By Stephen Kishewitsch
On June 26 the Supreme Court of Canada (SCC) issued a unanimous judgment that has been widely seen as potentially having major implications for any project carried out on traditional First Nations land. In brief, it upheld a lower court ruling that recognized pre-existing title of the Tsilhqot’in people in central British Columbia over some 1,750 square kilometres of their traditional territory. The direct result is to give the Tsilhqot’in, and by implication other First Nations who are not participants in a treaty – notably in BC but even some in Ontario, recognition that they are entitled to control over any resource development project that takes place on land to which they can even potentially demonstrate title.
Two weeks later, the SCC followed up with another ruling on a case originating in Ontario near the border with Manitoba, brought by the Grassy Narrows First Nation. The ruling in that case was also much anticipated, as an earlier trial-level decision had put the authority of Ontario to grant a mining permit into question. In the outcome, the SCC reaffirmed the powers of the province to ‘take up’ land under treaty (Treaty 3 in this case), but made it clear that the Province’s right is not unconditional – Ontario must exercise its powers in conformity with the honour of the Crown and subject to the fiduciary duties that lie on the Crown in dealing with Aboriginal interests.
A brief history of the Tsilhqot’in case and summary of the decision is provided at the end of this article.
Implications for the power sector, primarily for Ontario, have been addressed by experts in several settings. And the chief of those would seem to be whether the two SCC decisions increase or decrease uncertainty in developing projects. Based upon several conversations with experts in the field, the short answer would seem to be, yes, to both.
That will require some explaining.
In the Tsilhqot’in decision the basic yardstick the SCC used in gauging Aboriginal occupancy of land, and hence title, was a broad one – a standard that First Nations across the country may now decide to rely on in pursuing negotiations or court proceedings over their own historical land base.
The first thing to remember is that much of BC is not covered by treaties between government and First Nations; hence, title there will in most cases not have been surrendered in the formal sense of the treaties in Ontario. Any project there now faces a much higher hurdle in allowing a taking of unceded land, and will need serious negotiation and, in many circumstances, consent from First Nations to go ahead.
The case in Ontario is generally very different. Almost all of Ontario is covered by treaties (see map), to which most First Nations – with important exceptions, see below – have signed on or adhered to. In most of Ontario the Keewatin decision may have the more direct effect, in that the SCC found that while the province, under whichever applicable treaty, has the authority to ‘take up’ land for development, it may not do so without due regard to the interests of the First Nation whose traditional land or rights may be affected. Traditional rights of hunting, fishing and trapping may not be damaged by timber harvesting practices that the province has licensed, for example.
To summarize, the effect of both cases is to underline, for developers, lenders and governments, the need to proceed with a project only after consultation with, and consent of, any First Nation whose land is affected. As to what lands may be affected, the Tsilhqot’in decision sets broad criteria under which a First Nation can establish a legitimate interest in a given territory.
The second thing to remember is that, that despite the establishment of broad principles, every potential case is different. The outcome of each case rests on its own finding of fact.
The various treaties covering Ontario – Treaty 3, Treaty 9, Robinson-Huron, Robinson-Superior, and so on, were negotiated a century or more ago. The language they use is typically not the kind of meticulous, lawyerly language that goes into negotiations, treaties and land claim agreements today. Reinterpretation is possible as to what exactly was surrendered, both in terms of the area and of the rights and obligations that were agreed to. In many communities there has long been a sense that negotiation on the part of the government was done in bad faith, that territory was taken and rights infringed on where full surrender was not intended. In fact, as explained in a CBC story aired June 27, Toronto lawyer Murray Klippenstein found evidence amounting to deliberate fraud over Treaty 9, signed in 1905 and 1906, in a government negotiator’s diary of the time. In his words, the diary documents “a gigantic fast one” perpetrated against the signatory elders, who were led to believe they would keep their traditional lands, safe from any subsequent governmental taking up of land for its own development plans. Concerns like this, though not necessarily so manifest, are likely to resemble the reasoning and strategies of an uncertain number of First Nation communities, which will be looking at the SCC decision on Tsilhqot’in for guidance. There may be a number of First Nations who will want to revisit rights or claimed ‘extinguishment’ that were loosely defined in historical treaties.
