Economy Lands and Environment Politics

Cameron — The Supreme Court: Refining Relationships?

Our Yukon correspondent, Kirk Cameron, on the Supreme Court of Canada’s landmark decision in Tsilhqot’in Nation v. British Columbia and its implications for government and industry. You can the full decision below.

For those of us who are news “junkies” it has been hard to miss the escalating narrative in media around the recent Supreme Court decision regarding the claims of the Tsilhqot’in Nation on traditional land use (a question of “ownership”) in central British Columbia.

Canada’s highest court ruled in favor of the Tsilhqot’in, granting the Nation title to in excess of 1,750 sq. kms. of land.  This is about 1/3rd  the size of Prince Edward Island at 5,660 sq. kms. and can be compared to what is in the Yukon Umbrella Final Agreement where the total of 14 Yukon First Nations can retain Aboriginal title over 41,595 sq. kms. in the territory (11 of 14 are settled with approximately 3/4s of this maximum taken up in Treaty). In short, this is a significant amount of land by Canadian and BC standards.  Of note, is that this is the first time in judicial history where the high court has issued such a declaration of Aboriginal title.

As in preceding landmark judicial decisions, Guerin, Sparrow, Delgamuukw and Haida, Tsilhqot’in brings greater clarity to the nature of First Nations relations to the Crown, to governments, and to industry.

Some, such as BC author Gordon Gibson writing in the Globe and Mail, believe that the decision “marks a very dark day for the economy of British Columbia. A new era of chaotic jockeying will open among First Nations, governments and resource proponents, casting a pall over a basic economic driver of the province.”

Yet others believe that this is a major step forward, not only for BC First Nations, but for all those other First Nations in Canada where there are no treaties in place to settle the land and resources rights question. And, lest we forget, that does include significant areas of both the Northwest Territories (sort of) and Yukon.

Historian Dr. Ken Coates (Canada Research Chair in Regional Innovation at the Johnson-Shoyama Graduate School of Public Policy, University of Saskatchewan, and senior fellow at the Macdonald-Laurier Institute), commenting in TroyMedia Coates notes:

The Tsilhqot’in decision issued last week by the Supreme Court of Canada is an absolute game-changer.  With unexpected clarity and decisiveness, the Supreme Court recognized the Tsilhqot’in’s Aboriginal title to their traditional lands and directed governments on how they must proceed with any future development on non-treaty lands.

Coates goes on to highlight key aspects of the Williams decision:

There will be a great deal of talk about the Tsilhqot’in decision in the next few weeks and months. The Tsilhqot’in won, and they won big. Their Aboriginal rights to their traditional territories have been confirmed.  The basis for negotiations in British Columbia and elsewhere has shifted.  First nations have more legal authority than in the past and, like anyone else in a similar situation, they will use it to their benefit.

Coates points to important aspects of the decision that remain open for future engagement among governments and First Nations:

The Aboriginal power as spelled out in the Williams judgment is not absolute, however.   Resource development can proceed, subject to the restated requirements to consult and accommodate.  The decision puts a higher standard on Government to demonstrate a compelling provincial or national interest in a specific project – and no doubt governments and First Nations will be back in court to define the collective interest more precisely.

So, what does this mean for Yukon and the Northwest Territories where there remain unresolved Aboriginal rights disputes?  First, who are we talking about?

In the NWT, there are large areas of the south and west of the territories where numbered treaties do exist (Treaties 8 and 11), but where Canada, the Government of the Northwest Territories, and Aboriginal groups have agreed to establish negotiating forums to address outstanding land, resources and governance grievances. The Dehcho region is one such area, as are the Treaty 8 areas around Yellowknife and throughout the south-east areas around and below Great Slave Lake.  Métis claims are also present in this region. As usual, in the NWT, technically there are numbered Treaties that create an unusual “flavour” to the degree to which the high court decision may or may not apply, and I don’t plan to weigh in to try to figure all of this out. Suffice it to say, the William decision is a wake-up call to governments and to industry that addressing Aboriginal interests is not just an “annoyance” but a fundamental requirement needed to attain certainty on the question of whether a project can move forward.

And, in Yukon where no historic or numbered treaties are in place, there remain three First Nations where modern day Treaties (Land Claims Agreements pursuant to the Umbrella Final Agreement) have not been reached. These are the White River First Nation (WRFN) in central Yukon by the Alaska border, and in the south-east where the Kaska Dena reside in their traditional territory (the Ross River Dena Council (RRDC) and the Liard First Nation(LFN)). Notable here is that the Kaska do not recognize the BC/Yukon border and thus their traditional territory is in both Yukon and northern BC.

Dave Porter, chief negotiator for the Kaska Dena Council representing Kaska in Yukon and BC, called the Tsilhqot’in decision in the Yukon News, “one of the most significant legal decisions rendered on Aboriginal jurisprudence in this country’s history.”

Porter speculates that “If the Kaska continue to litigate, at the end of that process, there may very well be a declaration that the southeast Yukon is Kaska Aboriginal title land. We’re not keen on decades more of litigation. We see this as an opportunity for the parties to make best efforts to establish a negotiating table to resolve these issues. And I think that’s the way to go.”

What do I believe? I agree with the pundits that this is a major confirmation that the Aboriginal “interest” in Canada extends to actual Aboriginal title to significant tracts of land, and that the tests for this are different than just a matter of meeting Common Law tests (the high court said this too by the way). I believe that this is a wake-up call to governments that there is a high bar set to meet the requirements of consultation and accommodation that are part of the Crown fiduciary responsibility.

One thing the Supreme Court highlights in paragraph 97 of its decision, not as a “hammer”, but more as a “nudge”, is “I add this. Governments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group.”

Now, that’s a refreshing thought.  Instead of taking up courts’ time, and plodding through decades of uncertainty during this extended juridical journey, company x, get in there, role up your sleeves, negotiate a fair settlement of interests with the First Nation within whose Traditional Territory you wish to work, and get on with what you do best, whether this be mining, forestry, agricultural pursuits or oil and gas.  If this is done as a priority and with the understanding that this is a prerequisite of development, all parties can align to meet their many and varied needs and interests.

And, indeed, this is exactly what has happened in the WRFN region of Yukon. A recent announcement speaks to the efforts of the First Nation and a junior exploration company, Gorilla Minerals Corporation regarding the company’s Wels gold and nickel property in the WRFN Traditional Territory. The company and First Nation signed an agreement that spells out the relationship between the parties regarding Class 1 exploration on the property, and with close attention to the consultation requirements that feature so prominently in the William decision.

What this shows is that, although governments cannot shirk their responsibilities to consult and find accommodation to meet both their fiduciary responsibilities and the public interest, much can be done by industry itself to “get on with it”.

As usual, Yukon leads the way. Good for us!

Tsilhqot’in Nation v. British Columbia by NorthernPA

Photo credit: “Keno 700 Mine, Yukon 2013” by Gord McKenna under a creative commons license.

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