Thursday, November 18, 2004

Court First Nations' rulings set stage for progress

VICTORIA - It's no cure-all, but the Supreme Court of Canada has just made a big contribution to ending some of the uncertainty about land use and First Nations in B.C.
The court weighed in Thursday with two important decisions.
In one, the court rejected the provincial government's claim that it had no legal duty to consult with First Nations before handing over land that they were claiming for development.
The government has an obligation to act honourably, the court said. And it is dishonourable to ignore the rights of people who have lived on the land for centuries and never signed away or sold their rights. (The NDP and Liberals took the same position in this long-running case.)
Score one for the First Nations. It is now law that they have a right to serious consultation and accommodation when changes are planned for any land they are claiming. They have the right to expect proposals to be changed, or cancelled, based on their concerns.
But the court also ruled that First Nations have an obligation to participate in discussions and negotiations aimed at balancing their interests with other factors, including jobs and economic development. They can't just say no, or refuse to enter into talks. They have no veto, and ultimately the government has the right to make land use decisions.
Score one for the government.
The rulings still leave problem areas, which will likely be tested in future court cases.
What is a serious attempt at consultation, and when can government decide it's done all it can to accommodate and simply go ahead?
That depends, the Supreme Court ruled, on how strong the claim is to the land and how serious the long-term effects of development. If there's evidence to suggest that a First Nation has a strong claim to a piece of land, it has a greater right to a be involved in land use decisions. And a First Nation would get a greater say over a mine development than over a temporary road.
The standards aren't definitive, and the government would be wise to accept the court's recommendation that some form of dispute resolution be established. But at least the need for consultation has been established, and some broad guidelines set out.
The Supreme Court also ruled - usefully - that private companies don't have a legal duty to accommodate First Nations' interests. They have the right to rely on the government's efforts when they are granted the right to operate on Crown land.
All those principles were set out in a case involving a dispute between the Haida First Nation and the province and Weyerhaeuser over a timber licence on the Queen Charlotte Islands.
At the same time the court ruled on another similar issue, involving the Tlingit First Nation's opposition to a road needed to re-open a mine in the Taku River valley. The court ruled that the Tlingit had a reasonable claim to the land, and a right to consultation. But the court found that the government had made a reasonable effort to accommodate the band during a three-year environmental assessment review.
Business, First Nations and government all welcome the rulings, each praising a different aspect.
The bottom line is that the decisions remove uncertainty and force government and First Nations to face up to their obligation to deal with critical development issues.
The decisions could also help create pressure for more activity and faster progress at the treaty tables. First Nations can strengthen their right to consultation by showing the strength of their claim to traditional lands, effectively staking their claims.
And government has a powerful incentive to push forward with treaties now that it faces an increased obligation to deal with First Nations even before any agreements are in place.
Solutions are still going to be found through negotiation, not in the courts. But the Supreme Court rulings increase the chance that will happen.
Footnote: A BC Business Council report earlier this year called for the establishment of an "Aboriginal Consultation and Accommodation Panel" that would bring First Nations, the BC Treaty Commission, federal and provincial governments and the business council together to sort out development issues. The idea looks even more useful now..

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