Canadian Lawyer

���There are no clients that I work with who are thrilled to have big projects in their territories, but more and more of them are taking the position that the best way to ensure benefits for their future generation is by cutting deals with companies because governments are not doing anything for them.��� Robert Freedman, Vancouver development comes to the fore, the land issues that have always been there come to the fore along with them and I think that���s partly the reason for the greater visibility lately.��� Indeed, a recent focus on resource development ��� worth billions of dollars and counting ��� has vaulted aboriginal concerns into the spotlight. There are many high-profile, contested proposals nationwide, including the Enbridge ���Northern Gateway��� pipeline that would carry Alberta oil across northern British Columbia en route to Asia, and the controversial ���Ring of Fire��� mineral discovery, located on or near the traditional lands of several First Nations in Northern Ontario. The recent growth, and accompanying profile, of aboriginal law begs the question of how the practice area grew from obscurity less than two decades ago into relatively big business, with no signs of letting up in the foreseeable future. While there was a sprinkling of significant Supreme Court of Canada rulings defining aboriginal rights in the first two decades after the advent of the Canadian Constitution ��� such as the 1990 Sparrow decision affirming the right to fish alongside traditionally inhabited land and the 1997 Delgamuukw judgment confirming that aboriginal title included ���a right to the land itself��� ��� no decisions in the early years produced significant traction in the aboriginal law business. That all changed, however, when the Haida Nation of British Columbia���s Queen Charlotte Islands ��� known across Canada for its colourful totem poles carved from red cedar ��� took issue with a tree-farming licence the provincial government had issued to lumbergiant Weyerhaeuser Co., allowing it to log on land claimed by the Haida more than a century earlier. The dispute spawned a protracted legal battle that culminated in a seminal 2004 Supreme Court of Canada ruling that revolutionized the practice of aboriginal law. 24 April 2013 www.CANADIAN The Supreme Court affirmed a constitutional duty for the Crown to consult before approving developments such as logging, mining, or new infrastructure on contested public land that was subject to claims that had not yet been proven. It was the first time the court recognized the ���honour of the Crown��� extended to negotiating with First Nations if they could be negatively impacted by the resource development in question. One year later, in 2005, the Supreme Court applied the duty to consult to projects on land involving treaty rights. L awyers and legal scholars contend if there is one single driver in the rapid growth of aboriginal law, it is the constitutionalized duty to consult, because it means aboriginal concerns are now central to virtually all resource development across the country. ���Obviously with Haida [Nation], the world changed,��� says Isaac. ���Now, with any development on the ground, whether you���re acting for a lender or a developer, if it���s not the number one or number two issue people should be focused on, it���s in the top three,��� he says. ���What it means daily is that anytime you have a government approval that might have an adverse affect on an aboriginal interest, you don���t even have to prove rights ��� the duty to consult is triggered. And so imagine on a mine project, on a pipeline project, on a real estate development, on an energy project, on an electrical transmission line, on a rail project, on a bridge project, on a big highway project, all of those types of projects could have an adverse affect on an aboriginal interest.��� The impact of the duty, he says, is felt far and wide. ���I was on a trip overseas last fall and I can tell you the questions we hear from Asian investors,��� says Isaac. ���Yes, they want to know about Canada���s regulatory regime and yes, they want to know about export licences and then guess what they want to know about? Aboriginal issues.��� L a w ye r m a g . c o m The challenge, in dealing with the duty to consult, is that it���s far from precise. The Supreme Court, in Haida Nation, established guidelines for the required scope of consultation, saying it would be based on a spectrum depending on such factors as the strength of the land claim in question and the potential adverse effects on the aboriginal way of life. The Crown���s duty to consult, the court stressed, does not necessarily mean the duty to accommodate, but that it could require it in appropriate circumstances. Courts across the country, therefore, continue to finesse the meaning, which is often case specific. There are new challenges being filed continually, say lawyers, and First Nations are currently in the midst of seeking to broaden to scope. The ultimate goal, according to the Supreme Court, is reconciliation. That has translated, in practical terms, into private companies assuming responsibility for negotiating with First Nations through the development process, from inception to completion and beyond. ���Most project proponents are not content to leave their fate in the hands of the Crown and hope that the Crown will discharge the duty,��� says Bergner. ���Most proponents want to control their own destiny to a greater extent, to control their own projects, and build those relationships themselves because if you���re going to have a successful project, you need to have a successful relationship with your neighbours, or in some senses, your hosts.��� Increasingly, he says, businesses accept that they need a ���social licence��� to operate ���because it just makes good business sense, frankly.��� For lawyers such as Adam Chamberlain, a seasoned aboriginal law practitioner at Borden Ladner Gervais LLP in Toronto, that means he spends a good part of his time working for companies on the nuts and bolts of the consultation process, rather than helping them

• Cover