That’s how Isadore Day, Chief of Serpent River First Nation and Regional Grand Chief, Lake Huron Region, sees the possibility: “The treaties didn’t give us those inherent rights, those rights were protected, they’re inherent. If a treaty did not define inherent rights we now have a landmark ruling speaking to the issue. Would it not suggest, then, that First Nations will want to address how we implement historical treaties in the modern context? ... I see further discussion now arising. Contrary to what some people believe, treaties didn’t cede everything away, or our ability to participate in jurisdiction. There are even questions around the language of cede and surrender. Under the language and value systems of the Anishnabe people, how could you ever give something away that you don’t consider that you ever owned?”
It is this philosophical difference that is key to the understanding of the treaties, adds Merv McLeod, a consultant on projects with First Nations: “First Nations viewed the treaties as Treaties of sharing the use of the land, definitely, not treaties of land cessation.”
In its ruling in the Tsilhqot’in case, the SCC itself noted that “Once title is established, it may be necessary for the Crown to reassess prior conduct in light of the new reality in order to faithfully discharge its fiduciary duty to the title-holding group going forward. For example, if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing. Similarly, if legislation was validly enacted before title was established, such legislation may be rendered inapplicable going forward to the extent that it unjustifiably infringes Aboriginal title.”
Aboriginal law lawyer Paul Seaman at Gowling Lafleur Henderson LLP views these comments as worthy of concern for governments and project proponents alike: “In my interpretation, the Court was telegraphing that the Crown cannot put treaty negotiations on the backburner, yet at the same time barge ahead with projects on lands subject to Aboriginal title claims. To do so in the face of these comments would, in my view, carry with it a significant risk of litigation and associated delays. In some cases it could even mean starting over.”
There may also be demands for compensation for use of traditional territories, for example resource extraction, that come to be deemed unjustified in the light of this decision, the SCC added.
The federal Aboriginal Affairs and Northern Development department lists fifty claims in Ontario that have been accepted for negotiation. Of those, sixteen address ‘land’ in the description of the claim type – others deal with other issues like flooding. Most of the sixteen – but see the Algonquins of Ontario, below – would be concerned with a community, under the terms of the applicable treaty, claiming some particular piece of land currently under the Crown to be re-designated as reserve land instead. Any project planned for an area under such a claim might now face delay – of uncertain duration – until a settlement is made, one way or the other.
There may also be demands for compensation for use of traditional territories, for example, for resource extraction, that come to be deemed unjustified in the light of this decision, the SCC added.
To return then to the question of uncertainty: it seems that, on the one hand, if and when a community decides to revisit its rights over a given piece of land, even land under treaty, whether through the courts or through negotiation with an interested party, the outcome, once spelled out in the exacting language of today’s agreements, will be one of certainty. Developers would then know the rules for development in a particular area, no longer encumbered by ambiguity as to what everyone has agreed to.
On the other hand, until such an outcome is arrived at, uncertainty is increased by the simple possibility of a claim. Will a First Nation, encouraged by the SCC ruling on Tsilhqot’in, seek authority over a piece of land where a project is being proposed? Will they be seeking redress through the courts? How long will that take, how high up the court system is it likely to go? What happens to the project in the meantime?
In the short(er) term, then, it seems uncertainty may increase, at least for some projects and locations. Hopefully, the ultimate outcome will be long-term confidence in the result.
Both SCC rulings were driven by appeals on lands where the respective provinces had allowed timber cutting operations, but the results could apply equally to hydro developments with impoundment areas, transmission lines, or even road access to wind farms.
Fortunately, practice has been evolving in the direction of a solution for a decade or more, and many or even most proponents already know what to do.
Negotiate.
