I offer some thoughts that might be helpful to your clients, whether government officials or representatives of companies, in building better relationships with First Nations. These thoughts are drawn from my 19 years as counsel for the federal government and they are my own.
The importance of building better relationships with First Nations was underscored by the Supreme Court of Canada in the opening paragraph in Mikisew Cree First Nation v. Canada:
The fundamental objective of the modern law of aboriginal and treaty rights is the reconciliation of aboriginal peoples and non-aboriginal peoples and their respective claims, interests and ambitions. The management of these relationships takes place in the shadow of a long history of grievances and misunderstanding. The multitude of smaller grievances created by the indifference of some government officials to aboriginal people’s concerns, and the lack of respect inherent in that indifference has been as destructive of the process of reconciliation as some of the larger and more explosive controversies.
Building relationships in “the shadow of a long history of grievances and misunderstandings” is often not easy. Focusing on these simple thoughts might help:
RespectEncourage your internal clients to make respect the foundation of every relationship with a First Nation.
When I began meeting with First Nations many years ago, I was surprised to hear the word respect used much more often than words such as title and rights. I learned that it is usually where respect has been lacking that the word is heard most often. Without respect, it will be impossible to build a strong relationship.
Be guided by the golden rule: Encourage your clients to treat First Nations and their representatives as your clients expect to be treated.
Do betterReaching agreement with a First Nation on issues relating to aboriginal title and rights may seem daunting. Committing to do better may be a helpful early step in building a stronger relationship and perhaps reaching agreement on other issues.
TogetherEncourage your clients to work together with First Nations. If a project needs to be studied, commission the study together. If a plan or proposal needs to be developed, develop it together. Collaborate as much as possible. Share information. Even in litigation, explore ways to co-operate.
Long termBuild long-term relationships with First Nations. If the first time your client meets with a First Nation is when your client is seeking to resolve an issue or reach an agreement, achieving resolution or agreement will be more difficult. Resolving issues and reaching agreement usually requires trust. As Doug Eyford emphasized in his 2013 report to former Prime Minister Stephen Harper — Forging Partnerships Building Relationships: Aboriginal Canadians and Energy Development — effective relationships are best achieved through sustained engagement.
PeopleEncourage your clients to get to know the people they are building a relationship with away from meetings and negotiations. Join representatives of the First Nation for a meal before or after meetings.
One of my clients supervised a team working throughout a large region. He told the members of that team not to pass any First Nation’s office without stopping in to say hello. A chief once told me that he was impressed that one of my clients had taken his children to watch the First Nation’s weekend fishery.
When I mentioned this to my client, he said that he did not mean to impress the chief or the First Nation, he just thought it would be a great experience for his kids.
Experiences like these may even contribute in small and unexpected ways to what the Supreme Court of Canada cited as the fundamental objective — reconciliation between aboriginal and non-aboriginal Canadians.
If these thoughts are helpful to you and your clients, all credit goes to the clients and representatives of First Nations that I worked with over the years. Everything I know about relationship building I learned from them.
Hugh MacAulay is counsel with ICBC claims legal services in Vancouver.