Tsilhqot’in: Turning the Negotiation
Tables with Industry and Crown
Merle Alexander & Scott A. Smith
Osoyoos, BC
Okanagan ...
2
OUTLINE
1. The Negotiation Context
2. Tsilhqot’in – The Basics
3. Tsilhqot’in – The Take-Home
4. Is Tsilhqot’in Truly a ...
THE NEGOTIATION CONTEXT
MEGA PROJECTS ARE COMING
• Fraser Institute (Nov 2013):
“…an estimated 600 major resource projects...
THE NEGOTIATION CONTEXT
• LNG projects in BC
• Oil pipelines:
• Northern Gateway
• TMX
• Energy East
• Oil sands in Alta
•...
How to maximize IBA leverage
5
Tsilhqot’in – The Basics
• First declaration of Aboriginal title in Canada
• SCC rejected the Crown’s site specific (posta...
Rights incidental to Aboriginal title
• Aboriginal title confers ownership rights similar to those
associated with fee sim...
Limits on Aboriginal title
• Aboriginal title lands are held communally, for present
and future generations. They:
• can o...
What are the Crown’s duties?
• Where Aboriginal title is still unproven:
• Crown must satisfy its duty to consult and acco...
Is consent required?
• Where title still unproven: practical, rather than legal,
requirement to obtain consent
• “Governme...
Is consent required?
• Recognized title: Consent required or Crown required to
justify infringement:
“The right to control...
Can projects proceed without your consent?
• To justify overriding an Aboriginal title holder’s wishes on
the basis of the...
Can projects proceed without your consent?
• Highly destructive projects that would deprive you of
your rights to benefit ...
Tsilhqot’in – The Take Home Implementation
• Economic component of title + consent requirement =
significant and substanti...
• Right to decide how title lands will be used + right to
mange them =
• say yes to projects that help your Nation achieve...
• Aboriginal title lands can be used for non-traditional
purposes, subject to inherent rights
• need for territory-based l...
Is Tsilhqot’in truly a Game-Changer?
• Yes. Absolutely, yes
• All negotiations shadowed by false assumptions that
Aborigin...
Tsilhqot’in Applied to IBAs
BEFORE
• FN support preferable, but no consent required
• Proponents negotiate for best practi...
Tsilhqot’in Applied to IBAs
AFTER
• Aboriginal consent a legal (or practical) requirement
• Agreement positive evidence of...
20
How Can We Negotiate the Best Deals?
• Cooperate among ourselves
• Share information
• Determine Crown’s role
• Foster ...
21
What factors make a precedent-setting deal?
• Translating leverage into opportunity
• Due diligence – informed parties ...
What are core topics for most Pipeline IBAs?
• Consent requirements
• Environmental
• Contract opportunities
• Economic de...
WHAT ARE THE BEST ECONOMIC TERMS?
• Not definitive – IBAs are generally confidential
• Negotiate Right of First Refusal on...
What is your strategy?
• You need a strategy to increase your leverage
• Your strategy should be designed to help you work...
Innovative strategies require advance planning
1. Territory-based land use plans and traditional land use
studies are requ...
Look ahead (to limit cumulative impacts)
• Cumulative impacts are a fundamental concern,
particularly when multiple projec...
Territorial-based land use planning
• Key questions:
• how does your Nation want to develop your territory to
provide for ...
Strengthening your claims
• INSERT STUFF THAT NEEDS TO BE DONE TO
DO SO HERE
28
Conclusions
• The key to an innovative legal strategy is to put your
Nation in a position to play lead on someone else’s
p...
montréal  ottawa  toronto  hamilton  waterloo region  calgary  vancouver  beijing  moscow  london
Thank Yo...
