On the heels of National Aboriginal Day, we pause to take a look back at two significant Aboriginal law cases decided in the last year, how they’ve changed the face of Aboriginal law in Canada, and the three key implications they hold for Canada’s energy and natural resources sector.

ONE YEAR & TWO SIGNIFICANT COURT DECISIONS

In less than one year, two different courts released two significant Aboriginal law decisions:

• Aboriginal Title. On June 26, 2014, the Supreme Court of Canada confirmed, for the first time, a First Nation’s claim to Aboriginal title in Tsilhqot’in Nation v. B.C.  The decision provided First Nations rights-holders and all stakeholders with clear guidance on the evidence that’s required to establish Aboriginal title in land, and a clear indication of the rights that flow to an Aboriginal group that successfully establishes that title.

• Enforcement of Aboriginal Rights and Title. On April 15, 2015, BC’s Court of Appeal confirmed that First Nations can make certain legal claims grounded in Aboriginal rights – even if those rights are not yet proven, and against private industry as well as against the Crown. In Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan Inc., the Court refused to strike down the First Nations’ civil claims against a private corporation because they were grounded in Aboriginal rights they asserted, but had not yet proven, and sounded a warning that holding a regulatory permit or approval might not protect against such a lawsuit.

There’s little doubt that the combined effect of these two decisions is changing the face of Aboriginal law in Canada. Here’s how:

• Unproven Aboriginal Title and Rights Have Weight.  Where an Aboriginal group asserts Aboriginal title or rights – even if not yet recognized by a court or in an agreement with the Crown (such as in a treaty) – the Crown must fulfil its duty to consult and ensure, through meaningful dialogue and process, that the rights associated with the claim are preserved as much as possible until the question of title is settled. Similarly, those asserted – but unrecognized or unproven – Aboriginal rights or title can form the basis of a civil lawsuit by the Aboriginal group claiming to be the rights-holder for infringement that asserted right or title.

• Lawsuits Against Private Defendants. Aboriginal groups can launch those civil lawsuits against private parties: parties other than the Crown, like private resource developers project proponents and operators of major works.  The types of civil lawsuits aren’t limited, ; we might expect to see lawsuits for trespass or for nuisance, like in Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan Inc., but other likely possibilities include lawsuits based on negligent actions.
• Scope of Aboriginal Title. It’s now clear that once an Aboriginal group has successfully established Aboriginal title, either with a court decision recognizing it or in an agreement with the Crown, they then have the right to control the land, both to determine the uses to which the land is put, and to the economic benefits of those uses, and effectively, the government must not just “consult” with that Aboriginal title-holder, but must seek its consent to proceed with developments on that land or be able to justify infringing the group’s rights under the test the Supreme Court of Canada established in Tsilhqot’in Nation v. B.C.   

3 KEY IMPLICATIONS FOR THE ENR SECTOR

Here are three key practical implications of these decisions, and the changing face of Aboriginal Law in Canada, for the ENR sector:

1. Courage to Claim. Canadian Aboriginal groups will probably have more confidence to assert the full scope of their Aboriginal and treaty rights against existing and new industrial activity that they perceive to infringe on those rights – and they won’t have to wait until those rights are proven to do so. For example, on June 5, 2015 in Ominayak v. Penn West Petroleum Ltd, 2015 ABQB 342 the Alberta Court of Queen’s Bench also refused to strike a First Nations civil trespass claim grounded in unrecognized Aboriginal rights against a resource developer. The Lubicon Lake First Nation brought two lawsuits: one against the Crown asserting Aboriginal title and rights to an area of land; and a separate one against an oil and gas developer for interfering with its rights, alleging trespass for conducting operations on that land and asking the court to declare the approvals granted to the developer are null and void.  The Alberta Court refused to strike down the First Nation’s lawsuit against the developer. However, it disagreed with the BC Court of Appeal’s decision in Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan Inc. and decided that seeking a declaration that the approvals were null and void was an impermissible collateral attack on the approvals, and struck that part of the lawsuit.
2. Eyes Wide Open. The law on whether an Aboriginal group can successfully seek a declaration that a proponent’s approvals are void is in flux, as the divergence between the BC and the Alberta Courts illustrates, although there is consistency so far among courts that First Nations can sue a developer for its activities under its otherwise properly granted approvals. In the meantime, prudent project proponents and operators of major works will no longer blindly rely on regulatory approvals and permits, including ‘phased’ assessments. It’s now clear that even if a proponent holds the necessary regulatory permits and approvals, there is a risk that it may still be susceptible to claims rooted in asserted Aboriginal rights or Aboriginal title infringements. Proponents should scrutinize those permits and approvals internally to determine whether the statutory authority with which they were issued – and the processes leading up to them – do in fact lead to the ‘inevitable result’ of an infringement on Aboriginal rights and Aboriginal title.
3. Proactive Preparation. The need for resource developers to diligently assess the extent that there are potential claims of Aboriginal rights or Aboriginal title that could at some time be asserted by First Nations, and that the Crown’s consultation efforts are sufficiently addressing any such potential claims, is sharper than ever before.  It’s increasingly important for proponents to:
   • factor due diligence work into project schedules and budgets;
   • establish and maintain good dialogue with both the Crown and First Nations; and
   • respond to all First Nations complaints or claims in relation to the planned work through the consultation framework.

---

Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Aboriginal Law Team to discuss this topic or any other legal issue.

---

McInnes Cooper has prepared this document for information only; it is not intended to be legal advice.  You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

© McInnes Cooper, 2015.  All rights reserved.  McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it.  You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at [email protected] to request our consent.