How Much Does Canada Spend to Litigate Aboriginal Rights and Title?

I recently came across the attached magazine from the year 2000.  It highlights some of the billions of dollars spent by Canada going to court against First Nations.  I knew that spending had to be significant but whoa.....billions?

It just blows my mind to think that if that was the volume of spending by Canada in the year 2000, where is it at now?  What kind of success rate is there? And what is in the queue? 

It seems to me that the Supreme Court of Canada keeps telling governments the same thing repeatedly about lands that have unresolved aboriginal interests. (ie: “Crown” Lands).  Court cases such as Calder (1973), Delgamuukw (1997), Haida (2004) and Tsilhqot’in (2007) have all underscored the following

  1. Aboriginal title to lands existed before the arrival of colonizers and continues thereafter
  2. This includes the right to decide what happens on our lands, therefore:
    • Aboriginal people must be consulted and accommodated
    • Aboriginal interests in lands have an inescapable economic component
  3. Courts will overturn government decisions if these principles are disregarded

While Governments are learning that they can’t actually do what they want when it comes to Crown lands, the other part of this reveals that some resource extraction companies, shareholders and their financers don’t appear to have fully grasped the gravity of this situation either.  While I have heard of several situations where companies have made efforts to protect their significant investments by choosing to engage First Nations meaningfully, I also see plenty of situations where this isn’t happening.

Governments, resource industries and banks are risking their reputations, credit ratings, shareholders money and quite possibly damages by choosing to move forward without regard for certainty of the land.  I thought that “Ignorance of the Law” wasn’t a valid defence? 

So, why the blatant disregard for common law and the explicit direction established by the highest courts in Canada?  Is this just a calculated risk?  Are these risks being disclosed to the credit agencies that are in charge of rating countries?  What about the international business community? 

While the drones of Indigenous protest usually accompany just about any decision to exploit non renewable resources in indigenous traditional territory.   Some have suggested that most governments and businesses are well aware that many First Nations lack the finances to bring about long and costly court challenges.

So what can we do?  Since it appears that despite a court ordered obligation to consult and accommodate indigenous communities, many governments will continue with their status quo patterns of doing business and reaping the profits. 

While I don’t pretend to know how to effectively combat these disturbing trends, I also know that complacency doesn’t help much either as Indigenous people and their basic human rights have been largely been denied the world over in the name of development.

Although...

  • Some First Nations have put governments and business in their territories “on notice” by openly disseminating traditional maps and histories of their territories. These communities have found ways to keep this information out there by press release/conference and/or letters and meetings with government, business and media.  This makes it more difficult to claim the ignorance defence.

 

  • Official gathering, compiling and organizing oral history, evidence and written documentation about indigenous activity in traditional territories.  Governance systems, protocols for conduct, economic activity, trading, ceremonial activity, traditional harvesting etc. The more the better, from as many different sources as possible.  The landmark Tsilhqot’in case (2007) was largely supported by days and days of testimony from elders describing just about every square inch of their territory.

 

It appears that having a plan to go to court is also a good backup.  While it won’t likely stop governments from dedicating untold billions of revenue to the cause of defending themselves, at least there is some encouraging precedent in the common law.

 

 

Latest Opportunities

Tsleil-Waututh Nation
July 19, 2019
First Nations Financial Management Board
July 19, 2019
Kwakiutl Indian Band
July 18, 2019

Advertisements