Resource World Magazine

10 www.resourceworld.com D E C E M B E R / J A N U A R Y 2 0 1 5 CANADA'S MINING INDUSTRY has been on edge recently and it has little to do with the ongoing volatility in commodity prices. Two recent Supreme Court of Canada deci- sions dealing with aboriginal title and treaty rights have generated a lot of atten- tion, not just in the media, but also behind the scenes in mining and investment circles across the country and abroad. The most controversial is the land- mark Tsilhqot'in vs. British Columbia case released in late June when the court affirmed aboriginal title for six bands on about 1,700 km 2 of land in central BC. It's the first time the court recognized aborigi- nal title on a specific tract of land. A few weeks later, in the Grassy Narrows First Nation vs. Ontario case, the court confirmed that Ontario had the authority to allow mining, logging and other devel- opment on aboriginal treaty lands in that province. The community argues that rul- ing isn't a green light for clear-cut logging and that Ontario must still "meaningfully consult" and accommodate Grassy Narrows without impacting their rights. Both cases have stirred up anxiety in the resource industry around control over land where aboriginal title or treaty is claimed. For the mining industry, unfor- tunately, this uncertainty comes at a time when companies are already struggling with lower commodity prices and some deterred investors. The concern over the recent court cases isn't so much driven by the actual rul- ings, but instead by perception around the impact they could have on exploration, development and mining, not just in BC and Ontario, but also across Canada. There are some false impressions about what the rulings mean. As a result of the Tsilhqot'in decision, for example, there is a misconception that First Nations with title rights now have a veto over development on their lands. There are fears that will stall develop- ment, and in turn, investment. That's even though the decision says exploration and development can still go ahead, just under certain conditions, including consent of First Nations. If there isn't consent, the government must prove a compelling reason, which includes a wider public pur- pose, to infringe on aboriginal title. the sky is not fallinG There's a misunderstanding that the recent court rulings are negative for the mining industry, even though most companies, governments and First Nations don't nec- essarily see it that way. Consider the reaction to the Tsilhqot'in case after the judgement was released. Author and former BC politician, Gordon Gibson, argued in a Globe and Mail column that the Tsilhqot'in decision marked "a very dark day" for BC's econ- omy and a "new era of chaotic jockeying" between governments, First Nations and resource companies. Judith Sayers (Kekinusuqs), a lawyer from the Hupacasath First Nation in Port Alberni, BC, responded by calling such musings "ridiculous and avoidable." "The sky is not falling and this is not a dark day for the economy of BC," she wrote in The Tyee. Sayers urged industry and government to consult with First Nations early and often if they want to pursue development on their land. "First Nations peoples are not to be feared, but valued for their role in this country," Sayers wrote. "Companies, this means you start with the First Nation, treat them like the govern- ments they are, respect their jurisdictions, rights and title. Business can proceed, just in a different way than you have been used to." Robin Junger, a lawyer specializing in aboriginal affairs and BC's former deputy minister of energy, mines and petroleum resources, wrote in the Financial Post that the Tsilhqot'in case is "not a 'game changer' that will undermine govern- mental authority or the ability to approve projects in the resource sector." While the decision is historic and sig- nificant for the Tsilhqot'in people, "it simply does not represent a fundamental advance for the law of aboriginal title," Junger wrote. Thomas Isaac, leader of the Aboriginal Law Group at Osler, Hoskin and Harcourt, took it one step further, arguing that both court decisions affirm it's up to governments to balance aborigi- nal and non-aboriginal interests. FIRST N AT i O N s Miners should be at ease with recent aboriginal court rulings by Robert Simpson Left, Francis Quock, and Kory Carlick, members of the Tahltan Nation in northwestern British Columbia. Photo submitted.

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