Legal news and trends for Canadian in-house counsel and c-suite executives
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COVERSTORY "It's a business relationship, and depending on how it's structured, some First Nations are bringing money to the table just like any other business relationship." Sandra Gogal, Miller Thomson LLP two residential towers, while the proceeds from the sale are funding the CBC facilities refurbishment to negate taxpayer expense. As an agent of the Crown, CBC has a fiduciary duty to consult with anybody who's filed a claim for land use, says Nollet, which several bands in Vancouver had done. "What we had to do is basically notify the bands that were selling the property and ask what their perspective is on it," ex- plains Nollet. "We put a notice in the papers, as we were unsure which nations would be affected by this. "We received several requests to enter into discussions, but very few followed up on it," save for the Musqueam and Squamish Nation, he says. The aboriginal groups were not living on the land, so the re- furbishment was not going to affect them directly. Discussions essentially focused on how the groups could nonetheless have a presence. "We basically sat with them to hear what their views were," says Nollet. With guidance from fed- eral Justice Department law- yers, CBC dealt mostly with the Musqueam band while Concord hosted dialogue with the Squamish, with whom the developer had dealt before. In the end, it took up- wards of 24 months to agree on, including some artworks and foliage. "We started early and CBC's efforts in Vancouver were largely motivated by good- will. For its big-city facilities, Nollet says CBC has not had to negotiate with an aboriginal group before. Even for its trans- mission towers, it has not encountered claims. "For each project, we have to find out if there are claims, and in most areas where we've had to do something with a property it has always come back with an analysis of no claims," he says. "If you're on a golf course and you want to expand it and they own the land, clearly that's much more of a challenge." Often a company will eye an expansion and not realize there are aboriginal claims on the land. But it takes just a handful of disgruntled activists to derail a company's plans. "How they view the law versus how lawyers view the law — "There are some companies that are starting to make some great headway, but unfortunately there are others that have not caught on and are still making the same mistakes with the mindset that the Bernd Christmas, Hill & Knowlton Canada completed the discussions before the sale," says Nollet, who had experience working in the early 1990s for Indian and Northern Affairs Canada, a couple years after the infamous Oka Crisis. "There were times when we weren't talking and then new ideas came up," he says. "What they really wanted was visibil- ity. That's why you have to listen hard; it's not exactly what you would expect." Indeed, negotiating with aboriginal groups is a growing focus for corporate counsel within many organizations. As tensions simmer over a real estate development in Caledonia, Ont., no company wants the grief and expense of outright confrontation. 12 APRIL 2008 C ANADIAN Lawyer INHOUSE there is a whole wide gap there," explains Bernd Christmas, na- tional aboriginal practice leader at Hill & Knowlton Canada's Vancouver office. "Whether the band consists of 200 people or 1,600 people, their interpretation of their legal rights will be totally dif- ferent than what counsel will have by reading the current legal cases." Christmas suggests cor- law says 'this' and we have every right to do 'this' or 'that' based on the law." porate counsel start as early as possible getting to know their local communities. "It's pretty imperative that they get to know that community and start to understand it. They're not all one homog- enous group." Protocols and customs have to be respected to bridge the cultural divide. Moreover, counsel must keep an open mind. "There are some companies that are starting to make some great headway, but unfortunately there are others that have not caught on and are still making the same mistakes with the mindset that the law says 'this' and we have every right to do 'this' or 'that' based on the law," he says. "But when you pose that, whether it's morally right or legally right, you have to take both sides into account. So even if it's 100 people, they have the same power to stop a project. You're not going to do it without them." Canadian National Railway has had its service disrupted by