The idea that the Supreme Court’s Tsilhqot’in Nation decision means chaos for development in B.C.’s hinterland is a bit too panicky for this writer.
Sensationalism was out in full force last month in reaction to the court’s decision to grant title to the Tsilhqot’in for a rural piece of real estate in British Columbia’s Chilcotin Plateau.
Is the decision important for the Tsilhqot’in? Absolutely.
Will it cast a pall over potential investment in the north, where more than $140 billion worth of major projects has been proposed? Only if (the collective) we let it.
Let me dissect that.
First and foremost, much of the decision applies only to regions where title has been granted, not asserted.
This is an important distinction given that, of the 88 bands in the area that stretches north of the Fraser Canyon to the Yukon border, only the Tsilhqot’in have title.
The Nisga’a and Treaty 8 First Nations have treaty, which is different from title.
The remaining bands in the region are in various stages of treaty negotiations or have not engaged in the treaty process at all.
For example, only six of the 31 bands in B.C.’s Cariboo Chilcotin region are in the treaty process, which means the other 25 are more likely to continue to use the courts to pursue rights and title claims.
With the exception of the proposed New Prosperity mine project, few of the north’s major projects are in the Cariboo Chilcotin.
By contrast, in northeast B.C., where major investment will be required to extract the natural gas that will fuel B.C.’s proposed liquefied natural gas (LNG) industry, the question of aboriginal title was resolved for seven of the nine bands in the area when Treaty 8 was signed in 1899.
That leaves the Omineca and northwest regions where a number of LNG, pipeline and mining and transportation projects have been proposed.
In this region, 40 of the 45 bands in proximity of Highway 16 from the Rocky Mountains to the Pacific Ocean are in some stage of the treaty process.
Why is that important?
Well, if you’re government or First Nations, it means there are two ways to resolve long-term outstanding land claims issues: the courts or the treaty process.
Contrary to what some pundits have observed, the Supreme Court’s Tsilhqot’in decision does not undermine the B.C. treaty process.
First, the decision provides more certainty on the test for aboriginal title, which, up until now, has been an impediment to treaty negotiations.
Second, while many First Nations in the treaty process may reconsider their “asks,” most of the First Nations near Highway 16 are in Stage 4 of the six-stage treaty process.
Although many treaty negotiations in this region haven’t been active since the 1990s, the framework to renew discussions remains in place, and the Tsilhqot’in decision provides more clarity for those discussions.
Finally, it’s worth noting that the Tsilhqot’in litigation dates back to 2002 and took 12 years to reach a conclusion, which means it’s not necessarily any faster to achieve title through the courts than it is through the treaty process.
For industry, the way forward is clear and not much different than it was before: establish strong relationships early on with First Nations that your project might affect.
Listen to them.
Many of the companies proposing major investments up north are already displaying best practices when it comes to relationships with First Nations, and it should never be overlooked that resource industries remain one of the top employers of aboriginal people in Canada.
Still, the duty to consult with First Nations ultimately rests with the Crown, and so it is to the Crown that we must look for leadership.
The provincial government was elected on a platform of jobs and economic development tied to the creation of an LNG industry.
The federal government was elected on a platform of jobs and economic development that, in the West anyway, is tied to the development of the oilsands and energy shipments to the West Coast.
The opportunity to develop both industries, and for senior levels of government to deliver on political promises, exists within a narrow window of time that we’ll miss if we fail to begin to resolve British Columbia’s land claims challenges.
The Tsilhqot’in decision, if nothing else, reaffirms a 250-year-old agreement by the Crown that aboriginals have pre-existing rights to land in this country unless ceded by treaty.
The crucial question is this: what will the Crown do now? •
