Lexpert Magazine

LEXPERT MAGAZINE | JUNE 2016 65 | ABORIGINAL NEGOTIATIONS | In Wabauskang First Nation v. Minister of Northern Development and Mines et al., Pratt says, the Ontario Divisional Court upheld the right of the provincial govern- ment to license infringement on Aborigi- nal land. Pratt says the Wabauskang out- come makes clear that if First Nations un- der Treaty 3 or any of the similarly worded treaties (Treaties 1‒11) want to assert rights to resources and revenue sharing, they'll have to challenge their treaties and seek Aboriginal title through litigation in the courts. "is has been a topic of consider- able discussion with the Ontario govern- ment in the context of the Ring of Fire development," she adds. "If anyone successfully challenges a treaty, of course, that changes everything," Pratt observes. "Many Aboriginal groups are of the view that the treaties themselves are not valid," Treacy says. And while Ottawa and the provinces insist the treaties are binding, it remains to be seen how the courts will rule on these issues. André notes that, leaving aside treaty challenges, 20 per cent of Canada, or a to- tal area the size of Mexico, remains open to Aboriginal title claims. He says the possi- bility of successful Aboriginal title claims may give First Nations leverage to seek a compromise in the form of shared-royalty agreements with provincial governments and he's heard one or two provinces may be examining this as an alternative to fighting land claims in court. SHORT OF TREATY challenges, there's also the question of the adequacy of consul- tation with Aboriginal communities. "Industry clearly needs to engage and consult with Aboriginal communities and drive deals forward," Treacy says. But "it's imperative that government be engaged. If the government does not consult and en- gage at the appropriate time, then the en- tire deal will be subject to challenge by the Aboriginal community on the basis that the government did not fulfill its consulta- tion obligations — and the entire project will be at peril." She observes that various First Nations have decried the tendency of governments to allow their constitutional duty to consult to be fulfilled by companies and regulators, and that she expects the is- sue to go all the way to the Supreme Court of Canada "soon." "All players [industry, Aboriginal groups and governments] need to be fully engaged and government needs to demonstrate strong leadership to provide guidelines that all parties can rely on," Treacy argues. "Government cannot drop in and out of the process." David Bursey of Bennett Jones LLP in Vancouver says there's an increasing ten- dency to push the responsibility for con- sultation and accommodation onto the private sector. But he says the result is a lack of coherence and equity that requires a policy response. He says Haida Nation v. British Columbia makes clear that the duty to consult is grounded in the honour of the Crown. e duty to consult, therefore, rests inescapably with government and can't be entirely offloaded to the private sector. Bursey says the lack of consistent govern- ment involvement raises huge questions of equity. "Companies have varying abilities to accommodate and Aboriginal groups have different powers to negotiate. e dis- crepancies are becoming a lot clearer with big LNG [regulatory] proceedings," he says. "is private accommodation system that's emerging is creating some really serious problems that will only get worse." Isaac says "there's lots of focus on what industry must do — but it's coming from trying not to point the finger at govern- ment." He says there's a "constitutional imperative" over every deal that demands government involvement. Beyond the re- quirement for government to consult on each infringement that takes place on Ab- original land, he says, there's a need for a policy framework within which to negoti- ate successful agreements. "You can't just put it back onto indus- try," he says. "A company should look aer its own business interests. It should not be charged with the mantle of deciding, 'Is this good for the economy of Canada?' A company shouldn't have to be worrying about that stuff. "ere is a critical role for government to play in all of this," he says. "e iceberg is how is all of this going to work? Some Aboriginal groups get resource sharing and others get nothing. Well, is that equitable? And the answer is, let's not talk about it. "We need to answer the bigger question," Isaac says. "How do Aboriginal peoples fit into the fabric of Canada — in their own unique way?" In its 1997 Delgamuukw v. British Co- lumbia ruling, André notes, the Supreme Court first called for "true reconciliation" of Aboriginal and non-Aboriginal rights. "Reconciliation is the key," he says. "e Supreme Court is always asking for some type of reconciliation." Treacy says the courts must take cases as they come and they're largely confined to ruling on specific issues. "Courts do try to set down overriding principles, but if you read between the lines, you can see pleas for reconciliation," she says. Brian Burton is an energy and legal-affairs writer in Calgary. TOM ISAAC > OSLER, HOSKIN & HARCOURT LLP "There's no cookie-cutter approach. Companies want to know, 'What's the market rate for an [impact benefits agreement]?' There isn't one. What makes a good deal for one company or one Aboriginal group may not work for another company or another Aboriginal group."

• cover
• Big