Legal news and trends for Canadian in-house counsel and c-suite executives
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activists several times, although it wasn't the direct target. "In the last few years, we've seen more splinter groups of radi- cals that utilize civil disobedience as a means to promote their interests," says Olivier Chouc, who, as counsel for CN, facilitates aboriginal relations. "It gets complicated in those cases, because what they're looking for is to get in the spotlight." As part of a National Day of Action last June, aboriginal pro- testers blocked the tracks near Deseronto in Eastern Ontario for a day, stranding thousands of travellers. "Basically they ac- knowledged it had nothing to do with the railway, but there was nothing we could do to avert the blockade," Chouc says. With its network of tracks encroaching on hundreds of First Nations territories across the country, maintaining relations is a priority, says Chouc. Natural resource companies such as forestry giant Weyer- haeuser Co. have well-established aboriginal-relations pro- grams. Anne Giardini is vice president and general counsel for Weyerhaeuser Co. Canada, where she has been credited with strengthening First Nations dialogue. "You have to be open to the unexpected and be creative and flexible," says Giardini, acknowledging the role mandates a less- structured approach. "Don't send your most black-letter lawyer to do the job. It's a certain kind of person that should have these meetings and get to a good outcome. Some lawyers are good at it and some aren't." Giardini, who frequently speaks at conferences about how to foster good First Nation relations, says her company often includes aboriginal representatives at the planning stages of a project. "You may want an elder to look at a forest plan so they can tell you whether or not there's any potential infringement," she says. "And you pay for his or her time the same way you'd pay for a geologist's time." Weyerhaeuser also regularly seeks opportunities wherein lo- cal communities can benefit economically. "We have, for exam- ple, a very close relationship with a band in Ontario that does all of our seedlings." Such inclusion serves to minimize confrontations, as protest- ers would be impeding their own people's livelihood. In some larger companies or those doing business, Giardini cautions that counsel should ensure they have the support of their company, from the top down, before proceeding to strike deals with local communities. "Corporate counsel is in a position where they're building trust and respect with a group that may be rather suspicious of the company's activities," she says, "so it's important that they make sure their own organization has bought in entirely to the concept and the way forward. You don't want to create a rela- tionship and find out head office doesn't agree with it." Giardini invites representatives from relevant government ministries to join in dialogue with local groups. "Normally, I find it's a win-win," she says of the collective outcome if all goes well. "An aboriginal community affected by forestry wants to see sustainable operations that are environ- mentally sensitive, and that's what we want too." Sandra Gogal, a partner at Miller Thomson LLP, assists re- source and energy clients with aboriginal relations. She is also current chairwoman of the Canadian Bar Association's aborigi- nal law section. "I find more companies are going the extra distance and thinking of good business relationships and corporate respon- sibility," Gogal says. At the same time, the courts are indicating they want parties to establish dialogue and are willing to order them to do so. In Platinex v. Kitchenuhmaykoosib Inninuwug First Nation, Gogal points out that the court sent the parties away three times and set out a framework to guide the two sides towards an agreement. "In essence, the court recognized one party was being very staid," she says, referring to the First Nations, which in this case perceived the Platinex project to be a full-blown mine, whereas the junior company was merely proposing to drill six-inch test holes. The court also affirmed that consultation was to be ongo- ing, she points out. For the most part, aboriginal groups "just want some assur- ance the resources are going to be managed in their interest," says Gogal. "They want the opportunity to share in the ongoing revenue of the project." As corporate Canada improves its understanding of aborigi- nal communities, those communities too achieve a level of so- phistication. "It's a business relationship, and depending on how it's struc- tured, some First Nations are bringing money to the table just like any other business relationship," says Gogal. The alternative, she points out, is stalemate. "If you have shareholders, you need to make money; and if you can't devel- op, you don't have a project." IH "You have to be open to the unexpected and be creative and flex- ible. Don't send your most black-letter lawyer to do the job. It's a certain kind of person that should have these meetings and get to a good outcome. Some lawyers are good at it and some aren't." Anne Giardini, vice president and general counsel, Weyerhaeuser Co. Canada C ANADIAN Lawyer INHOUSE APRIL 2008 13