Impacts of Tsilhqot’in Part III: Implications for Controversial Projects
As discussed in Part I and Part II of this series on the Tsilhqot’in decision, proven Aboriginal title confers on an Aboriginal group the exclusive right to decide how the land is used and to benefit from those uses, subject to the right of the government to infringe Aboriginal title where justified. In Part III of our seven-part series on Tsilhqot’in Nation v. British Columbia, we explore what the concepts of justification and consent mean for controversial projects located on land subject to claims of Aboriginal title.
CONSULTATION OBLIGATIONS HAVE EXPANDED
The immediate and direct legal impact of the Tsilhqot’in decision on lands in British Columbia generally (outside Tsilhqot’in title lands) is limited, because it only applies to situations where Aboriginal title has been proved. This is not the case for the overwhelming majority of land in the province. Prior to proof of Aboriginal title, lands are subject to the law established in the 2004 Haida decision – requiring the government to consult with and, where appropriate, accommodate Aboriginal groups. This remains unmodified following Tsilhqot’in. Having said that, the indirect impact of the Tsilhqot’in decision is that, in the many situations where Aboriginal title is asserted but not yet proved, the government will be held to a higher standard of consultation before authorizing any activity that may affect asserted Aboriginal title. Under Canadian law, the degree of Aboriginal consultation required with respect to a particular government decision falls on a spectrum, dependent on the strength of claim of the Aboriginal group and the degree of adverse impact the proposed activity may have on that Aboriginal group. As discussed in Parts I and II of this series, Aboriginal title is now easier to prove over larger territories of land – meaning many First Nations will have stronger claims to Aboriginal title over larger areas. Stronger and larger claims will now require the government to “take appropriate care” to “preserve the Aboriginal interest pending final resolution of the claim.” Aboriginal groups will undoubtedly use the Tsilhqot’in case to test the scope of the government’s duty to consult prior to proof of Aboriginal title: post-Tsilhqot’in, consultation and accommodation where Aboriginal title is asserted is now more onerous, but the question is how much more? The answer will be determined by the courts in future cases, which will happen sooner rather than later. For example, on June 14, 2014, nine First Nations filed legal proceedings in the Federal Court of Appeal, all seeking leave to challenge the federal government’s decision to conditionally approve Enbridge’s Northern Gateway project. None of these Nations hold proven Aboriginal title, but they are alleging that the government failed to uphold its pre-proof duty to consult.
ABORIGINAL TITLE CLAIMS WILL BE USED STRATEGICALLY
Tsilhqot’in is only the beginning. Now that the process and requirements for proving Aboriginal title are clear(ish), First Nations will likely pursue more claims of Aboriginal title in court. Given the time and cost of these types of cases, we expect the claims will more often than not be limited to small and strategic parcels. In the context of controversial projects, there is strategic value for Aboriginal groups to launch title claims: once Aboriginal title is proved, the government and project proponent must obtain consent of the title-holding group if the project is to proceed, unless any impacts of the project on Aboriginal title can be “justified.” Many factors of the justification test may provide Aboriginal title-holders with an effective veto over project design decisions. For example, the justification test requires that any government-authorized infringement of Aboriginal title must have a “minimal impact.” This means that project design decisions must be made with impact in mind, and that the design that will be the least disruptive to the Aboriginal title must be implemented. This approach adopted in Tsilhqot’in has provided First Nations with a new tool to help shape development in their traditional territories. As the Supreme Court of Canada said in Tsilhqot’in:
Once title is established, it may be necessary for the Crown to reassess prior conduct in light of the new reality in order to faithfully discharge its fiduciary duty to the title-holding group going forward. For example, if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing [emphasis added].
This paragraph makes it clear that if a project proceeds over a First Nation’s objections, the First Nation’s last recourse to oppose the project will be to prove Aboriginal title and require that the project be cancelled. The practical effect of this proposition will unquestionably be explored in future court decisions, but it raises enough issues that it will be tested by First Nations opposed to the development of controversial projects.
