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Tsilhqot'in ruling raises questions in Atlantic Canada

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In the wake of the late June Supreme Court decision on aboriginal land rights in British Columbia, we are now entering a new era in governmental-aboriginal relations in Canada. But what does it all mean for governments and First Nations in Atlantic Canada?

The historic Tsilhqot'in Nation ruling basically confirmed aboriginal title, for the first time, to a specific tract of land (where no land claims treaty exists). Not only has the court decision expanded aboriginal land title rights, but it will have broad implications for resource development beyond a narrowly-conceived settlement area.

In addition, the Supremes have clarified how to prove aboriginal title in B.C. (and presumably where no land-ceding treaties exist) going forward. And it is now easier to establish title over lands that were used on a regular basis for hunting, fishing and other activities prior to contact with Europeans.

According to the ruling itself, aboriginal title "extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the group exercised effective control at the time of assertion of European sovereignty."

Now, there is some suggestion that the June ruling still allows for provincial governments (under the compelling public purpose justification) to make decisions that impact upon aboriginal title. But they won't be able to move forward with those decisions if they don't serve the best interests of First Nations communities themselves.

In terms of natural resource development in Canada, this decision appears to be a game-changer. As aboriginal law expert, Roger Townshend, starkly observes: "When a First Nation has proven title... it's not consultation and accommodation anymore. You need to have the consent of a First Nation to be on the land."

Indeed, the decision goes on to say: "Aboriginal title means that governments and others seeking to use land must obtain the consent of the aboriginal title holders." What that consent entails, though, is not clear from the judgment. Still, if a government proceeds with a project that does not have the prior consent of First Nations peoples, the ruling says "it may be required to cancel the project upon establishment of the title..."

It's hard to say for sure how this critical court decision will play out in Atlantic Canada. But it does raise some very interesting questions for politicians, First Nations peoples and, unfortunately, a multitude of lawyers in this region.

For instance, is the B.C. situation, where precious few land treaties were signed, analogous to the circumstances of peace and friendship treaties here in Atlantic Canada? Could the Mi'kmaq and the Maliseet claim ancestral territory or seek a declaration of title over certain tracts of land throughout the region?

Furthermore, can they move to establish legal title to unceded lands -- which would encompass large swaths of territory in all four Atlantic provinces? Could Aboriginal Peoples also effectively halt any resource development projects on these purportedly unceded lands?

Of course, one of the key questions facing governments and industry going forward is the following: What is the precise legal status of aboriginal territory in Atlantic Canada? In other words, what exactly did those peace and friendship treaties with the colonial administrations of the 1700s mean in terms of land ownership?

In some aboriginal quarters, the answer is quite simple: First Nations peoples never extinguished or transferred title to the land. I recall speaking once to a band member from the Indian Brook reserve in Nova Scotia who told me that the land in Atlantic Canada was "lent" to the white settlers, but that it was never meant to be permanent.

Yet, it is interesting to note that there have not been -- at least to my knowledge -- any comprehensive land claims negotiations in this region. But does that suggest that aboriginal title to the land was ceded centuries ago?

I wish that I had some expertise in aboriginal law. But I'm sure that First Nations peoples throughout the region are seriously weighing their legal options right now.

Could this legal uncertainty with respect to land title have profound economic and developmental implications for Atlantic Canada? Could Aboriginal Peoples effectively shut down current or future resource development projects on unceded lands?

For example, would it make TransCanada Corps Energy east pipeline through New Brunswick more problematic? How about possible fracking operations? Would they need the consent of the Maliseet first? What about the proposed transmission lines for the Muskrat Falls power generation project, which are supposed to carry electricity through Nova Scotia to Maine? Could the Mi'kmaq block that project? Again, I wish I knew the answer.

What I do know is that it may take a few years for much of the legal and jurisdictional fog to lift from the Supreme Court's June judgment. In the meantime, governments and industry are going to be nervously awaiting the next move by First Nations peoples in Atlantic Canada.

 

Peter McKenna is professor and chairman of

political science at the University of Prince Edward Island in Charlottetown.

Republished from the Winnipeg Free Press print edition July 19, 2014 A17

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