Abstract
Successive Supreme Court of Canada rulings recognize governmental fiduciary obligations, of a sui generis nature, regarding the use of lands owned, or claimed, by indigenous peoples. Decisions in cases such as: Calder, Sparrow , Delgamuukw and Tsilhqot’in , and Ktunaxa Nation create both a moral and legal duty to consult, accommodate, and negotiate in good faith with indigenous groups before using their lands for economic development purposes, including mining, logging and hydro-power projects. Although heralded as progress for Canada’s aboriginal populations in their plight for reconciliation for consequences of European settlement, questions remain as to how significant such judicial precedents may be in practice, particularly in relation to nuclear issues. Whilst the courts may have issued important precedents relating to how Government should proceed before developing land and exploiting natural resources, in reality indigenous views may not be heeded, especially regarding uranium mining and nuclear energy considerations. The Nuclear Non-proliferation Treaty 1968 recognizes a country’s ‘inalienable’ right to nuclear energy. Despite the duty to consult and accommodate, questions remain as to how this may play out as it relates to uranium mining, building nuclear power plants or the storage of nuclear waste on indigenous lands. The purpose of this chapter is to provide an analysis of the case of Tsilhqot’in Nation v. British Columbia (2014 SCC 44) with reference to other relevant court rulings, highlighting the importance and the need to consult with indigenous peoples and to accommodate their views regarding the exploration, development and use of their ancestral lands, and questioning the credence given to these rights as it relates to environmental concerns and the right to self-determination within the broader context of the need to consult on nuclear issues.
Dean of Law, Faculty of Law, University of Manitoba; Bencher of the Law Society of Manitoba. Ph.D. (Toronto); MA, D.Phil. (Oxford); PLDA (Harvard); JP and Barrister (England and Wales); Barrister and Solicitor (Manitoba); Chair of the ILA Committee on Nuclear Weapons, Non-Proliferation and Contemporary International Law. The author wishes to acknowledge the contribution of Jason Poettcker BA (Hons), MA (Phil), JD (candidate), Research Assistant for his kind support and efforts.
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Notes
- 1.
Treaty on the Non-Proliferation of Nuclear Weapons 1968, 729 UNTS 161 (1 July 1968).
- 2.
Tsilhqot’in Nation v. British Columbia, [2014] SCC 44 paras 3–4, 2014 CSC 44 [Tsilhqot’in 2014].
- 3.
Tsilhqot’in 2014, para 5.
- 4.
Id., paras 5–7.
- 5.
Id., para 8.
- 6.
Tsilhqot’in 2014, para 9.
- 7.
Id., para 10.
- 8.
Id., para 11.
- 9.
Id., para 12.
- 10.
Id.
- 11.
Id., para 13
- 12.
Id., para 15.
- 13.
Id., para 16. Also in Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010 para 168, 1997 Carswell BC 2358 [Delgamuukw]: ‘This aspect of aboriginal title suggests that the fiduciary relationship between the Crown and aboriginal peoples may be satisfied by the involvement of aboriginal peoples in decisions taken with respect to their lands. There is always a duty of consultation. Whether the aboriginal group has been consulted is relevant to determining whether the infringement of aboriginal title is justified, in the same way that the Crown’s failure to consult an aboriginal group with respect to the terms by which reserve land is leased may breach its fiduciary duty at common law: Guerin. The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title. Of course, even in these rare cases when the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands.’
- 14.
Tsilhqot’in 2014, at para 17.
- 15.
Id., para 18.
- 16.
Id., paras 19–23.
- 17.
Id., para 44.
- 18.
Dwight Newman argues as such in Newman 2017, 7: ‘In 2005, the Supreme Court of Canada had rendered an Aboriginal title decision in a case called Marshall and Bernard, in which the Supreme Court had referred to Aboriginal title being established only over lands that had been intensively occupied. us, Aboriginal title might be established where there had been permanent settlements, but on the dominant reading of the case it would not be established over areas that had been subject to only transitory use.’
- 19.
Tsilhqot’in 2014, para 1.
- 20.
Id., paras 1, 2.
- 21.
Id., paras 1, 2.
- 22.
Id., para 2.
- 23.
Id., paras 1–2.
- 24.
Tsilhqot’in 2014, para 26.
- 25.
Id., paras 32, 50.
- 26.
Id., para 35.
- 27.
Id., para 38.
- 28.
Id., paras 41–42.
- 29.
Id., paras 45–46.
- 30.
Tsilhqot’in 2014, paras 55–56.
- 31.
Id., para 28.
- 32.
- 33.
Xeni Gwet’in 2007, para 245.
- 34.
Tsilhqot’in 2014, para 59.
- 35.
Id., para 60.
- 36.
Id., para 61.
