The High Demand for Aboriginal Lawyers

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Keith Bergner | BCBusiness
Image by: Adam Blasberg; Location: Bill Reid Gallery, Vancouver
Keith Bergner says a landmark case in 2004 forever changed aboriginal law in Canada—and especially B.C.

After a decade of landmark rulings on native rights, aboriginal lawyers are in high demand—especially in B.C., home to more than a third of Canada’s First Nations. While arguably the most exciting and consequential field in law today, it is also one of the most unpredictable

In the mid-90’s, the Haida Nation objected to a tree-farming licence that the B.C. government had issued to Weyerhaeuser Co., allowing the lumber giant to log on land claimed by the Haida more than a century earlier. The Haida wanted large tracts of old-growth forest, considered vital to their economy and their culture, to be protected from clear-cutting and its damaging effects. The dispute sparked a lengthy legal battle that culminated in a landmark 2004 Supreme Court of Canada decision, which stated that the Crown had a constitutional duty to consult with First Nations and accommodate their interests before approving developments on contested public land.

LEGAL LANDMARKS IN ABORIGINAL LAW

1963
Known as the “Indian Magna Carta,” the Royal Proclamation of 1763, issued by King George III, states that aboriginal title–the inherent aboriginal right to a land or territory–exists, and that only the Crown, not other settlers, can buy land from First Nations. It also specified that “Nation to Nation” treaties must be negotiated and signed before aboriginal land can be opened for non-native settlement.

1867
The British North America Act gives the federal government responsibility for aboriginal people and their lands.

1876
The Indian Act is passed, ending any remaining self-government for natives and making them wards of the federal government. The Act influences all aspects of a First Nation person’s life, from birth to death. Indian agents become the intermediaries between First Nations and the rest of the country.

1927
The Indian Act is amended to make it illegal for First Nations to raise money or hire a lawyer. This law is not repealed until 1951.

1973
Calder v. Attorney General of B.C. The Nisga’a tribal council takes the B.C. government to court, arguing that the aboriginal title to 2,600 square kilometres of land in and around the Nass River Valley in northwestern B.C. had never been extinguished. Although the Supreme Court ruled against the Nisga’a, it did acknowledge for the first time that aboriginal title to land existed prior to colonization and the Royal Proclamation of 1763. The case laid the groundwork for the first modern land claims agreements in B.C.

1982
Canada’s Constitutional Act, Section 35, recognizes and affirms existing aboriginal rights but does not define them.

The impact of the ruling would be felt far beyond Haida Gwaii’s borders: aboriginal concerns were now a factor in resource development across Canada. “The ruling affected the entire country, but in B.C. the effect was especially profound,” says Keith Bergner, a 48-year-old specialist in aboriginal law and a partner with Vancouver-based Lawson Lundell, a legal firm that advises a variety of private and public sector clients, including resource companies working across Canada’s West and North. “Two things made B.C. different,” says Bergner. “One is simply a matter of numbers—more than one third of the 600 First Nations in Canada are located here. The second is the lack of treaties, either historical or modern.” The legacy of a decision made in the late 1800s by provincial politicians to deny that aboriginal people had legitimate land claims is now circling back like a heavy boomerang. Today in B.C. some 170 First Nation land claims, covering much of the province, remain unresolved and in limbo. “It makes for a bit of a complicated place,” says Bergner wryly.

This complexity has also helped breathe life into his legal specialty. When he graduated with a law degree from McGill University in 1996, there was no call for experts in aboriginal law. “The ideas were there, but not the law,” says Bergner, who was voted Aboriginal Law Litigator of the Year in 2013 and 2014 by Benchmark Canada. The Haida decision changed the game: “Haida made it clear that the Crown has a duty to consult even if aboriginal title had not been established—that was a new development.” Still, Bergner notes that it’s “not a duty to agree” and that the extent of consultation depends on several factors, notably the strength of the claim to aboriginal title and the potential impact of a development. “It’s a rapidly evolving area of law. A lot of fundamental questions still have not been answered.”

One of those key questions was answered on June 26, 2014, when the Supreme Court of Canada ruled that the nomadic Tsilhqot’in (chil-ko-teen) people of B.C.’s Interior hold aboriginal title to a 1,700-square-kilometre swath of their traditional territory (and not simply areas once occupied or extensively used, as the provincial and federal governments had argued). Aboriginal title confers ownership rights similar to fee simple, including the right to occupy the land and decide how that land will be used. The decision marked the first formal declaration of aboriginal title by a Canadian court—and although First Nations hailed it as a major triumph, the test for proving title remains a demanding one. “It is not creating new law,” says Bergner, but rather “taking an abstract legal concept and applying it to acres on the ground.”

This ongoing process of bringing clarity to ambiguity is one of the main drivers in the sudden emergence of aboriginal law as a legal specialty. Virtually every major legal firm in the country now employs aboriginal law consultants, and there are dozens of smaller boutique firms that focus solely on aboriginal law; there are about 10 of these firms in Vancouver and Victoria alone. Law schools have also been trying to keep pace. In 2012, the Federation of Law Societies recommended that all new lawyers called to the bar have some knowledge of aboriginal rights. That same year the Allard School of Law at UBC became the first law school in Canada to introduce a mandatory course on the subject for first-year students. A leader in the field, UBC now offers six different courses in indigenous legal studies.


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