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Reaching out

The art of dialogue with First Nations
|Written By Daryl-Lynn Carlson
Reaching out

When the Canadian Broadcasting Corp. finishes refurbishing its facilities in downtown Vancouver, it will include aboriginal art and indigenous flora and fauna.

The decorative touch, however, is not the brainstorm of the architect overseeing the project, but the result of negotiations with the Musqueam Indian Band that claimed an ancestral interest in the land.

“They were not necessarily looking for money but for recognition,” says Pierre Nollet, corporate counsel for CBC, who oversaw the liaison with the band.

Negotiations were launched once CBC decided to sell 128,000 square feet of land that accommodated a density of 640,000 square feet. The land was mostly parking space, and the purchaser, Concord Pacific Group Inc., is constructing 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,” explains 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 refurbishment 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 federal Justice Department lawyers, 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 upwards of 24 months to agree on, including some artworks and foliage.

“We started early and 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 visibility. 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.

CBC’s efforts in Vancouver were largely motivated by goodwill. For its big-city facilities, Nollet says CBC has not had to negotiate with an aboriginal group before. Even for its transmission 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 is a whole wide gap there,” explains Bernd Christmas, national 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 different than what counsel will have by reading the current legal cases.”

Christmas suggests corporate 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 homogenous 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 activists several times, although it wasn’t the direct target.

“In the last few years, we’ve seen more splinter groups of radicals that utilize civil disobedience as a means to promote their interests,” says Olivier Chouc, who, as counsel for CN, facilitates aboriginal relations. “It gets complicated in those cases, because what they’re looking for is to get in the spotlight.”

As part of a National Day of Action last June, aboriginal protesters blocked the tracks near Deseronto in Eastern Ontario for a day, stranding thousands of travellers. “Basically they acknowledged it had nothing to do with the railway, but there was nothing we could do to avert the blockade,” Chouc says.

With its network of tracks encroaching on hundreds of First Nations territories across the country, maintaining relations is a priority, says Chouc.

Natural resource companies such as forestry giant Weyerhaeuser Co. have well-established aboriginal-relations programs. Anne Giardini is vice president and general counsel for Weyerhaeuser Co. Canada, where she has been credited with strengthening First Nations dialogue.

“You have to be open to the unexpected and be creative and flexible,” says Giardini, acknowledging the role mandates a less-structured approach. “Don’t send your most black-letter lawyer to do the job. It’s a certain kind of person that should have these meetings and get to a good outcome. Some lawyers are good at it and some aren’t.”

Giardini, who frequently speaks at conferences about how to foster good First Nation relations, says her company often includes aboriginal representatives at the planning stages of a project.

“You may want an elder to look at a forest plan so they can tell you whether or not there’s any potential infringement,” she says. “And you pay for his or her time the same way you’d pay for a geologist’s time.”

Weyerhaeuser also regularly seeks opportunities wherein local communities can benefit economically. “We have, for example, a very close relationship with a band in Ontario that does all of our seedlings.”

Such inclusion serves to minimize confrontations, as protesters would be impeding their own people’s livelihood.

In some larger companies or those doing business, Giardini cautions that counsel should ensure they have the support of their company, from the top down, before proceeding to strike deals with local communities.

“Corporate counsel is in a position where they’re building trust and respect with a group that may be rather suspicious of the company’s activities,” she says, “so it’s important that they make sure their own organization has bought in entirely to the concept and the way forward. You don’t want to create a relationship and find out head office doesn’t agree with it.”

Giardini invites representatives from relevant government ministries to join in dialogue with local groups.
“Normally, I find it’s a win-win,” she says of the collective outcome if all goes well. “An aboriginal community affected by forestry wants to see sustainable operations that are environmentally sensitive, and that’s what we want too.”

Sandra Gogal, a partner at Miller Thomson LLP, assists resource and energy clients with aboriginal relations. She is also current chairwoman of the Canadian Bar Association’s aboriginal law section.

“I find more companies are going the extra distance and thinking of good business relationships and corporate responsibility,” Gogal says.

At the same time, the courts are indicating they want parties to establish dialogue and are willing to order them to do so. In Platinex v. Kitchenuhmaykoosib Inninuwug First Nation, Gogal points out that the court sent the parties away three times and set out a framework to guide the two sides towards an agreement.

“In essence, the court recognized one party was being very staid,” she says, referring to the First Nations, which in this case perceived the Platinex project to be a full-blown mine, whereas the junior company was merely proposing to drill six-inch test holes. The court also affirmed that consultation was to be ongoing, she points out.
For the most part, aboriginal groups “just want some assurance the resources are going to be managed in their interest,” says Gogal. “They want the opportunity to share in the ongoing revenue of the project.”

As corporate Canada improves its understanding of aboriginal communities, those communities too achieve a level of sophistication.

“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,” says Gogal.

The alternative, she points out, is stalemate. “If you have shareholders, you need to make money; and if you can’t develop, you don’t have a project.” IH

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