Canadian Lawyer

of disputes over rights and title, but we're trying to focus on sustainable economic enterprise." Bull Housser has also worked on rights and title cases and represented various parties in some major cases right to the Supreme Court of Canada, but where Bursey sees the big drive these days is really on the business side. Rio Tinto Alcan is one example of a company that a decade ago was look- ing to develop better relations with the First Nations groups they deal with. In 2000, Rio Tinto Alcan decided it wanted a different kind of legal counsel to assist it with First Nations projects so the mining giant interviewed a number of law firms. "From the outset of our work with Rio Tinto Alcan, it was that they were more interested in building good relations with neighbouring First Nations communities than litigating. That interest fit well with our approach," says Bursey. "They told us we were the only ones they inter- viewed who brought business lawyers to the meeting. We told them, 'You can fight, but we would rather build things with you, and you need to start working on your relationships with the First Nations. It will take some time but it will pay dividends in the long run.'" A decade later, Bursey says the approach seems to have worked. Rio Tinto Alcan's landmark agreement in principle with the Haisla Nation in sup- port of its primary metal operations in British Columbia was officially ratified by the Haisla Nation membership in March 2010. The Haisla Nation-Rio Tinto Alcan Legacy Agreement establishes a formal framework for the two organizations to work together for the next 30 years to maximize the opportunities and benefits of aluminum operations in Kitimat, B.C. It is, in essence, a private treaty between the company and the Haisla. Rio Tinto Alcan is going through a major modernization of its smelter to reduce emissions and create efficiency. The agreement helps establish a base from which both sides can benefit. It also rep- resents a $3-billion investment in the B.C. economy. The deal also helps resolve some of the long-standing disputes from the past, says Bursey, who admits encourag- ing big business and First Nations to work together towards agreements that serve both groups economically and socially is not a revolutionary idea, but emphasizes it requires a certain mindset. The Haisla have also formed a tri- partite partnership in the Kitimat Liquid Natural Gas plant on land the Haisla held, which recently obtained a permit to export held by Encana Corp., Apache Corp., and EOG Resources Inc. "That could be a $5-billion to $7-billion project that we will hear about later this spring as to whether it will go forward," says Greg D'Avignon, president and chief executive officer of the Business Council of British Columbia. "It was a key opportunity to do something that is vital to British Columbia and Canada's future, which is to enable the export of natural gas which is about $3.50 in Canada, but by exporting it to Asia the price goes up to $10 to $12. The Haisla have done a phenomenal job, as one example, but it isn't happening in every corner of the province." The negotiate-versus-fight approach has also worked in areas where business is extremely competitive such as the Prince Rupert Port Authority, which competes for business with other ports along the West Coast. The port's inside legal counsel says over the years it's proven to be more fruitful to take a business law approach. "We've moved away from a litigation foot- ing and more into a commercial type of discussion," says Andrew Mayer, vice president for commercial and regula- tory affairs with the Prince Rupert Port Authority. "We don't look to retain litiga- tors to negotiate deals with First Nations, we look to retain business lawyers with an aboriginal law background who have a track record for negotiating accommoda- tion agreements with First Nations." The port reached a comprehensive settlement agreement in March 2011 with the Tsimshian First Nation in Prince Rupert with respect to the port's exist- ing Fairview Container Terminal for a project that will quadruple the size of the terminal to 2 million 20-foot equivalent units (containers). The comprehensive settlement agreement provides the First Nations people with contracting opportu- nities for construction of the facility and a commitment to provide employment during the construction and operations phases and provides an ability to get some benefits in the form of ongoing payments throughout the life of the project. "The solution has been to work with aborigi- nal 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," says Mayer. The deal also includes a framework for dealing with other types of consultation along the way and that gives aboriginal groups certainty over what their entitle- ments are for the next 40 years. "It also gives us certainty knowing we settled those issues around container-related development for the next 40 years," says Mayer. It's all about convincing First Nation groups and corporations that going in with a strictly winner-takes-all approach doesn't work, says Bursey. "We always say we'd rather build things than fight. We can fight if necessary, but [what] will really help is getting some sustainable economic enterprise within the communities to help resolve a lot of the issues." These kinds of business deals have been embraced by corporations and native groups alike as B.C.'s treaty process drags on. A report issued recently by Sophie Pierre, chief commissioner of the B.C. Treaty Commission, referenced the frustration with how sluggish the treaty process has been, says Bursey. "It's been almost 20 years with very little to show for it." Isaac says government is frozen by not wanting to make tough decisions. "You generate risks by not making decisions," he says. "In my view that's probably the single biggest public policy issue in this area. Sustainability — are our govern- ments putting in processes that are in fact sustainable over time?" What frustrates Isaac is that the Supreme Court of Canada has, in his view, been consistent in its approach to First Nations issues. "The one single theme flowing out of every decision on [Charter of Rights] s. 35 and the duty to consult — some 30-odd decisions — the consistent theme is the willingness of the court to defer to the Crown. It is the Crown's obli- gation, not the court's, to do the balancing www.CANADIAN Lawyermag.com FEBRUA R Y 2012 43

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