Last Thursday, the Supreme Court of Canada issued what many agree is a landmark ruling for Aboriginal law. For the first time, the court granted Aboriginal title – roughly defined as legal ownership of land by a First Nation.
The decision ends a complex legal battle that began in 1998 when the B.C.-based Tsilhqot’in fought a forest license issued by the province to a private company. The license in question was on land the Tsilhqot’in have now proven to be part of its traditional territory.
The implications of this decision reach well beyond the 1,750 square kilometres of remote Tsilhqot’in land in Central B.C., leaving investors, observers and the proponents of large projects across Canada to ask what exactly the ruling means.
It is important at this point to note that Hill+Knowlton is not weighing into this discussion from a legal or policy-insight perspective. Instead, we are bringing our best political insights to bear in order to provide a more broad analysis of last week’s decision and what it means for Canada.
First, to summarize what has been established.
Most significantly, the Court has created more certainty around the legal test that needs to be applied when determining whether a First Nation is to be awarded title.
Many have interpreted this as meaning it will be easier for First Nations to successfully claim title, especially given the court adopted a relatively broad interpretation of what constitutes historical occupation.
The decision also makes clear that where title exists, the First Nation has “exclusive right to decide how the land is used”. In other words, a First Nation can effectively block a project on its land simply by refusing to give consent.
Governments can override this power, but to do so they must meet the test for justification as laid out in the Constitution. From a public policy perspective this means greater involvement by, and responsibility for, resource decisions as identified in the Constitution.
The finer legal points of last Thursday’s decision will need to be settled in the court of law as future projects are tested against the new precedent. But in the court of public opinion, the effects are already clear.
Perhaps most evident is that First Nations across the country are already more emboldened.
Immediately after the decision Jody Wilson-Raybould, Assembly of First Nations Regional Chief for British Columbia said: “This decision is the wake-up call the government needs and the Prime Minister must now take seriously First Nations’ solutions and proposals aimed at reconciliation.”
First Nations leaders across the country echoed Ms. Wilson-Raybould’s view.
“The court has clearly sent a message that the Crown must take Aboriginal title seriously and reconcile with First Nations honourably,” said AFN Regional Chief for Quebec/Labrador Gislain Picard.
“This decision will no doubt go down in history as one of the most important and far reaching ever rendered by the Supreme Court of Canada.”
Regardless of the actual legal precedent, media coverage of the decision has created an impression that First Nations now have a much bigger say in the future of resource development in British Columbia, and potentially Canada.
This will likely have a noticeable effect on negotiations and potential investment decisions, at least in the short term.
However, industry experts who are looking at the decision’s long-term ramifications – especially those outside of British Columbia – are not seeing the same kind of seismic shift. That’s because the decision does not materially change the basic responsibility industry and government have always had to consult with First Nations.
What has changed is that in cases where title can be proven, the bar has now risen significantly. So instead of projects succeeding after satisfying a duty to consult with First Nations, the projects must now earn full consent.
One hitch that does have some proponents worried is the element of the ruling that finds that a First Nation could affect a project that has already been built if it is awarded title on the land in question. But the ramifications of that will be for the courts to iron out.
Perhaps the most important takeaway is that title is an onerous and expensive process for any First Nation. So while many in B.C. are already talking about pursuing a claim, it remains to be seen just how any will see fit to embark on the journey.
In essence then, while a conclusive legal understanding is a long way off, this ruling should not be seen as closing B.C. – or Canada for that matter – to investment or resource development.