Is the Supreme Court of Canada’s declaration of Aboriginal title the death knell for proposed resource projects in BC?
First published in the September 2014 edition of Focus Magazine
TRIBAL CHAIRMAN of the Tsilqhot’in National Government Chief Joe Alphonse, 46, was sitting in the Supreme Court of Canada on June 26 this year when it declared that the Tsilqhot’in Nation holds Aboriginal title to more than 1750 square kilometres of what is now former provincial Crown lands. “This decision will be remembered as a turning point in the history of Canada and its relationship with First Nations,” reflected Alphonse.
Some corporate commentators were appalled—to the point of hysteria. Businessman Gwyn Morgan, writing in the Globe and Mail, described the recognition of Aboriginal title as “a recipe for investment-killing litigation” and that the decision amounts to “economic poison” for Canada, ushering in a new era of economically-devastating business uncertainty.
Others responded more optimistically. The BC Business Council refused an interview, but shortly after the decision was announced, Vice-President of Communications Tom Syer blogged: “Do not panic. The sky is not falling. The decision will have significant implications [but the] desired path forward is through engagement, dialogue and respectful negotiation.”
First Nations, of course, greeted the momentous decision with jubilation, and a strengthened resolve not to allow their hard-won rights and title to be trampled on any longer by government and industry. Several groups had previously launched lawsuits challenging Enbridge Inc’s Northern Gateway Pipeline and Kinder Morgan’s Trans Mountain proposal. Immediately after the decision, another nine First Nations followed suit. Two weeks later, on July 10, the Gitxsan First Nations served eviction notices on resource-based companies operating in their North Coast territory.
“This is the end,” says Joe Alphonse emphatically, “of denying First Nations’ rights and title. It’s the start of a new way for everyone.”
A changed economic landscape
Is the resource-based economy of BC dead in the water? No, says Alphonse, it isn’t. He believes the Tsilqhot’in decision could in fact be very good for the provincial economy. But the economic landscape has changed permanently, and that can’t be ignored.
Alphonse says that the case will, without question, help First Nations hold the wall against environmentally-devastating projects like pipelines and mines that threaten their lands and waters. In other words, companies like Enbridge, Kinder Morgan, Taseko Mining Group, and Imperial Metals just got a serious wake-up call. So did a provincial government that has been actively promoting LNG and mining mega-projects in BC.
Says Alphonse, “People should understand that First Nations aren’t going to tolerate having these kinds of projects shoved down their throats any more. Some development proposals will always be unacceptable. They were unacceptable before the court case, they still are, and now the Tsilqhot’in title case has provided a legal club for First Nations to use to stop them.” Hence the flood of lawsuits against the Northern Gateway and Trans Mountain pipeline proposals that immediately followed the decision, along with the eviction notice served by the Neskonlith on Imperial Metals Inc after the Mount Polley dam breach.
On the other hand, Alphonse says: “First Nations will support development that is beneficial to them, so long as it’s the right kind of development. So it should also be understood that Aboriginal title is simply a legal club we can now use to ensure we benefit from development when it’s on our lands, to ensure that we’re included in planning, in revenue-sharing, and in employment opportunities.”
Alphonse also notes that it is up to governments and industries to put to rest any panic-stricken hype about economic uncertainty by dealing promptly, respectfully, and honourably with their First Nations counterparts. “It’s in their hands. The only thing that will perpetuate economic uncertainty now is if governments and industry simply say ‘it’s business as usual,’ and nothing changes.”
Tsilqhot’in Nation v. British Columbia, 214 SCC 44
Alphonse was just 14 years old in 1982, the year Aboriginal rights were enshrined in section 35 of Canada’s new constitution. Barely a year later, the provincial government granted a logging licence to Carrier Lumber Ltd over the area claimed in the court case, but failed to take into account the Aboriginal rights of the Tsilqhot’in. Their objections fell on deaf ears.