- 37.
Tsilhqot’in 2014, para 63.
- 38.
Id., para 67.
- 39.
Id., paras 69–70.
- 40.
Id., para 71.
- 41.
Tsilhqot’in 2014, para 73.
- 42.
Id., para 74.
- 43.
Id., para 75.
- 44.
Id., para 77.
- 45.
Id., para 78.
- 46.
Id., para 79.
- 47.
Id., para 80.
- 48.
Id., paras 81, 82.
- 49.
Id., para 83.
- 50.
Id., paras 81–83.
- 51.
Id., para 81.
- 52.
Id., para 87.
- 53.
Id., para 86.
- 54.
Id., para 67.
- 55.
Tsilhqot’in 2014, para 89.
- 56.
Id., para 92.
- 57.
Id., para 94.
- 58.
Id., paras 93–94.
- 59.
Tsilhqot’in 2014, paras 95–97.
- 60.
Id., para 96.
- 61.
Id., para 153.
- 62.
Id., para 97.
- 63.
Id., para 103.
- 64.
Id., para 103.
- 65.
Tsilhqot’in 2014, para 104.
- 66.
Id., para 115.
- 67.
Id., para 116.
- 68.
Id.
- 69.
Id., para 117.
- 70.
Tsilhqot’in 2014, paras 120–122.
- 71.
Id., para 124.
- 72.
Id., para 124.
- 73.
Id., para 126.
- 74.
Id., paras 126,127.
- 75.
Id., para 127.
- 76.
Id., para 131.
- 77.
Tsilhqot’in 2014, para 133.
- 78.
Id., para 135.
- 79.
Id., paras 136–137.
- 80.
Id., para 151.
- 81.
Tsilhqot’in 2014, para 104.
- 82.
Id., para 67.
- 83.
Id., para 73.
- 84.
Id., para 77.
- 85.
Id., paras 79–80.
- 86.
Macklem et al. 2010, 593: ‘The issue of Aboriginal title has proven to be a particularly charged and high profile issue in British Columbia, bringing into question the issue of property and resource use rights in many parts of the province.’
- 87.
Macklem et al. 2010, 594.
- 88.
Tsilhqot’in 2014, paras 72–73. It is unclear what the Court means when in one paragraph they write, ‘Analogies to other forms of property ownership—for example, fee simple—may help us to understand aspects of Aboriginal title. But they cannot dictate precisely what it is or is not. As La Forest J. put it in Delgamuukw, at para 190, Aboriginal title “is not equated with fee simple ownership; nor can it be described with reference to traditional property law concepts”.’ Then in the very next paragraph they write, ‘Aboriginal title confers ownership rights similar to those associated with fee simple’.
- 89.
Ziff 2014, 172.
- 90.
Macklem et al. 2017, 328 note 5: See R v Sparrow [1990] 1 SCR 1075, 1103 (‘while British policy towards native populations was based on respect for their right to occupy their traditional lands, there was from the outset never any doubt that…the underlying title … to such lands vested in the Crown’).
- 91.
Id., 328.
- 92.
Macklem et al. 2017, 328.
- 93.
Id.
- 94.
Macklem et al. 2017, 328–329.
- 95.
Ziff 2014, 183–181: ‘(i) ameliorating – acts that enhance the value of the land; (ii) permissive – damage resulting from the failure to preserve or repair property; (iii) voluntary – conduct that diminishes the value of the land; and (iv) equitable – severe and malicious destruction.’
- 96.
Tsilhqot’in 2014, para 74.
- 97.
Newman 2017, 13.
- 98.
Delgamuukw, para 128.
- 99.
Tsilhqot’in 2014, para 67.
- 100.
Id., para 75.
- 101.
Newman 2017, 13.
- 102.
Newman 2017, 13.
- 103.
Macklem et al. 2017, 352, 350: Dwight Newman points out that one unintended consequences of the uncertainty that arises from the duty to consult is ‘to incentivize direct negotiations between industry and Aboriginal communities. In the context of most significant resource developments, there are now hundreds of Impact Benefit agreements (IBAs) or other industry-community agreements in place in Canada. A typical format includes a so-called “support clause” under which, in exchange for benefits under the agreement, the community agrees to support the project, including by saying in all forums that the duty to consult has been met and thus avoiding any role for government. There is evidence of some Aboriginal communities receiving as much as a hundred million dollars a year under IBAs, although with enormous variation between differently situated communities.’
- 104.
Ziff 2014, 204.
- 105.
Newman 2017, 23–24.
- 106.
Legare 2008, 336.
- 107.
Id., 346.
- 108.
Id., 347.
- 109.
Legare 2008, 347.
- 110.
