The last Word

Traditional lands decision from the Supreme Court resulting in more dialogue and accommodation

By Tony Kryzanowski

When the Supreme Court of Canada (SCC) announced in 2014 that it was opening the door to allowing First Nations to claim control over traditional lands beyond their reservation boundaries, many predicted mayhem in the forest in terms of resource development.

It hasn’t happened—nor will it—and here’s why.

As a reminder, the SCC in an 8-0 decision granted the Tsilhqot’in First Nation aboriginal title to 1,700 square kilometres of land, or about 440,000 hectares, south and west of Williams Lake in the B.C. Interior, outside the boundaries of their reservation community. In effect, the court recognized that six area First Nations bands had occupied the region for centuries.

Soon after, some suggested that this would allow aboriginals to claim the entire country of Canada as ‘traditional lands’, given that they occupied the landmass that would later become Canada, before European settlement began. But as in most SCC decisions, it is incredibly important to read the fine print.

First, the Tsilhqot’in First Nation actually made a claim to 4,380 square kilometres and was granted less than half of that, so the cautionary note here is to be careful what you ask for. It may not include that resource-rich target you wanted to gain control over.

Second, it will take First Nations a lot more than just an assertion of traditional lands for it to magically occur, although the SCC said that if there is an assertion, industry has a responsibility to consult with the First Nation to make ‘accommodations’. Basically it means that industry can’t just walk into potential traditional lands, even if they have permits in hand, to begin resource extraction without talking to nearby First Nations, finding out if the activity will disrupt their traditional activities—and also, more intelligently, to find out if there are opportunities for the First Nations to benefit from the resource extraction activity by way of payments, jobs, joint ventures, and sub-contract work.

Third, the SCC did a remarkable job of developing a test for aboriginal communities as to whether or not they can make a legitimate claim to traditional lands. In this case, the court definitely drew a line between those First Nations whose traditional way of life was more sedentary versus those who were nomadic. In other words, those communities who came out significant winners in this decision were groups like the Haida, Algonquin, Ojibway, Iroquois, and others, who tended to live in established communities within a well-defined geographic area rather than a nomadic lifestyle.

That’s because the SCC test states that an aboriginal group asserting title must prove that it occupied the land prior to sovereignty, meaning before European settlement; the group must have continued to occupy the territory in question from pre-sovereignty till now; and finally, they must have been the exclusive group to have occupied the territory. In other words, it is not enough for an aboriginal group to say that they have traditionally hunted, fished, and lived in a disputed area by habitually walking in and out or establishing temporary settlements and leaving once the local food source ran dry. It must be permanent, continuous, exclusive occupation since about the 17th century, before the establishment of the fur trade, and, the First Nation, depending on physical evidence and traditional history, has to be able to prove it.

So then it should come as no surprise that the two areas most likely to be impacted by claims of traditional lands are B.C. and Ontario, where from an historical perspective, First Nations are more likely to be able to prove permanent occupation within a defined land base since the 17th century. But if the B.C. situation is any indication, First Nations generally are not looking for confrontation. They are looking for accommodation.

For example, last year, four British Columbia pulp and paper producers signed a Memorandum of Understanding with B.C.’s First Nations Forestry Council (FNFC) “to promote and support the growing role and influence of First Nations in the B.C. forest sector.” The four companies include Catalyst Paper, Nanaimo Forest Products (Harmac), Paper Excellence Canada and Zellstoff Celgar Limited Partnership. As purchasers of pulp wood on the open market, these companies have astutely realized that to gain access to forest resources on deemed traditional lands, they must make “accommodations”.

For its part, the FNFC has stated that it is willing to work with these partners to continue to develop and implement the voluntary Compliance Management System, which could become the price of admission to B.C. forest companies gaining access to lands deemed as traditional aboriginal lands. A work in progress, the compliance system allows First Nations to track any elements of industry operations within their territory that is of importance to them. This includes such issues as environmental standards, aboriginal culture and values, worker and community safety, enforcement of benefits sharing agreements/contracts, tracking for referral processes, and consultation and accommodation tracking.

There are currently three pilot projects with pulp and paper producers for application of this compliance system in partnership with Natural Resources Canada (NRCan) to establish working models with three of its B.C. First Nations communities.