Faced with little other choice, they headed to court with their title claim. Both the provincial and federal governments opposed it, vigourously, for the next three decades. But on June 26 this year, they lost—resoundingly.
Anyone who thinks this case isn’t an outstanding victory for the Tsilqhot’in—and First Nations all over the province—hasn’t read it. The 40-page unanimous decision is compelling, straightforward, and crystal-clear.
For the first time ever, the Supreme Court declared the continued existence of Aboriginal title over a specific area of Crown land. It also put beyond debate that a First Nation holding proven Aboriginal title has the exclusive right to decide how the land is used and to benefit from it. If Aboriginal title is established and the consent of the First Nation hasn’t been obtained to a project on their lands, the project may have to be cancelled.
That’s not without constraint. It’s a collective right, and the land must be managed for the benefit of future generations. As well, while governments have to respect title, they can infringe it to further a “compelling and substantive” governmental objective, such as the development of agriculture, forestry, mining, hydroelectric power, general economic development, the building of infrastructure, and protection of the environment.
That may seem a catch-all that would allow government to pretty much do as it wishes. But the Court also set out exacting standards that must be met in justifying any incursion on Aboriginal title. The infringement must be necessary; it can’t prevent future generations from controlling and benefiting from the land; and the benefits of the objective must outweigh any other adverse effects on Aboriginal title.
These considerations can’t be determined solely by government, as they have in the past. The First Nation’s views must be given equal weight. In other words, it’s no longer a one-way street in which government makes all the decisions. Governments can avoid having to justify a proposed infringement, the Court pointed out bluntly, by simply obtaining the consent of the First Nation holding title in the first place.
While the provincial government can continue to regulate Aboriginal title lands, it has a very limited scope of authority. Regulating pest control would be fine, for example, said the Court; but issuing timber licences to a third party without justification or consultation, as it had done in this case, clearly would not.
Title here, there and everywhere
“Proving Aboriginal title is no longer a political pipedream,” observes Victoria-based lawyer Drew Mildon. “That’s huge for First Nations across the country. Their negotiating position on any project proposals became much, much stronger overnight.”
Mildon, who was a legal adviser to the Tsilqhot’in on the court case, believes the case sets the stage for other First Nations across the province to bring their own successful title claims: “When you scratch the surface of British Columbia, there is existing title all over the province.”
Merle Alexander, a Vancouver-based Aboriginal rights lawyer, agrees with Mildon. “We’re looking at this for a number of clients, many of whom have territory that would be crossed by various proposed pipelines. It seems very likely that many of them will be able to prove title along those pipeline corridors.”
Alexander also says that while the list of potentially justifiable infringements seems broad, it is still a significant hurdle to jump for proponents because of the criteria imposed upon it by the Supreme Court. He is particularly taken with the Court’s suggestion that the Crown avoid the risks of unjustifiably infringing Aboriginal title or having to cancel unauthorized projects by simply obtaining consent from First Nations in the first place.
“To date governments have taken a very narrow, self-interested approach to the issue. That’s demonstrated by their fairly consistent track record of losing court cases,” says Alexander. “This now encourages governments to be more forward-thinking and obtain consent as a starting point for all future projects on any lands where Aboriginal title is asserted. That’s also a safer bet from a strategic point of view: It minimizes the risk of litigation that the government probably won’t win, or that they’d have to cancel a project when the First Nation successfully sues for title.”
Governments need to do a complete rethink
In a radio interview shortly after the decision was announced, Union of BC Indian Chiefs President Stewart Phillip commented drily: “There’s been a deafening silence from Ottawa and Victoria. They weren’t expecting this.”
“The federal government and British Columbia have gone very quiet,” agrees Joe Alphonse. “We’ve been contacted by some senior government staff, but I’m waiting to hear from the Prime Minister and the Premier. Stephen Harper and Christy Clark should be leading the way at this momentous time.”
