News & Events - Letters & Editorials
Can we talk? B.C. needs to establish an effective process of consultation to remove uncertainty resulting from land claims
Keith Clark and John Winter
June 17, 2008
Businesses operate best in a stable and predictable environment, where rights are certain and are protected by the rule of law.
The biggest issue for the business community arising from aboriginal claims is uncertainty.
The root of the uncertainty in British Columbia is that various aboriginal groups claim rights of ownership or control over virtually all of the Crown land in the province. As a consequence, many activities that businesses carry on, or would wish to carry on, with the permission of the Crown, may be seen as impacting in some way on these asserted aboriginal rights.
It is clear that aboriginal rights and aboriginal title still exist in the province, and are protected by the Constitution, but in most instances the extent of aboriginal rights is unclear, while the extent of aboriginal title remains completely unknown.
Certainty concerning the extent of aboriginal rights and title will most likely be achieved by two methods running in parallel -- that is, by a combination of court decisions resolving asserted aboriginal rights and title claims, and by negotiations culminating in final settlements in the treaty process. However, achieving certainty concerning the extent of aboriginal rights and title in the province will take a very long time.
The challenge for government is to create an environment in this province which will allow businesses to operate successfully and competitively -- and with certainty -- for the foreseeable future, while the resolution of the aboriginal rights and title issues is still underway. The solution, as noted below, is to institute an effective process of consultation, as suggested by the Supreme Court of Canada in Haida.
The most important recent decision for the business community concerning aboriginal rights issues is still the November 2004 decision of the Supreme Court of Canada in Haida. The Haida decision -- and the companion Taku decision -- addressed the process the Crown should follow in granting licences and rights that might affect unproven but asserted claims to aboriginal rights and title.
The key finding was that the Crown has a duty to consult with aboriginal groups that have not yet established their rights, before granting licences or permits that might affect their asserted rights and, in some circumstances, the Crown has a duty to "accommodate" those aboriginal groups.
The Court made it clear that the duty to consult with aboriginal groups is one owed solely by the Crown and is not owed by the project proponent.
The Court described the nature of the consultation required as being on a sliding scale based on an assessment of the strength of the aboriginal claim and the impact of the proposed activity on the asserted aboriginal interest. The Court also commented on "accommodation," describing it as a process of trying to harmonize the competing interests of development and the wish to protect aboriginal interests. The Court did not endorse the province's practice of paying money as a requirement of 'accommodation' before aboriginal rights had been established.
A very interesting part of the decision was a statement by the Court that the province could establish a regulatory scheme to address the obligations of consultation. In effect, the highest Court in Canada advised the province that if it set up a fair process for consultation, and followed that process, then the courts would uphold the decisions that emerged from that process.
The consultation process remains a black box with no rules. This is a major impediment for people wishing to do business in the province.
In March of 2005, the province developed the New Relationship with the three largest aboriginal groups in the province. The New Relationship includes seven action plans, two of which are:
- To establish effective procedures for consultation and accommodation.
- To negotiate agreements for resource revenue and benefit sharing with the aboriginal people of the province.
The B.C. Chamber of Commerce applauded the New Relationship process and joined in a letter of support to the New Relationship Management Committee in November of 2005. That letter confirmed the importance that the business community placed on developing certainty around the consultation process.
In 2006, the chamber worked with a group of major business and industry associations to develop a document entitled "First Nation Consultation and Accommodation: A Business Perspective," which identified the concerns of the business community with the lack of rules regarding consultation, and which set out a proposal to create certainty around the process. This document was submitted to the New Relationship Management Committee on January 19, 2007.
However, despite the recommendation of the Supreme Court of Canada, the commitment of the province to do so in the New Relationship document and the repeated requests of the chamber and other business associations, the provincial government has failed the business community by not taking any meaningful steps towards developing an effective process of consultation. Instead, the policy of the province seems to be to try to avoid the consultation process altogether by trying to force project proponents to obtain the consent of the potentially affected aboriginal groups to the proposed projects.
The consequence of the province's failure to establish an effective process for consultation, combined with its failure to develop a policy framework concerning resource revenue sharing, is that entrepreneurs who require permits or licences issued by the Crown to carry on their businesses are being required to enter into economic arrangements directly with aboriginal groups. These arrangements are not based on any principle except expediency, but set precedents for others throughout the province and create and foster uncertainty.
So we recommend that the provincial government:
- Develop and implement an effective scheme for aboriginal consultation that will make the consultation process certain and efficient for the business community.
- Work with the aboriginal people of the province to develop a comprehensive policy for resource revenue and benefit sharing.
Keith Clark is with the law firm of Lang Michener LLP. John Winter is the president of the B.C. Chamber of Commerce.