Keith Bergner, partner at Lawson Lundell
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
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.
The British North America Act gives the federal government responsibility for aboriginal people and their lands.
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.
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 This law is not repealed until 1951.
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.
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.
Originally a poli-sci major, Merle Alexander now practises aboriginal resource law with Gowlings LLP
Merle Alexander calls himself “a child of aboriginal law.” Originally a political science major, he switched to studying law at the University of Victoria in the late ’90s, inspired by the political battles being waged by First Nations at the time. He entered the school’s co-op program, a learning strategy that allows students to alternate academic terms with paid work placements. “I got to work on some big cases, including the Supreme Court arguments for Delgamuukw”—a case that confirmed aboriginal title as a right to the land itself, not just to hunt, fish and gather—“and watch it being argued by the legends of aboriginal law. It was a great experience.”
LEGAL LANDMARKS IN ABORIGINAL LAW
R. v. Sparrow. The case originated when Ronald Sparrow, a member of the Musqueam First Nation, was arrested for fishing with a net larger than allowed by his food fishing licence. The Supreme Court rules that the aboriginal right to fish for food and ceremonial purpose is constitutionally protected. For the first time, the court attempts to define the extent to which aboriginal rights are protected and whether the government is ever justified in curtailing such rights.
Delgamuukw v. Attorney General of B.C. Hereditary chiefs of the Gitxsan and Wet’suwet’en First Nations take the B.C. government to court in an effort to establish ownership and jurisdiction over 58,000 square kilometres of territory in the Skeena watershed. The Supreme Court makes no decision on the land dispute, insisting another trial is necessary, but rules that aboriginal title to the land had never been extinguished and that aboriginal title entails rights to the land itself, not just the right to extract resources from it.
Haida Nation v. British Columbia. The Supreme Court rules that the Crown has a duty to consult with aboriginal groups and accommodate their interests where possible before taking any action that might adversely affect those interests. The court also states that the duty to consult applies even when title has not been proven.
Tsilhqot’in Nation v. British Columbia. The Supreme Court grants the Tsilhqot’in people of the B.C. Interior aboriginal title over a 1,700-square-kilometre piece of traditional territory. This legal first gives the Tsilhqot’in the right to occupy the land and decide how that land will be used. The decision provides a road map for future aboriginal title claims and clarifies when consent is required from aboriginal groups involved in negotiations over major projects such as the Northern Gateway pipeline.
Today, the 44-year-old Alexander is a partner in the Vancouver office of Gowlings LLP and a member of the firm’s Business Law Group, practising aboriginal resource law. A member of the Kitasoo Xai’xais First Nation on B.C.’s central coast, Alexander focuses on advising a client list of more than 150 First Nations, aboriginal-owned businesses and other organizations in the negotiation and implementation of impact and benefit agreements, resource revenue-sharing arrangements and other business transactions.
Although the hands-on experience he gained at law school fired Alexander’s enthusiasm, he was later disillusioned by the failed implementation of judicial decisions. “The Supreme Court stated that the object of consultation and accommodation is a process of balancing interests, of give and take. It’s part of the underlying theme of reconciliation. But that’s not how it has played out,” he notes. Instead of negotiating in good faith, he says, the Crown has stubbornly resisted the legal implications of the Haida decision, consistently arguing on the low end of the scale for consultation and provoking costly and time-consuming litigation. “Despite legal victory after legal victory and a greater definition of the law, the Crown continues to avoid its responsibilities,” he says. In aboriginal circles, says Alexander, the Crown is jokingly characterized as a “deadbeat dad. They don’t pay their bills, don’t show up, don’t take responsibility.”
As a result of his frustration with adversarial politics, Alexander opted to focus on the solicitor side of aboriginal law, figuring it was the best way to obtain tangible benefits for native communities. In recent years, the growing economic involvement of First Nations in resource projects has begun to change the profession from one focused on litigating and defining rights to one increasingly involved with the negotiation of business opportunities.
There is definitely no shortage of work for aboriginal law experts, especially in B.C.’s North. A sampling of the big-ticket resource proposals that have had or will require consultation with First Nations include a $2.7-billion modernization of Rio Tinto’s aluminum smelter in Kitimat, the $5-billion Kitimat LNG liquefied natural gas export facility and a proposal from Petronas, Malaysia’s state energy company, to invest $36 billion into an LNG project near Prince Rupert. Meanwhile, in B.C.’s Peace River Valley, the 500-member West Moberly First Nation is dealing with proposals to extract natural gas through drilling and fracking, as well as conventional gas and mine development applications and BC Hydro’s $9-billion Site C dam project.
Although consultation with First Nations with regard to resource projects is the legal duty of the Crown, in practical terms much of this work is now being handled by resource companies in order to move projects ahead. “Industry seeks certainty and is motivated by time and money,” says Robert Janes, principal at JFK Law Corporation, an aboriginal law boutique headquartered in Victoria. Markets and prices can change quickly, notes Janes, which amplifies the need for action. “For a junior mining company, four or five years is death.” Keith Bergner concurs: “Most proponents want to control their own projects and build relationships with the local communities 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.”
