Two hundred kilometres northwest of Vancouver, in the southern Chilcotin, the Xeni Gwet''in First Nation is having it out with the British Columbia Ministry of Forests.
A dispute over the right to cut some hay in a remote area of B.C.'s interior is threatening to reopen a massive native land-claims court battle — a battle that lasted more than 300 days and cost tens of millions of dollars.
This setback comes just weeks after the provincial and federal governments agreed to hold off on their plans to appeal the landmark ruling that declared the Xeni Gwet'in had established aboriginal title to a large portion of their traditional territory.
Now the band has served notice that it is backing out of that agreement, paving the way for another costly round of legal battles.
This recent example shows just how quickly aboriginal-governmental relationships can disintegrate. The same can be said for aboriginal-corporate relationships. It can take just a handful of disgruntled activists to derail a company’s plans.
One just has to look at the fallout from the Caledonia, Ont. dispute, which grabbed the attention of the general public in early 2006. Protesters from the Six Nations of the Grand River began a demonstration to raise awareness about First Nation land claims on a parcel of land in a community roughly 20 kilometres southwest of Hamilton, Ont. Soon after this demonstration, the demonstrators occupied the disputed land.
The land at the centre of the dispute was to be developed by Henco Industries Ltd. into a residential subdivision known as the Douglas Creek Estates. It is part of a plot of land known as the Haldimand Tract.
Henco argued that the Six Nations surrendered their rights to the land in 1841, and Henco later purchased it from the Crown. The Six Nations, however, maintain that their title to the land was never relinquished.
This month’s cover story focuses on the delicate art of negotiating with First Nations. Natural resource companies, such as forestry giant Weyerhaeuser Co., have well-established aboriginal-relations programs and often include aboriginal representatives at the planning stages of a project.
Anne Giardini, general counsel for Weyerhaeuser, explains that the role of the lawyer in these situations requires a less-structured approach. “You have to be open to the unexpected and be creative and flexible,” she explains.
“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,” Giardini says. “Some lawyers are good at it and some aren’t.”
She’s right. And while this kind of finesse doesn’t come naturally to all lawyers, it’s certainly an area where many can improve their negotiations skills.
If the recent battle with the Xeni Gwet'in First Nation is any indication, this is a problem that is only going to increase over time.