What could the Supreme Court of Canada Tsilhqot’in decision mean for mineral exploration and mine development in BC?
After more than 40 years of court cases about aboriginal title and rights the Supreme Court of Canada finally issued the first declaration of aboriginal title on Thursday. The Tsilhqot’in have been recognized as the owners of about 2,000 square kilometers of land in the form of Aboriginal Title. What does this decision of the court mean for mineral exploration and mine development?
In the case of the Tsilhqot’in, the moment the judgement was made public their ownership of the land was confirmed and they are now the ones in control.
People have talked about Aboriginal Title for many years but what sort of ownership was rarely discussed in much detail. In the Tsilhqot’in decision the Supreme Court of Canada went a long way to explain what sort of title it is and what powers it has.
The first and most important thing to understand is that where there is Aboriginal Title there is no Crown land. Second is that Aboriginal Title gives First Nations very wide ranging rights to use and benefit from the land. Third, the province will no longer collect revenues from Aboriginal Title lands; all the revenues have to go to the First Nation. Fourth, Aboriginal Title requires First Nation consent for anyone to use it. Fifth, most BC laws that currently apply to the land and natural resources are not likely to apply on Aboriginal Title land.
From the decision:
[73] Aboriginal title confers ownership rights similar to those associated with fee simple, including: the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land.
[74] Aboriginal title, however, comes with an important restriction — it is collective title held not only for the present generation but for all succeeding generations. This means it cannot be alienated except to the Crown or encumbered in ways that would prevent future generations of the group from using and enjoying it. Nor can the land be developed or misused in a way that would substantially deprive future generations of the benefit of the land. Some changes — even permanent changes – to the land may be possible. Whether a particular use is irreconcilable with the ability of succeeding generations to benefit from the land will be a matter to be determined when the issue arises.
[90] After Aboriginal title to land has been established by court declaration or agreement, the Crown must seek the consent of the title-holding Aboriginal group to developments on the land. Absent consent, development of title land cannot proceed unless the Crown has discharged its duty to consult and can justify the intrusion on title under s. 35 of the Constitution Act, 1982 . The usual remedies that lie for breach of interests in land are available, adapted as may be necessary to reflect the special nature of Aboriginal title and the fiduciary obligation owed by the Crown to the holders of Aboriginal title.
When the land is recognized as Aboriginal Title and is no longer Crown land there are major issues with continuance of existing tenures. In the Tsilhqot’in decision the Supreme Court clearly said the Forest Act no longer applies. This means all the forestry tenures and the provincial forest management regime no longer exist on the Tsilhqot’in land. The court did not address the impact on the various laws related to mining, which means no one can answer with any certainty whether the existing claims still exist. The Supreme Court did not say if they believed sub-surface rights to be part of Aboriginal Title but for the moment is safest to assume Aboriginal Title includes the sub-surface rights.
The province could try to change the laws related to natural resources to assert jurisdiction over Aboriginal Title land but not only would it be hard to write those laws, it is almost a certainty they would end up before the courts. Even if the province succeeded in successfully rewriting the laws, it would still not collect revenues from Aboriginal Title land. The province would more usefully spend its energy developing a resource management and development partnership with First Nations. The First Nations would be the landlords and the province would be best suited to be the property manager.
Right now only the Tsilhqot’in have any Aboriginal Title but that will change as other First Nations go to court to get declarations of title. Already on Friday several First Nations to the west of Vernon re-started their court case seeking title to lands between Okanagan Lake and Douglas Lake. It is likely that over the next decade or two almost all First Nations in BC that have potential Aboriginal Title will seek a declaration of its existence. It is very hard to estimate how much Crown land in BC will eventually be recognized as Aboriginal Title but it will not be a small amount, possibly anywhere from 1/5 to ½ of the province.
Not all of BC will be covered by Aboriginal Title. Not all claims of Aboriginal Title will be successful. First Nations have to meet a test to have Aboriginal Title recognized. The test includes proof of being on the land in 1846 and having been the only First Nation on that land. Some First Nations can not make Aboriginal Title claims at all; for example, the First Nations in Northeast BC signed Treaty 8 and thereby should no longer be able to claim Aboriginal Title. The same holds true for the Nisga’a and those that have settled under the BC Treaty process.
In general Aboriginal Title will most likely exist on the better quality Crown lands in BC in areas within a reasonable distance of existing Indian reserves. When the reserves were set up they tended to be close to the core of the territory most heavily used by the First Nations in the 19th century.
Many commentators are pointing to the fact the Crown still has the right to infringe Aboriginal Title if a First Nation does not consent to some use of the land. Since all the uses of the land will be decided by the First Nation there will be very few reasons for the provincial government to ever want to infringe Aboriginal Title. If the First Nations grants a tenure for some use of the land they have given their consent. If they do not grant a tenure they do not consent but there is also no tenure for the province to try and protect. Since the land is no longer Crown land the province is not empowered to grant others tenures on Aboriginal Title land. At best the power to infringe Aboriginal Title is the right of the government to expropriate land from the First Nation for such uses as new roads or other public infrastructure.
Since the land is no longer Crown land, on Aboriginal Title land all the discussion about land development should only be between the First Nation and industry. This does not mean all development has to stop but it does mean building a strong and close partnership with the First Nation is the only path forward. It is important to keep in mind that for most First Nations in BC, Aboriginal Title land will be their single most important economic development asset.
Finally there are important factors about Aboriginal Title the Supreme Court did not address and which will take years to settle.
ñ What happens to existing interests in the Tsilhqot’in land? The Supreme Court found the forest tenures no longer apply but what about mineral tenures or water rights? There are some existing mineral claims in the area that is now Tsilhqot’in Aboriginal Title land. Is anyone owed compensation for lost tenures?
ñ It is the Tsilhqot’in that own the Aboriginal Title, but how will it be governed? Will it be an Indian Act band, the tribal council or something entirely new?
ñ What sort of interests in their land will the Tsilqot’in be able to create? Can they allow mineral staking under their own regime? Can they adopt the provincial system?
ñ How can the Tsilhqot’in create interests in their land? To make creating land based interests there will need to be some process for rights to be registered and protected but the court offers no guidance on how this could be done or for even for what purposes the Tsilhqot’in could grant an interest in their land. It is also not clear what certain certainty a tenure on Aboriginal Title land will have.
ñ In any land use dispute on Aboriginal Title land what court would have jurisdiction? The Tsilqot’in will have some sort of quasi law making power in relation to their land but which court would be responsible for decisions is not clear.
ñ How will the Tsilhqot’in set the resource royalties, taxes and fees for their lands?
The Tsilhqot’in decision has happened and it is the new reality in BC which everyone has to live with. The decision does not have to cause dramatic uncertainty. But because government has never developed a plan B for the obvious eventuality of Aboriginal Title being recognized, the best way forward for industry is to make a strong partnership with the First Nations leadership to push government to make land use certainty a priority.
Bernard von Schulmann is a land-use consultant based in Victoria BC that has spent over 20 years working with First Nations, industry and communities across British Columbia.