In the Wake of Tsilhqot’in (cont’d)
Clearly, First Nations rights and title
have been recognized through the
Supreme Court’s recent decision in
ways that are more consistent with the
view First Nations hold of themselves,
as governments to be negotiated
with rather than stakeholders to be
consulted, particularly as it applies to
unceded traditional territories.
First Nations governments want to
participate and have a say in project
reviews and approvals. They want to
ensure that independent and in-depth
environmental assessments take place.
For First Nations, those assessments
must look at cumulative impacts, and
they must ensure that should there be
a need to remedy any environmental
and social problems that arise out of
project development and operations,
t h a t g ove r n m e n t s a n d p ro j e c t
proponents employ Aboriginal rights
and title mitigation measures when
and where they are required.
Governments retain the final authority
to proceed with projects, but they
face a much higher threshold to
demonstrate that any infringements on
First Nations rights and title have been
given an appropriate and meaningful
level of consideration. Such a level of
consideration may only be satisfied
after deep consultation and adequate
and meaningful negotiations to
address matters of accommodation
and environmental mitigation have
begun in earnest.
Now that the Supreme Court has
made another significant statement
on the nature of Aboriginal rights
and title, how do industry, federal
and provincial governments, and First
Nations governments respond? Are we
going to maintain the status quo and
in effect bury our heads in the sand?
First Nations are not blind to these
significant, once-in-a-generation
opportunities that may be unlocked
by their participation in proposed
resource development projects.
However, First Nations do not wish
to see projects proceed at any cost.
There must be a balance between
economic development and impacts
on the environment.
The Supreme Court of Canada’s recent landmark ruling in the Tsilhqot’in
Nation v. British Columbia case granted the Tsilhqot’in First Nation title to nearly
200,000 hectares of land in central British Columbia. This Supreme Court ruling
will be applicable to unresolved land claims. This ruling clarified:
•
•
•
W
ho has the right to decide how the land
The Supreme Court also specified governments’
is used.
abilities to determine and regulate the use of land
W
ho has the right to occupy, enjoy, and
possess the land.
subject to Aboriginal title, and that provincial
laws still apply to Aboriginal title lands, subject to
constitutional limits. The decision will have major,
W
ho has the right to reap the economic
long-term implications for land and resource users,
benefits and proactively use and manage
developers, and financiers throughout Canada.
the land.
•
Who has the right to exclude others from
the land.
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I N D U S T R Y U P D AT E
Sources: Roy Millen, Sandy Carpenter and Laura Cundari, “Supreme
Court of Canada Releases Landmark Aboriginal Title Case,”
Blakes Bulletins, June 2014; Roy Millen and Sandy Carpenter
(Blakes), “Roger William: Implications in BC and Elsewhere,” Blakes
Presentation on Aboriginal Title, July 3, 2014.