The Business Council of British Columbia (BCBC) is welcoming the clarity provided by two landmark court decisions dealing with aboriginal title and the responsibilities of private interests.

The BCBC was part of a business intervenor group in both of the cases, which were heard by the Supreme Court of Canada. The court said last week that federal and provincial governments have a legal but limited duty to consult First Nations about use of land ensnared in unproven aboriginal claims.

“The business community has been eagerly awaiting these judgments and we’re pleased with the outcome,” said Jerry Lampert, president and chief executive officer of the BCBC. “This is a positive development as far as the investment climate is concerned. And it establishes a sound framework for relationships among government, First Nations and private interests in this province.”

The Supreme Court rulings dealt with resource development on lands where aboriginal title is claimed but not proven.

Wayne Chose, Business Edge
Haida Nation president Guujaaw, left, marks the Supreme Court decision on land consultation.

The B.C. Court of Appeal had ruled that private interests share what had previously been an exclusively governmental duty to accommodate aboriginal interests. The Supreme Court unanimously overturned that finding.

Lampert stressed, however, that business clearly recognizes the key role it has to play where First Nations consultations and accommodations are concerned.

“We believe this decision lays a foundation for us to play that role effectively and in a way that recognizes the often complex range of interests involved,” he said.

The Supreme Court ruled 7-0 that governments must seek native input and consider concerns about projects that could infringe even unproven aboriginal claims. But that requirement does not extend to developers, said the court.

It does not force governments to obtain the consent of affected bands.

The ruling is the high court’s first attempt to define what’s expected in such cases. Governments must consult First Nations in good faith, the court ruled in a logging dispute between the Haida of B.C. and forestry giant Weyerhaeuser. That obligation increases with the seriousness of the claim and the threat to native rights.

“However, there is no duty to agree,” wrote Chief Justice Beverley McLachlin for the court. “Rather, the commitment is to a meaningful process of consultation.”

In a related case, the high court ruled 7-0 that another B.C. First Nation was adequately consulted.

The Taku River Tlingit have been fighting a proposed mining project. But the Supreme Court ruled the band was included in a $10-million environmental assessment that satisfied the Crown’s duty to consult.

“As for aboriginal claimants, they must not frustrate the Crown’s reasonable good-faith attempts,” McLachlin wrote. “Nor should they take unreasonable positions to thwart governments from making decisions or acting in cases where, despite meaningful consultation, agreement is not reached.”

The rulings were welcomed by the provincial government. “We see this as a positive development for all parties – governments, First Nations and business,” said B.C. Attorney General Geoff Plant.

“This decision provides a clearer understanding of the rights and responsibilities of governments and First Nations, and will advance our work of building certainty.”

The provincial government said the decision emphasizes the need to commit to meaningful consultation but makes clear that the right to be consulted does not amount to a veto for First Nations.

“Consultation is hard work, and we are pleased that the court has specifically recognized that give and take is required on all sides, Plant said. “The decision should provide greater confidence for the investment community.”

The court decision will affect future resource development across Canada.

Much of the country and almost all of British Columbia is under some form of aboriginal land claim.

– with files from The Canadian Press