Is Innu's Supreme Court win really a disaster for Canadian industry?

Published by MAC on 2015-11-18
Source: Fraser Institute, First Peoples Law Corporation

Unprecedented aboriginal title court decision exposes private parties to litigation previously only brought against governments

Fraser Institute - http://www.mining.com/web/unprecedented-aboriginal-title-court-decision-exposes-private-parties-to-litigation-previously-only-brought-against-governments/?utm_source=digest-en-mining-151117&utm_medium=email&utm_campaign=digest

17  November 2015

An unprecedented Supreme Court decision, allowing two B.C. First Nations to file for damages against aluminum industry giant Rio Tinto, could have dire implications for economic development projects across the country, concludes a new study released today by the Fraser Institute, an independent, non-partisan Canadian public policy think-tank.

The study, Economic Development in Jeopardy? Implications of the Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Decision, spotlights the October 2015 Supreme Court decision to uphold a BC Court of Appeal ruling that paves the way for First Nations to file for damages against private parties (ie: companies, individuals or non-government entities) without proving aboriginal title first.

“Simply claiming aboriginal title is now enough to bring forward litigation against private parties — litigation that was previously only brought against provincial and federal governments,” said Ravina Bains, study author and associate director of aboriginal policy studies at the Fraser Institute.

The case involves Rio Tinto’s Kenney Dam which has operated for more than 60 years on the Nechako River in northeastern British Columbia.

The Saik’uz and Stellat’en First Nations, who have not proven aboriginal title to the land in question, claim the dam is causing significant environmental harm to the river and thus negatively affecting their fishing resource.

The Supreme Court upheld the earlier B.C. Court of Appeal ruling that the two First Nations could move forward with the complaint asserting—for the first time—that aboriginal title does not have to be proven before bringing a claim against a private party for damages.

According to the study, the court decision will not only put established projects at risk, but put a chill on new economic development projects and create further uncertainty for First Nations pursuing clarity on aboriginal title.

“Previous claims of aboriginal title have always been brought against the Crown yet this unprecedented ruling exposes private parties to litigation even when, like in Rio Tinto’s case, the private company is operating under provincial government license on land it bought from the government in the 1950s,” Bains said.

“With an increase in litigation, this ruling could put all current and future economic development projects in jeopardy especially in provinces such as British Columbia where more than 100 per cent of the province is currently under claim by First Nations.”

Media Contact: Aanand Radia, Media Relations Specialist, Fraser Institute, (416) 363-6575 Ext. 238, aanand.radia@fraserinstitute.org

The Fraser Institute is an independent Canadian public policy research and educational organization with offices in Vancouver, Calgary, Toronto, and Montreal and ties to a global network of think-tanks in 87 countries. Its mission is to improve the quality of life for Canadians, their families and future generations by studying, measuring and broadly communicating the effects of government policies, entrepreneurship and choice on their well-being. To protect the Institute’s independence, it does not accept grants from governments or contracts for research. Visit www.fraserinstitute.org

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The Case for Denying Indigenous Rights

By Bruce McIvor

http://www.firstpeopleslaw.com/index/articles/210.php

November 2015

Denial is cumulative.

It has a beginning. At a certain time in a certain place a decision is made to ignore someone else’s existing rights. There’s resistance. The true rights-holders fight back. But advantage is taken. Protest is suppressed. Wealth and power grow. For the dominant society, as denials accumulate injustice fades from sight. The status quo emerges. Calls for justice are denigrated and ridiculed.

Resistance persists.

Prodded by the children of those who witnessed denial at its conception, the courts assume the role of archaeologists. Layer upon layer of indignity is scraped away. The underlying lie is revealed.

A choice emerges.

Acknowledge the original wrong, apologize and commit to making amends or double-down on denial. As the excavation work continues and politicians slowly respond to the colonizing society’s unease with the basis for its comfort and privilege, denial’s voice becomes increasingly apocalyptic.

Writing in the Globe & Mail, Tom Flanagan, a former Harper advisor, recently declared that the new Liberal federal government’s intention to implement the United Nations Declaration of Indigenous Peoples has “great potential for mischief….”

According to Flanagan, recognizing the UNDRIP principle of free, prior and informed consent is a recipe for economic ruin because Indigenous land rights in Canada are poorly defined, some Indigenous People might consider consent to be a veto and because without the threat of expropriation Canadian governments will have a hard time building long-distance corridor projects (e.g. pipelines, railways, highways and power lines).

Flanagan’s message is clear: implementing UNDRIP is dangerous because it is contrary to Canada’s and the provinces’ long established policy of denying Aboriginal title, rights and Treaty rights.

The Fraser Institute, which describes itself as communicating the effects of government policies and entrepreneurship on the well-being of Canadians and is described by others as a propaganda outfit for “well-fed libertarians, conservatives and reactionaries” has also warned of economic disaster on the horizon.

In a report ominously entitled “Economic Development in Jeopardy?”, it warns that the recent Saik’uz decision from the British Columbia Court of Appeal threatens to open the door for Aboriginal title litigation against private companies.

The report’s primary complaint is that the Court’s decision extends to First Nations the same legal right that has always been enjoyed by corporations and non-Indigenous people: they can sue others based on an alleged interest in land but have to prove the interest as part of the trial.

Denial’s argument is simple.

Having based a national economy on the oppression of Indigenous Peoples’ legal rights, the consequences of changing course are potentially catastrophic. Better to damn the torpedoes and count on the resurgence of the denial agenda. Or, at the very least, work to impede the re-establishment of Indigenous rights and jurisdiction until the dams and pipelines are built, the oil extracted and the rivers and lakes destroyed.

The case for denying Indigenous rights rests on colonialism’s inertia. Its strength is fear and self-interest. Its weakness is a growing awareness that while Canada preaches the rule of law, justice and fairness abroad, the country’s wealth and privilege originates with an overarching historic wrong.

Denial has a beginning. Hopefully, it also has an end.

Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation.