Overlapping Claims and
Shared Territories
Matt McPherson
Olthuis Kleer Townshend LLP
The Commons Institute
ABORIGINAL LAW & RESOURCE DEVELOPMENT
13 December 2012
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?
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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
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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. 120-121
• 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
IBAs in overlap cases
• 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
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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?