Canadian Supreme Court ruling could have implications on mining

June 27, 2014

Canada’s Supreme Court handed down an unanimous ruling that grants the Tsilhqot’in First Nation title to a 1,700-km2 area of traditional land outside its reserve, marking the end of a decades-long battle.

The ruling is seen as a major victory for First Nation tribes and could have serious ramifications for Canada’s mining and resource industries, including the Ring of Fire Region as well as the Arctos Anthracite Coal project.

Canada’s CBC News reported that the landmark decision clarified major issues such as how to prove aboriginal title and when consent is required from aboriginal groups, which will affect negotiations on major projects such as the Northern Gateway pipeline.

“This is a case of national significance and national importance, bulletproof in its legal reasoning,” Bill Gallagher, a former treaty rights negotiator and author of Resource Rulers told CBC News.

For the mining and resource industries the primary concern is that the ruling will further complicate approval for resource projects such as Northern Gateway.

The battle began in 1983 when British Columbia (BC) granted a logging license on land southwest of Williams Lake in the province’s Interior that served as the Tsilhqot’in Nation’s traditional hunting land outside the boundaries of the reserve.

The area in question is sparsely populated, with 200 of the 3,000 Tsilhqot’in people living there.

Lower courts disagreed on whether the semi-nomadic Tsilhqot’in Nation, a group of six aboriginal bands, had title to lands. The Supreme Court said they do and laid out for the first time how to determine whether a First Nation can prove title.

The Supreme Court decision not only granted title to the Tsilhqot’in, but found the province breached its duty to consult with the First Nation before approving the logging license.

Even without a declared land title, the province must consult with aboriginal groups about uses of the land in dispute and accommodate their interests, the top court said.

The ruling sets a precedent that many other First Nation tribes in the province will be watching closely.

The B.C. Justice Department said the province is studying the legal implications of the decision.

The high court’s decision is expected to further complicate approvals for resource projects such as the $7-billion Northern Gateway pipeline proposal by Enbridge to move Alberta crude oil to the B.C. coast. That proposed route crosses no less than four territorial claims.

The Supreme Court decision states that the government has a duty to consult and accommodate First Nations even as the land claim is underway.

Now that the top court has established the Tsilhqot’in First Nation's aboriginal title on the land in dispute, it has the right to determine “the uses to which the land is put and to enjoy its economic fruits,” the court said.

“It means that if you’re a miner or a forester or a B.C. hydro transmission company or a pipeliner, that the legal landscape … has shifted,” said Gallagher.

Gallagher stresses that if industries want to exploit resources on First Nations land, “We have to realize that they lie in the traditional territories of the most disadvantaged communities in the country.

“And they have been massively empowered by this ruling … and their expectations have just increased exponentially.”


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