Aboriginal rights: two new court cases
ver the past ten years, the law of aboriginal rights has been evolving at an astonishing pace. Two recent Supreme Court of Canada decisions have clarified important elements of the legal framework applicable to aboriginal rights. These decisions are likely to have a substantial impact on the mining industry in Canada in the near and long term.
Aboriginal title: Tsilhqot’in Nation v British Columbia
In the first decision, the Supreme Court recognized for the first time that an aboriginal group, the Tsilhqot’in Nation of British Columbia, has title to a large tract of its ancestral lands. This decision is of considerable significance in provinces where aboriginal rights have not been settled by treaty, including British Columbia and Quebec.
THE COURT IDENTIFIED THREE REQUIREMENTS TO GROUND ABORIGINAL TITLE
- sufficiency of occupation prior to the assertion of European sovereignty
- continuous occupation (where present occupation is relied upon)
- exclusive occupation
The Court explained that aboriginal title confers ownership rights similar to those associated with fee simple ownership: a right to possess the land; a right to the economic benefits of the land; and a right to proactively use and manage the land. Title is held for both present and succeeding generations, which means that the land concerned cannot be developed in a way that would deprive future generations of the benefit of the land.
According to the Supreme Court, the right to control the land conferred by aboriginal title means that a government seeking to use the land must obtain the consent of the aboriginal title holders. If such consent is not obtained, a government that still wishes to authorize a mining project must establish that it has discharged its procedural duty to consult and accommodate the aboriginal title holders. It will also have to justify any incursion by showing that its actions are for a compelling and substantial objective and that they are consistent with the fiduciary obligation owed by the Crown to the aboriginal group.
Failing consent by the aboriginal group, the project may not proceed if the government has not discharged its duty to consult and cannot justify the infringement of aboriginal title.
Treaties entered into with aboriginal peoples: Grassy Narrows First Nation v Ontario (Natural Resources).
The historical treaties that were signed by aboriginal groups and governments between the mid-19th century and the early 20th century provide that the aboriginal groups who signed the treaties yielded ownership of aboriginal lands, with the exception of reserve lands. In return they received annuity payments, goods and hunting and fishing rights on the ceded land until the land was taken up by the government for settlement, mining, logging or other activities.
In the Grassy Narrows First Nation case, also heard by the Supreme Court of Canada, a forestry licence was challenged on the grounds that the province of Ontario could not take up the ceded lands without first obtaining the approval of the federal government or, at least, only with its collaboration.
The Supreme Court ruled that the division of powers under the Canadian Constitution determines which level of government may exercise the rights or discharge the obligations provided for in the Treaty. Since the Constitution gives the province of Ontario exclusive power to manage the development of natural resources, including mining and logging, the approval of the federal government is not required. The Court noted, however, that Ontario’s right to take up the ceded lands is subject to the prior duty to consult the aboriginal group concerned and, if necessary, to accommodate its interests.
The Ontario Superior Court of Justice will next have to decide, further to the decision of the Supreme Court of Canada, whether the forestry licence should be cancelled on grounds that it infringes the hunting and fishing rights of the Grassy Narrows First Nation.
Conclusion
The Supreme Court of Canada explained that the fundamental objective of modern aboriginal and treaty rights law is to achieve reconciliation between aboriginal and non-aboriginal peoples and their respective claims, interests and aspirations. The mining industry has acted proactively by seeking to develop close ties with the aboriginal communities that are affected by its projects. Recent decisions of the Supreme Court confirm the need to get aboriginal communities involved so that they can enjoy the benefits of these projects, which include employment, business opportunities and financial benefits.
Comments