CPABC Industry Update Summer 2014 - Page 20

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. page 20 | 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.