The Supreme Court of Canada has sent a tsunami wave through oil and natural gas, mining and forestry industries in a ruling that gives First Nations effective control over vast tracts of territory beyond the confines of their defined traditional lands.
The 80-page decision applies specifically to drawn-out litigation affecting about 660 square miles in British Columbia’s central interior occupied by six communities within the Tsilhqot’in Nation, but has the potential to reshape resource development across Canada.
The unanimous judgment represents a major victory for aboriginal groups, expanding their rights to claim possession of ancestral lands as a result of a semi-nomadic lifestyle and to control those lands permanently.
Chief Justice Beverley McLachlin wrote that the rights “conferred by aboriginal title means that governments and others seeking to use the land must obtain the consent of the aboriginal titleholders.”
The landmark ruling also provides a roadmap for all unresolved land claims across Canada by First Nations seeking to negotiate modern treaties, or to contest their land rights in court.
“Aboriginal title confers the right to use and control the land and to reap the benefits flowing from it,” McLachlin wrote for all eight justices, while noting that aboriginal title is not absolute.
However, the ruling also made clear that, even if there is no consent, economic development should be able to proceed if governments can establish that projects have a “compelling and substantial” public interest.
Response mixed
Aboriginal leaders immediately and enthusiastically greeted the ruling as marking an epic shift in Canada-First Nations relations and a signal to Prime Minister Stephen Harper and provincial premiers to take treaty negotiations more seriously.
“This will be a game-changer in terms of the landscape of British Columbia and throughout the rest of the country where there is unextinguished aboriginal title,” said Jody Wilson-Raybould, British Columbia chief of Canada’s Assembly of First Nations.
“This has to be a wakeup call for governments, both provincial and federal, and we look to Mr. Harper to actually see this as the fundamental impetus to sit down at the table ... and meaningfully move towards reconciliation,” she said.
“We now have the opportunity to settle, once and for all, the so-called ‘Indian land question’ in British Columbia and Canada where aboriginal title exists through good-faith negotiations.”
Canada’s Natural Resources Minister Greg Rickford offered only a sketchy view of the ruling, saying his government “believes the best way to resolve outstanding aboriginal rights and title claims is through negotiated treaty settlements.” He would not be drawn into commenting on how the decision might affect Enbridge’s Northern Gateway project.
End of ‘business-as-usual’
Bill Gallagher, a former Canadian government regulator, oil and gas lawyer and treaty negotiator, told the Globe and Mail that “the climax of Native empowerment has arrived. It’s not going to be business-as-usual for (energy) projects.”
Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs, said resource projects infringing on traditional aboriginal territories will now require “consent” as well as “consultation” before they can proceed.
“We are in an entirely different ball game,” he told a news conference, suggesting that Enbridge and Kinder Morgan (through its plans to expand the Trans Mountain system) are “probably back on their heels.”
Bernie Mack, one of six Tsilhqot’in chiefs, left no doubt that proponents and governments will have to demonstrate a “substantial and compelling public purpose” to gain the consent of First Nations.
“The days of easy infringement (on aboriginal land) are gone,” he said, predicting that a “lot of our leaders” will now become involved in oil and gas and mining companies, taking a place in corporate board rooms.
Joe Alphonse, also a Tsilhqot’in chief, said his community did not engage in a decade-long fight “to separate from Canada. We fought it to be treated as equals.”
“This case is about us regaining our independence ... to be able to govern our own Nation and relay on the natural resources of our land. We are ready to move forward in this new relationship with government and industry,” he said.
John Bennett, executive director of the Sierra Club in Canada, offered one concise assessment of what now lies ahead.
He suggested Enbridge will have to restart the regulatory hearing process if it hopes to gain approval for Northern Gateway.
Enbridge didn’t offer anything conclusive beyond a spokesman’s comments that it will “continue to act pro-actively on our responsibility to consult and build relationships with aboriginal communities near our proposed projects. This decision will not change that commitment.”
CAPP: ruling adds clarity
Alex Ferguson, vice president of policy for the Canadian Association of Petroleum Producers, told the Calgary Herald that, like Enbridge, his organization needed time to examine the 80-page court decision.
He said CAPP’s early view is that the ruling adds clarity to the “long-standing evolution of these issues.”
But Ferguson said it was too early to say what the implications would be for Northern Gateway and the Trans Mountain expansion, both of which could face a tough legal test if any First Nations in Alberta or British Columbia file a land claim along the pipeline rights of way.
Steven Paget, an analyst with FirstEnergy Capital, said in a note that more Native communities will now be able to claim standing to oppose pipelines, helping clarify for proponents which communities they must negotiate with.
However, he pointed out that the ruling neither helps nor hinders the pipeline companies because many First Nations that oppose the projects are able to establish long-term continuous settlement of their lands and thus have automatic standing in any legal challenges.
Retroactive cancellations?
Other legal and regulatory observers said the ruling has implications not just for future projects but for those to have been approved or are under construction.
They noted that one paragraph in the judgment might force governments to retroactively cancel approval of a project if it was given the go-ahead before aboriginal title was established, while legislation enacted before title was established might also be “rendered inapplicable.”
Jean Crowder, aboriginal affairs spokeswoman for the federal New Democratic Party, said the ruling shows the Canadian government should set up a “protocol” for First Nations consultation on future resource development projects that would take place from the initiation of a project.
