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
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