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44 S e p t e m b e r 2 0 1 4 w w w . C A N A D I A N L a w y e r m a g . c o m Brock & Blackwell LLP in Toronto. "The negotiations will get tougher, and the accommodations will get more expensive." He says the difficulties of reaching a deal increase expo- nentially as the number of groups involved rises. As com- panies seek to open up mines in more remote areas, even relatively non-intrusive proposals like transmission lines could run up against opposition. "In the mining industry, it's going to open the door to more claims about aboriginal title . . . and it will probably shift the balance of power in the negotiations in existing claims between First Nations and the Crown. That will create a little bit more uncertainty and it's going to require governments and proponents of mining proj- ects to have to consult with aboriginal parties and potentially accommodate." Keith Bergner, a partner and an aboriginal law expert at Lawson Lundell LLP in Vancouver, says the mining sector had long recognized the need to negotiate with First Nations, a concept the court reinforced as its favoured approach in this ruling. "Industry is already out there seeking the consent of aboriginal groups through various means, including the negotiation of impact-benefit agreements," he says. "That's what the court says. You can avoid all this uncertainty by seeking the consent of the aboriginal group." Even after Tsilhqot'in, claiming title is not a straightforward issue for aboriginal groups, given overlapping territories and the need to demonstrate exclusive use of the land where title is being claimed. As well, because existing British Columbia leg- islation deals with private land and land owned by the Crown rather than title land, the province will need to draw up new laws, or amend existing ones. With no pattern to copy from other provinces, legal experts agree that's likely to take time. "The next step will be government's response, specifically from British Columbia," says Sam Adkins, a partner and member of the global aboriginal and mining groups at McCarthy Tétrault LLP. "I think before you will see multiple title cases coming forward, you will see some sort of response from the B.C. gov- ernment. I hope that it is a measured response." Thomas Isaac, head of the aboriginal law group at Osler Hoskin & Harcourt LLP, sees the ruling as an endorsement of provincial authority, cementing the view provincial laws do apply in respect to aboriginal title lands. He says British Columbia needs to think carefully about its response, rather than racing to a politically expedient solution. "Whatever the reaction to this is, the only answer has to be long-term and sustainable and ultimately affordable and for the public good," he says. "That flies in the face of what we've seen some governments doing from time to time across the country in terms of short-term, election-cycle thinking so as not to have to deal with the tough issues." He adds: "There's a certain degree of risk in dealing with aboriginal issues. This decision in many ways doesn't neces- sarily increase those risks, but what would increase those risks is the lack of a thoughtful reaction from the government of British Columbia." The provincial government has offered few clues to how it will change its laws. "The decision provides additional certainty around processes and tests that are applied to the relationship between the province and aboriginal peoples," Justice Minister Suzanne Anton said on the day of the ruling. "We will take the time required to fully analyze it and work with First Nations, industry and all of our stakeholders as we do so." The focus on provincial authority in Tsilhqot'in was "That flies in the face of what we've seen some governments doing from time to time across the country in terms of short-term, election-cycle thinking so as not to have to deal with the tough issues." thoMAS ISAAC, osler hoskin & harcourt LLP lEgal rEport/mining law New Edition Canadian Guide to Uniform Legal Citation, 8th Edition McGill Law Journal Online access with your print purchase* Now you can consult the "McGill Guide" anytime, anywhere, simply by going online. New in this edition • Guidance for citing to online sources • Rule for "point in time" citations for legislation • Greatly expanded section on online sources, including forms for blogs, Twitter, and online video (including a pinpoint form) Order # L92077-65203 $123 Hardcover + Online approx. 650 pages April 2014 978-0-7798-6076-0 Multi-user access is available. Call your print sales representative for information. Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. * Online access offer not available to trade bookstores, third-party distributors, students and academic institutions 00219RK-A43905 Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800

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