The new law and how to do business within it: Paradigm shift inside the recent the Tsilhqot’in and Grassy Narrows Supreme Court of Canada decisions
First Nations, international and domestic organizations all need to understand the new realities, opportunities and challenges for conducting business on Aboriginal title land and treaty territory.
The Supreme Court of Canada confirmed the existence of exclusive Aboriginal title for the Tsilhoqot’in people of the interior of BC and in doing so also clearly outlined a road map for other First Nations across Canada seeking recognition of their title rights. This road map developed a three part occupancy test of “Sufficiency, Continuity and Exclusivity” which if successfully proven, sweeps away an underlying Crown Interest in the land and requires “consent” from the First Nation aboriginal title holder for any party wishing to use the Aboriginal title territory.
The successful First Nation Aboriginal land title holder has extensive possession and ownership rights including the right to decide the land use; the right to profit from its economic development and the right to pro-actively use and manage the land. For entities wanting to conduct business on these Aboriginal title lands it means that there is an early obligation to provide full and fair consultation, accommodation with the goal of obtaining the Aboriginal land title holder’s consent to engage in the business activity.
Likewise within weeks a second decision was rendered from the SCC concerning the use of treaty lands. The court examined lands in Ontario under treaty number 3 wherein the Grassy Narrows First Nation challenged the issuance of provincial forestry licences. The SCC ruled that Ontario had the authority to “take up” the lands and that the federal government did not need to be involved. Citing its recent Tsilhqot’in case it reinforced the requirement for “consultation” and if appropriate “accommodation” for First Nations in a manner consistent with the honour of the Crown.
Crown infringement of treaty rights (like the issuance of resource development/harvesting leases on treaty lands) will require the Crown to act in a manner consistent with the fiduciary relationship between the Crown and the Treaty rights holder.
For organizations seeking to conduct business on Aboriginal title lands or treaty lands or currently conducting business on these lands, the rules of the relationship have shifted, clarified and at the same time placed an obligation for business to understand and correctly apply the legal concepts of “consultation”, “accommodation” and “consent”.
Whether your organization seeks to do business with First Nations or you are currently in a business relationship on these lands, you need to know how to strengthen that business relationship to ensure mutual long-term prosperity. The law firm alliance of Garwill Law Professional Corporation and Woods LaFortune LLP is strategically placed to assist both foreign and domestic businesses, by guiding your business through not only the SCC requirements but also understanding the need to develop and grow healthy relationships with First Nations that start with respect and cultural understanding of the link between the people, culture, language, history, and use and enjoyment of the land for future generations while accommodating sustainable development of the land.
These cases will affect business, trade and investors seeking to do business on First Nations’s land. To discuss the implications of the Tsilhquot’in decision and the impact it may have on your business or investment contact us and we will be pleased to assist you:
*This article and other publications on our website are provided as general information and commentary and is not intended as or to be relied upon legal or policy advice.