Issue link: http://resourceworld.uberflip.com/i/517266
8 www.resourceworld.com j u n e / j u l y 2 0 1 5 [54] The Nechako Nations plead that they exclusively occupied portions of the Central Carrier territory, including the Nechako River and lands along its banks, at the time of British sovereignty. If this alleged fact is true, the Nechako Nations would have Aboriginal title to those lands. Although this is not owner- ship in fee simple, Aboriginal title would give the Nechako Nations the right to possess the lands. It is therefore not plain and obvious that the Nechako Nations do not have suffi- cient occupancy to found an action in private nuisance. [66] As whatever Aboriginal rights the Nechako Nations may have are already in existence, it seems to me there is no reason in principle to require them to first obtain a court declaration in an action against the Province before they can maintain an action against another party seeking relief in reli- ance on their Aboriginal rights. As any other litigant, they should be permitted to prove in the action against another party the rights that are required to be proved in order to succeed in the claim against the other party. And to emphasize the point, the court added this comment – no doubt intended to silence legal naysayers – wanting to downplay the native legal winning streak: [68] Aboriginal people are part of Canada's community, and they should not be treated disadvantageously in comparison to any other litigant asserting claims for nuisance and breach of riparian rights. Setting a sepa- rate standard for Aboriginal people before they can sue other parties in order to enforce their rights is not only lacking in principle but could also be argued to be inconsistent with the principle of equality under the Charter of Rights and Freedoms. (author's underlining) Of course, these quotes do not declare that natives own Canada's natural resources; but what they do show, as the aforementioned CEO stated, is that Crown land is no longer Crown land as we for- mally understood it. The upshot of these clear-cut judicial pronouncements, for the mining industry, favors those proponents who already see First Nations as resource gatekeepers and who are prepared to engage in shared deci- sion making, shared revenue, etc. They will maintain their competi- tive advantage over those proponents who don't embrace the changing context around resource access. It used to be that providing jobs and training (and minimal) revenue sharing would suffice. But now treating First Nations as corporate project partners is clearly the way forward. The rise of native empowerment though their unprecedented legal winning streak has recast the definition of Crown land. It's been happening in plain sight but it's nothing less than a paradigm shift. n Bill Gallagher is a strategist, lawyer and author of Resource Rulers: Fortune and Folly on Canada's Road to Resources.