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The Tsilhqot'in (William) Decision - a Diversity of Views on Implications

By Tom Syer

For the past three decades determining the extent and nature of aboriginal rights and title in Canada has been an increasingly important component of natural resource development.  British Columbia, with its abundance of natural resources, diversity of First Nations and limited treaties, has been at the forefront of not only important legal decisions (Calder, Sparrow, Gladstone, van der Peet, Delgamuukw, Haida and now Tsilhqot’in) but also a rapidly growing number of collaborative economic initiatives between First Nations, government and industry that are designed to ‘reconcile’ economic activity with aboriginal rights and title interests.

The Supreme Court of Canada’s recent Tsilhqot’in decision will have significant implications for the ‘legal’ aspects of reconciliation processes as well as for the broader (and I would argue more innovative) economic engagement occurring between industry, First Nations and governments.

Below is a short compilation of links to the fast expanding array of law firm summaries, opinion pieces and blogs on the Tsilhqot’in decision.

Government/First Nation Statements

http://www.fns.bc.ca/pdf/FNS_PR_re_Tsilhqotin_SCC_Decision_June_26_2014.pdf

http://www.newsroom.gov.bc.ca/2014/06/attorney-generals-statement-on-william-case-decision.html

http://www.ubcic.bc.ca/News_Releases/UBCICNews06271402.html#axzz36nt7kmy1

Law Firm Summaries

http://www.bht.com/resources/tsilhqotin-v-british-columbia-outcome-and-implications

http://www.mcmillan.ca/Supreme-Court-declares-Aboriginal-title-in-Tsilhqotin-Nation-v-British-Columbia

http://www.blakes.com/English/Resources/Bulletins/Pages/Details.aspx?BulletinID=1968

http://www.mccarthy.ca/article_detail.aspx?id=6822

http://www.osler.com/NewsResources/Details.aspx?id=7693&utm_campaign=Osler-Update&utm_medium=email&utm_source=Tsilhqotin-Decision-The-Sky-Is-Not-Falling&utm_content=English

http://www.mandellpinder.com/tsilhqotin-nation-v-british-columbia-2014-scc-44-case-summary/

http://www.projectlawblog.com/2014/06/27/742/

http://www.davis.ca/en/publication/what-tsilhqotin-nation-decision-on-aboriginal-title-means-for-project-developers-in-canada/

http://www.fasken.com/en/landmark-ruling-declares-tsilhqotin-hold-aboriginal-title/

Opinion Pieces

Judith Sayers - http://thetyee.ca/Opinion/2014/07/04/First-Nations-Decision-Changes-BC-Business/

Bob Rae - http://www.theglobeandmail.com/globe-debate/the-supreme-courts-bc-pipeline-decision-its-more-important-than-you-think/article19459783/

Gordon Gibson - http://www.theglobeandmail.com/globe-debate/the-claims-are-just-but-this-means-chaos/article19377387/

Geoff Plant - http://theplantrant.blogspot.ca/2014/07/how-supreme-court-changed-british.html

While there is a generally consistent legal interpretation of the decision, there is clearly a wide diversity of views regarding the implications of the Court’s ruling – how will it eventually impact economic activity on the land base?

In a nutshell, some believe the decision will foster new forms of gridlock as First Nations communities assert authority over a (now) larger land base through both real and potential aboriginal title claims. In this view, uncertainty will be magnified due to the shift in ‘ownership status’ over a significant amount of the province under an expanded notion of aboriginal title -- with negative consequences in terms of investors’ and proponents’ ability to navigate through what some fear will become a more complex, less certain, governance process in different areas of the province.

Other analysts have a less pessimistic take on the economic implications of what the Supreme Court of Canada has said in this case. In this view, the decision largely reinforces existing approaches to both economic reconciliation and ‘justifiable’ infringements of rights and title already in place and confirmed by the Courts. In both views, the decision also provided important clarifications on the ability/role of the province in establishing laws over the land base in the province.  

 So who has it right?

This question will be answered more fully in time.  However in my view this question will not be answered by the Courts, at least for the foreseeable future. In the short to medium term, the answer will be shaped by how successfully leaders in government and industry – both aboriginal and non-aboriginal – continue down the path of economic reconciliation. 

My take, informed by working for the past decade in government, the private sector (working directly with First Nations), and with the Aboriginal Affairs Committee here at the Business Council on many facets of economic reconciliation with First Nations, is that most, but not all, parties now have far too much at stake to shift from the engagement process to confrontation. This momentum – informed by the benefits of economic reconciliation that are manifesting in many First Nations communities – is a powerful antidote to conflict and represents a positive pathway forward.

However, we should be fully aware that this decision will have distributive consequences in many areas of the province – by definition, the nature of aboriginal title now established by the highest court of the land conveys with it the significant potential economic benefits of ‘ownership’.  This reality brings with it new responsibilities for government (aboriginal and non-aboriginal) to accelerate economic engagement in order to ensure that our policy processes and distributional tools provide certainty for potential investors and a clear set of benefits to aboriginal title holders willing to build shared prosperity. 

In a subsequent blog I will cover in greater detail some of the implications of the decision for industry and government as well as some thoughts on ‘what next’?