Unfortunately, they don’t seem to be. The only statement that’s been made by the federal government was a short press release on June 26 by Aboriginal Affairs Minister Bernard Valcourt saying that the government is reviewing the decision to determine next steps.
MP Jean Crowder, the federal NDP critic on Aboriginal Affairs, thinks that’s unfortunate. Crowder sees the decision as an opportunity for governments to move forward by recognizing Aboriginal title and developing protocols for dealing with resource projects, so that everyone is clear on their roles and responsibilities. “That has the potential to provide the certainty anyone considering resource development is looking for. Up until now, it’s been managed on a court case by court case basis and that’s made it difficult for business to do any kind of planning.” If the decision is seen as an opportunity to manage the development process better, says Crowder, “that gives us a way of moving forward.”
As for the provincial government, on July 21, BC Premier Christy Clark told a Pacific Northwest Economic Region LNG conference: “To me, the decision gives us a little more certainty and that’s going to be good for the economy. We’re still working through the details and how it might change the way we do things.”
But the provincial government, added the Premier, has already been doing a good job on the Aboriginal relations file: “Since the Delgamuukw [Aboriginal rights] decision came out the government has learned how to deal fairly and honourably with First Nations and to change the way we do things, and that’s been really good for the economy.”
BC NDP Aboriginal relations critic Scott Fraser thinks more is needed: “It’s time for the government to recognize that Aboriginal rights and title exist, and to acknowledge it respectfully and openly. That’s what will bring certainty to industry and to government. Continuing to force litigation will only lead to confrontation. It’s far better to get out of the court system to reconcile jurisdictional issues and that needs to be through recognition of title.”
Merle Alexander agrees. He also points to the number of Aboriginal rights court cases that the provincial government has faced over the last decade and the fact that BC has a track record of losing them: “So the Courts are consistently finding in fact that BC is failing in its duties towards First Nations. That suggests that the Province hasn’t been dealing fairly and honourably with First Nations.”
There could be positive implications for the economy, he says, but only if the government and industry are willing to embrace the new legal reality facing them. “If the Premier’s saying it’s just business as usual, that they’re doing everything right already, that’s not going to be good for the economy. That’s just going to mean more litigation.”
Merv Child is a Victoria-based lawyer and executive director of Nanwakolas Council, which works with seven First Nations on northern Vancouver Island to support them in land use planning and decision-making. Like Alexander, Child is sceptical; he says that despite what the Premier says, the Clark government hasn’t been particularly open to positive solutions in dealing with Aboriginal issues.
“We keep hearing that there’s no money to do anything, for example, but I think that the government needs to think longer-term about the positive financial consequences of working with First Nations.” He agrees with Alexander that the status quo isn’t good enough anymore: “There needs to be a complete re-think of the relationship. If that happens, then there is some real promise for the future.”
Taseko in denial?
Lawyer Robin Junger is head of the Aboriginal Law group at McMillan LLP, which acts for the Taseko Mining Group. Junger is typical of legal commentators advising resource-based industry; he is adamant that the Tsilqhot’in case is not a “game-changer” that will undermine resource projects, nor does it represent “a fundamental advance” for the law of Aboriginal title.
Junger’s opinion may help explain Taseko’s position on the case. Taseko is attempting to develop its proposed New Prosperity gold-copper mine near Teztan Biny (Fish Lake), a sacred place in the heart of Tsilqhot’in territory. The proposed mine has been much-reviled by First Nations and environmental groups, and has failed federal environmental assessment twice. Taseko continues to push the proposal, however, and takes this rather surprising position on its website: “The ruling confirms that Taseko’s New Prosperity [mine] is located in an area where Aboriginal title does not exist.”
Merle Alexander laughs when he reads the statement. Words like “deluded” and “deranged” pepper his response when asked if Taseko is correct in its interpretation of the case. Both Mildon and Alexander agree that the case can’t possibly be interpreted as meaning that title doesn’t exist elsewhere in the territory.
