New Set of Rules in First Nations Relations?

The recent Supreme Court of Canada judgment (as explained in this blog post by Melanie Paradis) could have crucial consequences for relations with First Nations, especially with respect to natural resource development. Recognizing the existence of Aboriginal title over ancestral lands for the first time, the judgment has already sparked numerous reactions that herald a new paradigm in the relationship between governments and First Nations, as well as with companies. While Aboriginal leaders celebrate this victory, which some describe as “historic”, governments remain silent and representatives of the natural resource industry continue to voice their concerns.

Are the concerns warranted?

Yes, if the aboriginal leaders’ interpretation of the decision is to be believed. They view it as an opportunity to strengthen their power when negotiating with governments on territorial issues. Ghislain Picard, spokesperson for the Assembly of First Nations and regional chief for Quebec and Labrador, reacted very positively to the decision, saying that the “balance of power has shifted significantly in favour of First Nations for any project that could be considered on a territory where they claim title.”

“It’s very clear now: the provincial government can no longer develop on our territory while ignoring our title and our rights. I expect this to take effect immediately. Otherwise, we will use the means at our disposal to make sure our title and the application of the conclusions in this judgment are respected,” said Christian Awashish, chief of the Atikamekw ’Opitciwan Council.

Veto for First Nations?

Has the Supreme Court just given the First Nations a veto right over the management of territories and resources?

By confirming the existence of Aboriginal title for the six communities in the Tsilhqot’in First Nation, the Supreme Court recognizes their right to manage the territory, a form of governmental autonomy that is strong enough to curtail provincial power. The Court stresses that title has an independent legal existence that gives rise to a fiduciary duty on the part of the government.  “This means that incursions on Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land.” The Supreme Court concluded that “the province’s land use planning and forestry authorizations under the Forest Act were inconsistent with its obligations to the Tsilhqot’in people.”

The Supreme Court is even urging governments to obtain consent from First Nations on these territories where territorial claims have never been settled, as is the case in Quebec, BC and the Maritimes. This is tantamount to a veto right.

A question of interpretation

This is indeed a troubling consequence for companies and governments. But it would be surprising if governments interpreted the judgment in the same way as Aboriginal groups. After careful analysis, governments will likely focus on the elements in favour of a narrower scope of aboriginal title, especially in relation to the power of governments to legislate the use of natural resources.

Parties will certainly debate the scope of the judgment the true meaning of granting Aboriginal title and its application to specific territories. But it is not the decision’s content per se that will force the adoption of a new paradigm. It is rather the general feeling of this “historic victory” for First Nations that emerges from the decision, and the aboriginal leaders’ ability to use it as political leverage. As with many other political issues, perception often trumps reality.

Impact and consequences

Given the indigenous leaders’ reactions, namely those  leading groups that have yet to enter into land claims agreements (such as the Atikamekw in Quebec), there is reason to believe that pressure will be put on governments and third parties for a greater recognition of Aboriginal title. Consequently, this will place a greater burden on them with respect to the duty to consult and accommodate established by the Supreme Court in the 2004 Haida case.

For many companies with development projects in affected areas, the concern is warranted. For others, the impact will be minor or non-existent. In many instances, including in the mining industry, companies have already developed effective approaches to establish direct relationships with Aboriginal communities, since these communities are increasingly seeking to capitalize on various benefits, whether of economic nature or in terms of  employment. These communities also want to ensure that their cultural values will be respected, and this beyond the benefits they would traditionally get from governments. In fact, companies have been feeling the pressure for some time already.

The decision’s most significant impact will likely be felt by governments, particularly in the context of territorial negotiations, because of a likely change in attitude among indigenous leaders, as indicated by chiefs Ghislain Picard and Christian Awashish. Until now, governments have refused to recognize Aboriginal title on territories beyond existing reserves. Negotiating groups could use the recent decision to expand the territory on which they wish to establish self-government.

Moreover, it would not be surprising to see governments making greater efforts in terms of when it comes to consultation and accommodation mechanisms in order to avoid further litigation, which could force the courts to recognize the existence of Aboriginal title for other indigenous groups. Other players must be aware of this and adapt their engagement policies with Aboriginal communities accordingly.