The masterly-crafted ruling penned by the Chief Justice, released Thursday by the Supreme Court of Canada, lays out the evolution of aboriginal rights law from one side of the country to the other. The implications for resource development are extensive.

Before Thursday’s game-changing ruling from the Supreme Court of Canada, imbuing the Tsilhqot’in Nation with Aboriginal title to their homelands in central British Columbia, the following passage represented the last word in this matter from the B.C. Court of Appeal, foreshadowing the legal reality now at hand.

“It is also, however, of particular 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,” read the Court of Appeal ruling.

Northern Gateway pipeline approved with 209 conditions

The federal government has agreed to let Enbridge build its Northern Gateway pipeline, subject to 209 conditions recommended by the National Energy Board and further talks with aboriginal communities. (CBC)

The SCOC ruling arrived mere days after the Northern Gateway Pipeline received cabinet approval.

In fact, it’s the 10th resource decision in B.C. since the Eyford Report was presented to the Prime Minister some six months ago.

In that compressed time span, natives have won eight out of those 10, including injunctions, forestry, mining, fishing, land use plans, reserve additions, legal costs and aboriginal title.

Legal precedents, key excerpts

The legal precedents are plenty, highly consistent and very compelling, such that this latest outcome should take no one by surprise. Here are key excerpts once Aboriginal title is recognized:

  • [70] … In simple terms, the title holders have the right to the benefits associated with the land - to use it, enjoy it and profit from its economic development. 
  • [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. 
  • These legal concepts apply only to the Tsilhoqot’in homelands, but the court’s logic will soon be brought to bear throughout other regions that mirror the factual on-the-ground situation: a) all of B.C. west of the Rockies b) eastern and central Quebec c) the Maritimes. (Land ownership has yet to be settled by treaty in these regions.)

This is the overwrought legal landscape awaiting pipeline proponents, hydro projects and the extractive industries who, in my opinion, have completely failed to properly weigh the legal clout wielded by B.C. First Nations.

That’s because project proponents are programmed to forge ahead, their lawyers showing the way in regulatory proceedings, their financial officers assuring analysts that it’s still business-as-usual. Nothing could be further from the truth!

This is not the time for project proponents to take the native empowerment movement for granted.

This game-changing aboriginal title ruling will now serve as a rallying point, with organizers ready to pounce on lead projects that have the temerity to proceed as if nothing of significance has transpired.  

There’s also a major alignment already in place between natives and eco-activists.

'A business-as-usual approach may well put these projects in peril. Better to dedicate six months to diplomacy, based upon the legal winning streak that natives have earned.' - Bill Gallagher

I’m recommending the provincial and federal governments together call for a six month "time-out" on proposed resource projects west of the Rockies and take this time to regroup and assess what moves towards reconciliation are in the national interest.

I believe resource proponents who barge ahead in the current environment (the climax of native empowerment) will be unwittingly "telegraphing" the message to native and eco-activist strategists that they are blind to the historic shifts playing out in B.C.’s resource landscape.

Thus, a business-as-usual approach may well put these projects in peril.

Better to dedicate six months to diplomacy, based upon the legal winning streak that natives have earned.

Both industry and government have a lot of catching up to do after years of denial.