CPABC Industry Update - Fall 2015 | Page 31

assessing the strength of Aboriginal title claims in the province and in mapping them. This decision offers guidance on how claims are proven, which will also help in the assessment of claims. 3.  REATY NEGOTIATIONS T AND PRIVATE AGREEMENTS This decision, like others, continues to push the Crown to resolve land claims through treaties. That process has been slow and costly. Further, the Crown’s duty to consult on decisions affecting Aboriginal title claims afforded considerable protection for asserted rights without the need to settle a treaty. In recent years, the province has focused more on strategic engagement agreements in specific sectors to reconcile Crown and First Nation interests in manageable pieces. Many companies choose to enter bilateral agreements with neighbouring First Nations to involve them in land and resource use decisions and to obtain their consent for operations. These approaches can move faster than Crown to First Nation negotiations and can build mutually beneficial relationships. This decision helps settle the debate about territorial versus site-specific Aboriginal title and the governance rights, which will help in all forms of treaties and agreements. It will also increase the expectations on participation in the governance and economic benefits related to resource developments over a broader area. 4.  ESOURCE REVENUE R RE-ALLOCATION Aboriginal title includes the right to reap the economic benefit of resources on Aboriginal title lands (subject to the inherent limits of Aboriginal title). The “territorial” approach to proving title should mean that larger title claims will succeed, resulting in diminution of resource revenues to the province from those lands. In the case of logging, that could include a claim for stumpage fees by Aboriginal title holders. confirms that a broader, territorialbased claim for title can succeed. 5. Jana McLean, LL.M, is an associate with Bull Housser LLP specializing in environmental and Aboriginal law. Jana advises clients on environmental assessments, permitting, and compliance issues. She has represented both industry and First Nation clients on matters ranging from contaminated sites to Aboriginal rights and title.  ECONCILING R GOVERNMENT LEGISLATION WITH ABORIGINAL TITLE The decision clarifies the important question of how provincial laws may affect Aboriginal rights. By applying the Sparrow justification approach to both federal and provincial laws as the sole “constitutional lens,” the Court has resolved any question about the ability of the province to regulate Aboriginal title land and the exercise of Aboriginal rights. Few provincial laws were passed with an explicit First Nations consultation and justification approach. As a result, the question of how reconciliation efforts may be achieved retroactively is significant. The province will have to adopt a more systematic consultation approach to legislation and policies affecting the land. Structuring a workable consultation process will be challenging. In light of this decision, First Nations, government, and industr y must continue to find ways to collaborate to shape a ne w future for the province. When urging the need for reconciliation, Chief Justice McLachlin repeated the oft-quoted words of Chief Justice Lamer in Delgamuukw that Aboriginals and non-Aboriginals “are all here to stay.” Robin Longe is a partner at Bull Housser LLP, and the chair of the firm’s Aboriginal Law Specialty Group. Robin practises corporate law, and regularly provides advice to both industry and First Nations clients concerning the scope of the duty to consult, and the negotiation of a wide range of agreements, including impact and benefit, and revenue-sharing arrangements. The William decision does not change the nature of Aboriginal title, but FALL 2015 | page 31