November 2011

Aboriginal Perspectives

First Nations land rights

By J. C. Reyes

Essentially, the most productive time in the relationship between Aboriginal communities and the minerals industry began only a short while ago in 2004. Since then, we have witnessed a broad spectrum of situations, from difficult struggles – imprisonment and moratoriums, for example – to inspirational examples of sustainable revenue sharing. Despite a rocky past, I believe a prosperous future lies ahead.

In my last article, I wrote about the tenacity of the Odawa leader Pontiac before and during Pontiac’s War. His determination in bringing together other leaders to fight for native rights is the reason our Canadian border is as far south as it is. During the war, the British were signing truces with France. They also believed that without making peace with the Aboriginals, they would suffer setbacks.

As a result, King George III enacted the Royal Proclamation of 1763, a document that quickly became known as the Aboriginal Bill of Rights. It recognized that Aboriginals lived on traditional lands, but that interest in those lands belonged to groups or nations, not individuals, and therefore only the Crown could buy or accept Aboriginal lands. The proclamation also stipulated that the Crown would require an agreement to obtain lands from Aboriginal Peoples who were under the Crown’s protection.

Three quarters of a century later, an alarming situation occurred. The Mica Bay incident of 1849 – where a group of Aboriginals forcibly took over a mining operation – caused the government to mobilize 100 rifles in order to stop what they referred to as the “Indian uprising.” The Governor General, Lord Elgin, saw a direct link between the incident and land cession. He publicly expressed his disappointment in the regional government for not extinguishing Indian claim before licenses for exploration or grants of lands were permitted.

The first legal case dealing with Aboriginal land title and access followed the Mica Bay incident. In 1888, in St. Catherines Milling v. The Queen, the Privy Council held that Aboriginal title over land was allowed only at the Crown’s pleasure and could be taken away at any time. Ironically, although this pivotal case would decide the fate of Canadian Aboriginals for nearly a century, not one Aboriginal was ever invited to appear before the courts.

Aboriginal interest in land development would not be seriously considered in court until the 1967 Calder challenge. Frank Calder, of the Nisga’a Nation, challenged the Government of British Columbia, declaring that Aboriginal title to certain lands in the province had never been lawfully extinguished.

In 1973, the Supreme Court of Canada ruled that Aboriginal rights to land had existed at the time of the Royal Proclamation. This was the first time the Canadian legal system acknowledged the existence of Aboriginal title to land and that such title existed outside of, and was not simply derived from, colonial law. In deciding whether this legal ownership still existed, the judges were split: three believed that Aboriginals still had title to the land and three argued that the Aboriginals had ceded their title to the Crown. A seventh judge dismissed the case on a technicality.

The most significant piece of legislation regarding Aboriginal land and title rights was introduced in 1982 as section 35 of the Constitution Act. This section provided constitutional protection to existing Aboriginal and treaty rights – the first time any legislation had done so – and created a legal foundation for the recognition of self-governance. Before this section was introduced, Aboriginal rights existed by virtue of the common law, which could be changed and extinguished by legislation.

Since section 35, there have been a series of court battles that have established precedence in cases involving Aboriginal land title and access. One of the most important for the minerals industry is the well-known 2004 Supreme Court interpretation of the Crown’s duty to consult and accommodate. Since this decision, companies have sharply focused their efforts towards building and nurturing Aboriginal relationships and today, First Nations are beginning to participate in industrial developments and enjoy advantageous revenue-sharing agreements. One such example is the signing of a historic agreement between the Stk’emlupsemc of the Secwepemc Nation and the Government of British Columbia that will ensure that about one-third of royalties collected from the New Afton gold-silver-copper mine are returned to the community.

Given the legal environment and the high demand for minerals in the world, I believe that the next few years will be incredibly exciting for Aboriginal communities involved in the mining industry.

Juan Carlos Reyes is one of the founders of Learning Together and has been its executive director since 2008. He has nearly 15 years of mining and Aboriginal development expertise, and has worked tirelessly to promote economic development opportunities in the mining industry for Aboriginal communities.

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