Canadian Lawyer

signifiCAnt supreme Court of CAnAdA deCisions on ABoriginAl And treAty rights mikisew Cree first nation v. Canada (minister of Canadian heritage): the court affirmed the Crown duty to consult also applies to projects on land involving established treaty rights. the bench found the federal government had a duty to conduct meaningful discussions with the mikisew Cree on the building of a winter road, even though their treaty permitted the Crown to ���take up��� land for such things as roads, mining, and lumbering. delgamuukw v. British Columbia: in this case, the court confirmed for the first time that aboriginal title includes the right to land itself, not just the right to hunt, fish, and gather. 1990 1997 r. v. sparrow: in a ruling involving charges against musqueam fisherman ron sparrow jr., the court affirmed that aboriginal rights include fishing alongside traditionally inhabited land. the decision established criteria to determine whether Crown infringement is justified. 2004 2005 haida nation v. British Columbia (minister of forests): the court recognized the ���honour of the Crown��� meant the government has a duty to consult with first nations if they are potentially adversely affected by resource development on land where claims have not yet been proven. fight it out in court when and if negotiations go wrong. His practice, he says, includes such things as advising companies on environmental assessments or reaching what are know as ���impact and benefits agreements��� with First Nations, the outcome of successful negotiations between both parties, which can entail providing jobs for aboriginal workers. ���There is the law, and there are best practices, and they are not necessarily the same thing,��� says Chamberlain, who has worked with aboriginal, business, and government clients. ���In the end, what many developers end up doing is rolling up their sleeves and consulting with the aboriginal communities in the area. The good proponents don���t just speak in terms of doing consultation, getting an approval, and then going away, most proponents have ongoing relationships with the aboriginal communities they consult with and that���s for very practical reasons.��� First Nations are also becoming more practical, says Robert Freedman, a Vancouver lawyer who works exclusively for aboriginal groups. ���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 2010 rio tinto Alcan inc. v. Carrier sekani tribal Council: the court clarified when the duty to consult will be triggered, in a decision that rejected the Carrier sekani tribal Council���s claim that it should have been consulted about a power sale agreement between British Columbia hydro and rio tinto Alcan. some legal experts note than an interesting element of the ruling is the court expressly stated it would ���leave for another day��� the question of whether governments are required to consult first nations about legislation that could have an impact on them. benefits for their future generation is by cutting deals with companies because governments are not doing anything for them.��� To that end, says Freedman, impact and benefit agreements can mean a lot more than jobs ��� they can include payments to First Nations for ���community sustainability,��� such as money for ���education, language, development, and stuff like that.��� Freedman warns, however, that some projects are viewed by First Nation as too risky at any price, such as the Northern Gateway pipeline. ���It���s non-negotiable because no amount of money can compensate, if they���re a fishing people, for a massive oil spill.��� While negotiations between First Nations and private developers are now a part of doing business, there are also a significant number of lawsuits involving contested projects. ���A big focus has been litigation in recent times,��� notes Naiomi Metallic, a Mi���kmaq lawyer who works in Halifax where she represents aboriginal clients. ���I think First Nations people are becoming more savvy about rights . . . and maybe there are more expectations.��� Craft describes the aboriginal law business as ���a delicate mix��� of court proceedings and everyday ���solicitor���s work��� related to such things as negotiations with government and industry regarding land use. ���We have First Nations who like to litigate and First Nations who like to negotiate,��� she says. A s the business of aboriginal law grows, the number of indigenous lawyers is on the rise. For instance, the Law Society of Upper Canada reported in 2009 that 65 per cent of the 260 selfidentified aboriginal lawyers in Ontario had been called to the bar in the preceding eight years. However, Craft cautions, while the pool of indigenous lawyers may be growing, law firms are still falling short in retaining them, just as firms are having trouble keeping other minorities and women. ���We need to get more indigenous people as part of the Canadian legal system if there is going to be true engagement,��� says Craft. Metallic, who has represented aboriginal interests in resource negotiations, asserts it would be a mistake to conclude the growth in aboriginal law in recent years is exclusively tied to the duty to consult �����although she acknowledges that consumes a significant part of the business. Shin Imai, an aboriginal law expert at York University���s Osgoode Hall Law School, agrees that the duty to consult, while it grabs the most attention legally and politically, is not the only growing area of aboriginal law. He says it ���cuts www.CANADIAN L a w ye r m a g . c o m April 2013 25

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