Don Cayo: In my opinion
Litigation: Heading to court to settle land claims not always best for First Nations
Canadian courts may have already gone about as far as they’ll ever go in granting aboriginal groups rights over the land, a new analysis suggests.
Litigious First Nations may think they are on an unstoppable roll, and many other Canadians may agree, but neither the track record of court judgments nor the prospects for future legal victories are clear-cut, a new analysis argues.
In fact, the Supreme Court of Canada’s groundbreaking Tsilhqot’in decision last year was perhaps “a sort of peak for aboriginal rights claims in the courts,” writes Dwight Newman, a senior fellow at the Ottawabased Macdonald-Laurier Institute, in a new paper.
As well, while the Tsilhqot’in decision was the first to affirm aboriginal title to traditional territory, it was far less sweeping than is generally assumed, Newman notes.
“Contrary to a lot of sensational commentary about the judgment, the Tsilhqot’in themselves were awarded only 40 per cent of their claim area, which was itself only five per cent of their traditional territory, meaning that the title area (is) two per cent of their traditional territory.”
His study includes a two-page table that analyses a couple of dozen other notable judgments in similar terms — a nominal win or loss for the affected First Nation, but with contradictory implications. For example, the Taku River Tlingit First Nation case against the B.C. government in 2004 confirmed and strengthened an earlier decision involving the Haida that spelled out the duty of governments and project developers to consult First Nations, but the band lost the case anyway. Ditto for a case involving Rio Tinto Alcan and the Carrier Sekani Tribal Council in 2010.
“It is as if each game in the Stanley Cup playoffs resulted in not just a win or a loss, but also in changed rules for all the remaining games,” Newman observes.
He worries that the continuing uncertainty about what complicated court judgments mean and where they may go next will have a chill on resource development decisions. Projects could be cancelled as the negotiating positions of governments and First Nations are driven farther apart by unrealistic expectations, and some parties “may have incentives to generate rather than overcome uncertainties.
He also warns that First Nations may pay a hefty price if they try to overplay their hand.
“Canada may have reached a point where aboriginal groups might be setting back their own position by litigating,” he writes.
“We have already seen cases of what might be described as overreach by First Nations, pushing for rights beyond those they can plausibly attain within the legal system. Overreach results in losses such as the 2014 Grassy Narrows (Ontario) decision, which affirmed the primary provincial role in resource development decisions and the possibility of provinces justifiably infringing on treaty rights.”
The key question, of course, is what the various players in resource development decisions should do in the face of this uncertainty and these unrealistic expectations. On this issue — aside from his calls for governments to help small resource development companies navigate through the complexities imposed by the duty to consult, and for provinces to consider putting forward reference cases that would push the courts to be more specific — Newman is a little vague.
His five recommendations boil down to a list of what various players “should” do. First Nations should figure out when it’s better to negotiate. Governments should be more upfront about what powers they have and how they will use them. Businesses should understand aboriginal issues more clearly. Courts should quit muddying the waters with vague pronouncements.
Well, of course they should. But what if they don’t? What’s a fair and workable Plan B?
We have already seen cases of what might be described as over reach by First Nations, pushing for rights beyond those they can plausibly attain within the legal system.