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regional wrap-up First Nations work creating more downstream business T he practice of aboriginal law was once considered a marginal stream of revenue for firms, but that's no longer the case. First Nations' needs are expanding through new rights, treaty negotiations, and economic expan- sion opportunities, which means more work for both large and boutique legal firms. "I think about 30 years ago, the amount of First Nations work done by large law firms was fundamentally zero," says Marvin Storrow, one of the founding partners in the Vancou- ver office of Blake Cassels & Graydon LLP, which counts First Nations files as a large component of its workload. "Now it can be three to eight per cent of the work done by a large firm." That's significant, says Storrow, who is known for handling many of the landmark First Nations rights cases under s. 35 of the Constitution Act, 1982. As the field has expanded, law firms are seeing more new lawyers eager to join the practice. "It is very popular with young lawyers today," says Storrow, as it's an area that is "very aca- demically challenging" and requires legal minds able to bring "a creative approach to the law." "We don't have a history of exercising rights for First Na- tions, so as we go along we are very much inventing and cre- ating new principles," he says. (R. v. Guerin is an example, as Storrow argued successfully for the first time that the Crown had a fiduciary duty to First Nations and won a $10-million award for the Musqueam Band.) Today, firms' practices involve litigation, both for and against First Nations; third party rights; and corporate work assisting economic expansion for aboriginal groups. "For some cases, such as those involving residential schools, there is legal assistance provided on both sides of the issue, and you are dealing with First Nations, government, and church," says Storrow. There's another difference. In the 1970s, it took Chief Del- bert Guerin five years to find a lawyer to litigate his case; today, lawyers are going to First Nations. Christopher Devlin, a part- ner in Victoria's Devlin Gailus, spends 30 to 50 per cent of his time travelling to visit First Nation clients in B.C. and Alberta, via small plane, boat, and even horseback. "The practice is really a specialty only in that we deal with one type of client, but we represent all kinds of general legal issues," says Devlin. Business divides into three categories: First Nations rights before the courts, treaty negotiations with the federal and provincial governments, and First Nations busi- ness where bands require the legal framework for investment or economic development. B.C.'s First Nations are developing enterprises such as destination hotels, golf courses, a vineyard in the Okanagan, and investment in oil and gas pipelines. "Some of the deals are quite big," says Devlin. "Often, there is highway frontage and the potential for development." In addition, he says, there have been changes to grant First Nations taxation powers that didn't previously exist, along with the ability to leverage on the equity market to raise capital for developments. "That didn't happen 10 years ago," he says. North Vancouver's Ratcliff & Co. LLP has a 35-year history ThE WEST in First Nations litigation and settlement cases. Partner Jim Reynolds, whose background combines banking and aborigi- nal law, cites Haida Nation v. British Columbia (Minister of For- ests) (establishing a Crown duty to consult with First Nations) as reason for expansion within law firms. Litigation and negotiations are bringing more resources to First Nations. Ratcliff & Co. has represented the Squamish Na- tion in the recovery of 10 acres of urban reserve, and in liti- gation regarding the Kitsilano Indian Reserve, which yielded a $92.5-million settlement. Reynolds has been successful in achieving two recent settlements. The first — between the fed- eral government, the city of Richmond, and the Musqueam In- dian band — will see the development of 136 acres, valued at $9.54 million; the second, the University of British Columbia golf course lands deal, yielded valuable land and payment of $20 million to the Musqueam. While Davis LLP's senior counsel Robert Banno agrees the Haida case expanded legal services, he says another reason for "exponential growth in the area is that First Nations are laying claim to territory beyond the boundary of their reserves." The Crown's obligation to consult has brought more stakeholders, including resource users, to the table. "I think all the large law firms recognize the need to get involved with this area of the law right now." The settlements coming down are providing a "real need for legal advice" in matters such as establishing trusts, managing assets, establishing corporations or new de- velopments, and taxation issues. Four decades ago, Thomas Berger defended natives, in an era when they "had no rights," with cases such as R. v. White and Bob (1965) establishing aboriginal rights on treaty lands. "What remains fascinating about aboriginal law is that it is dis- tinct in itself yet it draws principles of equity, constitutional law, property law, and other forms of law," says Berger. "To practise aboriginal law, you have to have a broad palate of colours." — JEAN SORENSEN jean_sorensen@telus.net www. C ANADIAN Law ye rmag.com FEBRU AR Y 2008 7