Melanie Paradis at National Public Relations points out that Ontario’s Mining Act, which used to allow tremendous powers in the taking of land for mineral extraction, now in its most recently amended form, sets a new standard for consultation and consent among First Nation communities – meaningful consultation must occur at the very earliest stages. She argues that this has become in effect a standard for every branch of government and every proponent, whether by direct reference to the Mining Act or not.
“If there’s going to be an impact on the land, there has to be accommodation [on the part of the First Nation]. In order to accommodate, there has to be thorough consultation – including reference to traditional knowledge. Getting to accommodation means consent. [As to what actually constitutes consent, t]he community is the reference for whether consultation has occurred, within the meaning of the legislation.”
On these matters, Lawyers Rachel Hutton and Patrick Duffy at Stikeman Elliott said “Our advice to our clients is to enter into binding agreements with First Nations. We see them [agreements] becoming increasingly complex and sophisticated. That’s what most developers have been doing. Cultural awareness and environmental protection are being woven into impact benefit agreements. Our standard advice is to get a binding agreement approved by Band Council resolution, and best of all, to get a resolution by general band membership as well.”
“Uncertainty exists for First Nations as well. They may be more concerned about any freezing effect on development in their territories. An overly legalistic approach won’t work – it’s better to seek consent.”
Cherie Brant, lawyer at Dickinson Wright LLP, makes similar points, but notes “To date the Crown has been virtually silent to proponents on their views about the degree and scope of consultation until they are forced to defend their decisions in court. Until the Crown in Ontario becomes more proactive and transparent about their characterization of the scope and degree of consultation, proponents are on their own and must independently assess the level of consultation so they can properly plan their projects and seek consent where necessary and advantageous.”
As to whether lenders are feeling wary in the face of possible renewed court cases over the meaning of treaties, Clint Davis, Vice-President for Aboriginal Banking at the TD Bank, observed that, first, Aboriginal lands are inalienable to anyone except the Crown – so First Nations land is not a factor as security for a bank. “The TD views First Nations as a public government. Banks provide financing based on the strength of their revenue, strength of management and leadership, commitment to financial accountability – can they manage finances, generate a small surplus, balance the books? Banks would move as fast [in closing a deal] as any other sector would do.”
He acknowledges that there will be an uncertain number of revisits to the court, or at least negotiation around lands where the SCC rulings allow the question of who is owed what to be reopened. However, “There are many partnerships across the country where First Nations are actively involved in resource development. I can’t imagine that the SCC decision will be highly disruptive because they have a good relationship with the companies operating in their territories anyway.” Of course, there may always be international investors, he notes, seeking to get a sense of what our regulatory environment looks like, who may not yet put a lot of weight on building partnerships with First Nations, so some education may still be needed there.
Even if extensive revisiting of existing treaties and agreements proves to be the case going forward, an outcome that some may view as additional vexation, other aspects should be broadly seen as positive. Along with inherent rights come responsibilities, Chief Day observed in conversation:
“Responsibility has various meanings – to the land, to community welfare, to sharing in economic benefit. We can’t expect the courts to continue to define these things. Strength of the relationships that we make with our neighbours needs to be what [sets the standard]. All these rulings continue to solidify our rights, but this notion of shared territory and jurisdiction, we need to get down to business with our neighbours and the government and not waste time. We just had a two-day regional round table on sustainable development, with five neighbouring municipalities and two other First Nations, to establish a sustainable development strategy, linking ourselves to the province’s northern growth plan. ... We can’t expect the courts to continue to define these things.”
So, while the Tsilhqot’in ruling has been variously described as ‘groundbreaking,’ ‘landmark,’ ‘the most important Supreme Court ruling on aboriginal rights in Canadian history;’ opinion from a number of legal firms’ blogs is that it is actually unlikely to result in a ‘floodgate’ of new actions for title. Any claim is likely to involve a heavy commitment of time and money, and in any case, as a note from McMillan observes, there are already meaningful reconciliation initiatives underway with a number of First Nations.
A note from McCarthy Tetrault adds, “There will almost certainly be increased pressure on both governments and proponents to reach agreements on resource projects that may infringe on Aboriginal title. Where an agreement cannot be reached, proponents can expect governments to engage in a much more deliberate balancing of the public policy rationale for pursuing resource development. ... While questions remain, this decision provides additional clarity in a critical area of law.”
