Montreal conference discusses business in the new era of Aboriginal title

The Conference on Business Partnerships with Aboriginal Communities, held in Montreal February 10 and 11, wasn’t the usual grip-and-grin networking event. Instead, it was a direct response to the last summer’s historic Supreme Court Tsilhqot’in judgment.

The immediate response to the ruling was a ripple of confusion about how companies would be able to do business on Aboriginal lands in the future. The Business Partnerships with Aboriginal Communities conference was set up to create discussion opportunities on that very subject. The Canadian Institute, a Toronto-based think-tank, organized the event.

Heather Charlock, one of the conference organizers, explained, “Based on the Supreme Court’s Tsilhqot’in judgment and past events we’ve done in this area, we realized that it was going to change the game when developers and promoters were going to want to develop projects that involved Aboriginal communities. That was the driver for the event.”

Conference speakers represented a variety of organizations with a common interest in developing business in Aboriginal territories.

“Whether they were from industry, or from Aboriginal communities or professionals who counsel them,” Charlock said, “they agreed to speak because they were involved, or still involved with, or looking to get involved in these types of projects that were going to involve Aboriginal communities in some way shape or form.”

The conference drew representatives from major organizations, both Aboriginal and non-Indigenous. These included the Grand Council of the Crees, the Canadian Council for Aboriginal Business, Aboriginal Affairs and Northern Development Canada, and a variety of other major companies like Hydro-Québec, Mouvement Desjardins and SNC-Lavalin.

Conference materials promised a range of discussions around subjects such as post-Tsilhqot’in business consultations, the impact of that judgement on project financing, negotiating and drafting long-term agreements, and developing partnerships with Aboriginal communities for petroleum (oil and gas) development.

Nadir André, partner at the law firm Borden Ladner Gervais, co-chaired the event and opened the first day.

“The purpose of the conference was to determine whether there’s any difference between how things were done prior to [the Tsilhqot’in] ruling, and how things are done after,” said André. “When you look at Tsilhqot’in, there’s another issue that makes it a little bit easier for nomad Aboriginal groups to establish a title where before, it became almost an impossible task to establish title if you were not a sedentary First Nation, always in the same location, not travelling, not hunting. Now the Supreme Court has put more flexibility into the evidence brought forward to establish the exclusivity and continuity of the title on specific lands.”

He said that for the first time the Supreme Court has recognized that third parties – other than the Crown and First Nations – could be held accountable for development and actions taken on Aboriginal title land.

“Before that,” André said, “it was an issue of infringement between the Crown and the First Nations, and there was the issue of fiduciary duty, honour of the Crown, possible compensation – because the Crown was the overall trustee that had to make sure that if they gave authorization or permits to industry, that Aboriginal rights were protected.”

In light of the new decision, he said, the Crown retains its duty, but companies are now considered to be well-informed so that they can’t ignore the issue of title.

“If you’re going up there without the First Nation’s consent, you’re taking a risk,” André concluded. “If you’re an investor and you have, let’s say, a mining project, and millions of dollars to invest, if you’re aware that there’s even the weakest possibility that a First Nation has a title on that territory where you want to have your project and all that investment, you want to make sure that you obtain consent from the First Nation. At the end of the day, the result of that ruling will increase the capacity of Aboriginal groups to negotiate impact-benefit agreements or other types of agreements with the industries or even government, because the liability has increased.”

Still, the decision has yet to truly change the landscape of development on Indigenous territories.

“In theory, there could be a change in the way that the relationship is established between the Crown, industry and First Nations – specially those who could still claim Aboriginal title. But otherwise, I would say that – knowing how the government works – the evidence is that seven or eight months after the ruling, has there been any modification in policies? Any changes in attitude, in Quebec or elsewhere? The answer is no.”

The problem, André points out, is the incredible cost of driving legal challenges all the way through the courts. The Tsilhqot’in case was a major victory – but it cost $31-million in legal fees.

“Can Atikamekw or Algonquins or Innu or other First Nations that don’t have a lot of own-source revenue afford such cases in court and be able to go all the way to the Supreme Court to prove their Aboriginal title – and be successful? There’s still a big question mark.”

All the same, André said he sees the changes as fundamentally positive, particularly because they strengthen the regime of consultation and accommodation that for years many First Nations have complained provided them little ability to defend themselves.

“The Supreme Court in its wisdom saw that consultation and accommodation was not enough. Consultation – everybody consults now, but what about accommodation? You’re providing the information, sending the letters, having public assemblies in each community where there’s a project, but then you never know what goes on after, and why the government has approved the project or not. So the accommodation was a true weakness. I think the intent of the Supreme Court was to balance things off a bit.”

These are the early stages of an entirely new kind of law for those wishing to engage in resource development on Indigenous lands, and André nods to the conflict over Strateco’s Matoush uranium development project outside of Mistissini as an indicator of what the next major fight may be.

Strateco, André said, “was willing to sit down and negotiate with the Cree Nation and get involved – in this case, the Cree community decided this project was not acceptable on its territory and opposed the project. The government imposed the BAPE process and the moratorium, and so now the project is not going along. So even in some cases where industry is trying to reach consent – if you’re telling me that regardless of what I propose, you will not provide me consent, this is the next case. The Strateco case – it’s probably the next standard.”