Two recent Supreme Court of Canada decisions on aboriginal rights will have significant impacts on Canada’s mining industry in the years ahead: Tsilhqot’in
Nation v. British Columbia and Grassy Narrows First Nation v. Ontario (Natural Resources). There is no doubt the two rulings clarify some aspects of
aboriginal relations for mining companies, but questions remain. Both cases highlight the need for industry to monitor legal developments in this area and
possibly become more proactive.
The Tsilhqot’in decision in late-June saw the Supreme Court of Canada make an unprecedented declaration of aboriginal title. According to the decision,
this is ownership of historically occupied lands by aboriginal communities. It includes the full economic benefit of the land, subject to the court’s newly
developed restriction that the land cannot be used in a way that destroys its value for future generations.
Law has been developing in Canada on aboriginal title since the Supreme Court of Canada’s 1973 decision in Calder v. British Columbia, where the court
first accepted the concept in principle. However, up to now, Canadian courts have simply continued to state principles and tests on aboriginal title,
seemingly to promote negotiations between governments and aboriginal groups in order to settle outstanding land claims. The desire to promote negotiated
agreements has also been part of the courts’ thinking in the context of establishing a duty to consult.
As the courts developed aboriginal title case law over recent decades, they left a lot of uncertainty as to whether aboriginal communities who had
historically been semi-nomadic could ever successfully litigate an aboriginal title claim in the courts. The Tsilhqot’in decision makes it clear they can,
thus establishing a stronger legal position for many aboriginal communities.
The Tsilhqot’in decision effectively has bearing on any land areas where title questions have not been resolved. This means anywhere without treaties
establishing certainty on land ownership. Most of British Columbia is thus affected, as are smaller areas in other provinces and territories where there
are outstanding land claims. The latter include situations like where several Yukon First Nations did not sign on to a modern treaty in the context of
Yukon’s umbrella framework process. There may also be a renewed significance to arguments that the Peace and Friendship Compacts in the Maritime provinces
did not include land cessions by aboriginal communities there. The decision implies that aboriginal title claims have more prospects in the courts than may
have been thought previously.
In the process, the decision’s effects on negotiations where lands still have an unclear status may either be clarifying or disruptive. Ironically, Taseko
issued a news release shortly after the Tsilhqot’in decision to suggest it had clarified that its New Prosperity mine is the one mining project in British
Columbia that the courts have now determined falls outside of aboriginal title areas. Although that project faces other challenges (and has been twice
rejected), the decision actually opens new prospects for it through greater certainty that the land involved is not aboriginal-owned.
In other cases, greater certainty on aboriginal ownership may allow companies to move forward in their negotiations with aboriginal communities. That will
be the basic expectation where there is title or a strong title claim, with the decision-making clear that the consent of aboriginal communities is the
normal legal expectation when developing on their lands – just as with land owned by private individuals. There are similar possibilities for the federal
government to override a denial from First Nations based on a test set out in the judgment, analogous to the expropriation of private land.
However, the new decision does not solve the challenges of overlapping title claims between different aboriginal communities. Moreover, the restriction
that aboriginal title land has to be used in a way that benefits future generations also raises a nest of questions about whether that restriction can be
invoked by dissenting community members who disagree with a community’s decision to partner in resource development. So there may be ongoing uncertainties
created for negotiations as well. Mining companies need to think carefully about how they best work within the new legal environment.
A further important aspect of the decision is that it clarifies that provincial law and regulation can apply on aboriginal title lands, subject to a
particular justification test that applies. This is consistent with the Grassy Narrows decision released by the Supreme Court of Canada in July that
recognizes the primary role of provincial governments on resource matters. This case answered a treaty interpretation question with the court deciding that
Ontario can continue to “take up” land under Treaty 3 in northwestern Ontario for development purposes without the involvement of the federal government.
Government rights to lands ceded under Treaty 3 and the other historic treaties have now passed fully to provincial governments, as has regulatory
authority on that land within normal provincial jurisdiction. At the same time, the Grassy Narrows case offers more clarity on the rules for “taking up”
land under the historic treaties, with the details of the case providing further guidance to provincial governments and to resource companies operating in
Dwight Newman is professor of law and
Canada Research Chair in indigenous rights
in constitutional and international law at the
University of Saskatchewan. He has published
widely on related topics including his recent books
Revisiting the Duty to Consult Aboriginal Peoples
(Saskatoon: Purich, 2014) and Natural Resource
Jurisdiction in Canada (Toronto: LexisNexis, 2013).
These two decisions show how ongoing aboriginal law developments may affect Canadian mining. Companies need to continuously monitor legal developments in
this area. At the same time, given the lifespan of many mining projects, forward-thinking companies must also project into the future and engage in
strategic thinking about how to stay ahead of forthcoming legal developments.
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