EXISTING CONSENTS WILL BE EXAMINED
In British Columbia, many existing resource development projects already have the consent of Aboriginal groups. Whether or not those Aboriginal groups go on to prove title to their traditional territory, the Supreme Court of Canada in Tsilhqot’in was clear that consent will allow the project to continue. First Nation consent comes in a number of forms, but is most usually evidenced in an agreement with the project developer (often called an Impact Benefit Agreement) or one with the provincial government (such as an Economic and Community Development Agreement in the mining industry, or a Forestry Consultation and Revenue Sharing Agreement in the forest industry). Where controversial projects that have First Nation consent are located on land subject to Aboriginal title, First Nations will be carefully assessing the following questions:
1. Where consent is given in an agreement with a project developer but not the government, is that consent sufficient to justify an infringement of Aboriginal title?
Canadian courts have consistently stated that only the government is capable of dealing in a meaningful way with Aboriginal title; therefore, the answer may be that consent given to a project developer but not the government may not be sufficient. However, Tsilhqot’in may represent a shift from the exclusivity of government in formal dealings with First Nations. For the first time, the Supreme Court expressly identified that “the right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders” [emphasis added]. It is not yet clear exactly what this passage means, but it may support an argument that Aboriginal consent provided to a project developer may be sufficient to justify any infringements on Aboriginal title caused by that project. This remains an open question that will no doubt be answered in a future court case.
2. Does the language of consent in any existing agreement really demonstrate the Aboriginal group’s consent to infringements of proven Aboriginal title?
Project support covenants given by First Nations in existing agreements will be examined to determine: (i) whether the consent language is sufficient to constitute Aboriginal consent as described in Tsilhqot’in; and (ii) whether it can truly be said that the Aboriginal group intended to consent to infringements of Aboriginal title as contemplated in Tsilhqot’in. Where there is doubt about either of these matters, agreements may be challenged and/or renegotiated.
3. Is the consent requirement set out in Tsilhqot’in “free, prior and informed” consent (as required by the United Nations Declaration of the Rights of Indigenous Peoples)? If so, did the right group give “free, prior and informed” consent?
The concept of consent opens the door for complaints by First Nations members that the people consenting did not have the authority to do so, or that consent was given based on misrepresented facts. These questions may raise enough doubt about the effect of existing consents to allow an opposing First Nation to object to a controversial project despite the existence of Impact Benefit Agreements or government-to-government agreements.
PROVINCIAL REVENUE SHARING PROGRAMS WILL CHANGE – QUICKLY
In many resource industries, provincial programs currently offer revenue sharing in exchange for Aboriginal consent to resource exploitation. For example, provincial mineral tax revenue is shared with First Nations by way of Economic and Community Development Agreements. In the wake of Tsilhqot’in, First Nations have more leverage in negotiating revenue sharing agreements, due to stronger claims and the requirement that their consent be obtained before resources are developed on their title land. We expect many Aboriginal groups will re-think the sufficiency of these arrangements and question whether they are enough to rationalize giving consent to the project. On the flip side of this coin, the Province will also be re-assessing revenue sharing agreements. The Province has framed some of these initiatives as “programs” that can be readily cancelled by either party. Moreover, in all cases, the amount of revenue available for sharing may no longer be sufficient to incent First Nations to support projects. Accordingly, we expect the format of current revenue sharing arrangements to change to provide more significant, longer term revenue sharing benefits to First Nations in order to secure consent to projects.
Rob Miller, the leader of our First Nations practice group, has represented a number of high-profile First Nations in negotiations with government and industry regarding large resource projects. He has also provided advice to large resource companies on social licence, Aboriginal law and project development. Rob is recognized in the 2013 Best Lawyers in Canada guide in the area of energy law, and in the 2014 Lexpert Directory in the area of Aboriginal law. If you would like more information regarding the implications of the Tsilhqot’in decision or on Aboriginal law issues generally, please contact Rob Miller.