BCBusiness

BcBusiNEss.ca NOVEMBER 2015 BCBusiness 65 hile First Nations supporters were ecstatic in the wake of the 2014 Tsilhqot'in deci- sion, lawyers who represent industry have played down the signiŠ- cance of the ruling, noting that the high court ruled aboriginal title isn't absolute. Provincial and federal law still applies to these lands, and major projects can still proceed without the consent of a First Nation—if it can be established that the development is "pressing and substan- tial" and the beneŠts expected will not be outweighed by the adverse e•ect on aboriginal interests. "If you look at what the Tsilhqot'in actually won, it is only two per cent of the total territory they claimed," says Kevin O'Callaghan, a partner and adviser on aboriginal law with Fasken Martineau in Vancouver. "I don't think this deal com- pares to the treaty that the Nisga'a signed in 1998. That gave the Nisga'a more cer- tainty, more control over their a•airs and also legislative authenticity." Aboriginal title may not be a sub- stitute for treaties, but the threat that it might be granted will certainly give First Nations greater leverage in nego- tiations over land issues. However, for industry the most troublesome aspect of the aboriginal title ruling is the poten- tial for what some lawyers call "a retro- active veto." For example, if a mining company began to develop a mine with- out getting approval and a First Nation were to later acquire title, it could then challenge the legitimacy of the devel- opment and potentially shut the entire project down. Since the high court's ruling, the Tsilhqot'in and the B.C. government have held intensiveªnegotiations around land use and economic development; a delegation of 500 aboriginal leaders met with Premier Christy Clark this Septem- ber to try to formulate a joint-action plan based on the principles of Tsilhqot'in. To date, however, the government has not issued any public statements about the ruling. "The silence has been deafen- ing," says Thomas Isaac, an experienced negotiator who heads up the aboriginal law group at Osler, Hoskin & Harcourt LLP in Calgary. Isaac believes that the Tsilhqot'in decision places added pres- sure on provincial governments across Canada to respond with policies, even legislation, to adjust to the new reality. "It's not going to be easy," he says. "It will require some hard decisions, but what- ever the answer, it has to be long-term and sustainable, ultimately a•ordable and for the public good." Meanwhile, other tricky legal issues remain unresolved. At least Šve First Nations are pursuing claims of aborigi- nal title that include the waters o• B.C.'s northwest coast; if granted, this would allow First Nations to block passage of oil tankers from projects like Northern Gateway's proposed pipeline. Another murky area involves the question of whether the Crown has a duty to consult with First Nations before signing inter- national treaties when the extraction of resources by foreign countries may impact aboriginal rights. And then there's the debate about whether First Nations can obtain private ownership over aboriginal lands; at least 12 First Nations in B.C. are pursuing this possibility. The unpredictable and still evolving nature of aboriginal law may often be frustrating for government and indus- try, but it is an elixir for many attorneys. "This is a fast-changing area of common law. We're dealing with Šrsts. It can be exciting," exclaims Janelle Dwyer, who specializes in First Nations economic development with Mandell Pinder, a boutique Vancouver law ¢irm. "Firsts don't happen in real estate law—all the precedents were established long ago." Dwyer—a member of the Splatsin First Nation from near Salmon Arm—also notes that it is one of the few areas of law today that actually deals with social jus- tice: "You can really make a di•erence in people's lives." Keith Bergner, who has long har- boured a historical interest in the sub- ject of aboriginal rights, points out the great irony that frames the profession. "Although it's a brand-new sphere of law, it's focused on one of the oldest issues in the country," he says, noting how negotiating treaties with aboriginal tribes was one of the Šrst challenges faced by the early colonists. But of course this only enhances its relevance. "I think it's one of the major issues of our lifetime. It's an unresolved area about the way we organize ourselves in society—history casts a long shadow over this Šeld." ■

• Cover