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Friday, October 17, 2008

Native treaties no cure for business anxiety

"... a treaty, however specific and whatever it might say, does not relieve governments of the duty to consult and accommodate aboriginal interests."

VANCOUVER -- For 24 years, Yukon and the Little Salmon/Carmacks band dickered over the terms of a comprehensive treaty that would settle, once and for all, the band's claims on Crown land in the territory.

A comprehensive and incredibly detailed treaty was signed in July, 1997, in which the band surrendered its aboriginal rights, title and interests. Signed and sealed, that treaty gave Yukon - and by extension, any business operating in the territory - certainty around aboriginal rights and Crown land.

Or so Yukon thought, until a stunning decision from the Court of Appeal for the Yukon Territory that has sweeping implications for governments and businesses right across Canada. In that unanimous decision, the court says a treaty, however specific and whatever it might say, does not relieve governments of the duty to consult and accommodate aboriginal interests. "The inescapable conclusion to be drawn ... is that the honour of the Crown and a duty to consult and accommodate applies in the interpretation of treaties and exists independent of treaties."

This is worrisome stuff for B.C. business, which has been hoping the treaty process would dispel the air of uncertainty that clouds resource development in the Interior. The Crown's constitutional obligation to first consult and then accommodate aboriginal concerns has slowed, altered and even cancelled project after project in the ever-elastic notion of a band's "traditional territory." The hope had been that a treaty, with clearly defined rights and duties on both sides, would clear the way for business, freeing some parts of the province from the worthy, but often interminable, process. If this judgment holds, that hope is dead.

But it is even more significant for the rest of Canada. From the vantage point of Eastern Canada, it's been easy enough to suppose that negotiating over aboriginal concerns was a B.C. problem - after all, treaties were signed in Ontario, Quebec and the Atlantic provinces in the 1700 and 1800s, for the most part. However, the decision is clear: Treaties of long and good standing are no barrier to aboriginal demands that their concerns be listened to, and taken into account (which often ends up meaning compensation).

A quick review of that Yukon case is in order. The government's position was simple: The band explicitly surrendered all undefined rights to Crown land in its traditional territories as part of the agreement. In return, they were given title to settlement land, a payment of $34.1-million, the ability to share royalties and a slew of other compensation measures. The agreement even spelled out exactly what consultation meant, and detailed 67 instances in which consultation would be required.

So, the Yukon government could be forgiven for thinking it did not have to consult the Little Salmon/Carmacks band when Larry Paulsen applied in the fall of 2001 to build a farm on 65 hectares of Crown land. However, that land also formed part - one-third of 1 per cent, to be exact - of a vast trapping area granted to a member of the band. Although such a situation did not fall within the explicit wording of the treaty, the court found that the government had a duty to consult with the band, and had failed to do so.

That would seem to violate a fundamental tenet of contracts: once you strike a bargain, you can't start unilaterally inserting new demands and rights into the agreement.

But forget that notion of a land-claims treaty as a kind of commercial contract, says Paul Wilson, a partner at Fasken Martineau in Vancouver, who has deep expertise in negotiating with aboriginal bands.

The Yukon decision scraps that idea, instead stating that a treaty is just one step in the process of reconciliation with aboriginal bands. "It doesn't settle everything. It's a start," Mr. Wilson says.

What does this mean for business in B.C. and beyond? First, there is no border within Canada when it comes to ensuring that governments listen to and act on aboriginal concerns about economic activity that encroaches on traditional lands.

Even more important, business can abandon the hope that, some day, the uncertainty surrounding aboriginal land claims in Canada might be resolved.

The one certain thing is that, negotiate what you want, sign what you will, there will not be an end to the imperative for government and business to secure the consent of aboriginal Canada.

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My Canada includes rights of Indigenous Peoples.

Two Row Wampum Treaty

Two Row Wampum Treaty
"It is said that, each nation shall stay in their own vessels, and travel the river side by side. Further, it is said, that neither nation will try to steer the vessel of the other." This is a treaty among Indigenous Nations, and with Canada. This is the true nature of our relationships with Indigenous Nations of 'Kanata'.