INDIGENOUS ENGAGEMENT AND COLLABORATION IN RESOURCE DEVELOPMENT: THE CANADIAN EXPERIENCE

• Jurisdiction: Derecho Internacional

International Mining and Oil & Gas Law, Development, and Investment (Apr 2019)
CHAPTER 22C
INDIGENOUS ENGAGEMENT AND COLLABORATION IN RESOURCE DEVELOPMENT: THE CANADIAN EXPERIENCE
Max Faille
Partner, Gowling WLG (Canada) LLP
Keith Brown
Associate, Gowling WLG (Canada) LLP

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MAXIME FAILLE: Named Benchmark Canada's Aboriginal Lawyer of the Year for 2016, Max Faille is a partner in Gowling WLG's Vancouver office, practising in Indigenous law, public law and general litigation. Max's clients consist of Indigenous governments and businesses across Canada, as well as private sector interests seeking to do business with Indigenous communities. In addition to legal representation in the courts and in negotiations, Max regularly provides advice on matters of Aboriginal and treaty rights, First Nation taxation, self-government, Aboriginal consultation and accommodation, Impact and Benefit Agreements, and Aboriginal economic development. His advocacy includes representing clients before the Ontario Superior Court and Divisional Court, the Ontario Court of Appeal, the Supreme Court of the Northwest Territories, the Court of Appeal for the Northwest Territories, the Yukon Supreme Court, the Federal Court of Canada, the Federal Court of Appeal, the Tax Court of Canada and the Supreme Court of Canada. Prior to completing his law studies, Max worked on Parliament Hill and as special adviser on United Nations Reform to the office of the Minister of Foreign Affairs. In 1995, he was awarded the Government of Canada Merit Award by the Minister of Foreign Affairs for "Exceptional and Distinguished Contribution to the Effectiveness and Efficiency of the Public Service." From 1988 to 1993, he worked at the United Nations in New York in the areas of human rights, arms control and peacekeeping. Max is frequently invited to present to or chair major national legal conferences in Indigenous law on such topics as Indigenous consultation and accommodation, First Nation taxation, Aboriginal economic development and Impact Benefit Agreements. He is a member of the board of directors of the Canadian Council for Aboriginal Business. Fluent in both English and French, Max practices in both official languages. Among numerous recognitions and awards for his work in Aboriginal law, Max is recognized as a leading lawyer in Aboriginal Law in Chambers Canada 2016, Lexpert's Leading Canadian Lawyers in Energy 2015 and Leading Canadian Lawyers in Global Mining, 2015-2016.

1. Introduction & Summary

"The past is never dead. It's not even past."

— William Faulkner, Requiem for a Nun

In a landmark decision rendered 15 years ago, the Chief Justice of the Supreme Court of Canada, stated a simple but profound, and consequential, fact: ""Canada's Aboriginal people were here when Europeans came, and were never conquered."¹ This basic observation succinctly summarizes the legal framework within which land development and resource extraction operates in Canada. The prior presence of Indigenous societies, with their own legal orders, gave rise to land rights and other rights, that must be respected and addressed.

Those rights have always formed part of Canadian law. Formal British policy, inspired by that of the French before them, was not one of conquest but of concord. The European contest for supremacy in North America, and successful colonial settlement and survival, were to a significant degree dictated by the forging of alliance and cooperation with Indigenous nations. This in turn required that those Nations be assured of certain protections, of their lands and their autonomy, and of certain benefits in return.

Thus, when the 7 Years War ended in 1763, and North American territories, including those that would form the beginnings of what is now Canada, were ceded by France to Great Britain, the British Crown moved quickly to mollify and gain the trust and allegiance of Indigenous Nations, many of which had been allied with the French. The result was, among other things, the Royal Proclamation of 1763, a document that is formally recognized as forming part of Canada's Constitution, and is often referred to as the "Indian Magna Carta" of the "Indian Bill of Rights." Among other things, the Royal Proclamation laid down a fundamental tenet of British policy toward Indigenous peoples: that their lands could only be alienated to the Crown, and only with their consent and the provision of adequate compensation.

That fundamental premise underpins Canadian law to this very day. While is generally not thought of this way, all land and resource development in Canada has required that Indigenous rights either have been addressed in some way, or that they be addressed prospectively if they have not.

