Lexpert Magazine

64 LEXPERT MAGAZINE | JUNE 2016 | ABORIGINAL NEGOTIATIONS | industry and First Nations is the concept that, as the name implies, indigenous peoples were here first and retain certain rights. In Canada, the legal foundations of Aboriginal rights and Aboriginal title reach back 250 years and are reinforced by countless court decisions since then. Consistent with British colonial policy of the day, the Royal Proclamation of 1763 secured ancestral lands of the original in- habitants of British North America that had not been specifically ceded to or pur- chased by the Crown. In 1982 the Constitution Act affirmed Aboriginal and treaty rights. In R. v. Spar- row in 1990, the Supreme Court of Canada said the Crown's fiduciary duty to Aborigi- nal peoples can never be adversarial, speci- fied the duty to consult and set out a test for justified infringement on Aboriginal rights. In 1997, Delgamuukw v. British Co- lumbia saw the Supreme Court rule that Aboriginal title is protected by the Con- stitution Act and includes the economic value of land. e court said reconciliation should be the objective of all consultations. In Haida Nation v. British Columbia, the Supreme Court said in 2004 that the duty to consult is grounded in the honour of the Crown and that duty is engaged re- gardless of whether title has been proven. In the 2014 Tsilhqot' in decision, the Su- preme Court recognized Aboriginal title to a specific land claim for the first time. e court further said that infringements will be judged on how they serve reconcili- ation between Aboriginal groups and the general public. for the company and an opposite number for the Aboriginal community. e company has also instated cultural sensitivity training for fly-in workers from the south. "When the majority of the people are Aboriginal, you're coming to their home and you have to respect them," André observes. He says the company has backed up its policy, and in a couple of seri- ous cases, workers have been dismissed. As another example of cultural chal- lenges, he says, hunting seasons are a major part of Aboriginal life that simply must be accommodated. "If we're 40 per cent of the workforce, we're not all going to take our holidays at the same time. But the Aborigi- nal employee will go hunting — with or without permission." In an isolated community, such as Schef- ferville, André explains, most jobs are sea- sonal and chronic unemployment is con- centrated in the indigenous population. "e notion of full-time employment does not exist. e value of work does not have the same meaning and it has to be acquired. People are getting used to it, but it takes time." He says these are some of the reasons the mine has a formal second-chance train- ing program that coaches native employees on the norms of the work world. He notes that the recently signed Lab- rador Inuit Treaty with the government of Newfoundland makes IBAs mandatory for all major projects. "If every province would do that, it would change the face of the country," he says. UNDERLYING ALL negotiations between Taken together, legal experts read all this, and dozens of other decisions, to say there's no getting around the duty of proj- ect proponents and the Crown, both fed- eral and provincial, to consult, accommo- date and seek genuine reconciliation before proceeding with any development on land subject to treaty or land claim, proven or pending. "Project proponents have a mean- ingful role to play, but the duty to consult ultimately rests with the honour of the Crown," Pratt says. From Ontario to Alberta and the Yu- kon, excluding most of BC, major resource plays inescapably rest on treaty lands that were long ago surrendered to the Crown in return for certain perpetual rights and ben- efits. Pratt points out, however, that treaty- holding First Nations retain hunting, fish- ing and trapping rights on these traditional lands and frequently feel a strong sense of connection to, and ownership of, ceded ter- ritories. Companies dismiss this affinity at their peril. "Showing up and saying, 'Legally, that's not correct,' really doesn't advance things," she says. An approach by a developer that's perceived as hardline or confrontational can provoke anything from more difficult negotiations to regulatory delays, court fights or even blockades. Moreover, the Tsilhqot' in decision illu- minates a sharp divide between First Na- tions who accepted relatively paltry treaty awards 100 years ago and those, like the Tsilhqot'in, who have pursued far-reaching Aboriginal title claims into the 21st-centu- ry legal arena. "Just on the face of it, there's a massive discrepancy between treaty rights and the benefits of Aboriginal title," Pratt says. In light of Tsilhqot' in, she says, a local First Nation may harbour plans for a court chal- lenge to their treaty and a subsequent claim of Aboriginal title. A treaty challenge alone could take a decade or more to find its way to the Supreme Court of Canada — mak- ing a separate IBA vastly preferable for any company seeking to launch a project. Underscoring this concern, Treaty 9 Matawa First Nations leaders have made several public statements strongly suggest- ing their intent to pursue Aboriginal title on treaty lands covering the entirety of the Ring of Fire, with its $60-billion mineral deposit estimate. "In cases where First Nations lack capacity to develop a project or create a supply or service business on their own, we're starting to see the use of joint ventures, limited partnerships or other corporate structures." TRACY PRATT > FASKEN MARTINEAU DUMOULIN LLP

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