Aboriginal Issues: Achieving Greater Certainty
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 B.C. is that aboriginal groups assert rights of ownership or control over all of the land in the province, but those rights are not recognized in the legal regime that business operates in.
Many activities that businesses pursue, or would wish to pursue with the permission of the Crown, may be seen as impacting these asserted aboriginal rights in some way. 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 still remains completely unknown.
The gap between what the aboriginal and non-aboriginal populations would accept as a reasonable resolution or reconciliation can be perceived to have grown in the last decade.
It appears to many of the Chamber’s members that since the 1997 decision of the Supreme Court of Canada in Delgamuuk’w, to the effect that aboriginal title has not been extinguished in BC, there has been a trend of increasing expectations by aboriginal peoples as to the extent and strength of their rights.
Two recent and significant events that may have contributed in raising those expectations are the (nonbinding) statements made by Mr Justice Vickers in the William case in November 2007 concerning the extent of aboriginal title of the Tsihlqot’in people, and the 2009 Recognition and Reconciliation initiative of the Provincial Government. Although the ‘R&R’ initiative was ultimately declared “dead, dead, dead” by the aboriginal leadership themselves, before it died it proposed a very significant degree of control of Provincial resources through “shared decision making”, as well as the potential recognition by the Province that aboriginal title existed throughout the whole of the province.
The level of aboriginal expectation is probably best indicated by the extent to which a standard of “free, prior, and informed consent” was adopted by aboriginal groups as a precondition to business development. This principle was expressly rejected by the Supreme Court of Canada in Haida in 2004, expressly rejected by the Federal Government when it voted against the UN Declaration on the Rights of Indigenous Peoples in 2007, and expressly rejected again by the Federal Government on November 12, 2010 when Canada issued a Statement of Support endorsing the Declaration as an aspirational document but at the same time noted it was a non-legally binding document that does not alter the legal duty to consult.
The increased level of expectation of aboriginal people may be a significant factor in the lack of progress in the Treaty process, and the withdrawal of many aboriginal groups from the Treaty process altogether, since what is offered in that process cannot meet the present levels of expectation.
Further directions and clarity on what are the legal rights of aboriginal peoples appears to be necessary to move forward with the ultimate goal of reconciliation. Under our Constitution, the Supreme Court of Canada is the only body that can define the rights of the aboriginal people.
The Chamber is not generally of the view that recourse to the Courts is the best way to resolve a dispute. However, the most prudent way of determining whether the expectations of the aboriginal peoples are supportable is to have more cases concerning the extent of aboriginal rights and title determined by the Supreme Court of Canada.
Achieving Long Term Certainty Will Require Negotiation, Litigation, and Time
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 which will provide better guidance to all parties as to the actual extent of aboriginal rights and title, and by negotiations culminating in final settlements in the Treaty process.
It is important to note that achieving certainty concerning the extent of aboriginal rights and title in the province will take a very long time, and it is necessary to create a workable environment for the business community pending final achievement of that goal.
Achieving Greater Certainty in the Short Term
The challenge for Federal and Provincial Governments is to create an environment in this province which will allow businesses to operate successfully and competitively – and with greater 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 that provides how to achieve greater certainty in the short term with respect to 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 before granting licences and rights which might affect unproven but asserted claims to aboriginal rights and title. This was further clarified by the decision in Rio Tinto Alcan (2010).
The key finding of the Supreme Court of Canada was that the Crown has a duty to consult with aboriginal groups who 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 business community.
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.
A very interesting part of the decision was a statement by the Court that the Crown (both Federal and Provincial) could establish regulatory schemes to comply with the legal obligation of consultation. In effect, the highest Court in Canada advised the Crown that if a fair process for consultation was established, and followed, then the courts would uphold the decisions that emerged from that process.
The consultation principles in Haida were also applied to Treaty rights in Mikesew (2005), and were further clarified in the Treaty context in Little Salmon (2010).
