The Commons Institute ABORIGINAL LAW & RESOURCE DEVELOPMENT 13 December 2012 Matt McPherson Olthuis Kleer Townshend LLP Overlapping Claims and Shared Territories

Overview What are overlapping claims/shared territory? How has the law has dealt with overlapping claims? Understanding the cultural context One agreement or multiple agreements? What issues should be resolved re overlapping claims?

What are we talking about? Overlapping title/traditional territory Shared or joint title/traditional territory Overlapping Aboriginal or Treaty rights Title vs. rights Affirmed rights vs. asserted rights

Key Themes Legal uncertainty abounds Proceed with care The cultural context is vital No “one size fits” Focus on practical solutions

What does the law say? Shared title Shared rights Shared title and rights? Limited direction from the courts in the context of DTCA and resource development

What does the law say? Shared title and overlapping claims – Delgamuukw v. British Columbia, [1997] 3 SCR 1010, para 158 – R. v. Marshall; R. v. Bernard, 2005 SCC 43, para 57 “Shared exclusivity may result in joint title.” Aboriginal Title: in rem vs. in personam? – i.e. title good against the world or title good against named defendants

What does the law say? Competing/Overlapping claims – Case law mostly arises in context of modern treaty negotiation – May not be directly applicable to DTCA in resource use cases – Consultation and accommodation due, but deference to treaty processes Benoanie v. Canada, [1993] 2 CNLR 97 (FCTD) Paul v. Canada, [2003] 1 CNLR 107 (FCTD) Cook v. The Minister of Aboriginal Relations and Reconciliation, 2007 BCSC 1722

What does the law say? Competing/Overlapping claims – Even in Modern Treaty context where there is evidence of impacts courts may intervene to protect the rights of an First Nation with an overlapping claim Nunavik Inuit v. Canada (Minister of Canadian Heritage), [1998] 4 C.N.L.R. 68 Sambaa K'e Dene Band v. Duncan, 2012 FC 204

What does the law say? Competing/Overlapping claims – Existence of overlapping claims does not narrow scope of Crown’s duty Hupascath v. BC, 2005 BCSC 1712, paras Principles out of Modern Treaty cases – The duty must be met – You need to start early to avoid problems

Cultural context matters First Nations Two levels of difference – Difference from Euro-Canadian culture – Differences between Aboriginal cultures Different cultures, different expectations, different priorities Not just a “line on a map” Moving resources

Cultural context matters What are the implications of this? – Different strokes for different folks Understand the players- intra and inter – The first step in consultation is the consultation process itself – Good communication and dialogue – Overlapping interests may create options for different solutions

One size does not fit all Sometimes a single agreement for multiple parties a good idea, sometimes it can be a very bad idea IBAs in overlap cases

Situations where multiple-party agreements are more likely to work – First Nations have an existing protocol on overlaps – First Nations have shared culture and history of cooperative relations – First Nations have shared objectives – First Nations are likely to be similarly impacted – It is a discrete project with a defined timeframe IBAs in overlap cases

Situations where multiple-party agreements less likely to work – First Nations do not have shared culture and/or have a history of antagonism – Some First Nations may be deeply affected by a project while other may only be slightly affected – The proponent has a First Nation partner IBAs in overlap cases

Common terms of multi-party agreements with proponents – Umbrella protocol – Subject matter of Agreements – Process Committees? Technical Teams? Elders? – Costs How are costs covered? – Ongoing Communication – Dispute resolution – Approval Process – Confidentiality IBAs in overlap cases

Considerations for inter-First Nations protocols – One-off or longer term? – What law will be used? – How will communication with proponents be coordinated? – Statement of Shared principles? – Access considerations? – No harm provisions? – Interaction of protocol with Treaties or other agreements? – Co-management of resources? – How will disputes be resolved? IBAs in overlap cases