VANCOUVER – The legal certainty established by modern land claim agreements in Yukon – once seen as an advantage in attracting new investment – is now being undermined by Canadian courts, according to a new study released today by the Fraser Institute.
The study, Mining and Aboriginal Rights in Yukon: How Certainty Affects Investor Confidence, warns that Yukon’s experience could be a harbinger of uncertainty right across the country and particularly British Columbia.
“Unlike the historic treaty agreements of the 1800s, Aboriginal groups and governments today typically devote substantial resources — in time, money and legal counsel — to negotiate comprehensive modern agreements as a means to create legal and economic certainty. But in recent years, the courts have reinterpreted these agreements in a manner that increases uncertainty,” said Malcolm Lavoie, study co-author and visiting assistant professor at the University of Alberta Faculty Of Law.
In Yukon, for example, the courts have forced unforeseen obligations upon governments and third parties beyond the requirements already spelled out in modern treaties.
Consequently, legal uncertainty has resulted in a marked drop in perceptions of Yukon as an attractive jurisdiction in which to invest
According to the Fraser Institute’s 2014 Survey of Mining Companies, an annual survey of international mining and exploration executives, 30% of those surveyed said the uncertainty concerning land claims in Yukon either significantly deters or blocks them from investing. By comparison, only 12% of those surveyed were so deterred in 2010.
Robust protection for aboriginal rights can be provided without creating conditions of legal uncertainty. The Fraser Institute study recommend that courts not impose obligations that go beyond the express terms of modern land claims agreements. Courts can also develop doctrines like the duty to consult in ways that provide better guidance to governments and other parties. Finally, courts are urged to avoid the dramatic shifts in the jurisprudence that have characterized the past three decades.
Please visit FraserInstitute.org.
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