From the perspective of the business community the consultation process largely remains a black box with almost no rules. This is a major impediment for people wishing to do business in the province. Achieving greater certainty with respect to the process of aboriginal consultation – with guidelines, timelines, and outcomes that can be relied on – is of critical importance to the business community.
There have been some recent improvements in the Provincial Government process. There does appear to be more effort committed to developing expertise in consultation in the recent reorganizations of the “dirt ministries”. There have also been some recent efforts to provide some guidance to the business community. The “Updated Procedures for meeting Legal Obligations When Consulting First Nations – Interim” (May 2010) and the companion “Guide to Involving Proponents When Consulting First Nations (April 2010) are welcome developments, as are the published policy statements of the Environmental Assessment Office that provide a guide for project proponents in consulting with aboriginal people in both a Treaty and Non-Treaty context. It is still an open question as to whether the recent Protocols with the Haida, Central Coast, and other groups will actually achieve any greater certainty.
With respect to the Federal consultation process, Indian and Northern Affairs Canada made an initial effort to address this policy vacuum by releasing its “Interim Guidelines for Federal Officials to Fulfill the Legal Duty to Consult” in February 2008 and has followed up with the Federal Consultation Guidelines of March 2011.
However, these efforts fall short of the regulatory regime that was suggested to both levels of government by the Supreme Court of Canada in 2004 in Haida. According to Wikileaks, a cable from the US Embassy in Ottawa says that, “as long as Canada lacks a clear definition of aboriginal rights or a uniform model for negotiations, effective mechanisms to resolve aboriginal grievances in a timely manner will remain elusive”. This statement is consistent with the experience of members of the BC Chamber, and the general situation remains that there is little guidance from either Crown as to what are the reasonable outcomes or timing expectations in a consultation process.
One additional point is that the Provincial and the Federal Governments are often both involved in the same project, with permits required from each of them. There is no real effort to coordinate the consultation processes required for the different permits, so the consultation process is generally repeated by both levels of government, with little or no reference to the other, adding to both expense and delay.
Revenue Sharing by the Crown(s)
In addition to wanting greater control over the decision-making process of whether a new business activity should proceed, aboriginal groups wish to receive a portion of the revenue derived from the proposed business activity.
Whether an aboriginal group should receive such an economic benefit is a matter of policy that should be determined by the Crown, and not by individual businesses.
In Haida – and the decisions that followed - the Court did not propose a practice of paying money as a requirement of ‘accommodation’ before aboriginal rights had been established.
Outside of business activities carried out on reserve or Treaty land, there is no legal basis to suggest that the business community should be paying aboriginal groups for the “right” to carry on business in the province.
There have been some recent developments in the Province to provide for the sharing of Crown revenues on a variety of projects. Examples of this are the Economic Benefits Agreements that have been negotiated between the Province and some members of Treaty 8, and the Resource Revenue Sharing Policy that was announced by the Province for the mining sector in October of 2008, which was implemented on two mining projects in 2010. There also appears to be a movement by the Province to apply a revenue sharing approach in the forestry sector.
How the resource revenues and tax base of the province should be shared between the Crown and the aboriginal peoples ought to be a matter of government policy, and not developed as a consequence of individual arrangements between aboriginal groups and business people based on self-interest and pragmatism, as a consequence of the failure of the Federal and Provincial governments to develop an effective consultation process, or a workable policy around revenue sharing.
In summary, while both levels of government have been taking steps in the right direction to assist in achieving greater certainty for business in the province, there is still much room for improvement.
THE CHAMBER RECOMMENDS:
That the provincial government work with the federal government to:
develop harmonized workable regulatory processes for carrying out consultation with the aboriginal peoples that will amount to the regulatory schemes referred to in Haida;
continue to provide clearer guidelines for the business community with respect to its role (if any) in the consultation process;
continue to develop policies around revenue sharing with aboriginal peoples; and
make it clear that it is not an expectation or requirement of either Crown that in the course of permit approval businesses must pay aboriginal groups in order to carry on business on land over which the aboriginal peoples do not have an established legal right.