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Revolution Lite? 

Stop pouting or partying over the Tsilhqot’in decision, authors argue

Tim Querengesser is senior editor with Alberta Venture. Email Tim

Sep 11, 2014

by Tim Querengesser

People! Yeah, you over there with the drilling rig sporting that pouty face. And you, over there on the reserve, celebrating like it’s 1999. Apparently you both need to calm down and get back to the negotiating table.

Recently, the Supreme Court of Canada defined limits for industrial land access when it spelled out the existence – heretofore never put in concrete Canadian legal language – of Aboriginal title over land that was never treatied by a First Nation and the Crown (a situation which exists predominately in British Columbia). This decision has sparked a reaction that has bordered on panic or celebration, depending on where you look. Pro-industry observers have worried, with some justification, that the decision could effectively choke off natural resource development. Many First Nations governments, on the other hand – tired of natural resource development historically proceeding without their full consent or partnership – have viewed the ruling as a victory for Aboriginal rights and title. In June, even this blog got on the bandwagon, declaring that the Tsilhqot’in decision “will define Canada’s future” and specifically the relationship between Aboriginal peoples and industry (and, maybe I was partly right, considering the Tsilhqot’in are set to declare an area where a mine is proposed a tribal park).

Now that the dust has landed back on the ground, though, two prominent scholars on Aboriginal rights say all sides of the conversation need to calm down. Ken Coates, senior fellow at the Macdonald-Laurier Institute, and Dwight Newman, Canada Research Chair of Indigenous Rights at the University of Saskatchewan, argue in a new paper, The End is Not Nigh: Reason over alarmism in analysing the Tsilhqot’in decision, that the Tsilhqot’in and Grassy Narrows decisions “continue a balancing act between empowering and limiting the authority of both Aboriginal peoples and governments. Far from a tilting of the playing field,” Coates and Newman write, “they are more a rewritten rule book.”

For those not fully in the know, the Court’s Tsilhqot’in decision found that a First Nation in B.C., which never signed a treaty with the Crown, has Aboriginal title over land that it never stopped using. The case was spurred by the First Nation’s opposition to a forestry company that has been logging the land since the 1980s, against the First Nation’s wishes. Soon after, however, the Grassy Narrows decision seemed to contradict the Tsilhqot’in ruling. That Court decision asserted that a provincial government – in this case, Ontario – retains effective veto power over Aboriginal title when it comes to resource development decisions.

In an interview by email, Coates says that the Tsilhqot’in decision “is a game changer in British Columbia and across Canada.” But, well, there’s a but. “The decision is not an unreserved win for First Nations, nor is it a sign to governments that they can proceed without careful attention to Aboriginal interests,” Coates says. Instead, he says, the decision is actually a reminder that what has been and should be happening in the interaction between Aboriginal groups and industry – consultation, negotiation, profit sharing and other approaches – will become even more critical in the future.

As the report argues, “[Aboriginal] Title can apply only to non-treaty lands, and would constitute only a small portion of traditional lands claimed. There are also important differences between Aboriginal title rights and those held by most Canadians, including that the land must be held for succeeding generations. Finally, the Supreme Court has also envisaged a situation where [a] resource development project could justify a government override of aboriginal title.”

Coates and Newman recommend that negotiation tables are critical for Canada’s future, that governments need clear policies on how or when they can override Aboriginal title, that provincial governments should be the lead government in negotiations between industry and Aboriginal peoples, and that provincial governments “should be contemplating seeking reference decisions from their Courts of Appeal to clarify the rules on this matter. Governments, resource companies, and Aboriginal communities could also consider the possibility of pursuing cases that seek declarations on the rules on that element.”

After Tsilhqot’in and Grassy Narrows, then, it’s not the status quo for Alberta. But it’s not the revolution some have predicted, either.

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