THE TSILHQOT’IN DECISION: A VIEW FROM QUEBEC
Posted on July 22, 2014
On June 26, 2014 the Supreme Court of Canada recognized for the first time a First Nation’s aboriginal title over an area outside a reserve (Tsilhqot’in Nation vs. British Columbia, (http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14246/index.do).
Since then much has been written on whether the decision would have an adverse impact on natural and infrastructure development across Canada, with some columnists and think tanks being alarmed at the consequences the decision may have on projects (http://www.fraserinstitute.org/research-news/news/display.aspx?id=21572).
In Quebec, the decision has been taken in stride by government and business. It is now generally accepted in Quebec that natural resource and infrastructure development requires local acceptance, particularly north of the 49th parallel in the territory covered by the Plan Nord. As such, Quebec is emphasizing consensus building and, in the final analysis, a sharing of the benefits of development.
In this light it is expected that the Tsilhqot’in will have the following limited consequences in Québec:
- Claim Expansion: The Tsilhqot’in case clarifies the criteria for recognition of aboriginal title over an area. These criteria are more culturally sensitive and better reflect the manner in which territory was historically occupied by First Nations. As a result it is expected that claims will cover larger areas, including submerged lands and maritime areas (see for example the recent statements made by First nations in Halifax over Gulf of Saint Lawrence areas, including the Old Harry offshore oil area).
- Stronger Duty to Consult and Accommodate. The Supreme Court previously held that the duty to consult and accommodate First Nations interests on land over which aboriginal title or rights are claimed increases or decreases depending on the strength of the claim. The more serious the claim, the more onerous is the duty to consult and accommodate. The Tsilhqot’in decision should strengthen many claims and as such impose on governments a stronger duty to consult and accommodate.
- More Comprehensive Territorial Agreements: In previous decisions the Supreme Court placed the burden of negotiating comprehensive treaties and territorial agreements on governments. At this time Quebec has comprehensive territorial agreements with the Crees, Quebec’s largest First Nation. Three Innu First Nations are currently negotiating with Quebec, the Mashteuiatsh, the Essipit and the Natashquan. Quebec hopes that others will follow. Quebec views these agreements favourably as they appear to have been generally beneficial for all concerned: http://www.cbc.ca/player/News/TV+Shows/The+National/ID/2385270324/,