Treaty on the Non-Proliferation of Nuclear Weapons 1968, 729 UNTS 161 (1 July 1968). The Treaty on the Non-Proliferation of Nuclear Weapons recognizes five states as nuclear-weapon states: the United States, Russia, the United Kingdom, France and China. Article IX(3) states that, ‘a nuclear weapon State is one which has manufactured and exploded a nuclear weapon or other nuclear explosive device prior to 1 January, 1967’. All other States fall into the category of non-nuclear weapons states for the purpose of the Treaty and general international law. For a legal analysis of the NPT see Daniel H. Joyner, Interpreting the Nuclear Non-Proliferation Treaty (Oxford: Oxford University Press, 2011), with Foreword by Mohamed I. Shaker, author of The Nuclear Nonproliferation Treaty: Origin and Implementation 1959–1979, three volumes (London/Rome/New York: Oceana, 1980). See also 2010 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Final Document (NPT/CONF, 2010/50), 2–19.
- 111.
Other international treaties regarding nuclear activities include the Partial Test Ban Treaty (PTBT) 1963, the Non-Proliferation Treaty (NPT) 1968 and the Comprehensive Nuclear-Test-Ban Treaty (1996) which is yet to come into legal force. For a Table of Relevant Treaties and Other International Instruments see: http://www.ila-hq.org/en/committees/index.cfm/cid/1025.
- 112.
Relevant organizations working to monitor nuclear activities on a global scale include: International Atomic Energy Agency (IAEA), http://www.iaea.org; Preparatory Commission for the Comprehensive Nuclear-Test-Ban Organization (CTBTO), http://www.ctbto.org; UN Disarmament Commission (UNDC), http://www.un.org/Depts/ddar/discomm/undc.html; United Nations Office for Disarmament Affairs, http://www.un.org/disarmament/HomePage/about_us/aboutus.shtml; United Nations Institute for Disarmament Research (UNIDIR), http://unidir.org/html/en/home.html; International Law Commission (ILC), http://www.un.org/law/ilc/; Pugwash Conferences on Science and World Affairs, http://www.pugwash.org/about.htm; The Nuclear Threat Initiative, http://www.nti.org; The Arms Control Association, http://www.armscontrol.org; Acronym Institute, http://www.acronym.org.uk; World Institute for Nuclear Security (WINS), https://www.wins.org/index.php?article_id=61; The World Nuclear Association, http://www.world-nuclear.org; International Nuclear Law Association (INLA), http://www.nlain.org/links/international-links; Global Zero, http://www.globalzero.org; The Verification Research, Training and Information Centre (VERTIC), http://www.vertic.org; International Campaign to Abolish Nuclear Weapons (ICAN), http://www.icanw.org; The Carnegie Endowment, http://carnegieendowment.org; James Martin Center for Nonproliferation Studies, Nonproliferation Review, http://cns.miis.edu/npr/20-1.htm; National Defense University’s Center for the Study of Weapons of Mass Destruction, Washington, DC, http://www.ndu.edu/wmdcenter; Center for Energy and Security Studies (CENESS), Moscow, http://ceness-russia.org/engl; PIR Center. The Russian Center for Policy Studies, http://www.pircenter.org/en; The Landau Network based in Como (Italy), http://www.centrovolta.it/landau; The Insubria Center on International Security (University of Insubria, Italy), http://eeas.europa.eu/delegations/iraq/press_corner/all_news/news/2010/20100829_01_en.htm; Istituto Affari Internazionali, http://www.iai.it; Stiftung Wissenschaft und Politik, http://www.swp-berlin.org; The American Physical Society, http://www.aps.org/meetings.
- 113.
- 114.
- 115.
- 116.
Plans to expand its nuclear capacity by building two more new reactors over the next decade these have since been deferred. As of February 2018. http://www.world-nuclear.org/information-library/country-profiles/countries-a-f/canada-nuclear-power.aspx.
- 117.
Note that the number of States using the Model Additional Protocol is unsatisfactory and there is a lack of consensus on its compulsory adoption.
- 118.
Kazemi Estate v Islamic Republic of Iran, 2014 SCC 62, [2014] 3 SCR 176, para 61.
- 119.
R. v Hape, 2007 SCC 26 [2007] 2 SCR 292, para 46.
- 120.
Nuclear Safety and Control Act, S.C. 1997, c. 9, s. 3(a) and (b).
- 121.
Nuclear Safety and Control Act, S.C. 1997, c. 9, s. 9(a)(i–iii).
- 122.
Tsilhqot’in 2014, para 87.
- 123.
Id., para 86.
- 124.