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In many cases, and for much of the country, those rights have been addressed in some form: a very large proportion of the country is covered by formal treaties between the Crown and Indigenous groups: (1) so-called "pre-confederation" treaties that pre-date the founding of Canada in 1867, (2) so-called "historic" treaties that were negotiated after Canada was founded and as it sought to expand its borders westward and northward; and (3) so-called "modern" treaties -- detailed and sophisticated agreements negotiated in more recent decades to cover much of the territory that was left unaddressed after the Crown abandoned the treaty-making process in the early 1920s.

And while many of these agreements purport to extinguish pre-existing Aboriginal rights, they also confirm and retain certain rights, including in particular rights associated with land use. Further, disagreements as to the scope and effect of those agreements abound - particularly in regard to historic treaties, hastily negotiated between Crown representatives and assembled Chiefs through interpreters, and reduced to writing, generally after the fact, and in a language those Chiefs generally did not speak and almost universally could not read. Differing interpretations as to what was agreed to, unsurprisingly, have dogged those agreements ever since.

Figure 1: Map of Historic Treaties of Canada.

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Modern agreements, while detailed and negotiated over years or indeed decades and with the benefit of legal and other expert advisors, are less prone to interpretative disagreement but not immune, and recognize a robust set of rights for their Indigenous parties.

Figure 2: Modern Indigenous Treaties and Self-Government Agreements in Canada.

Finally, a sizeable mass of the country remains without treaty of any kind - including in particular almost all of the province I call home, British Columbia. In Canada, the treaty-making project reached a largely insurmountable barrier in the form of the Rocky Mountains, leaving a significant legal morass beyond its Westward slopes.

When in 1982 Canada patriated its Constitution from Britain, Indigenous nations insisted that their rights be formally entrenched. They succeeded: s. 35 of the Constitution Act, 1982 "recognizes and affirms" existing Aboriginal and Treaty rights in Canada. Thus, rights not formally and expressly extinguished as of 1982 are protected by the Constitution, and cannot be extinguished without Aboriginal consent, and cannot be "infringed," subject only to a stringent test of justification.

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Laws or Crown actions that seek to extinguish Aboriginal rights are therefore unconstitutional, as are those that would significantly impair those rights unless such an impairment is found to be justified in accordance with a test that is difficult to meet.

The net effect is that much of the land and hydrologic mass of Canada - and in particular that significant portion that is undeveloped -- is overlaid with a tapestry of Indigenous rights, of varying degrees of both significance and certainty. Some have been meaningfully addressed and clarified, others have not, and ultimately in no case can be ignored.

Figure 3: Historic and modern treaty map pf Canada.

The biggest challenge arises not so much from the existence of rights, but the uncertainty that surrounds them: as to their existence, nature and their scope. In the modern treaty areas - which are mostly in the Northern reaches of the country - Indigenous rights are on the whole relatively clearly established in those fairly precise, detailed and prescriptive documents, though disputes can of course still arise. But in much of the rest of the country, covered by

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thin, imprecise and hastily-drafted treaties, or lacking any treaty at all, the level of uncertainty, and disagreement as to the existence, nature and scope of rights, is substantial.

Resolving that uncertainty is a lengthy and complex process. And while Indigenous claims are being addressed, through negotiations or through the courts, the Supreme Court of Canada has directed that, as a matter of law, the existence of such rights can neither be presumed nor denied. And until such time as a resolution is reached, by agreement or court order, the Crown is impressed with a duty to consult and accommodate Indigenous rights and interests. Thus, for existence, where a proponent seeks a permit to develop a mine, or to build a pipeline, on land on which Indigenous rights are asserted even if not yet proven, and if the issuance of that permit could negatively impact those asserted claims, the Crown must, as a precondition to lawfully issuing the permit, at minimum consult with the affected Indigenous community and, in some cases, extend meaningful accommodations to that community.

This principle has provided Canada's Indigenous nations with unprecedented leverage. While in most cases they cannot formally veto a proposed project from proceeding, the requirement to consult and accommodate can give rise to court challenges for failure to do so, and if successful such challenges can result in a quashing of permits, pending the fulsome fulfilment of the obligation. The geographic scope of this...