The Tsilhqot’in and Grassy Narrows decisions have changed the game when it comes to engaging Aboriginals in resource development, but a new MLI report finds the impact won’t be as drastic as some have forecast.

OTTAWA, Sept. 11, 2014 – A pair of recent Supreme Court decisions delivered earlier this year changes Canada’s relationship with Aboriginal peoples, but the consequences are by no means as drastic as some of the overheated commentary suggests, a new study from the Macdonald-Laurier Institute finds.

While some believed the Tsilhqot’in and Grassy Narrows decisions would cause chaos in the natural resource sector, the impact of the two landmark rulings is in fact far more nuanced.

At their core, the decisions continue a balancing act between empowering and limiting the authority of both Aboriginal peoples and governments. Far from a tilting of the playing field, they are more a rewritten rule book.

”What the Supreme Court of Canada has highlighted at a fundamental level is that Aboriginal communities have a right to an equitable place at the table in relation to natural resource development in Canada”, reads the report, titled “The End is Not Nigh: Reason over alarmism in analysing the Tsilhqot’in decision”.

The new paper is written by MLI Senior Fellow Ken Coates, Canada Research Chair in Regional Innovation at the University of Saskatchewan, and Dwight Newman, Canada Research Chair in Indigenous Rights in Constitutional and International Law at the University of Saskatchewan.

Its release arrives on the same day that a key meeting is set to take place between British Columbia Premier Christy Clark and key First Nations leaders in Vancouver to discuss the relationship between Aboriginals and the provincial government.

The Tsilhqot’in decision ushered in a new era of relations with First Nations by making, for the first time ever, a judicial declaration of Aboriginal title in Canada. But Coates and Newman point out that contrary to much sensational commentary in the media, under the Tsilhqot’in decision Aboriginal title claims have limits. Title can apply only to non-treaty lands, and would constitute only a small portion of traditional lands claimed. There are also important differences between Aboriginal title rights and those held by most Canadians, including that the land must be held for succeeding generations. Finally, the Supreme Court has also envisaged a situation where resource development project could justify a government override of aboriginal title.

The following recommendations can be drawn from this analysis of the historic Tsilhqot’in and Grassy Narrows decisions:

  • Come to the table. There remains the obvious and much supported solution that the negotiation of modern treaties is a valuable tool available to governments and First Nations alike.
  • Governments need policy statements on overriding Aboriginal title. Governments could offer greater clarity to resource development proponents and Aboriginal communities concerning when they might be willing to use their power to override Aboriginal title, possibly through careful policy statements, developed in concert with Aboriginal communities.
  • Provincial governments should use their more clearly defined powers. Provinces are closer to the issues at hand, and bilateral negotiations are less costly, less time-consuming, and often less difficult than tripartite conversations. The Supreme Court has given provinces new room to operate. They should use it.
  • Seek clarity on the limits to Aboriginal title. The new rules on the inherent limits on the scope of Aboriginal title create a problem for all sides. Provincial governments should be contemplating seeking reference decisions from their Courts of Appeal to clarify the rules on this matter. Governments, resource companies, and Aboriginal communities could also consider the possibility of pursuing cases that seek declarations on the rules on that element.
  • Improve Aboriginal law expertise in the courts. We need big thinkers on the courts who understand Aboriginal law and also see how Aboriginal rights fit into a larger picture of law, of economic and social effects on Canada, and on the international discourse on rights.
  • Stakeholders need to advocate for themselves. Those making representations to the courts on related matters should be framing things in a way that captures their impact, and groups that are currently not represented before the courts as they make major decisions that affect them – for instance, resource industry associations – should be contemplating seeking intervenor status in upcoming cases.

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The Macdonald-Laurier Institute is the only non-partisan, independent national public policy think tank in Ottawa focusing on the full range of issues that fall under the jurisdiction of the federal government.

For more information, please contact Mark Brownlee, communications manager, at 613-482-8327 x105 or email at mark.brownlee@macdonaldlaurier.ca. On Twitter @MLInstitute