Dewar et al. (2013), 470: ‘Contamination from uranium mining activity will persist for generations. The dust that blows away from the sites and the copious amounts of water used for dust control and uranium extraction all contain long-lived radioisotopes that are being disseminated into the environment. In the tailings, thorium 230 decays to produce radon gas. With a half-life of 76 000 years, it will produce radon for millennia. In the atmosphere, radon decays into the radioactive solids polonium, bismuth, and lead, which enter water, crops, trees, soil, and animals, including humans.’
- 125.
Tsilhqot’in 2014, para 77.
- 126.
- 127.
Nuclear power plant accidents: listed and ranked since 1952. https://www.theguardian.com/news/datablog/2011/mar/14/nuclear-power-plant-accidents-list-rank. See also: Eiichiro Ochiai, Hiroshima to Fukushima: Biohazards of Radiation, Springer-Verlag Berlin Heidelberg 2014, Part III–V.
- 128.
- 129.
- 130.
See https://www.vice.com/en_ca/article/jmbwx8/a-dene-alliance-formed-to-resist-uranium-and-tar-sands-mining-in-saskatchewan-892: ‘About an hour north of the alliance’s location, a recent discovery by Fission Uranium Corp. could lead to the development of one of the world’s largest high-grade uranium mines. Further north, abandoned and decommissioned uranium mines already host millions of tonnes of radioactive dust (also known as tailings) that must be isolated from the surrounding environment for millennia, while no clean-up plans exist for the legacy of severe and widespread watershed contamination that is synonymous with Uranium City, Saskatchewan. To the east, “an integrated uranium corridor spreading over 250 kilometres” hosts the largest high-grade uranium mines and mills in the world, with their own stockpiles of radioactive tailings and a decades-long history of radioactive spills.’
Also see this Article which notes that in 1984 a massive spill of approximately 100 million litres of radioactive liquid at Key Lake occurred: http://www.mediacoop.ca/story/uranium-debate-heats-saskatchewan/13907.
- 131.
Baker Lake (Hamlet) v. Canada (Minister of Indian Affairs and Northern Development) 1979 CarswellNat 186.
- 132.
Ziff 2014, 207–8.
- 133.
Reference re Secession of Quebec, 1998 CarswellNat 1299 under Words and Phrases considered. P. 17–18.
- 134.
Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, GA Res. 2625 (XXV), 24 October 1970.
- 135.
Reference re Secession of Quebec, 1998 CarswellNat 1299 under Words and Phrases considered. P. 17–18.
- 136.
There are many sources for the right to self-determination in international law. As the Court put it in Reference re Secession of Quebec, 1998, paras 114–119:
‘[114] The existence of the right of a people to self-determination is now so widely recognized in international conventions that the principle has acquired a status beyond “convention” and is considered a general principle of international law (A. Cassese, Self-determination of peoples: A legal reappraisal (1995), at pp. 171–72; K. Doehring, “Self-Determination”, in B. Simma, ed., The Charter of the United Nations: A Commentary (1994), at p. 70). [115] Article 1 of the Charter of the United Nations, Can. T.S. 1945 No. 7, states in part that one of the purposes of the United Nations (U.N.) is: Article 1 …. . [116] Article 55 of the U.N. Charter further states that the U.N. shall promote goals such as higher standards of living, full employment and human rights “[w]ith a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples”.
[117] This basic principle of self-determination has been carried forward and addressed in so many U.N. conventions and resolutions that, as noted by Doehring, supra, at p. 60: The sheer number of resolutions concerning the right of self-determination makes their enumeration impossible.
[118] For our purposes, reference to the following conventions and resolutions is sufficient. Article 1 of both the U.N.’s International Covenant on Civil and Political Rights, 1966, 999 U.N.T.S. 171, and its International Covenant on Economic, Social and Cultural Rights, 1966, 993 U.N.T.S. 13, states: 1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
[119] Similarly, the U.N. General Assembly’s Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, GA Res. 2625 (XXV), 24 October 1970, states: By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.’
- 137.
Macklem et al. 2017, 336.
- 138.
Tsilhqot’in 2014, paras 87, 73.
- 139.
See headnote from the Lexum website, Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), [2017] 2 SCR 386, [2017] 2 S.C.R. 386 online: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16816/index.do.
- 140.
Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), [2017] 2 SCR 386 at para 70 [2017] 2 S.C.R [Ktunaxa].
- 141.
Id., paras 70–71.
- 142.
- 143.
Id.
- 144.
- 145.
Id.
- 146.
Id.
- 147.
Id.
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Black-Branch, J. (2019). The ‘Inalienable Right’ to Nuclear Energy Under the Nuclear Non-Proliferation Treaty: Indigenous Rights of Consultation, Self-Determination and Environmental Protection of Aboriginal Lands. In: Black-Branch, J., Fleck, D. (eds) Nuclear Non-Proliferation in International Law - Volume IV. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-267-5_13
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