Issue link: http://resourceworld.uberflip.com/i/517266
j u n e / j u l y 2 0 1 5 www.resourceworld.com 7 [33] "…we do consider that the appeal was of exceptional public importance, and that consideration must be given to award- ing the plaintiff costs even though he was unsuccessful." [37] "The extent to which Aboriginal title exists is of fundamental importance to British Columbians. The issue is, of course, of particular interest to First Nations and to governments. It is also, however, of par- ticular importance to the economy of the Province, given the continued importance of resource industries, which operate, for the most part, on lands that are subject to title claims by First Nations." It's obvious from these excerpts that First Nations had already arrived at the summit of BC land-rights assertions (even before the Supreme Court of Canada weighed-in) as the cost award also stated…the development of jurisprudence in the area is of critical pub- lic importance. Then came the Supreme Court of Canada's reversal, along with its expanded declaration on Tsilhqot'in Aboriginal title that would forever change the land ownership equation in BC. Here's the key wording from Canada's Chief Justice speaking for the unanimous court: [66] I conclude that the trial judge was cor- rect in his assessment that the Tsilhqot'in occupation was both sufficient and exclusive at the time of sovereignty. There was ample direct evidence of occupation at sovereignty, which was buttressed by evidence of more recent continuous occupation. [70] The content of the Crown's underlying title is what is left when Aboriginal title is subtracted from it…Delgamuukw [aka Earl Muldoe, First Nations member] estab- lishes that Aboriginal title gives "the right to exclusive use and occupation of the land …for a variety of purposes", not confined to traditional or "distinctive" uses…In other words, Aboriginal title is a beneficial inter- est in the land…In simple terms, the title holders have the right to the benefits associ- ated with the land – to use it, enjoy it and profit from its economic development. As such, the Crown does not retain a beneficial interest in Aboriginal title land. [76] The right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders. If the Aboriginal group does not consent to the use, the government's only recourse is to establish that the proposed incursion on the land is justified under s.35 of the Constitution Act, 1982. Thus, many former legal concepts are now going to have to be recalibrated, and the best way that I've heard this put, is to quote a CEO of a major BC resource player who (after I had presented to senior man- agement) opened with: "Today we know that Crown land is no longer Crown land as we formerly understood it." That in a nutshell, is the best and most accurate assessment to date from the corporate side. While working on this article, the author asked AFN National Chief, Perry Bellegarde, to answer the question posed herein 'Who owns Canada's natural resources?' The question was put to him in light of his remarks made right after his election win, wherein he warned that it would no longer be business-as-usual when it comes to development on First Nations land. So now, with five month's traction in the top job, here's what the National Chief wants the Canadian resources sector to know: "A recalibration of power relations is taking place. This shifting of power is restoring First Nations to a place of pride and equality as peoples and nations with sovereignty in our traditional territories – whether covered by Treaty or not. We are not a third order of government or a municipal form of government. We are the first and sovereign peoples of this land and we continue to be the first holders of this land. There have been many, many court wins for First Nations in recent years. Canada's legal system is slowly but gradually mov- ing towards the standards required under international human rights law. At the international level, the United Nations recognizes First Nations as peo- ples with the right to self-determination. International law also recognizes our right to consent to major development projects and acknowledges that we enjoy perma- nent sovereignty over natural resources. Canada is obligated to respect, protect, and promote the governmental and property interests of indigenous peoples (as collec- tivities) in our natural resources. Shared sovereignty means we can no longer be treated as 'claimants' in our own lands. What we hold is what the Creator gave us. We do not hold 'grievances', we hold this land. Canada cannot have the development it seeks without us. Federal and provincial governments must recognize the reality of international law and constitutional law: there is shared sovereignty in this land – sovereignty shared between First Nations and federal and provincial governments. Shared sovereignty means shared decision- making and law-making, shared resource benefits, shared resource revenues. That change is nothing to be afraid of. It is an opportunity to work with the peoples that welcomed you and provided for you." It's clear from the National Chief's deployment of these key words and con- cepts ('first holders – right to consent – shared sovereignty – shared decision making – and shared resource revenues') that he sees his membership as being the gatekeepers on the road to resources. Given that the native legal winning streak in the courts broke the 200 mark in the same week as when he took office, it's hard to argue that the legal momentum is not on his side. Remarkably, the same week that the National Chief formulated his views for this article, the highest court in British Columbia issued an important ruling that was strongly supportive of First Nations title and rights, and specifically their abil- ity to access the legal system to further their objectives: