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Aboriginal law rising

Cover Story
|Written By Janice Tibbetts
Aboriginal law rising
Photo: Thomas Fricke

Vancouver lawyer Thomas Isaac remembers a classroom of empty chairs when he took an aboriginal law course in the early 1980s at St. Thomas University, a small liberal arts school in New Brunswick. “I think I was one of a handful of people in the class,” recounts Isaac, now a leading Canadian expert in the field. “I don’t recall there being more than three or four or five people.” Aboriginal law was barely on the legal map in Canada at the time, he explains, despite a brand new recognition of aboriginal and treaty rights in s. 35 of the Constitution Act of 1982, affirming unspecified protections for Indians, Inuit, and Métis. “It still wasn’t a live issue at all,” says Issac, an author of 10 books on aboriginal law and leader of the aboriginal law group at McCarthy Tétrault LLP. “Academically, there was interest, but it was not affecting anybody on the ground, period.” Popular thinking at the time, says Isaac, was constitutional protection of aboriginal rights would never amount to anything because “it was sold as an empty box” to government leaders in order to make it palatable. “It was tough to find lawyers who were trained in this stuff. There were very few non-advocates — people not necessarily advocating for rights but just trying to understand them.”

Keith Bergner, another Vancouver lawyer who focuses on aboriginal law, tells a similar story. As a law student at McGill University in Montreal in the early 1990s, he was among only a few interested law students who showed up for “poorly attended elective courses” on aboriginal law. While aboriginal issues had been steadily gaining national attention — sparked by such events as the 1990 Oka crisis in Quebec and the failed Meech Lake accord that same year — the legal landscape was still relatively barren and there were few lawyers in the country who practised in the area.

Twenty years later, aboriginal law is surging. Most major law firms now have aboriginal law groups and some hire aboriginal consultants. The Federation of Law Societies recommended last year that all new lawyers called to the bar have some knowledge of aboriginal rights. Law schools are thus taking steps to enhance their aboriginal law offerings and UBC last fall introduced a mandatory course for first-year students. There are now thousands of lawyers nationwide who practise aboriginal law either exclusively or part time, whether it is representing First Nations, governments, or private companies, as they navigate an area that has become increasingly complex and litigious.

“Canadian aboriginal law is an area that has grown exponentially,” asserts Aimée Craft, an indigenous lawyer and head of the Canadian Bar Association’s aboriginal law section. Craft, a descendant of Manitoba Métis Louis Riel who practises at the Public Interest Law Centre in Winnipeg, notes aboriginal law has come a long way in recent years: until the early 1950s, the Indian Act banned First Nations from hiring lawyers to pursue land claims. “I would say it’s been trending upwards for the last 10 or 15 years,” concurs Bergner, a partner with Lawson Lundell LLP. “But it has been noticed more lately. There have been some major projects, particularly in Western Canada, that have brought resource development to the fore, and when resource development comes to the fore, the land issues that have always been there come to the fore along with them and I think that’s partly the reason for the greater visibility lately.”

Indeed, a recent focus on resource development — worth billions of dollars and counting — has vaulted aboriginal concerns into the spotlight. There are many high-profile, contested proposals nationwide, including the Enbridge “Northern Gateway” pipeline that would carry Alberta oil across northern British Columbia en route to Asia, and the controversial “Ring of Fire” mineral discovery, located on or near the traditional lands of several First Nations in Northern Ontario.

The recent growth, and accompanying profile, of aboriginal law begs the question of how the practice area grew from obscurity less than two decades ago into relatively big business, with no signs of letting up in the foreseeable future.

While there was a sprinkling of significant Supreme Court of Canada rulings defining aboriginal rights in the first two decades after the advent of the Canadian Constitution — such as the 1990 Sparrow decision affirming the right to fish alongside traditionally inhabited land and the 1997 Delgamuukw judgment confirming that aboriginal title included “a right to the land itself” — no decisions in the early years produced significant traction in the aboriginal law business. That all changed, however, when the Haida Nation of British Columbia’s Queen Charlotte Islands — known across Canada for its colourful totem poles carved from red cedar — took issue with a tree-farming licence the provincial government had issued to lumber-giant Weyerhaeuser Co., allowing it to log on land claimed by the Haida more than a century earlier. The dispute spawned a protracted legal battle that culminated in a seminal 2004 Supreme Court of Canada ruling that revolutionized the practice of aboriginal law.

The Supreme Court affirmed a constitutional duty for the Crown to consult before approving developments such as logging, mining, or new infrastructure on contested public land that was subject to claims that had not yet been proven. It was the first time the court recognized the “honour of the Crown” extended to negotiating with First Nations if they could be negatively impacted by the resource development in question. One year later, in 2005, the Supreme Court applied the duty to consult to projects on land involving treaty rights.

Lawyers and legal scholars contend if there is one single driver in the rapid growth of aboriginal law, it is the constitutionalized duty to consult, because it means aboriginal concerns are now central to virtually all resource development across the country. “Obviously with Haida [Nation], the world changed,” says Isaac. “Now, with any development on the ground, whether you’re acting for a lender or a developer, if it’s not the number one or number two issue people should be focused on, it’s in the top three,” he says. “What it means daily is that anytime you have a government approval that might have an adverse affect on an aboriginal interest, you don’t even have to prove rights — the duty to consult is triggered. And so imagine on a mine project, on a pipeline project, on a real estate development, on an energy project, on an electrical transmission line, on a rail project, on a bridge project, on a big highway project, all of those types of projects could have an adverse affect on an aboriginal interest.”

The impact of the duty, he says, is felt far and wide. “I was on a trip overseas last fall and I can tell you the questions we hear from Asian investors,” says Isaac. “Yes, they want to know about Canada’s regulatory regime and yes, they want to know about export licences and then guess what they want to know about? Aboriginal issues.”

The challenge, in dealing with the duty to consult, is that it’s far from precise. The Supreme Court, in Haida Nation, established guidelines for the required scope of consultation, saying it would be based on a spectrum depending on such factors as the strength of the land claim in question and the potential adverse effects on the aboriginal way of life. The Crown’s duty to consult, the court stressed, does not necessarily mean the duty to accommodate, but that it could require it in appropriate circumstances.

Courts across the country, therefore, continue to finesse the meaning, which is often case specific. There are new challenges being filed continually, say lawyers, and First Nations are currently in the midst of seeking to broaden to scope. The ultimate goal, according to the Supreme Court, is reconciliation.

That has translated, in practical terms, into private companies assuming responsibility for negotiating with First Nations through the development process, from inception to completion and beyond. “Most project proponents are not content to leave their fate in the hands of the Crown and hope that the Crown will discharge the duty,” says Bergner. “Most proponents want to control their own destiny to a greater extent, to control their own projects, and build those relationships themselves because if you’re going to have a successful project, you need to have a successful relationship with your neighbours, or in some senses, your hosts.” Increasingly, he says, businesses accept that they need a “social licence” to operate “because it just makes good business sense, frankly.”

For lawyers such as Adam Chamberlain, a seasoned aboriginal law practitioner at Borden Ladner Gervais LLP in Toronto, that means he spends a good part of his time working for companies on the nuts and bolts of the consultation process, rather than helping them fight it out in court when and if negotiations go wrong. His practice, he says, includes such things as advising companies on environmental assessments or reaching what are know as “impact and benefits agreements” with First Nations, the outcome of successful negotiations between both parties, which can entail providing jobs for aboriginal workers.

“There is the law, and there are best practices, and they are not necessarily the same thing,” says Chamberlain, who has worked with aboriginal, business, and government clients. “In the end, what many developers end up doing is rolling up their sleeves and consulting with the aboriginal communities in the area. The good proponents don’t just speak in terms of doing consultation, getting an approval, and then going away, most proponents have ongoing relationships with the aboriginal communities they consult with and that’s for very practical reasons.”

First Nations are also becoming more practical, says Robert Freedman, a Vancouver lawyer who works exclusively for aboriginal groups. “There are no clients that I work with who are thrilled to have big projects in their territories, but more and more of them are taking the position that the best way to ensure benefits for their future generation is by cutting deals with companies because governments are not doing anything for them.” To that end, says Freedman, impact and benefit agreements can mean a lot more than jobs — they can include payments to First Nations for “community sustainability,” such as money for “education, language, development, and stuff like that.” Freedman warns, however, that some projects are viewed by First Nation as too risky at any price, such as the Northern Gateway pipeline. “It’s non-negotiable because no amount of money can compensate, if they’re a fishing people, for a massive oil spill.”

While negotiations between First Nations and private developers are now a part of doing business, there are also a significant number of lawsuits involving contested projects. “A big focus has been litigation in recent times,” notes Naiomi Metallic, a Mi’kmaq lawyer who works in Halifax where she represents aboriginal clients. “I think First Nations people are becoming more savvy about rights . . . and maybe there are more expectations.” Craft describes the aboriginal law business as “a delicate mix” of court proceedings and everyday “solicitor’s work” related to such things as negotiations with government and industry regarding land use. “We have First Nations who like to litigate and First Nations who like to negotiate,” she says.

As the business of aboriginal law grows, the number of indigenous lawyers is on the rise. For instance, the Law Society of Upper Canada reported in 2009 that 65 per cent of the 260 self-identified aboriginal lawyers in Ontario had been called to the bar in the preceding eight years. However, Craft cautions, while the pool of indigenous lawyers may be growing, law firms are still falling short in retaining them, just as firms are having trouble keeping other minorities and women. “We need to get more indigenous people as part of the Canadian legal system if there is going to be true engagement,” says Craft.

Metallic, who has represented aboriginal interests in resource negotiations, asserts it would be a mistake to conclude the growth in aboriginal law in recent years is exclusively tied to the duty to consult — although she acknowledges that consumes a significant part of the business. Shin Imai, an aboriginal law expert at York University’s Osgoode Hall Law School, agrees that the duty to consult, while it grabs the most attention legally and politically, is not the only growing area of aboriginal law. He says it “cuts a wide swath of stuff” involving family, criminal, and human rights law — ranging from child-welfare cases to sentencing principles that require courts to take into account the over-representation of aboriginals in the criminal justice system.

Metallic points to two recent developments she says have strengthened legal avenues for aboriginals who want to assert their rights in other areas, particularly human rights. One is the 2008 repeal of s. 67 of the Canadian Human Rights Act, which prevented aboriginals on reserves from pursuing certain types of human rights claims against the federal government. “Since this repeal happened we are now seeing more human rights cases,” says Metallic. She names one potentially far-reaching challenge, currently before the Canadian Human Rights Tribunal, which human rights advocates cite as a crucial test of how far the act will go in protecting First Nations. In the challenge, the First Nations Child and Family Caring Society and the Assembly of First Nations argue the federal government, which is responsible for funding social programs on reserves, is discriminating by spending 22 per cent less on child-welfare services than provincial governments provide for children who live off reserves. The stakes could be ultimately much wider than child welfare. If First Nations win, it could have a potential impact on other federally funded services on reserves, such as health, education, and police. In fact, another human rights challenge is underway in northern Ontario, where chiefs of the Mushkegowuk First Nations are seeking equal policing services.

Meanwhile, Metallic is involved in a separate legal challenge to services on reserves — in which 17 aboriginal groups in Atlantic Canada have filed a judicial review of planned federal cuts to First Nations social assistance to bring payments in line with provincial rates. In that Federal Court case, social issues and the duty to consult intersect, says Metallic. “We’re trying to expand the duty to consult,” she says. “Governments are saying social programs aren’t part of aboriginal rights under s. 35, at least as far as the courts have understood them, so we have no obligation to consult with you prior to making changes to any of these things on reserves that may affect you. So we’re trying to say in this case maybe you do.” The First Nations are relying on the established administrative law principle of procedural fairness to argue that the duty to consult is not necessarily confined to cases involving s. 35 Charter rights.

Another possible tool for First Nations is the United Nations Declaration on the Rights of Indigenous Peoples, which Canada signed in 2010. The international document, although not legally binding, could provide moral leverage for First Nations, says Metallic, who notes it contains a provision requiring governments to consult with indigenous peoples on matters of public policy that could have a detrimental effect. The provision was among the contentious elements that made the Harper government reject the rights blueprint for three years after its inception. One of the government’s stated reasons at the time was that one of the articles — affirming that states “shall consult and co-operate in good faith with the indigenous peoples . . . in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them” — clashes with the Canadian Constitution, which requires a balancing of individual and collective rights. In the end, the government signed on, saying it was better to be a signatory with stated concerns, rather than reject the declaration outright.

