Canadian Lawyer InHouse

JANUARY 2016 26 INHOUSE its lease prior to bringing the application, Tysoe said. Instead, the lessee would be en- titled to prove the validity of its lease within the action itself, the judge added. The Quebec Court of Appeal similarly found that only "the clear and manifest ab- sence of legal foundation allows an action to be dismissed" pursuant to the Code de procédure civile. If aboriginal people meet the burden of proof to get declaration of title, the next in- teresting legal question becomes whether the company defendants can argue the infringe- ment was justifi able, according to Braul. In Tsilhqot'in Nation v. British Columbia, the SCC has found that provinces can justifi ably infringe aboriginal rights, but it remains unclear if that defence would be available for industry defendants, Braul adds. According to Fairfax, the B.C. appellate court's decision not to strike out the case is not in fact surprising given courts must assess whether it's "plain and obvious" that there is no cause of action in a case assum- ing the allegations in the pleadings are true. "The court in B.C. had to assume the aboriginal title or rights claimed actually existed. Given that state of play, it's not surprising the court then had to dismiss the motion to strike," she says. "It's not surprising, too, that the Supreme Court of Canada refuse to grant leave because that's a very trite, common test." Plaintiff-side environmental lawyer Da- vid McRobert says it was "really a stretch" for the defendants in the Quebec case to claim the Innu First Nations community did not have established rights over the land. They have, for decades, documented their interests in the land for the harvesting of caribou, berries, and fi sh, he says. "It's indisputable that they have recog- nized interests in those areas," he says. "It seems to me what might have happened is, you know, Rio Tinto might have looked at the degree of the claim, and thought, 'Boy, this is a huge amount of money, let's see if we can knock it out.'" The Supreme Court's refusal to grant appeal in these cases comes in the context of a recent report from the Boreal Lead- ership Council on gaining consent from aboriginal communities prior to starting projects. The report says obtaining consent is important even when aboriginal title has not been established. "The SCC's Tsilhqot'in decision under- scored that without obtaining consent prior to aboriginal title being established, it might become necessary to cancel an ap- proved extractive or other kind of project upon establishment of title if continuation of the project would unjustifi ably infringe these rights," the report says. "It follows that consent is the mechanism that will offer the most certainty for propo- nents who wish to develop projects on ab- original title lands," the report adds. Benjamin Lee, vice president, legal and general counsel for TimberWest Forest Corp., says as it becomes clear that compa- nies will face lengthy litigation on claims such as the one in Saik'uz First Nation and Stellat'en First Nation, it's even more impor- tant to engage stakeholders around the area of operation. "You need to have a stakeholder map, you need to know where the touch points are with First Nations. That's your starting point," Lee says. "If you're not operating on that level, you are going to be subject to risk. "I think this is relevant to a mining com- pany, an energy company, an oil and gas company, or a forestry company," he adds. "You've got to know that if you're operating within an area and there is asserted aborigi- nal title or rights, you need to be careful about how you conduct your business." That engagement process with the ab- original community must start very early, and industries need to make sure First Na- tions benefi t from the project, Lee says. McRobert says resource companies have a poor record of defeating First Nations com- munities in court. Prior consent and dialogue with these communities, he adds, is increas- ingly becoming the favourable option. "The companies need to sit down with First Nations and clarify exactly what kind of activities are going to be implemented, on what time frame, and how that will impact on land use," McRobert continues. "It requires creativity and imagination on the part of law- yers, and I'm convinced we have a whole gen- eration of younger lawyers who are coming up the system and see the potential." There's already good recognition in the industry that dialogue between companies and aboriginal people needs to happen granted the duty is consultation rests on the Crown, Fairfax says. "The Crown can delegate certain aspects of that duty to companies and there might be more of an onus perhaps on companies to ensure that steps are being taken and that duty is met," she adds. In Saik'uz First Nation and Stellat'en First Nation, Rio Tinto argued the Supreme Court had previously dismissed any notions that third parties have legal obligations to aboriginal groups prior to proof of the rights in question. Rio Tinto's counsel cited Haida Nation v. British Columbia (Minister of Forests), in which the top court says: "It is suggested (per Lambert J.A.) that a third party's obligation to consult aboriginal peoples may arise from the ability of the third party to rely on justifi cation as a defence against infringement. However, the duty to consult and accommodate, as discussed above, fl ows from the Crown's assumption of sovereignty over lands and resources formerly held by the aboriginal group. "This theory provides no support for an obligation on third parties to consult or accommodate. The Crown alone remains legally responsible for the consequences of its actions and interactions with third par- ties, that affect aboriginal interests." According to Bursey, the BCCA ruling contradicts this fi nding by the Supreme Court. "It seems to be an unwinding of that clear principle in paragraph 53 of the Haida case," he says. But in justifying its ruling, the BCCA said the same Supreme Court decision has clarifi ed that while third parties are under no duty to consult, they're not immune to liability to aboriginal peoples when "they act negligently in circumstances where they owe aboriginal peoples a duty of care." IH The court in B.C. had to assume the aboriginal title or rights claimed actually existed. Given that state of play, it's not surprising the court then had to dismiss the motion to strike. JENNIFER FAIRFAX, Osler Hoskin & Harcourt LLP

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