VANCOUVER—The Fraser Institute—an independent, non-partisan Canadian public policy think-tank––released a new report last week looking at the national implications of the Supreme Court of Canada’s recent ruling granting over 1,700 square kilometres of land in British Columbia to the Tsilhqot’in First Nation, marking the first time the court has made a ruling of this kind regarding aboriginal land.
The study, ‘A Real Game Changer,’ breaks down the ruling to look at its national implications and how it will “likely stunt economic development across Canada,” states a press release from the Fraser Institute about the study.
“This court ruling all but guarantees increased uncertainty for natural resource projects in Canada and a potential increase in cost for economic development across the country,” states Ravina Bains, study author and associate director of aboriginal policy studies at the Fraser Institute, in the release. “In provinces like British Columbia, future natural resource projects may be scuttled, and existing projects may be halted or shut down.”
The semi-nomadic Tsilhqot’in is a group of six aboriginal bands that numbers 3,000 members. Based on the court’s decision, semi-nomadic aboriginal groups could now claim land titles on lands that they occupied, even if it is not their permanent settlement area.
What exactly “aboriginal title” means was also defined in the Supreme Court’s decision: control of ancestral lands and the right to use them for economic purposes while ensuring the lands are maintained for future generations.
The title will put the lands back into the control of the Tsilhqot’in First Nation, but will not be absolute with economic development still able to proceed on land where title is established if the First Nation gives consent or in cases where the government is able “to show that it discharged its procedural duty to consult and accommodate; that its actions were backed by a compelling and substantial objective and that the government action is consistent with the Crown’s fiduciary obligation to the group,” Chief Justice Beverley McLachlin wrote in her decision.
“Where aboriginal title has been recognized, economic development will require the consent of the First Nation that holds the title,” Ms. Bains further explains in her report. “However, the Crown can push through development, without the consent of the First Nation, if it is able to demonstrate a compelling and substantial public purpose for the proposed activity. The judgment reaffirms that consultation processes and the justification of infringements of aboriginal rights and title are the responsibility of the Crown and not project proponents. It will mean that if development is to occur on aboriginal title land against the wish of the First Nation, governments will have to be advocates for third party projects.”
“Where there is no consent, and the potential infringement cannot be justified, proposed projects may be set aside by the court,” continues Ms. Bains. “This is also true for existing development projects. This puts current and potential development at risk and results in increased uncertainty for economic development in British Columbia.”
Ms. Bains states that the ramifications of the Supreme Court ruling are “just as severe for current development and resource projects that are found in claim areas.”
“The judgment clearly states that the application of consent from First Nations is applicable to all future aboriginal title lands,” the report continues. “Therefore, once title is recognized, if there is a project on that land that the First Nation does not support then the government ‘may be required to cancel the project…if continuation of the project would be unjustifiably infringing.’ In provinces such as British Columbia, where over 100 percent of the land is under claim by First Nations, there is a possibility that already existing economic development projects may be suspended or shut down. A potential penalty for this infringement may be additional compensation to the First Nation group for the continuation of the economic development project.”
Ms. Bains concludes that though the Supreme Court of Canada judgment in Tsilhqot’in Nations versus British Columbia was focused on a specific First Nation group, “the ramifications of the judgment will be felt throughout Canada.”
“In the short term it will have impacts on treaty negotiations and has created a higher standard of engagement with First Nations who have aboriginal title,” Ms. Bains comments in the report. “Over the long term, it will result in an environment of uncertainty for all current and future economic development projects that may end up being recognized as on aboriginal title lands. Needless to say, this judgment is a real game changer.”