First Nations better off to negotiate than litigate on resource projects, says report – by Claudia Cattaneo (National Post – June 24, 2015)

The National Post is Canada’s second largest national paper.

A string of legal victories has emboldened Canada’s First Nations to command unprecedented say over resource projects, the latest example being last month’s Lax Kw’alaams refusal of a $1.14-billion benefits package rather than giving consent to the Pacific NorthWest LNG project in northern British Columbia.

But constitutional scholar Dwight Newman argues the legal winning streak may be coming to an end.

Indeed, in a new research report for the Macdonald-Laurier Institute — entitled Is the Sky the Limit? — Newman argues last year’s Tsilhqot’in Supreme Court of Canada decision that granted title to the B.C. community based on evidence of its use of land may mark the legal peak for aboriginal claims.

“Anyone has the right to press the full extent of their legal rights, (but) Canada may have reached a point where aboriginal groups might be setting back their own position by litigating,” writes Newman, a professor of Law and Canada Research Chair in Indigenous Rights in Constitutional and International Law at the University of Saskatchewan. “We have already seen cases of what might be described as overreach by First Nations, pushing for rights beyond those they can plausibly attain within the legal system.”

Newman said there is widespread perception that aboriginals are winning through the courts an effective veto over Canada’s ability to develop its natural resources because of their right to be consulted and accommodated, but a review of significant legal decisions shows they lost many cases, too; that wins and losses are rarely straight forward; and that the courts have recently been trying to make the law work in sensible ways rather than bow to aboriginal demands.

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