BC Business
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B.C. is unique in Canada with its relationship with aboriginal people. It has the largest number of distinct groups, yet the smallest percentage of land subject to treaty negotiations. While the province and aboriginal groups argue over who has the right to control the territory, private companies seeking access to natural resources are landlocked in the middle of a fight that is not their own.
B.C. is unique in Canada in its relationship with aboriginal people. It has the largest number of distinct aboriginal groups of any province (almost 200), yet the smallest percentage of land subject to treaty negotiations. While the province and aboriginal groups continue to argue over who has the right to control the land, private companies seeking access to natural resources are caught in the middle of a fight that is not their own. Out of frustration, some resource companies are taking matters into their own hands, brokering their own agreements with aboriginal groups. A recent article in the Globe and Mail reported that NovaGold Resources Inc. had reached an agreement to pay the Tahltan Central Council $1 million a year, plus a royalty, for permission to develop a mine in northwest B.C. The article suggested this might become the standard for approximately 20 other potential developments that are still in the permitting process. Such deals offer an expedient solution to corporations and ready cash to aboriginal groups, but do nothing to resolve B.C.’s pitiable record of solving long-term land-claim disputes. These payouts are based on individual ad hoc decisions motivated by matters that may have nothing to do with legal principles or social policies. They may do nothing more than put a price tag on the ability of the aboriginal group to delay or disrupt the company’s business. If the province is ever to offer industry long-term certainty over access to natural resources, a stable framework for granting rights to lands and resources must be established. In recent years, there have been several significant milestones toward this goal but a lasting resolution remains elusive. In 1999, the Supreme Court of Canada’s Delgamuukw ruling established, in principle, that aboriginal title still exists in B.C., but it didn’t specify who has that right, or what land is affected. In 2004, the Supreme Court of Canada confirmed, in the Haida decision, that the Crown has a legal obligation to consult with aboriginal groups before approving an activity that might affect land subject to aboriginal claim. The court noted that the obligation to consult might also involve “accommodation.” (Some confusion remains over what is meant by that term.) The most tantalizing prospect for resolving the confusion over access to the province’s resources is the so-called “New Relationship.” In March 2005, a series of meetings took place between the province (represented by several senior officials) and the First Nations Leadership Council of B.C., formed from representatives of the three largest aboriginal organizations in the province. In April 2005, the provincial government developed its New Relationship document as a vision statement for future relations between the government and aboriginals. A management committee for the New Relationship was created. It included senior officials of the province and the Leadership Council. The business community initially endorsed the New Relationship and its goals. Of particular significance were two “action plans” in the New Relationship: a commitment to develop policies concerning resource revenue and benefit sharing, and a commitment to develop effective procedures for consultation and accommodation with aboriginal groups who might be affected by developments. On May 5, 2006, the province and the Leadership Council released a joint information bulletin setting out a “New Relationship Progress Report.” Unfortunately, it appears that in the first year of its operation, the management committee of the New Relationship has made little or no progress on the two “action plans” that are the most significant to the business community. For the foreseeable future, the most significant factor in determining how B.C.’s resources are shared may not be legal principles determined by the Supreme Court of Canada, nor a policy of revenue and resource sharing developed by the New Relationship management committee. Instead, access to resources could be determined by accommodation agreements developed on a case-by-case basis in private between business people and aboriginal groups, based on self-interest, expediency and pragmatism. For individual corporations, it solves the immediate problem at hand, and for aboriginal groups it means a handy sum of cash. But for B.C. as a whole, it only prolongs the history of failed attempts at a lasting resolution – a history that leaves this province far from offering industry clear and certain guidelines on land use.