Troubled Waters—uncertainty around Aboriginal land claims

One of the most important policy issues that must be addressed by federal and provincial governments is the lack of land certainty and modern treaties in Canada. With governments failing to act, this issue is resulting in increased litigation and Supreme Court of Canada judgments that only increase uncertainty and negatively impact the Canadian economy.

How so?

Well, as a 2015 Fraser Institute study points out, there will be an increase in litigation against private parties in light of the Supreme Court’s Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto judgment. This 2015 landmark judgment opens up private parties, such as citizens and companies, to aboriginal rights and title litigation previously only brought forward against governments. The judgment allows First Nations communities to claim damages against a private party on traditional territory before proving that Aboriginal title exists on the territory.

This type of litigation will only add to the uncertainty of doing business in provinces such as British Columbia where there are few modern treaties and more than 100 per cent of the province is currently claimed by First Nations. In fact, we are already seeing the impact of this judgment on businesses operating in B.C.

For example, the Halalt First Nations recently filed a $2 billion civil case against a private pulp and paper company, Catalyst Paper, which has been operating for more than 50 years in Richmond, B.C., and the Tk’emlups and Skeetchestn bands recently launched an aboriginal title claim on land currently owned by private citizens and mining company KGHM-Ajax.

This increased uncertainty not only puts current projects and private property holders in jeopardy but it also impacts potential resource investment. For example, the Fraser Institute Annual Survey of Mining Companies has shown that the number one impediment for mining investment in B.C. is uncertainty over disputed land claims.

One of the reasons why the courts have engaged in Aboriginal title and rights issues is because government have failed in negotiating treaties and settling title disputes. In fact, since the B.C. treaty commission was created more than 20 years ago, only three treaties have been successfully negotiated. In the meantime, more than 56 First Nations communities have generated more than $400 million in federal negotiation loans.  

However, if the courts continue to resolve the emerging land claim issues it’s recommended that they take judicial notice of basic economic principles in future decisions. Because as the cases outlined demonstrate, some decisions thus far have had negative economic implications for businesses that have been operating in Canada for more than half a century. And now private property holders will also be affected.

It’s clear that if land certainty is not addressed in provinces such as B.C., the Canadian economy faces more troubled waters.