Negotiate or Litigate?

By Bruce McIvor

While Indigenous Peoples across Canada vary widely in their challenges and opportunities, they all have two fundamental objectives in common: to benefit from and exercise jurisdiction over their lands.

With governments often unwilling to address First Nations’ real concerns, achieving these objectives increasingly depends on making agreements with industry to share benefits from development and to participate in ongoing decision-making about how these developments will proceed.

Certain proposed developments are simply beyond the pale and the affected First Nation will never consent to them proceeding, regardless of what benefits and decision-making powers are on offer. More often, however, a First Nation will be open to discussing how and on what terms a proposed development might proceed in its territory.

Typically, a First Nation reviews the project with community members and hires consultants to advise on the environmental, social and economic impacts of a proposed development. At the same time, they work on negotiating the best agreement possible with government or the company (or both), one that includes not just financial benefits but also many other provisions including processes for environmental monitoring and protection.

If negotiations are successful, leadership takes the tentative agreement, and all the other information that has been gathered, to the community. They explain how the project is likely to negatively affect the First Nation and its lands, how it will hopefully benefit current and future generations and how the First Nation will be involved in its ongoing operation. It is then up to the community to decide whether or not to give its consent for the project to proceed.

But sometimes First Nations, government and industry are unable to reach a negotiated agreement. That’s when the question arises for many First Nations: negotiate or litigate?

The decision to litigate is most often taken because government has failed to meet its obligations to respect Aboriginal title, rights and Treaty rights and the First Nation and the company cannot agree on how to resolve the issues between themselves. First Nations are left with few options. They either grit their teeth and continue to accept the status quo or a subpar agreement, or they go to court.

As much as war analogies proliferate in litigation circles, they are rarely applicable when a First Nation goes to court. This is because even when they win a legal battle, First Nations are not simply handed solutions by the court—as I often explain to my clients, judges are not Santa Claus.

At best, and especially when First Nations are seeking to enforce their Aboriginal title, rights or Treaty rights, the courts will make orders or declarations that will hopefully set the table for negotiated agreements with either government or industry, but they do not mandate an agreement or its terms. For First Nations success in court usually leads to more negotiations.

Ironically, it’s not just successful court challenges that result in negotiated settlements. When a First Nation loses at the first level of court it often appeals. Before the appeal is heard, government and/or the company often reach a negotiated settlement with the First Nation and the appeal is dropped. This can happen for a variety of reasons.

First, government and the company might worry that the appeal judges will disagree with the lower court’s decision. It might be better to reach a settlement and avoid the possibility of a First Nation win on appeal that sets a wider precedent .

Second, even though the First Nation lost the first round, by pursuing the case to court and then filing an appeal it has demonstrated it is in the fight for the long haul. Some governments and many companies decide they do not want the negatives that come with drawn-out litigation, including uncertainty around permits, difficulty raising capital and delays in construction.

The reality is that negotiation and litigation are not mutually exclusive. While most First Nations prefer a negotiated agreement based on their consent to a project that will affect their Aboriginal title, rights and Treaty rights, they also realize that government and industry might simply have a different understanding of what is required.

If the government response is unsatisfactory and it reaches an impasse with the company, a First Nation hopefully has access to other options to defend its constitutional rights. Litigation is often the last recourse to achieving successful negotiations.

Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. Bruce is a proud Métis from the Red River in Manitoba. He holds a Ph.D. in Aboriginal and environmental history and is a Fulbright Scholar. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada.

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