Aboriginal Resource Rights

The First Nations of British Columbia made use of the resources of the province before the British (and subsequently Canadian) government ever claimed ownership of those resources. 

The Courts have recognized that the existence of First Nations in B.C. means that a system of laws and rights existed in B.C. before the British set up colonial governments in the province.  The rights guaranteed by this system continue to exist, and are now protected by section 35 of the Constitution Act, 1982.  In some cases these aboriginal rights include ownership of the land (aboriginal title).  However, even where a First Nation doesn’t own an area of land, an aboriginal right allow members of the First Nation the right to carry out traditional activities and resource use on that land. 

Examples of Aboriginal Rights

Any practice that was “integral” to a First Nation’s culture can form the basis of an aboriginal right.  Hunting, fishing and plant use for personal and ceremonial use are commonly held to be integral to First Nation’s cultures, but other customs or practices can also achieve this status.  As the Supreme Court of Canada has said: “To be an aboriginal right an activity must be an element of a practice, custom, or tradition integral to the distinctive culture of the aboriginal group claiming the right.”  

The exact aboriginal rights of a First Nation will depend upon that Nation’s culture and history.  However, a First Nation might have rights to:

·         Participate in a food fishery;

·         Hunt and trap on unoccupied lands (possibly including private lands);

·         Gather plants, bark or other resources from particular areas, trees, etc;

·         Carry out religious, spiritual or educational practices in a particular area; or

·         Take clean water from a particular stream.

The First Nations peoples exercising these rights are not limited to doing so using “traditional” technology.  Just as mainstream Canadian technology has developed since the 19^th Century, the First Nations can use modern technology to carry out a traditional activity (ie. hunting with rifles, fishing from motorized boats, etc.) 

At the same time, however, it is important to recognize the limits of the aboriginal right.  An aboriginal right to fish for food or ceremonial uses may not translate into an aboriginal right to sell fish that are caught.  Similarly, the courts will usually interpret First Nations rights in terms of what was essential to the culture at the time of contact with Europeans. 

Implications of Aboriginal Rights

If an aboriginal right to use a resource (or area) is established, then the governments of BC and Canada must be able to justify any government actions that interfere with that activity.  First Nations have been successful in challenging federal and provincial laws designed to regulate resource use (ie. restrictions on when and how fishing and hunting can occur, etc.), with the courts holding that such restrictions can only apply to First Nations traditional use if they can be justified according to stringent tests. 

From a watershed protection perspective, however, it is significant that certain types of development may be inconsistent with these rights.  In such a case a government could not knowingly approve or carry out actions that will destroy or limit the First Nations people’s exercise of their traditional rights.  Consider, for example, a development that will negatively affect the water of a stream that a First Nation has fishing rights in.  On its face the federal and provincial governments would need to ensure that any impact on First Nations fishing was kept to a minimum. 

While this is theoretically a powerful tool, there are a number of practical problems:

·         First Nations Flexibility – First Nations Use rights, such as hunting, fishing, trapping and plant gathering, can often be carried out in many different places.  Faced with a development that affects these rights in one area, the governments (and the courts) may feel that the First Nation can exercise their rights elsewhere.

·         Cumulative Effects – A single development may not have a significant impact on an aboriginal right, but together with other individual developments the rights might be totally eliminated.  However, the impact of government decisions on aboriginal rights are usually considered on a case-by-case basis, with no real planning for how aboriginal rights will be protected or consideration of the overall effect of many government decisions. 

·         Lack of Information – Although many First Nations are now compiling information about where the plants, animals and other resources they use are located, it has often been difficult for government or First Nations to get a good idea of what the actual impact on aboriginal rights of a development would be. 

·         Lack of Proof – Most First Nations have not been to court, or negotiated treaties, to establish the extent of their rights.  Consequently the extent of their rights is still very unclear.  The BC Government has insisted that First Nations must prove these rights in court before they can be protected – an expensive process.  While recent court cases affirm that government must consult First Nations even before their rights are proven in court, consultation may fall short of actual protection. 

The courts have occasionally been willing to intervene where a particular area is of special importance to a First Nation, or a particular right is tied to a very specific area.  However, in other cases the Courts will probably allow a government decision to proceed unless it is clear that the inevitable result of the decision will be to directly interfere with the aboriginal right. 

One very practical opportunity to protect aboriginal rights is consultation.  Where there is a likelihood on its face that aboriginal rights or title exist the governments will have an obligation to meaningfully consult with the First Nation to seek ways to avoid any impact on the aboriginal right.  This obligation exists even before the right is proved in court, and even if other ways of exercising the right might be available.  For more information see the Guide page on Aboriginal Consultation.  

However, consultation does not guarantee that the rights will be protected.  Aboriginal rights are not absolute; if an aboriginal right, and an infringement of it, can be proved, the governments are required to demonstrate that their actions were justified according to criteria that the courts have developed. 

Related Guide Pages:

·         Aboriginal Rights and Title.

·         Aboriginal Title.

·         Infringements of Aboriginal Rights.

·         Consultation with First Nations.

For more information about Aboriginal Resource Rights:

·         Aboriginal Rights in B.C. – A Fact Sheet published by Indian and Northern Affairs Canada.

·         “Making Sense of Aboriginal and Treaty Rights” – A paper by Brian Slattery published in the Canadian Bar Review (a legal journal published by the Canadian Bar Association). 

·         Aboriginal Fishing Rights: Supreme Court of Canada Decisions – A Summary by Jane May Allain of the Library of Parliament.

·         Aboriginal Law and Legislation.