Last Thursday, the Supreme Court of Canada ruled government must consult and accomodate First Nations before making decisions that impact even unproven land claims. But it also ruled First Nations don't have a final veto over those decisions nor are business groups under the same obligation to consult and accomodate. But what do those rulings, which were part of two seperate cases, mean for the government and business in British Columbia? And where do we go from here? Well, First Nations consultant and political watcher Bernard Schulmann has some ideas. The following is Mr. Schulmann's analysis.

Analysis of the Supreme Court of Canada Decisions released November 18, 2004:
Haida Nation v British Columbia and Taku River Tlingit First Nation v British Columbia

Within hours of the decision, a whole lot of rhetoric came out from government, industry and First Nations all saying the case was a win for them. The courts are an adversarial process and realistically you do not get multiple winners.

This multiple winner declaration is simply a faulty analysis and ignores the basic fact that the case was a failure for everyone. At best we maintain the status quo of the last seven years, at worst we have vastly increased this ongoing make work project for lawyers.

The Supreme Court of Canada has once again stated the simple fact that everyone has known for many years - British Columbia First Nations have unextinguished title and rights issues and that this is a burden on Crown title. Yes, government and industry have tried to pretend that the issue was dealt with in the past and that it no longer mattered; but could never answer how the issue had been resolved.

Since the Calder case in 1973, there has been a clear legal history showing that the Crown in British Columbia must deal with First Nations in good faith. These cases are simply the latest ones on that line (and not the last).

So what has this latest decision added to the current situation? More uncertainty. The wording the Supreme Court uses adds little clarity to the previous decisions. The very fact that First Nations and the government can claim the decision as being a victory for them is proof enough on its own that the decision is not clear.

We have a dysfunctional status quo in British Columbia that will simply continue for the foreseeable future. Government does the minimal needed to meet their definition of the court decisions and First Nations will continue to be frustrated at their lack of real input and control over lands. Industry is left as the meat in this dispute sandwich.

First Nations have had their knuckles rapped in this decision - the court has made it clear that they must participate in a consultative process the government creates. The court seems to have been clear that if the government creates a meaningful process that non-participation is not a way to stop a process.

The decision also managed to avoid any mention of compensation for infringing the aboriginal rights but did say that the provincial government could infringe the title and rights. Accommodation of rights remains without any useful definition.

First Nations must also keep in mind that the courts left with government the decision if there is a potential of rights - all First Nations can do if the government acts as it has done in the past is to sue in the courts. The First Nations have gained some power over lands through the need for meaningful consultation but that is tempered with the ability of government to hold the power the over decisions as First Nations do not have any formal way to stop any project.

The government will hopefully look at its own internal processes and see that many of the land based ministries are still operating in manners that are not in accord with these, and other, decisions. While the Ministry of Sustainable Resource Management and the Ministry of Forests can be lauded for their attempt to consult in a meaningful manner, the other ministries are doing a woefully inadequate job.

It is interesting to see that the win by government in the Taku case relates to the environmental assessment process. Several senior people within the environmental assessment office spent a long time developing a process for the Redfern sponsored project, which has now been deemed to be meaningful consultation.

The problem is, with the change of government, it is unclear if the environmental assessment office still has the mandate to do this type of consultation. Certainly the corporate expertise has been lost as several key figures are now retired.

The government has to work very quickly to codify best practices in consultation and then have someone ensure that land based ministries actually do this consultation work. At a minimum, the government is going to have to hire dozens of new staff to run consultation processes; if the staff is not there, land based decisions of the government are going to be bogged down in a quagmire. Timely decision-making will disappear.

Industry is the big loser here. Industry must trust that the government will proactively ensure proper consultation is done: there is no formal role for a project proponent in consultation discussions with First Nations. Industry has to trust that civil servants in Victoria are capable and able to understand their needs and act in a manner that allows them to operate.

In some ministries, government is doing a good job and working well, but in other land based ministries, the government's consultative process has been awful. There are major time bombs left out there by certain ministries that could very likely explode and cost business in British Columbia hundreds of millions of dollars.

Industry has to push the government to consult meaningfully and quickly. In many cases the resource industries have been ahead of the provincial government in relationships with First Nations, there is a danger that these cases will harm this new interaction. Industry must also put government on notice that any failure in consultation must bring financial compensation to industry.

So who benefits from this decision? The lawyers. There are so many areas of ambiguity and such a divergent view of the meanings of these cases that British Columbia and some First Nation will be in the courts on the basis of these decisions before the end of this year.

What do we need now?

Clear Consultation Guidelines

First of all some clear guidelines on the scope and scale of what type of consultation is needed, at what point this consultation has to happen and what are reasonable accommodations of title and rights in the case of infringement. There needs to be a clear test that line ministry staff can apply. The guidelines need to specify if this is a situation in which there is a need for aboriginal consent or not. Without this clarity the process will simply end up back in court.

After major decisions, government often revamps their policy on aboriginal consultation, but never with any input from First Nations and low and behold the First Nations feel disrespected and ignored. These guidelines must be designed with the support of the First Nations of British Columbia and be made part of the regulatory framework as it relates to all activities on Crown land.

Alternative Dispute Resolution

There needs to be a quick and inexpensive way to adjudicate the disputes in the future. We can not afford to have First Nations and government tie land and resources up in courts and waste large sums of their money on more lawyers. We have more than enough mechanisms out there to settle disputes at a fraction of the cost of lawsuits. First Nations need to know that there is an impartial third party tribunal that make and enforce decisions when they feel their rights have been run over roughshod by the government.

The Crown and the leadership of the British Columbia First Nations (groups such as the Assembly of First Nations-British Columbia Region Region, the First Nations Summit, and the Union of British Columbia Indian Chiefs) should set a priority to negotiate a real and independent dispute resolution process as quickly as possible.

Support for Industry - First Nation cooperation

The government has often benignly neglected relationships being built between First Nations and industry. These relationships often run into trouble because of issues that neither party can address; many of these issues are provincial policy. BC needs to support these relationships by insuring that government policy is not getting in the way of constructive relationship building.