Commentary: The Tsilhqot’in decision – a view from Quebec

On June 26, 2014, the Supreme Court of Canada recognized for the first time a First Nation’s aboriginal title over an area outside a reserve in Tsilhqot’in Nation vs. British Columbia.

Since then much has been written on whether the decision would have an adverse impact on natural and infrastructure development across Canada, with some columnists and think tanks being alarmed at the consequences the decision may have on projects.

In Quebec, the decision has been taken in stride by government and business. It is now generally accepted in Quebec that natural resource and infrastructure development requires local acceptance, particularly north of the 49th parallel in the territory covered by the Plan Nord. As such, Quebec is emphasizing consensus building and, in the final analysis, a sharing of the benefits of development.

In this light it is expected that the Tsilhqot’in decision will have the following limited consequences in Quebec:

1. Claim expansion — The Tsilhqot’in case clarifies the criteria for recognition of aboriginal title over an area. These criteria are more culturally sensitive and better reflect the manner in which territory was historically occupied by First Nations. As a result it is expected that claims will cover larger areas, including submerged lands and maritime areas (see for example the recent statements made by First Nations in Halifax over Gulf of Saint Lawrence areas, including the Old Harry offshore oil area).

2. Stronger duty to consult and accommodate — The Supreme Court previously held that the duty to consult and accommodate First Nations interests on land over which aboriginal title or rights are claimed increases or decreases depending on the strength of the claim. The more serious the claim, the more onerous is the duty to consult and accommodate. The Tsilhqot’in decision should strengthen many claims and as such impose on governments a stronger duty to consult and accommodate.

3. More comprehensive territorial agreements — In previous decisions the Supreme Court placed the burden of negotiating comprehensive treaties and territorial agreements on governments. At this time Quebec has comprehensive territorial agreements with the Crees, Quebec’s largest First Nation. Three Innu First Nations are currently negotiating with Quebec: the Mashteuiatsh, the Essipit and the Natashquan. Quebec hopes that others will follow. Quebec views these agreements favourably as they appear to have been generally beneficial for all concerned.

— Based in Montreal and qualified to practice in Quebec and Ontario, Erik Richer La Flèche is a transaction lawyer at the law firm Stikeman Elliott. He has advised corporations, lenders and governments on M&A transactions and large capital projects (e.g. infrastructure, mining, energy and electricity) in more than 35 countries.

Since 1999 he has been a founding shareholder, director and investment committee member of Cordiant Capital Inc., an adviser to funds lending to emerging-market private sector corporations. He is also co-head of the India, Japan and P3 Practice Groups and a member of the Energy and First Nations Practice Groups.

Stikeman Elliott is one of Canada’s leading business law firms, with core practice areas of corporate finance, M&A, real estate, corporate-commercial law, banking, structured finance, tax, insolvency, competition and foreign investment, employment and business litigation. See www.stikeman.com for more details.