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NABOC 2014 - IBA Tsilhqot'in

Published on: Mar 3, 2016
Source: www.slideshare.net


Transcripts - NABOC 2014 - IBA Tsilhqot'in

  • 1. Tsilhqot’in: Turning the Negotiation Tables with Industry and Crown Merle Alexander & Scott A. Smith Osoyoos, BC Okanagan Territories Sept 9, 2014
  • 2. 2 OUTLINE 1. The Negotiation Context 2. Tsilhqot’in – The Basics 3. Tsilhqot’in – The Take-Home 4. Is Tsilhqot’in Truly a Game-Changer? 5. How can we negotiate the best deals? 6. What negotiation factors strengthen a deal? 7. Have we achieved consent/veto rights on a Project? 8. What are core topics of a pipeline IBA? 9. Are we achieving significant equity? 10.What are environmental law high water marks? 11.Is our TK being incorporated into decision-making? 12.What are the richest economic opportunities? 13.What should DRFN do as next steps for setting
  • 3. THE NEGOTIATION CONTEXT MEGA PROJECTS ARE COMING • Fraser Institute (Nov 2013): “…an estimated 600 major resource projects worth approximately $650 billion are planned for Canada. And every proposed oil and gas project affects at least one First Nations community.” • Energy and natural resource projects are a double-edged sword: • On one hand, they provide significant opportunities for economic development • On the other the other hand, individually (or cumulatively) they can can negatively impact Aboriginal lands and seriously impair exercise of your Aboriginal and treaty rights 3
  • 4. THE NEGOTIATION CONTEXT • LNG projects in BC • Oil pipelines: • Northern Gateway • TMX • Energy East • Oil sands in Alta • Potash in Sask • Mining in BC, Ont • Hydro in Man, Lab, BC • Deep sea oil in Arctic, Nfld. 4
  • 5. How to maximize IBA leverage 5
  • 6. Tsilhqot’in – The Basics • First declaration of Aboriginal title in Canada • SCC rejected the Crown’s site specific (postage stamp) approach in favour of a territorial, use-based approach to Aboriginal title • Consent is now the “gold standard”, before and after title has been recognized • Strong emphasis on economic rights associated with Aboriginal title • Greater role for Aboriginal customary law in defining Aboriginal title and restricting infringements that can be justified 6
  • 7. Rights incidental to Aboriginal title • Aboriginal title confers ownership rights similar to those associated with fee simple, including the right to: • decide how the land will be used • exclusively use and occupy the land • enjoy the economic benefits of the land, including subsurface/mineral rights • proactively use and manage the land • Aboriginal title lands can be also used for non-traditional purposes, subject to inherent limits 7
  • 8. Limits on Aboriginal title • Aboriginal title lands are held communally, for present and future generations. They: • can only be alienated to the Crown • cannot be encumbered in ways that would prevent future generations from using and enjoying them, and • cannot be developed or misused in a way that would substantially deprive future generations (some permanent changes possible; will depend on whether use can be reconciled with future generations’ ability to benefit from the land) 8
  • 9. What are the Crown’s duties? • Where Aboriginal title is still unproven: • Crown must satisfy its duty to consult and accommodate • Where Aboriginal title has been established: • Crown must seek consent of title-holding Aboriginal group • Absent consent, Crown must justify any incursion to title lands (which includes considering the extent of consultation) • Practical result: a reinforced and increased need to cooperate with Aboriginal groups in relation to land and resource development in unceded territory 9
  • 10. Is consent required? • Where title still unproven: practical, rather than legal, requirement to obtain consent • “Governments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group.” • If development has proceeded “without consent prior to Aboriginal title being established, [the Crown] may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing” • As a legal and negotiation position, you should assert that consent is required 10
  • 11. Is consent required? • Recognized title: Consent required or Crown required to justify infringement: “The right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders. If the Aboriginal group does not consent to the use, the government’s only recourse is to establish that the proposed incursion on the land is justified under s. 35 of the Constitution Act, 1982.” 11
  • 12. Can projects proceed without your consent? • To justify overriding an Aboriginal title holder’s wishes on the basis of the broader public good, the Crown must show that: (1) it has discharged its duty to consult and accommodate (2) its actions were backed by a compelling and substantial objective (3) its actions are consistent with the Crown’s fiduciary obligations to the group 12
  • 13. Can projects proceed without your consent? • Highly destructive projects that would deprive you of your rights to benefit from your title lands are unlikely to meet the Crown’s fiduciary requirement • Incursions “cannot be justified if they would substantially deprive future generations of the benefit of the land” • Very unlikely that projects which do not confer significant economic benefits to Aboriginal title holders but are nevertheless approved could satisfy Crown’s fiduciary requirements 13
  • 14. Tsilhqot’in – The Take Home Implementation • Economic component of title + consent requirement = significant and substantial Aboriginal economic participation (revenue sharing, royalty payments, equity participation) required as a precondition to providing consent • For existing files, companies and Crown require new mandates because old mandates based on assumptions that narrow approach to Aboriginal title with small tracts of territory applied, and that consent was not required • You should review all existing files and positions in light of Tsilhqot’in 14