Initial resistance to the declaration, however, indicated the federal government and First Nations were on a potential collision course over developing natural resources — a clash that has been highlighted in recent years.

Osgoode’s Imai and Gordon Christie, an aboriginal law professor at UBC, contend that tension between First Nations and the Harper government also is fuelling aboriginal desire to test their rights in the legal arena. “The government is not at all shy about saying we need to get to the resources,” says Imai. “It’s a very aggressive agenda and that ties into consultation and that the federal government has a duty to protect the land of aboriginal people.” Christie says the existence of the duty to consult, combined with First Nations’ frustration with the government’s pursuit of resource development, “has created a bit of an industry” in the legal realm.

Indeed, Ottawa’s “Responsible Resource Development” plan for extraction of natural resources, a key element of last year’s federal budget, has thrust aboriginal concerns into the public eye. The government produced two pieces of legislation aboriginals say reduced environmental land protection — both of which were central to the recent Idle No More protests. The legislation is now the subject of two judicial review applications filed in the Federal Court by the Mikisew Cree and the Frog Lake First Nations, both located in northern Alberta near the massive oil sands development.

The two pieces of legislation in question were passed in 2012 — Bill C-38, which changed the Fisheries Act, and Bill C-45, an omnibus budget bill that contained many provisions, including changes to the 130-year-old Navigable Waters Protection Act. The recrafted act streamlined protection only for the country’s busiest waterways, a change First Nations say eliminates environmental protection for thousands of rivers, streams, and small lakes. Victoria lawyer Robert Janes, counsel for the bands, told an Ottawa press conference earlier this year the lake at Frog Lake would no longer be protected, nor would many of “the vast number of navigable waterways” in Mikisew traditional territory making them vulnerable to being dug up for oil sands development. Bill C-38, which also passed last year, revamps Canada’s environmental assessment law by, among other things, giving the federal cabinet more power over resource development.

The Mikisew First Nation, in an application filed in Federal Court, is seeking a declaration that the Conservative government and several ministers had a duty to consult on development and introduction of bills that could adversely affect the band.

The court challenges are perhaps an indication the surge in aboriginal law will continue. Lawyers point out the parameters of the duty to consult could be further defined and possibly become more robust in years to come.

The question of whether the duty to consult includes Crown consultation with First Nations before passing legislation is unsettled, according to a 2010 ruling in the Supreme Court of Canada. In a ruling involving a resource dispute between Rio Tinto Alcan Inc. and the Carrier Sekani Tribal Council over a smelter in Kitimat, B.C., the court ventured briefly into broad territory by expressly stating it would “leave for another day the question of whether government conduct includes legislative action.” “That question is out there and it’s an interesting one,” observes Lawson Lundell’s Bergner, who was involved in the Rio Tinto-Carrier Sekani case. “It’s a mug’s game trying to guess what the outcome will be. It’s early days on that one.”

Bergner also notes “another great example” of whether there is a Crown duty to consult will play out in in a legal challenge filed by the Hupacasath First Nation in B.C. against Canada’s free-trade pact with China. The band, which is supported by aboriginal chiefs in B.C. and Ontario, is seeking Federal Court judicial review of the Canada-China Foreign Investment Promotion and Protection Act, arguing extraction of resources by foreign interests could affect aboriginal rights. “Is there a Crown duty to consult over international treaty making?” asks Bergner. “On the duty to consult, the Supreme Court said the lower courts would fill in the details as time goes on. Well, there are an awful lot of details to fill in.”

And that, among other things, is keeping the aboriginal law community busy. According to Isaac, a self-described “one-trick pony” who spent his early years of practice in the company of a then-meagre group of aboriginal law practitioners, it’s turned out to be a specialty worth having. Adds Freedman, a full-time aboriginal law practitioner who took his first course in the area because it fit his schedule when he was at Queen’s University law school: “Twenty years ago when I started this I don’t think anyone had any clue of how this would morph the way it’s morphed. And as long as companies want to develop land with resources — and we know Canada has a lot of resources — I don’t see it slowing down.”

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