ABORIGINAL ISSUES: ACHIEVING CERTAINTY (2007) In British Columbia, the biggest issue for the business community arising from aboriginal claims is uncertainty.
The Fraser Institute Annual Survey of the Mining Industry 2006/2007 not only ranked British Columbia as the worst jurisdiction in Canada with respect to whether “Uncertainty Concerning Native Land Claims” would deter investment, but found that it was almost the worst place in the world on this measure, ranking 63rd out of 65 jurisdictions considered, ahead of only Zimbabwe and Bolivia.
Businesses operate best in a stable and predictable environment, where rights are certain and are protected by the rule of law. The root of the uncertainty in British Columbia is that various aboriginal groups claim rights of ownership or control over virtually all of the Crown Land in the province. As a consequence, many activities that businesses carry on, or would wish to carry on, with the permission of the Crown, may be seen as impacting in some way on these asserted aboriginal rights.
It is clear that aboriginal rights and aboriginal title still exist in the province, and are protected by the Constitution but, in most instances, the extent of aboriginal rights is unclear, while the extent of aboriginal title remains completely unknown.
Certainty concerning the extent of aboriginal rights and title will most likely be achieved by two methods running in parallel – that is, by a combination of court determinations resolving asserted aboriginal rights and title claims, and by negotiations culminating in final settlements in the treaty process. However, achieving certainty concerning the extent of aboriginal rights and title in the province will take a very long time.
The challenge for government is to create an environment in this province which will allow businesses to operate successfully and competitively – and with certainty – for the foreseeable future, while the resolution of the aboriginal rights and title issues is still underway.
The most important recent decision for the business community concerning aboriginal rights issues is still the November 2004 decision of the Supreme Court of Canada in Haida.
The Haida decision – and the companion Taku decision – addressed the process the Crown should follow in granting licences and rights which might affect unproven but asserted claims to aboriginal rights and title.
The key finding of the Supreme Court of Canada was that the Crown has a duty to consult with aboriginal groups who have not yet established their rights, before granting licences or permits that might affect their asserted rights and, in some circumstances, the Crown has a duty to “accommodate” those aboriginal groups.
The Court made it clear that the duty was one owed solely by the Crown, and not one shared with the industry applicant, as had been found by the Court of Appeal.
The Court described the nature of the consultation required as being on a sliding scale based on an assessment of the strength of the aboriginal claim and the impact of the proposed activity on the asserted aboriginal interest.
The Court also commented on “accommodation”, describing it as a process of trying to harmonize the competing interests of development and the wish to protect aboriginal interests, and did not endorse the province’s practice of paying money as a requirement of “accommodation” before aboriginal rights had been established.
A very interesting part of the decision was a statement by the Court that the province could establish a regulatory scheme to address the obligations of consultation. In effect, the highest Court in Canada advised the province that if it set up a fair process for consultation, and followed that process, then the courts would uphold the decisions that emerged from that process.
At this time, from the perspective of the business community, the consultation process is a black box with no rules. This is a major factor in creating the sense of uncertainty about aboriginal issues for people doing business, or wishing to do business, in the province. Achieving certainty with respect to the process of aboriginal consultation – with guidelines, timelines, and outcomes that can be relied on – is of critical importance to the business community.
In March of 2005, the province developed the New Relationship with the three largest aboriginal groups in the province. The New Relationship includes seven action plans, two of which are:
• To establish effective procedures for consultation and accommodation; and
• To negotiate agreements for resource revenue and benefit sharing with the aboriginal people of the province.
The Chamber endorsed the New Relationship process and joined in a letter of support to the New Relationship Management Committee in November of 2005. That letter confirmed the importance that the business community placed on developing certainty around the consultation process.
In 2006, The Chamber worked with a group of major business and industry associations to develop a document entitled “First Nation Consultation and Accommodation: A Business Perspective ” which identified the concerns of the business community with the lack of rules regarding consultation, and which set out a proposal to create certainty around the process. This document was submitted to the New Relationship Management Committee on January 19th, 2007.
However, despite the recommendation of the Supreme Court of Canada in November of 2004, the commitment of the province to do so in the New Relationship document, and the repeated requests of The Chamber and other business associations, as of the spring of 2007 the provincial government had not taken any apparent steps towards accomplishing an effective process of consultation, and it is not clear that it will in the near future.
In its 2007–2008 service plan, the Ministry of Aboriginal Affairs and Reconciliation has adopted an objective in that it “foster engagement with aboriginal people in government decisions that impact aboriginal communities”, and that it achieve this objective by the “implementation of a new effective consultative and accommodation framework for government ministries”. There is no explanation of what would constitute such a framework, nor was there, in the spring of 2007, any obvious effort by the government to meet that objective.
As of the spring of 2007, the consequence of the province’s failure to establish an effective process for consultation, combined with its failure to enter into agreements with aboriginal groups concerning revenue sharing, is that with increasing frequency, the required but completely uncertain consultation process is being used as a tool by aboriginal groups to negotiate revenue sharing arrangements directly with private enterprise applicants who need a government approval to get on with their business. In order to expedite the consultation process, entrepreneurs wishing to carry out business activities on Provincial Crown Land, or who require permits or licences issued by the Crown to carry on their businesses, are being required to enter into economic arrangements directly with aboriginal groups. These arrangements are not based on any principle except expediency, but set precedents for others throughout the province.
How the resource revenues and tax base of the province should be shared between the Crown and the aboriginal people ought to be a matter of government policy, and not developed as a consequence of individual arrangements between aboriginal groups and businesspeople based on self-interest and pragmatism because the government failed to develop an effective consultation process.
THE CHAMBER RECOMMENDS
That the federal government work with the provincial and territorial governments to:
- develop and implement an effective scheme for aboriginal consultation that will make the consultation process certain and efficient for the business community; and
- work with the aboriginal people of the province to reach agreements for resource revenue and benefit sharing
.
