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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www.lexpert.ca/usguide-corporate/ | LEXPERT • June 2015 | 19 e fi rst high-profi le test may be the bid by Enbridge Inc. to extend the Northern Gateway Pipeline, already politically unpopular with many Canadians on environmental grounds. e proposed extension would move crude oil across 657 kilome- ters of British Columbia. At least eight First Nations groups fi led court challenges against the project, including the Gitga'at, who are seeking a declaration of title. At the end of 2014, Enbridge announced signifi cantly greater Aboriginal participation and perhaps even control of the pipeline. e company also said it was open to signifi cantly boosting Aboriginal equity participation and recruiting Aboriginals to fi ll senior positions. at shows how Tsilhqot' in tilts the playing fi eld, says a senior practitioner who spoke on condition he not be identifi ed. "Obviously the leverage the First Nations will have under those circumstances is going to be signifi cant, so it becomes a discussion of what type of compensation, what type of accommodation is necessary. ey can also ask for the project to be stopped or shut down. ere's the leverage." e concern in the business community, he says, is that title claims can be used for purely tactical reasons. He expects to see more title claims fi led. While Tsilhqot' in may be the fi rst time a Canadian court has found title over a specifi c piece of land, he says no one expects it will be the last. "As a resource company or the government, you have to ask yourself: Do I spend the time arguing this issue, or do I take that into consideration as part of my negotiations on accommoda- tion? It may cause our clients to concede on certain points. So it becomes an issue of leverage, that's the practical eff ect of it. We're already seeing greater assertions of title." Will the decision be a project killer, as some have predicted? Langlois says that has yet to be determined. But, he adds, one of his clients, looking at a project in northern Québec, "has hired historians, anthropologists and the like to carry out studies of the occupation of the land in the vicinity of the project. It's proceed- ing quite logically in terms of what the law is on Aboriginal claims, Aboriginal rights. "You have to know who to negotiate with, and in certain cases there may be more than one group and overlapping title claims. I think these days, companies have to be careful." Sandra Rubin is a freelance legal affairs writer. and exclusive" occupation of the lands prior to the assertion of European sovereignty. Tsilhqot' in took 339 days at trial over fi ve years, and, in the end, the small Aboriginal group won title to just a fraction of the lands over which they were asserting a claim. Even so, many observers believe Aboriginal groups that ceded their rights under historic treaties may go to court to have them reopened a er seeing the Tsilhqot'in Nation given so much more control over its title lands. It's speculated they will argue that notions of ceding, releasing and surrendering title to land had no meaning within their exist- ing legal structures and language at the time, so their ancestors could not have given informed consent. " ere are all sorts of rumors this is going to happen, so I wouldn't be surprised," says Brian Abraham, Canadian Chair of the mining group at Dentons LLP in Vancouver. "If I think I have a chance of doing something that's going to benefi t me, obviously I'm not going to ignore that opportunity." at said, Abraham believes the reaction to Tsilhqot' in has been overblown. He says a careful reading shows much of what was said by the top court – if not most – was obiter rather than representing a change in the law. "It has caused some anxiety but part of that is because people are in some respects looking at the obiter as opposed to the impli- cations. Is it a game changer? It's certainly the fi rst case title has been granted but I don't know that it is a game changer, per se." John Sabine, counsel to Bennett Jones LLP in the Toronto offi ce, says he and his colleagues are already seeing the impact. "Companies we act for are fi nding where previously they were dealing with a local First Nations group or two or three, all of a sudden people are coming out of the woodwork to say: 'Our tribal lands are 300 kilometers away but we hunted there and we have rights.' So all of a sudden we are expanding the industry within which the First Nations are going to have a greater say in the resource development." He says Canada remains a resource-friendly, politically stable jurisdiction post-Tsilhqot' in "with one caveat. It's the one caveat I don't have an answer to, and I don't think anybody does. A lot of people have memorandums of understanding in place. ey can be challenged. We just had recent ones where we had everything signed, sealed and delivered and it was just thrown out by the new tribal council. First Nations issues in Canada are the same as the kind of royalty issues and taxation issues in other jurisdictions — I think it's going to play a bigger role going forward." "Absent meeting the conditions set out for a justifi able infringement [Aboriginal groups] have a consent right, or a right of veto if that's what you want to call it." Erik Goldsilver Cassels Brock & Blackwell LLP ABORIGINAL TITLE »