Two exceptions in Ontario
Chief among those addressing land issues in the province of Ontario are the Algonquins of Ontario (AOO), a collective representing some 10,000 people and ten communities in the land claim territory. They are the major instance in Ontario of a people who never signed a treaty ceding land. The absence of such a treaty means the claim will have to be approached from a more fundamental level than most others in the province. Currently, a “draft” Agreement in Principle with both Canada and Ontario, dated December, 2012, has been tentatively negotiated and, in an unprecedented move, broadly circulated by the parties for public input before a vote on its terms by the Algonquins is held. That draft anticipates the transfer to the Algonquins in “fee simple” of not less than 117,500 acres (47,552 hectares) of Crown land and $300 million. The area described in the draft Agreement is comprised of more than 200 parcels of land, reaching from the Ottawa Valley to North Bay.
At this point it is impossible to predict how long the Treaty negotiations will take to conclude. Currently the draft Agreement in Principle awaits Canada’s approval. Robert Potts, Principal Negotiator and Senior Legal Counsel for the AOO says that, in the interests of reconciliation, the Algonquins’ preference would be for a negotiated agreement rather than a time-consuming, expensive and ultimately divisive trek through the courts.
He notes that, even given the clear direction by the SCC in the Tsilhqot’in case, and the fact that the Algonquins have already been characterized by that court in the Cote case as also being semi-nomadic, it will still require a detailed study of the individual facts before a definitive assessment of the impact of that decision on the AOO claim can be made.
As far as power developments are concerned, the various communities involved in the claim have been approached with initiatives covering biomass, cogen and wind, Potts said in an interview. One of the largest projects in hand is an agreement with Canada Lands Company to redevelop the former Canadian Forces Base Rockcliffe in Ottawa, an area of a few hundred acres. Given that all such developments await a resolution of the land base, Mr. Potts was unable to provide any details.
The Algonquins have demonstrated a willingness to engage collaboratively in the interest of reconciliation, with their neighbours, he said. But to do that you have to have a power base, and you have to have land, in order to be self-sufficient.
The Ojibways of Pic River (Begetikong Anishnabe) is another Nation that has not signed a treaty, in this case the Robinson-Huron treaty of 1850, and have been claiming unextinguished title to their traditional territory north of Lake Superior since 1979. In a July 3 news release Chief Duncan Michano said “This does not mean that we intend to displace innocent third parties — we will continue to live peacefully with our neighbours. However, we expect to be meaningfully consulted and accommodated regarding development within our traditional territory, and we expect a fair share of resource benefits.”
Byron LeClair, Director of Energy Projects for Pic River, provided the following background on the claim and future resource development projects: “Our Aboriginal title claim is about access to justice, but we will not sit on the sidelines while we await our decision. Pic River is a proactive community and our goals have led us to develop renewable energy projects over the last 25 years that balance our needs with the needs of the environment. We feel strongly that now is the time to develop a hydro project within Pukaskawa Park because the uses are compatible and if we are correct, the Park’s mandate may eventually become secondary to Pic River’s jurisdiction.”
The Begetikong Anishnabe have recently announced a hydro project at Chigamiwinigum Falls in Pukaskwa Park (see “Pic River proposes 25 MW hydro,” page 14), and the roughly 400 kilometres of the proposed East-West Tie transmission line will traverse a portion of Pic River’s asserted Aboriginal Title Lands.
Summary of the Tsilhqot’in case and decision
Timeline
In 1983 the government of British Columbia granted a forest licence under the province’s Forest Act, and then in 1989 a cutting permit, to Carrier Lumber Ltd. to log in the Trapline Territory, part of what the Tsilhqot’in, a group of six First Nations Bands, asserted as their traditional territory. Upon the 1983 granting of licence, Chief Roger William of the Xeni Gwet’in First Nation sought a declaration prohibiting logging on that land, and while talks with the Ministry of Forests went nowhere, the claim was extended to all the members of the Tsilhqot’in Nation in 1988.
