The Lexpert Guides to the Leading US/Canada Cross-Border Corporate and Litigation Lawyers in Canada profiles leading business lawyers and features articles for attorneys and in-house counsel in the US about business law issues in Canada.
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18 | LEXPERT • June 2015 | www.lexpert.ca/usguide-corporate/ a project up for years, Langlois says. "If a company has to fi nance it, especially in the international market, and there are claims and even occasional court proceedings initiated by Native groups, you can appreciate it will be quite diffi cult if not impossible to raise money. It will trigger extensive negotiations. "If your project is tied up in court for 15 years, who knows what the global conditions will be by then? e project may no longer be interesting." e decision, written by Supreme Court of Canada Chief Justice Beverley McLachlin, seems to acknowledge some of the potential diffi culties. e Chief Justice says in obiter that problems resulting from title claims can easily be avoided by obtaining the consent of the aff ected group before a determination. Many resource companies doing business in Canada have been doing exactly that, says Chris Sanderson, a partner at Lawson Lundell LLP in Vancouver. "I'm not sure whether Tsilhqot' in will lead resource companies to do anything materially diff erent in terms of engagement with First Nations — but what it may do is aff ect their willingness to invest. at is a binary decision, though, and you won't be able to tell until you either see the money coming in or see investment falling off . I think it's still too early to tell." Has consent been relatively easy to obtain in recent years? Sanderson says it has not. He expects Tsilhqot' in to make it even more challenging in some circumstances. "Where you don't have strong leadership, in groups where there's not a lot of trust in the leadership, it very much could." at may be why, in the wake of the ruling, Tsilhqot' in was branded a game changer, economic poison and a recipe for inter- minable investment-killing litigation. IN MOST OF CANADA, title may seem not to be an issue. Aborig- inal communities in the majority of provinces signed historic treaties in the 1700s and 1800s that guaranteed them certain rights in return for ceding title to their land. e Tsilhqot'in Nation, made up of six bands in British Columbia, did not and they have been fi ghting for years to have title to their lands recognized. ey are not alone. Most Aboriginal groups in BC and the Yukon did not sign treaties nor did their counterparts in chunks of Ontario, about a third of Québec and parts of the North- west Territories. at's where title claims are being fi led, and Tsilhqot' in has breathed new life into them. e threshold for succeeding is not low; in order for title to be recognized the group must prove "suffi cient, continuous Where the landmark ruling gets even more interesting is in situations where title has been asserted but not yet determined — and there are a hundred or more outstanding title claims in the Canadian courts. e top justices say that if the government permits a project to proceed and title is later recognized, "it may be necessary for the Crown to reassess prior conduct in light of the new reality." If consultation was inadequate or accommodation less than it should have been under the circumstances, the government may be required to cancel all the permits "if continuation of the project would be unjustifi ably infringing. "Similarly, if legislation was validly enacted before title was established, such legislation may be rendered inapplicable going forward to the extent it unjustifi ably infringes Aboriginal title." at raises the possibility that a company's lawfully awarded permits could be in jeopardy — even though they were granted years or decades earlier. " at's one of the most interesting pieces from my perspective," says Shawn Denstedt, the Calgary-based national Co-chair of Osler, Hoskin & Harcourt LLP. "It takes away the certainty and, obviously, companies don't like uncertainty. e pendulum has swung a bit more towards First Nations and if I were a company and that applied to me, I'd be very worried. "What it really means is if you've got permits and projects in play or operating on lands that have been found to have title, there's a claim to be made that those permits were improperly granted. ere would be an evaluation of whether the Crown undertook appropriate consultation with the First Nations whose rights may be impacted and, if they didn't, how best the rights of permit holders could be reconciled." Denstedt says such a fi nding could have many implications for businesses aff ected. "If it was a forestry project, for example, and no trees had yet been cut down, the Crown might simply invali- date the permit and start from square one. In a case where you've built a mining project, the reconciliation might be compensation for the First Nation for the damages to their rights." Pierre Langlois, counsel with McCarthy Tétrault LLP in Montréal, believes corporations and developers required to pay compensation or shut down a project they already built would have a fi nancial claim against the government. " e government that authorized the project, set the condi- tions, granted the permit authorizations and the like would probably be on the hook," he says. "I think huge litigation would follow the cancellation of a project." In the world post-Tsilhqot' in, just the assertion of title can hold "[Tsilhqot'in] is the fi rst time the court, in this case the Supreme Court of Canada, has recognized title over a piece of First Nations land; that's defi nitely the headline." Charles Kazaz Blake, Cassels & Graydon LLP « ABORIGINAL TITLE