Tsilhqot'in Decision Q&A with Robert Janes JFK Law: Part 1

September 22, 2014

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The Supreme Court of Canada’s Tsilhqot’in Decision reverberated through First Nation communities, leaders, resource developers, provincial and federal governments, lawyers, consultants – basically every First Nation and every person involved in resource development in Canada. It is a complex decision and well beyond the comprehension of most laypeople. Fortunately, the Pacific Business & Law Institute, recognizing the need for clarification on the complexities of the decision, has brought together respected luminaries who will share their perspectives over two days during the “Tsilhqot’in Nation and Recognition of Aboriginal Title at the Supreme Court of Canada: Analysis & Impact”, October 7 & 8, in Vancouver, BC.

In advance of the two-day forum, we were privileged to have an interview with Robert Janes, Principle at JFK Law Corporation, who is chairing the Forum. This is the first of a two-part series on the Tsilhqot’in Decision. Please click here for Part 2.

Why is it important for people to attend this program?

The Tsilhqot’in decision is one of the most important decisions to come down in the last ten years. It is a complex decision with wide-ranging implications for Aboriginal law. There are subtleties to it that need to be understood and there is a wide range of perspectives it which should be heard. The two-day forum gives people a chance to digest the decision in pieces, and hear a wide variety of perspectives.

How does this decision change the landscape for Aboriginal people from BC?

We will see over time how it actually changes things. But, to my mind, it strengthens the hand of Aboriginal People in dealing with industry and government in that it recognizes a much broader and stronger right to their traditional territories than the government has been willing to recognize in the past. It also strengthens the law around the duty to consult and accommodate, it places a greater onus on the Crown that proper consultation occurs and creates greater risks for industry and government where that consultation has not happened. It also alters the relationships between First Nations throughout Canada and the federal and provincial governments; it makes it clear that while the provincial governments may have greater power than they thought, they also have greater duties and obligations.

For resource developers, how has the Tsilhqot’in Decision changed what companies need to do for resource development?

One of the most striking aspects of the case is that the court made it clear that if title is established, governments may have to revisit authorizations that have been made in the past. This means that companies are not only facing stronger rights to claims by First Nations that will have to be dealt with upfront, but if they fail to deal with those claims, the consequences can be felt by industry, not just by governments. For example, permits that a company may have thought were secure may turn out to be not as secure as they believed.

Have consultation requirements changed?

Two significant changes have occurred:

  1. Instead of merely discussing the honour of the Crown, the court has reverted to using the phrase “fiduciary duty” to describe the relations between First Nations and the Crown and the duty to consult. This suggests the court is taking a higher view of the duties imposed upon the Crown.
  2. While the court has not gone all the way in saying that consent is always needed, the court has made it clear that the purpose of consultation is to try to achieve consent, and not merely go through the motions, listen to concerns, and make unilateral decisions.

We think that this significantly strengthens the consultation process and imposes more onerous duties on the Crown even if the law is not formally changed.

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