There can be little debate that the Tsilhqot’in decision is a landmark case in aboriginal law - creating greater clarity around the nature of aboriginal title under Canada’s Constitution; largely confirming past jurisprudence, and thereby providing important clarity with respect to the Crown’s (limited) ability to ‘justifiably infringe’ on aboriginal title rights; and resolving in the affirmative the application of provincial laws on the land base relative to aboriginal rights and title interests, subject to certain conditions.
The question now is -- what next? How will this decision impact the policy framework and political dynamic in BC with respect to activities on our resource rich land base?
Over the coming weeks, months and years the answer to this important question will take shape - with potentially significant implications for the province and the country.
While there is certainly risk associated with these implications, there are also opportunities that can flow from the potentially greater certainty provided. In the points below, I offer ten ‘suggestions’ designed to address some of the challenges identified in the commentaries to date on the case and briefly reference the opportunity side of the path forward in the wake of the court’s decision.
1. Do not panic. The world has changed, but the sky is not falling.
- Take notice of the responses from many First Nations leaders – the definition of aboriginal title conferred in the decision is obviously an important reality and one widely celebrated by First Nations. However, the desired path forward to reconciliation clearly articulated in many comments by aboriginal leaders is through engagement, dialogue and respectful negotiation - not confrontation. This is a good thing.
2. Recognize that the Crown-First Nations-industry dynamic in BC is an engaged, integrated one.
- While solitudes still exist in some areas of the province, overall there is a more mature, engaged relationship among key interests on the land base than in the pre Delgamuukw era. This should not change.
- Many policies and processes for reconciliation of aboriginal rights and title interests - mutually beneficial agreements - are in place already. Conflict need not define the future.
3. Get ready for a ‘dual track’ approach to engagement.
- All parties should be prepared for, and not afraid of, what will now increasingly be a ‘dual track’ approach – the first track will be the ongoing reconciliation and engagement between the Crown, First Nations and industry. The second track will be a (hopefully limited) number of title cases moving through the courts to determine and define the more precise extent and nature of title in some areas.Some First Nations will undoubtedly want to assert title claims in the legal sense - as the Tahltan immediately did after the Tsilqhot’in decision. However, it would be a mistake to assume title claims will be the norm and that this will also lead to disengagement and fragmentation on the land base (although admittedly there are some risks of such an outcome in some areas).
4. The provincial government will need to lead a more proactive approach.
- Elsewhere we have noted that the province has evolved a wide variety of agreement tools designed to provide certainty and reconcile activity on the land base with aboriginal rights and title.
- This toolkit, while expansive, has mainly been used in a reactionary manner. Greater certainty, including measures that explicitly seek to address aboriginal title interests, should now be put forward through accelerated collaboration on a priority basis, correlated to economic need and other broader societal objectives. This should be done in a coordinated and comprehensive approach that thoughtfully reflects the definition of aboriginal title accorded through the Tsilqhot’in decision. Government should now also consider a legislative framework approach that provides more clarity and certainty for all interests.
5. Time for the federal government to step up – improved engagement and coordinated action.
- The Eyford report (https://www.nrcan.gc.ca/sites/www.nrcan.gc.ca/files/www/pdf/publications/ForgPart-Online-e.pdf) articulated several areas where the federal government could significantly improve Ottawa’s aboriginal policy toolkit in BC. It is time to act on many of these recommendations and to do so in a coordinated fashion with the province.
- The federal government has a number of important financial tools (training and infrastructure dollars to name two critical ones) and constitutional responsibilities that could result in greater certainty and improved outcomes. A tripartite approach would be a welcome change.
6. Accelerate constructive capacity development.
- The premise here is straight forward: where First Nations have high strength of claim and share similar objectives with the Crown and/or industry, there should be an opportunity to accelerate benefit sharing by increasing First Nation capacity to undertake the work that leads to the delivery of tangible benefits.
- An increasing amount of evidence shows that once economic opportunities are shared and meaningful partnerships formed, there is a corresponding and understandable increase in support for development.
7. Engage with aboriginal rights and title holders, not political spokespersons.
- Too often the public narrative on aboriginal rights and title appears to be driven by spokespersons or leaders who do not actually represent the right and title holders.
- While there is a place and a time to engage First Nations leaders at the regional and national levels, the main focus of engagement needs to rest with rights and title holders.
8. Do not avoid strength of claim and overlap conversations.
- All parties need to recognize that leaving legitimate and respectful disagreements over strength of claim and overlap matters to the courtroom will lead to negative consequences and frustration for all.
- In this context we should not forget that there continues to be a spectrum of aboriginal rights – it is not just title or nothing.
9. Unlock the underlying wealth of title (ownership).
- The ability for First Nations to manage aboriginal title lands is a massive opportunity and also a very real burden. Title conveys with it tremendous opportunities for wealth creation while also presenting challenges around effectively planning and managing development across the broader landscape.
- The wealth notionally held in title land can only be unlocked through effective governance structures that provide certainty for investors (aboriginal and non-aboriginal). Almost by definition, absent treaties and in areas where First Nations hold significant capacity, the pre-conditions for wealth creation require a cooperative and coordinated approach between the Crown and aboriginal title holders.
10. Recognize the path to shared prosperity requires effort and coordination.
- All roads to economic reconciliation lead, in some form, back to a collaborative model that cannot be imposed by the courts or defined by the legal system.
- In this regard it is our governments and leaders – aboriginal and non-aboriginal – who must lead.
- While the Tslihqot’in decision creates challenges for the Crown to reconcile aboriginal title interests with broader public responsibilities, the tide – both legal and practical – continues to strongly support this important reconciliation work.
Note that in a forthcoming policy paper from the Business Council, we will take a closer look at the state of First Nations and business relationships in BC. This analysis will include some of our initial thoughts on the implications of the Tsilqhot’in decision for business and the investment climate in the province.