  • 15. • Right to decide how title lands will be used + right to mange them = • say yes to projects that help your Nation achieve its goals and no to others that will not • much larger and important role for Aboriginal customary law and Aboriginal peoples to play in managing resources on title lands • opportunity for FN EA and regulatory review of projects • assessment of impacts on your rights and title should be another precondition to providing consent • need to recognize these issues in IBAs and precursor agreements, including monitoring and enforcement 15 Tsilhqot’in – The Take Home Implementation
  • 16. • Aboriginal title lands can be used for non-traditional purposes, subject to inherent rights • need for territory-based land use planning and innovative economic and legal strategies to help guide your Nation’s efforts to work towards sustainable economic development of your territory 16 Tsilhqot’in – The Take Home Implementation
  • 17. Is Tsilhqot’in truly a Game-Changer? • Yes. Absolutely, yes • All negotiations shadowed by false assumptions that Aboriginal title was minimal, our agreement was unnecessary and consent not required • Post-Tsilhqot’in, Title is expansive within Territory, agreement pivotal to Project success and consent required • IBAs required on Aboriginal Title lands • IBAs required in Treaty Territory where Aboriginal title not surrendered 17
  • 18. Tsilhqot’in Applied to IBAs BEFORE • FN support preferable, but no consent required • Proponents negotiate for best practice, not a legal requirement (i.e., no agreement req’d) • Projects only comply with Crown law • Projects approved with or without IBAs in place if minimal consultation fulfilled • If justifiable, Projects could have highly destructive adverse effects in territory • IBA scope and content dominated by Proponent 18
  • 19. Tsilhqot’in Applied to IBAs AFTER • Aboriginal consent a legal (or practical) requirement • Agreement positive evidence of consent, IBAs effectively a legal requirement • Projects must comply with Aboriginal law • Only Projects that may justifiably infringe without consent are those that will NOT adversely affect title for future generations • Aboriginal groups will be able to set scope, content and minimal requirements for IBAs 19
  • 20. 20 How Can We Negotiate the Best Deals? • Cooperate among ourselves • Share information • Determine Crown’s role • Foster a resolution-innovative table • Exercise due diligence on Proponent • Leverage and deliver legal certainty
  • 21. 21 What factors make a precedent-setting deal? • Translating leverage into opportunity • Due diligence – informed parties make the best deals • Strength of Title & Rights = Maximizing Accommodation • Shared territory/overlaps – Less is More • Financial capacity of Proponent/FN • Regulatory context – IBA as a requirement • Good faith between Parties • Play the player, not the cards
  • 22. What are core topics for most Pipeline IBAs? • Consent requirements • Environmental • Contract opportunities • Economic delivery program • Financial compensation, including annual payments for life of project, equity, notional equity • Skills and training • Joint/Shared decision-making • Implementation program 22
  • 23. WHAT ARE THE BEST ECONOMIC TERMS? • Not definitive – IBAs are generally confidential • Negotiate Right of First Refusal on all contracts • Greatest opportunity gained and lost is likely in contract opportunities • Reinforces necessity of negotiating with JV/partners in parallel with proponent • EXAMPLES: • 30% equity offer for MGP FNs • 7% of $9B hydro dam • Up to 12% royalty (industry norm 6-8%) • % of exploration of costs • 51% of run-of-the-river project 23
  • 24. What is your strategy? • You need a strategy to increase your leverage • Your strategy should be designed to help you work towards sustainable economic development of your territory • Innovative strategies focus on you taking the lead of developing your territory rather than responding to how others want to develop your territory • Tsilhqot’in is a game changer – trend will be to see First Nation as proponents or co-proponents of projects 24
  • 25. Innovative strategies require advance planning 1. Territory-based land use plans and traditional land use studies are required to identify: • the types of projects that your Nation wants to encourage in your territory • where these projects should be located to minimize impacts • projects or locations for projects that may be incompatible with traditional uses 2. Work required to substantiate and strengthen your title and rights claims 3. Strategic analyses required to identify economic opportunities in your territory 25
  • 26. Look ahead (to limit cumulative impacts) • Cumulative impacts are a fundamental concern, particularly when multiple projects are proposed at the same time in the same area • Territorial-based land use planning is the best tool to limit cumulative impacts by identifying and designating areas that: • must be protected for spiritual, cultural, and resource harvesting uses; and • can be used for energy and natural resource projects (e.g. a pipeline corridor) 26
  • 27. Territorial-based land use planning • Key questions: • how does your Nation want to develop your territory to provide for sustainable economic development while protecting your land and resource base for future generations? • what parts of your territory should be developed and what parts should be protected? • how can economic development occur in a way that enhances ecosystems rather than damages them? 27
  • 28. Strengthening your claims • INSERT STUFF THAT NEEDS TO BE DONE TO DO SO HERE 28
  • 29. Conclusions • The key to an innovative legal strategy is to put your Nation in a position to play lead on someone else’s project or to make the project your own • No proponent will hand you the lead: your Nation must get current and develop a clear vision of what it wants • Taking the lead will help your Nation identify and achieve its goals, build capacity, and assert control over your lands and resources • Implementing innovative legal strategies will help your Nation maximize its leverage–to secure maximum benefits or to say No 29
  • 30. montréal  ottawa  toronto  hamilton  waterloo region  calgary  vancouver  beijing  moscow  london Thank You Thank You Scott A. Smith Aboriginal and Environmental Law T 604- Email: scott.smith@gowlings.com Merle Alexander Aboriginal Resource Law, Partner T 604-891-2271 Email: merle.alexander@gowlings.com

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