Canadian Lawyer

LEGAL REPORT/ABORIGINAL LAW "The solution has been to work with aboriginal rights and title in mind, but to strike arrangements with local First Nations to give them opportunity to participate in all phases of the project." ANDREW MAYER, PRINCE RUPERT PORT AUTHORITY act between aboriginal and competing societal interests. This is the fundamental message flowing out of the case law." D'Avignon of the Business Council of B.C. calls the treaty pro- cess "stagnant" and a "millstone" around the neck of the economy in terms of not providing certainty for capital to be invested in the marketplace. For government, it creates uncertainty with respect to the relationship it has with First Nations in the future. The Business Council of B.C is actively engaged with government and First Nations, particularly around the energy and resource sector. In 2005, it identified the 10 key trends that would shape the B.C. economy through 2010. Expanding the role of First Nations in economic and business development was identified as the No. 1 trend affecting business. "It's a very heterogeneous issue depend- ing on the First Nation, the region of the province, the govern- ment. It's not just government but federal and provincial govern- ments. Then you discern that into three areas: permitting around ongoing operations, the second would be projects and significant investments to create opportunity and wealth, and the third is with respect to treaty work that gets done," says D'Avignon. Companies have the choice to make an investment in central Asia or central British Columbia, says D'Avignon, and at the end of the day it's about the certainty of the opportunity and the return on investment. He adds that while it has a good plan in place, the province of B.C. and the federal government tend "to be timid" in their approach to consultation and accommodation issues and vague in creating clear expectations for what agreements can and should look like. In his experience, Mayer says there have been challenges but he doesn't blame the federal or provincial government. Some of the challenges relate to determining the nature and PROFESSIONAL DIRECTORY Supreme Court of Canada Counsel and Agency Services Henry S. Brown, QC Brian A. Crane, QC Guy Régimbald Graham Ragan Matthew Estabrooks Eduard J. Van Bemmel, Law Clerk scope of First Nations' aboriginal rights. "Those issues need to be considered prior to development and when there have been delays or difficulties it often arises out of a need for clearer direction from the federal government," he says. Lawyers say First Nations issues are where environmental law was at in the late 1980s. Companies have realized they can be viewed as progressive or good corporate citizens if they develop good relationships with First Nations groups. Building trust is perhaps the biggest hurdle. On the corporate side, there has to be a willingness to try to be transparent and open. Some may see that as a loss of control because it involves accommodation that has a cost attached to it. On the flipside, native groups often fear giving up something in trying to establish rights and title with the Crown in a more permanent way. "You can satisfy both of those concerns by putting the rights and title fight to the side, because a private company cannot confirm or deny rights and title — that's for the Crown to work out, but you can work into a business relationship a collaborative economic venture that doesn't affect rights and title," says Bursey. But companies can't go with the approach that they can fly into a community in their helicopters and expect they can work business magic with First Nations. There has to be a high degree of trust and that means big business has to be clear about what its interests are from the outset. D'Avignon says both provincial and federal governments need to have very clear, definitive timelines around how long is adequate consultation. "Some First Nations are being inundated with licence renewals and permit renewals and review as well as project reviews and they don't have the capacity." On the other side, he says, industry doesn't have the capacity either. He pre- dicts the tipping point is coming where projects will slow and/or operations be interrupted because the cost of doing business will exceed the company's ability to manage it either from a personnel standpoint or pure cost standpoint. Governments desperately need a plan, says Isaac, especially at the provincial level, given some of the ideas they are consider- ing. For example, B.C. is looking at offering revenue sharing — upwards of 37.5 per cent of mining tax on new projects provided to First Nations. "I'm not opposed to it — my question is 'has anyone done an economic analysis of how do we replenish the monies as mines close in British Columbia?'" Isaac says he coaches his clients to look at First Nations issues 160 Elgin StreetSuite 2600OttawaOntarioK1P 1C3T 613-233-1781 montréalottawatorontohamiltonwaterloo regioncalgaryvancouverbeijingmoscowlondon as just another area of risk management in their business. "You have to look at aboriginal issues as you would any other legal or practical risk issue," says Isaac. "It can take the emotion out of the issue and from my observation that has been extremely helpful for my clients." 44 FEBRUA R Y 2012 www. CANADIAN Lawyermag.com ntitled-1 1 12-01-17 10:50 AM

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