to think of a scenario short of mobilization for war or major environmental devastation that would warrant such an override of First Nation consent.

The reaction of the provincial mining associations to the Tsilhqot’in decision was cautious, and the wording of their official statements still reflexively returned to the now-outdated "duty to consult" phraseology. The Mining Association of B.C. said it is "reviewing the decision" but that it "provides certainty and clarification around aboriginal title and the application of provincial law and regulation on the land base." The Association for Mineral Exploration B.C. stated that it is "a complex and precedent-setting case that will require further review," and that "we at AME BC know that the path forward is for the federal and provincial governments to continue consulting with the Tsilhqot’in Nation."

At the federal level, neither the Mining Association of Canada nor the Prospectors and Developers Association of Canada officially commented on the decision. (Though the PDAC is suddenly without an executive director after Ross Gallinger’s departure two weeks ago.)

For now, no one knows exactly what mineral deposits, proposed mine developments and operating mines in B.C. coincide with — or will someday coincide with — what aboriginal title claims, and this uncertainty can only be resolved on a case-by-case basis over many years. For First Nation groups living on non-treaty lands in B.C., there’s now every incentive to push hard to obtain title over land where they have had "sufficient, continuous and exclusive" occupation since before European sovereignty.

In the meantime, it’s sure to put a chill on new investment in mineral exploration and mine development in the province, and in other regions of Canada where treaties are not in place with aboriginal groups, and aboriginal title claims are strong.

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Reader Comments

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Scotty on Denman

The Tsilhqot'in exclusive use of land in this new type of title is not absolute; Previous SCoC decisions have made it clear that sovereignty of traditional First Nation territory as yet without treaty is shared between the Crown and the relevant FN. This decision is not a treaty, the Tsilhqot'in do not now have a treaty (the nation is not even pursuing one, considering itself already sovereign) so, as far as the law is concerned, the land is still partly held from the Queen. The Crown may infringe upon FN rights if justified; the process, protocols and legal tests are all the same as before, the SCoC merely holds governments to a higher standard of proof on this new type of title.

The decision consists of several precedences, the original trial, the Royal Proclamation of 1763 and the sections of the 1982 Constitution it informs. It's not really the first time the processes involved in FN land-claiming have been affirmed. The Court now holds the government to higher account with regard to its fiduciary duty to FN, which was probably inevitable considering it was the government of BC that provoked the initial trial by ignoring this fiduciary duty (it issued logging permits without consulting the Tsilhqot'in) and by appealing the trial decision (which favoured the plaintiff FN). Short of a treaty, the decision was the next logical step in getting governments to respect the law.

The article assumes an alarmist tone and hyperbolic rhetoric ---the allusions to "mobilization for war" and "major environmental devastation" are maudlin, to say the least. It isn't clear at all that the decision will encourage other BC FNs to seek this type of title. About half of BC FNs are involved with the BC Treaty Process and the decision itself plainly states that treaties are still the goal. In fact, the contribution to reaching treaties any proposed infringement might have, is counted when justifications are tested in court. As mentioned, the Tsilhqot'in are not seeking a treaty at this point.

Posted July 3, 2014 02:41 PM

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