For Canadian business, especially the resource and energy sectors, no other legal matter in Canada is more important or has more impact than Aboriginal law.
To help shed light on the current landscape with respect to Aboriginal rights and title, the apparent failure of the B.C. treaty process and attempts by governments to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), Business in Vancouver spoke with Tom Isaac, who is recognized as one of Canada’s foremost legal experts in Canadian Aboriginal law. He is a former chief treaty negotiator for B.C. and author of the textbook Aboriginal Law. He practises law with Cassels Brock & Blackwell.
Q: You are working on the sixth edition of your book Aboriginal Law. One can imagine a 10th and 20th edition. In Canada, Aboriginal law really is something of a never-ending story, isn’t it?
A: I used to say that we’re sort of midway through the book. Since the Tsilhqot’in decision on Aboriginal title in British Columbia, I’ve restated that now to say we’re not through the first chapter of the book. It doesn’t have an ending, and people have misled us by suggesting it should have an ending.
Q: What makes Aboriginal law in Canada so difficult?
A: We are one of a handful of states that have fettered the sovereignty of the state in their constitution in a way to protect Indigenous rights.
You will frequently hear comments about how Canada lags behind internationally, and there may be certain segments or elements of policy that do, but when you look at the legal regime overall, it simply is not accurate. Canada has offered more protection of Indigenous rights in its Constitution than any other state on the planet.
Q: The Federal Court of Appeal ruling on the Trans Mountain pipeline expansion found the government did an inadequate job on one of the phases of First Nations consultation and sent them back to the drawing board. What is your take on the ruling?
A: I’m not sure I would have come to the same conclusion. Even if I did come to the conclusion that there was a problem with a part of the consultation … the issue is, what’s the appropriate remedy? And in this case, the court found that the appropriate remedy was to throw the entire approval out. I think that was a rather drastic remedy, given the extensive consultation that had been done.
Q: The ruling suggests that not even the federal government fully understands the duty to consult.
A: I would say, for the most part, the consultation is not rocket science, and you need to make sure you have a feedback loop. And what the court commented on was that the feedback loop for First Nations on this phase was not as robust as it should have been.
It’s not as if the law was ambiguous. It’s the practice. That’s something governments have got to come to grips with. I’m dealing with governments in the Prairie provinces that just don’t consult, in some instances. And you might think, “Is that good for industry?” No. I’m acting for an industry client [that is] telling Prairie province X, “Can you please consult properly?”
Q: It seems industry has, in some cases, done a better job at First Nations consultations than government has.
A: Notice where the criticism was. It was outside the control of the industry. And it was outside even the control of the National Energy Board. It was at the highest levels of government.
Q: Some First Nations support projects like pipelines. Are their rights not being violated when they sign benefits agreements on projects that are then halted by other First Nations?
A: No, not really, because at the end of the day, they don’t have a right to have a project go ahead. They have a right not to have their rights adversely affected.
Q: A private member’s bill, Bill C-262, is now before the Senate that would require all Canadian laws to be harmonized with UNDRIP. You have a problem with that.
A: If that act comes into effect, as it’s currently drafted, Canada will be in breach of its own statute, and it will be always in breach of its own statute. It says every Canadian law will be interpreted in a manner consistent with UNDRIP. That’s an impossible standard, and I will stand by what I’m saying.
Q: There have been numerous legal landmarks with respect to Aboriginal rights and title over the past three decades. In your view, what was the single most important decision?
A: From a British Columbia perspective, it’s Tsilhqot’in. Title is not a problem for B.C. – the order of magnitude of title is a problem for B.C. Given that we’ve got over 200 First Nations in the province, and given that they all assert Aboriginal title, it is not far-fetched to ask yourself the question: Can you have a province that is governable with 200-plus First Nations holding some form of title?
It’s very difficult for me to get my head around: How can we solve this title issue with our province in a way that’s sustainable and still have a governable province? Is there enough land to do all the treaties in this province? Is there enough money? And what about those First Nations that don’t want to do a treaty?
Q: Speaking of treaties, the B.C. Treaty Commission is now 25 years old, and to date only three treaties have been implemented. Several final agreements were rejected by the First Nations themselves. Is the B.C. treaty process a failure?
A: I do not believe the treaty commission is a failure. I think treaties are good things. But my issue is, how much will it cost to have a treaty with every First Nation in British Columbia?
Expectations continue to rise. For many First Nations, I think they quite legitimately question what the value is of signing a treaty, given that if you don’t sign a treaty you are also able to get material benefits for your nation. I still think treaties are worth doing, but we don’t have to have this desperation.
What’s our game plan to govern the province without treaties covering everyone? For example, when Tsilhqot’in came down, there was no provincial strategy.
— Nelson Bennett, Business in Vancouver