“Just on the face of it, there’s a massive discrepancy between treaty rights and the benefits of Aboriginal title,” Pratt says. In light of Tsilhqot’in, she says, a local First Nation may harbour plans for a court challenge to their treaty and a subsequent claim of Aboriginal title. A treaty challenge alone could take a decade or more to find its way to the Supreme Court of Canada — making a separate IBA vastly preferable for any company seeking to launch a project.

Underscoring this concern, Treaty 9 Matawa First Nations leaders have made several public statements strongly suggesting their intent to pursue Aboriginal title on treaty lands covering the entirety of the Ring of Fire, with its $60-billion mineral deposit estimate.

In Wabauskang First Nation v. Minister of Northern Development and Mines et al., Pratt says, the Ontario Divisional Court upheld the right of the provincial government to license infringement on Aboriginal land. Pratt says the Wabauskang outcome makes clear that if First Nations under Treaty 3 or any of the similarly worded treaties (Treaties 1‒11) want to assert rights to resources and revenue sharing, they’ll have to challenge their treaties and seek Aboriginal title through litigation in the courts. “This has been a topic of considerable discussion with the Ontario government in the context of the Ring of Fire development,” she adds.

“If anyone successfully challenges a treaty, of course, that changes everything,” Pratt observes.

http://www.lexpert.ca/article/new-era-for-aboriginal-negotiations/