Almost everybody in mining that I talk to has an adverse opinion about the recent Canada Supreme Court ruling that the Crown has a duty to obtain First Nations or Aboriginal consent before mining on claimed land. Opinions include:
“Why invest in potential new mines in BC? The natives will oppose—forever as far as investing is concerned.”
“Unless we pay exorbitant fees, we will have no new mines in BC in my lifetime.”
“This is a bonanza for Kentucky Fried Chicken: a large basket of their chicken is a necessary part of any consultation in BC from now on. And do not forget the donuts with cream.”
“How can so small a part of the population control so large a part of the land. It simply is not real.”
“What of my mine that land of which is claimed by at least three tribes? Which one to consult? Or should we hold a contest of their lawyers–maybe a gladiatorial fest–to sort out the crazy overlapping claims.”
These are nasty statements–but sadly real ones in an atmosphere that is charged with acrimony and greed.
I have read many reports on the finding by the court. Most are by mere journalists seeking to make sense of a complex issue. So I decided instead to go to the decision itself. Here are the opening paragraphs of an amazing judgement–download at this link:
For centuries the Tsilhqot’in Nation, a semi-nomadic grouping of six bands sharing common culture and history, have lived in a remote valley bounded by rivers and mountains in central British Columbia. It is one of hundreds of indigenous groups in B.C. with unresolved land claims. In 1983, B.C. granted a commercial logging licence on land considered by the Tsilhqot’in to be part of their traditional territory. The band objected and sought a declaration prohibiting commercial logging on the land. Talks with the province reached an impasse and the original land claim was amended to include a claim for Aboriginal title to the land at issue on behalf of all Tsilhqot’in people. The federal and provincial governments opposed the title claim.
The Supreme Court of British Columbia held that occupation was established for the purpose of proving title by showing regular and exclusive use of sites or territory within the claim area, as well as to a small area outside that area. Applying a narrower test based on site-specific occupation requiring proof that the Aboriginal group’s ancestors intensively used a definite tract of land with reasonably defined boundaries at the time of European sovereignty, the British Columbia Court of Appeal held that the Tsilhqot’in claim to title had not been established.
Held: The appeal should be allowed and a declaration of Aboriginal title over the area requested should be granted. A declaration that British Columbia breached its duty to consult owed to the Tsilhqot’in Nation should also be granted.
The trial judge was correct in finding that the Tsilhqot’in had established Aboriginal title to the claim area at issue. The claimant group, here the Tsilhqot’in, bears the onus of establishing Aboriginal title. The task is to identify how pre-sovereignty rights and interests can properly find expression in modern common law terms. Aboriginal title flows from occupation in the sense of regular and exclusive use of land. To ground Aboriginal title “occupation” must be sufficient, continuous (where present occupation is relied on) and exclusive. 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.
In finding that Aboriginal title had been established in this case, the trial judge identified the correct legal test and applied it appropriately to the evidence. While the population was small, he found evidence that the parts of the land to which he found title were regularly used by the Tsilhqot’in, which supports the conclusion of sufficient occupation. The geographic proximity between sites for which evidence of recent occupation was tendered and those for which direct evidence of historic occupation existed also supports an inference of continuous occupation. And from the evidence that prior to the assertion of sovereignty the Tsilhqot’in repelled other people from their land and demanded permission from outsiders who wished to pass over it, he concluded that the Tsilhqot’in treated the land as exclusively theirs. The Province’s criticisms of the trial judge’s findings on the facts are primarily rooted in the erroneous thesis that only specific, intensively occupied areas can support Aboriginal title. Moreover, it was the trial judge’s task to sort out conflicting evidence and make findings of fact. The presence of conflicting evidence does not demonstrate palpable and overriding error. The Province has not established that the conclusions of the trial judge are unsupported by the evidence or otherwise in error. Nor has it established his conclusions were arbitrary or insufficiently precise. Absent demonstrated error, his findings should not be disturbed.
The nature of Aboriginal title is that it confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses, subject to the restriction that the uses must be consistent with the group nature of the interest and the enjoyment of the land by future generations. Prior to establishment of title, the Crown is required to consult in good faith with any Aboriginal groups asserting title to the land about proposed uses of the land and, if appropriate, accommodate the interests of such claimant groups. The level of consultation and accommodation required varies with the strength of the Aboriginal group’s claim to the land and the seriousness of the potentially adverse effect upon the interest claimed.
Where Aboriginal title has been established, the Crown must not only comply with its procedural duties, but must also justify any incursions on Aboriginal title lands by ensuring that the proposed government action is substantively consistent with the requirements of s. 35 of the Constitution Act, 1982. This requires demonstrating both a compelling and substantial governmental objective and that the government action is consistent with the fiduciary duty owed by the Crown to the Aboriginal group. This means the government must act in a way that respects the fact that Aboriginal title is a group interest that inheres in present and future generations, and the duty infuses an obligation of proportionality into the justification process: the incursion must be necessary to achieve the government’s goal (rational connection); the government must go no further than necessary to achieve it (minimal impairment); and the benefits that may be expected to flow from that goal must not be outweighed by adverse effects on the Aboriginal interest (proportionality of impact). Allegations of infringement or failure to adequately consult can be avoided by obtaining the consent of the interested Aboriginal group. This s. 35 framework permits a principled reconciliation of Aboriginal rights with the interests of all Canadians.
This is not a simple finding of: it is theirs you need their consent to act. Notice the Tsilquot’in “repelled other people from their land and demanded permission from outsiders who wished to pass over it.” A warlike tribe to say the least. If the three tribes claiming the same mining site have never been to war over the site, seems they are out of luck. It is not enough to have lived in the area and now claim it all.
How one “reconciles Aboriginal rights with the interests of all Canadians” is beyond me. We all benefit from mining, so it may be fair to conclude that mining that gives money to an impoverish tribe reconciles rights? Similarly a pipeline opposed on the basis of interference with un-exercised hunting rights.
Court case will be needed to sort out the meaning of this sentence: “This requires demonstrating both a compelling and substantial governmental objective and that the government action is consistent with the fiduciary duty owed by the Crown to the Aboriginal group. ” I wonder what the fiduciary duty is—continue to pay them each about $1,000 a month to live in poverty?
Consider the following from the judgement:
- Aboriginal title flows from occupation in the sense of regular and exclusive use of land.
Aboriginal title confers the right to use and control the land and to reap the benefits flowing from it.
It will be difficult to prove occupation in the sense of regular and exclusive use—witness again those overlapping claims.
Consultation is required if title is asserted but not established. So all you have to do is “accommodate interests.” Whatever that means when all want a share of the profits and nobody wants to part with profits.
Similar ideas occur in these findings:
- Radical or underlying Crown title is subject to Aboriginal land interests where they are established.
Aboriginal title gives the Aboriginal group the right to use and control the land and enjoy its benefits.
Governments can infringe Aboriginal rights conferred by Aboriginal title but only where they can justify the infringements on the basis of a compelling and substantial purpose and establish that they are consistent with the Crown’s fiduciary duty to the group.
Resource development on claimed land to which title has not been established requires the government to consult with the claimant Aboriginal group.
Governments are under a legal duty to negotiate in good faith to resolve claims to ancestral lands.
All very reasonable, but of course difficult to do with intransigent or unskilled negotiators, be they governments, mining companies, or tribes.
The point is that before jumping to wild conclusions and making nasty statement, go read the entire decision. It is magnificent prose–easy to read, if not to understand. And sit back and wait the law suites. Meanwhile go invest in mining elsewhere.