Tsilhqot’in decision fuels uncertainty in Ontario – by Alisha Hiyate (Mining Markets – July 11, 2014)

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‘Every treaty in Ontario is about to be challenged’

The Supreme Court of Canada’s recent Tsilhqot’in decision will have a ripple effect across Canada and could deter resource investment in the country, according to Neal Smitheman, a partner at law firm Fasken Martineau.

The decision, released on June 26, gave an aboriginal group in British Columbia aboriginal title over lands for the first time in Canada.

Aboriginal title means the group has a collective ownership of the land and the right to profit from its use, including mining and forestry, and the right to decide how the land is used.

The ruling has huge implications in B.C., where there are few settled land claims, but even projects in Ontario, where most of the province is covered by treaties, could be affected.

The decision is likely to inspire legal actions across the country as historic treaties are compared with the landmark ruling, which granted the Tsilhqot’in aboriginal title over a huge swath of land.

“From what we’re hearing, every treaty in Ontario is about to be challenged by First Nations,” said Smitheman in a presentation this week.

Although that doesn’t mean the treaties will be easy to reopen, it does mean a long legal road ahead to get things sorted out and before the resource industry will have the certainty it needs to make investments.

It also means that some of what is now treaty land in Ontario – where technically only consultation with aboriginal groups is required – could become aboriginal title land when the dust settles.

Smitheman sees aboriginal groups challenging existing treaties on the basis of a reinterpretation of the language they contain, or on the basis of “improvidence.”

On the first point, Smitheman noted that all of the treaties in Ontario include similar wording that allows the province to expropriate or “take up” lands. For example, Treaty 9, which covers a vast tract of land in northern Ontario that includes the Ring of Fire, says that the aboriginals covered by the treaty “cede, release, surrender” to the government all rights to the lands in question in return for exclusive rights on reserve land. They retained the right to hunt, trap and fish on the surrendered lands “saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading and other purposes.”

Smitheman expects First Nations groups will argue that to the aboriginal leaders that signed the treaty back in 1923, words like surrender and cede had a different meaning.

“There’s going to be an attempt to interpret the treaty to mean there was a sharing – not a surrender, but. . . a sharing of resources and a sharing of the land.”

Any court challenge to existing treaties will be subject to a contextual analysis, Smitheman says, meaning that the courts won’t look only at the strict wording of the agreement, but will attempt to put it in the context of the time it was signed, and to make a determination of what the parties thought they were getting.

In other court cases dealing with aboriginal rights, contextual analysis has required a thorough and often lengthy historical review of documentation in and around the time of the treaty, as well as many weeks of testimony from archeologists, anthropologists and the like.

Smitheman also sees treaties being challenged on the basis of improvidence, which has to do with unfairness or an inequality of bargaining power.

Aboriginal groups could use the Tsilhqot’in decision – which granted the Tsilhqot’in aboriginal title to 1,750 sq. km of land – as evidence that treaties such as Treaty 9 were improvident.

In exchange for giving up vast tracts of land in Ontario, treaty aboriginals got small reserves and exclusive rights within those reserves.

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