The trial, before BC Supreme Court Justice David Vickers, began in 2002, and as the SCC’s judgment notes, continued for 339 days over a span of five years, with extensive evidence from elders, historians and other experts. Judge Vickers allowed the claim of title.
The province appealed the ruling, and in 2012 the BC Court of Appeal held that the claim to title had not been established. Chief William on behalf of the Tsilhqot’in Nation appealed to the Supreme Court of Canada.
The finding
To put it simply, the case turned on whether occupation of a traditional territory should be understood broadly or narrowly in determining whether such occupation is a proper basis for title.
All the courts’ findings – the original trial court, the Appeal Court and the SCC – recognize the decision in the 1997 Delgamuukw v. British Columbia case, that Aboriginal title to land is based on “occupation” prior to the assertion of European sovereignty. That understanding says the Aboriginal claimant must successfully demonstrate three characteristics:
1. occupation must be sufficient;
2. occupation must be continuous; and
3. occupation must be exclusive.
About those criteria, the SCC said that “In determining what constitutes sufficient occupation, which lies at the heart of this appeal, one looks to the Aboriginal culture and practices, and compares them in a culturally sensitive way with what was required at common law to establish title on the basis of occupation. Occupation sufficient to ground Aboriginal title is not confined to specific sites of settlement but extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the group exercised effective control at the time of assertion of European sovereignty.”
As to the first two of those points, the Supreme Court agreed unanimously with the original judge that, as the territory in question was not productive enough to support continuous intensive settlement, the bands’ regular recourse to the resources it offered was enough to demonstrate sufficiency and continuity of occupation.
As to the third point, the trial judge found and the SCC agreed that the Tsilhqot’in, according to the evidence available, had demonstrated exclusivity by effectively denying outsiders access, or insisting on permission in order to access. The BC Court of Appeal had imposed a narrower test, requiring continuous, intensive occupation of specific sites, such as cultivated fields and villages of permanent dwellings – in effect, something like the European standard of fee simple. The SCC rejected this standard.
The SCC made a point that existing legislation, such as a provincial forestry act, continues to apply, including on land under traditional title, where it does not interfere unreasonably with traditional rights or usage. Forestry regulations governing pest or fire control, for example, pass the test. The court made reference to a number of other notable cases, like Sparrow and Delgamuukw, where the principle has been asserted that infringements of Aboriginal title can be justified under s. 35 of the Constitution Act, 1982 as a proportionate balancing of the rights of Aboriginal societies with the broader community: “The governing ethos is not one of competing interests but of reconciliation.”
However, the court reiterated, “... The right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders. If the Aboriginal group does not consent to the use, the government’s only recourse is to establish that the proposed incursion on the land is justified under s. 35 of the Constitution Act, 1982.”
Further, aboriginal title is a group interest that inheres in present and future generations. Incursions cannot be justified if they would substantially deprive future generations of the benefit of the land.
The SCC also addressed the doctrine of inter-jurisdictional immunity, which asserts that areas of provincial and federal jurisdiction are allowed to operate without interfering with each other. That doctrine might result in ambiguity where it applies to Aboriginal title, where title “might be subjected to dueling tests” under the two levels of government, the court said. Further, “(t)he result would be patchwork regulation of forests — some areas of the province regulated under provincial legislation, and other areas under federal legislation or no legislation at all.”
Accordingly, it rejected the principle as it applies to Aboriginal title. “[T]he problem in cases such as this is not competing provincial and federal powers, but rather tension between the right of the Aboriginal title holders to use their land as they choose and the province which seeks to regulate it, like all other land in the province.”
In any case, the court said, “Inter-jurisdictional immunity — premised on a notion that regulatory environments can be divided into watertight jurisdictional compartments — is often at odds with modern reality. Increasingly, as our society becomes more complex, effective regulation requires cooperation between interlocking federal and provincial schemes. ... Inter-jurisdictional immunity, by contrast, may thwart such productive cooperation.”