Alexander points out: “The Tsilhqot’in intentionally and strategically chose to claim a targeted portion of the traditional territory. If challenged, it is highly likely the Tsilqhot’in would succeed in a title claim to the New Prosperity site. The proposal has also been rejected twice because of the potential effect on Aboriginal interests being too great to justify the project as being in the public interest. That’s not about to change.”
Drew Mildon concurs: “It seems a surprising conclusion. The Tsilhqot’in only requested a declaration of title for the areas where it was proven. New Prosperity was rejected twice because of a host of significant adverse impacts, aside from the title issue, and it is ridiculous to suggest that the ruling in any way changes that.”
Northern Gateway? Not likely
Enbridge may be equally deluded in thinking its Northern Gateway project can still advance in the face of this decision.
The company’s Communications Manager Ivan Giesbrecht emailed: “This important decision affirms existing principles surrounding First Nations title in Canada. Resolving these issues provides greater clarity to complex matters and creates opportunities for respectful relations. We have more work to do and are committed to building on progress in the months ahead.”
However, Stewart Phillip’s view, typical of most First Nations affected by the proposed pipeline, suggests Giesbrecht is overly-optimistic: “The Northern Gateway Pipeline cannot proceed without the consent of every First Nation whose territory the pipeline would cross, and we know that will never happen.” No less than eight First nations have already taken legal action, and, according to West Coast Environmental Law, over 100 First Nations have banned the Enbridge project and other tar sands infrastructure from their territories and watersheds through various declarations.
Merle Alexander points out that if Enbridge insists on attempting to push forward with the pipeline, it will be, almost without question, the next legal Aboriginal title confrontation that industry and governments face. “And they’re going to lose. It is absolutely impossible for them to achieve consent or prove that the pipeline wouldn’t irreconcilably interfere with the enjoyment by future generations of the land it crosses.”
Jean Crowder agrees: “I think Enbridge won’t be able to overcome the challenges it is facing now.” Scott Fraser also shares that view: “Projects like Northern Gateway have been almost universally opposed by First Nations. Without First Nation consent, both governments should be saying ‘No’ as well.” That, adds Fraser, “is going to be true of every major infrastructure project in this province unless governments engage in a real partnership approach with First Nations.”
The Province and LNG
Despite the Supreme Court ruling, Taseko, as we know, continues to push for approval of the New Prosperity mine. There is also no sign that Enbridge or Kinder Morgan are backing off their pipeline projects. Given the glacial pace at which the federal government does anything—it took four years for it to review and update half-a-dozen of its treaty mandates, announced in late July—holding out any hope that it will act in the short-term seems fruitless.
On the Province’s side, Aboriginal Relations Minister John Rustad will only say that his government needs time to review the ruling thoroughly. However, he adds: “We’re not going to tell First Nations what we’re doing. We’re going to sit down with them and work with them to decide what the response should look like.”
He points out that in the last ten years the provincial government has successfully negotiated hundreds of shared decision-making agreements with First Nations on everything from treaty to revenue-sharing to conservation management: “I think the strengths we’ve developed in taking that shared decision-making approach will be very helpful in our discussions with First Nations on this issue.”
As evidence of that, on August 6, the provincial government announced that it has agreed with the Taku River Tlingit First Nation to protect over one million hectares of Crown land around Atlin from hydro-electric development and commercial logging.
Of course, the Taku River Tlingit have also been very successful in Court defending their Aboriginal rights. In other parts of the province, Rustad’s words are less encouraging. Asked if the government is prepared to cancel exploration permits provided to pipeline project proponents such as Enbridge, if and when title is proven along the pipeline corridor by other First Nations, Rustad remained non-committal: “We have statutory requirements and processes to follow and we need to follow them.”
A successful Aboriginal title lawsuit will trump any such statutory requirements, naturally. Unfortunately, it sounds like that may be what is required.
In the meantime, the provincial government has also not slowed down for a moment in promoting its LNG strategy. How will it respond to continued First Nations opposition to LNG proposals?
Rustad professes to be “confused” by the question. “I haven’t heard any solid opposition to LNG,” he says. “There may be some local issues we will be working through—concerns about environmental impacts— but we’ve been having very positive discussions and I believe we will work through that.”
Setting aside for a moment the fact that it doesn’t get more local than an LNG pipeline running through your back yard, or that having land declared as Aboriginal title land will likely focus such “local” issues as environmental concerns in an entirely new way, Rustad may be under a serious misapprehension that LNG faces no serious First Nations opposition.
Chief Terry Teegee of the Carrier Sekani Tribal Council has stated repeatedly and unequivocally that the Province doesn’t have a social licence to promote LNG: “They haven’t addressed the cumulative effects of these pipelines in our territories.” Fort Nelson Chief Sharlene Gale has stated that the price her First Nation is being asked to pay to fulfill BC’s LNG strategy is too high. The Wet’suwet’en hereditary chiefs have unanimously rejected the Pacific Trails Partnership LNG proposal, and the Unist’ot’en Camp remains firmly in place in its path.
“There is no sweeping endorsement of LNG by First Nations, and the reason is obvious,” Stewart Phillip told Focus earlier this year. “The impacts of fracking are one of the ugliest footprints of oil and gas to witness.”
In the face of such stated distaste for LNG, and with Aboriginal title now in their back pockets, the likelihood of First Nations simply accepting new LNG proposals without demur seems highly unlikely, despite Rustad’s optimism.
“The only route to go”
There is a very simple formula for industry to follow if they want to keep working in Aboriginal territory, says Joe Alphonse: “Work with us, not against us.”
At the wrong end of the working-together spectrum is the Taseko Mining Group. The company has failed spectacularly to handle matters with the Tsilqhot’in an effective manner: “I can’t say anything good about Taseko,” says Alphonse. “They keep trying to push that mine forward but they don’t want to include us or work with us. They just see us a hindrance. But I can guarantee that a title case there will be successful. There have been a lot of archaeological finds there. It’s a sacred place.”
But Alphonse says Taseko stands in stark contrast to several companies that have worked closely and successfully with the Tsilqhot’in since well before the Supreme Court decision came down. All of them have been ahead of the game in seeing the value in working with the First Nation and ensuring the Tsilqhot’in share the revenues and benefits of their developments, to their mutual advantage. “It’s a win-win situation for both sides that way. Everyone gets what they need and want out of a project.”
Working together will also be a good strategy for First Nations to take amongst themselves, believes Merv Child. Child speculates that the Tsilqhot’in decision may be a good impetus to encourage First Nations to resolve overlapping Aboriginal title claims to their mutual advantage: “The rights that go with Aboriginal title are very powerful,” he observes. “If First Nations can collaborate to demonstrate their respective occupation and use of various areas, that will allow them to leverage the Tsilqhot’in decision in discussions with industry and government to their greatest benefit.”
But for now, the focus is on more immediate matters, and the game-changing decision itself. “We did the impossible,” says Joe Alphonse. “We won title when governments never thought we could. Now we hope that those governments will take it seriously and that will lead to a better future for all First Nations in this country.” Indeed, some would argue it will lead to a better and more environmentally-sound economic future for all Canadians.
The onus, repeats Alphonse, is for federal and provincial government and industry leaders to start dealing with First Nations in terms of economic development in an honourable way. “That’s where certainty lies. That’s good for everyone,” he says. “It’s the only route to go.”
Katherine Palmer Gordon is the author of six books of non-fiction, including several BC Bestsellers and a Haig-Brown prize-winner. Her most recent book is We Are Born with the Songs Inside Us: Lives and Stories of First Nations People in British Columbia (Harbour Publishing). She has 20 years experience working with First Nations on land claims and inter-governmental relations.