As a result, it has become quite common for resource companies to negotiate impact and benefit agreements (IBAs) with First Nations. These deals help to manage the impact of industrial development and secure economic benefits for local communities, including training, employment and a share of profits. With stakes so high and technical details becoming so intricate, it is imperative that First Nations get expert legal counsel. “Typically, First Nations are not in favour of development that flows away from their communities. They are looking for benefits that don’t end when the project ends,” says Janes. “To accomplish this, you have to spend time in the communities. There is a lot of listening involved.”
The vagaries of market economics and geography have led to some huge disparities between participants in these negotiations. “No one would have imagined that small fishing villages on the coast would be the launching points for an international market gateway to Asia. We’re seeing communities of 200 to 300 people sitting down at negotiation tables with multinational corporations,” says Alexander. IBAs are not normally made public, but details of the financial offer made by Petronas to the Lax Kw’alaams Band of northwest B.C. were leaked in May 2015. Citing environmental concerns, the Lax Kw’alaams turned down a stunning $1.15-billion package ($319,000 for each member of the band) as compensation for the building of a natural gas export terminal in their ancestral territory on Lelu Island, just south of Prince Rupert.
Despite such headline-grabbing dollar numbers, the attorneys who represent First Nations insist that the majority of their clients are not anti-development. “Most of the First Nations I deal with are very interested in doing business. They need to develop an economy to keep their kids at home. In the more remote areas, a lot of their brightest youth go off to school and never come back,” says Greg McDade, managing partner at Ratcliff & Company, a North Vancouver firm specializing in aboriginal law whose lawyers were involved with the 2004 Haida case.
“The growing economic impact of First Nations is one of the most underreported stories in the province. We’re out in front of the rest of the country in the reconciliation process,” claims Greg D’Avignon, CEO of the Business Council of B.C. “First Nations have been involved in more than 400 economic projects in the last three years, representing billions of dollars.” Despite a failed treaty process (just four treaties have been signed in the last 20 years), D’Avignon expects that the economic influence of First Nations will continue to expand as the number of aboriginal businesses in B.C.—now totalling some 1,100 enterprises, ranging from tourism and recreation to land development and resource extraction—become more sophisticated and ambitious.
Janelle Dwyer has focused on aboriginal economic development with boutique firm Mandell Pinder
While First Nations supporters were ecstatic in the wake of the 2014 Tsilhqot’in decision, lawyers who represent industry have played down the significance of the ruling, noting that the high court ruled aboriginal title isn’t absolute. Provincial and federal law still applies to these lands, and major projects can still proceed without the consent of a First Nation—if it can be established that the development is “pressing and substantial” and the benefits expected will not be outweighed by the adverse effect on aboriginal interests.
“If you look at what the Tsilhqot’in actually won, it is only two per cent of the total territory they claimed,” says Kevin O’Callaghan, a partner and adviser on aboriginal law with Fasken Martineau in Vancouver. “I don’t think this deal compares to the treaty that the Nisga’a signed in 1998. That gave the Nisga’a more certainty, more control over their affairs and also legislative authenticity.”
Aboriginal title may not be a substitute for treaties, but the threat that it might be granted will certainly give First Nations greater leverage in negotiations over land issues. However, for industry the most troublesome aspect of the aboriginal title ruling is the potential for what some lawyers call “a retroactive veto.” For example, if a mining company began to develop a mine without getting approval and a First Nation were to later acquire title, it could then challenge the legitimacy of the development and potentially shut the entire project down.
Since the high court’s ruling, the Tsilhqot’in and the B.C. government have held intensive negotiations around land use and economic development; a delegation of 500 aboriginal leaders met with Premier Christy Clark this September to try to formulate a joint-action plan based on the principles of Tsilhqot’in. To date, however, the government has not issued any public statements about the ruling. “The silence has been deafening,” says Thomas Isaac, an experienced negotiator who heads up the aboriginal law group at Osler, Hoskin & Harcourt LLP in Calgary. Isaac believes that the Tsilhqot’in decision places added pressure on provincial governments across Canada to respond with policies, even legislation, to adjust to the new reality. “It’s not going to be easy,” he says. “It will require some hard decisions, but whatever the answer, it has to be long-term and sustainable, ultimately affordable and for the public good.”
Meanwhile, other tricky legal issues remain unresolved. At least five First Nations are pursuing claims of aboriginal title that include the waters off B.C.’s northwest coast; if granted, this would allow First Nations to block passage of oil tankers from projects like Northern Gateway’s proposed pipeline. Another murky area involves the question of whether the Crown has a duty to consult with First Nations before signing international treaties when the extraction of resources by foreign countries may impact aboriginal rights. And then there’s the debate about whether First Nations can obtain private ownership over aboriginal lands; at least 12 First Nations in B.C. are pursuing this possibility.
The unpredictable and still evolving nature of aboriginal law may often be frustrating for government and industry, but it is an elixir for many attorneys. “This is a fast-changing area of common law. We’re dealing with firsts. It can be exciting,” exclaims Janelle Dwyer, who specializes in First Nations economic development with Mandell Pinder, a boutique Vancouver law firm. “Firsts don’t happen in real estate law—all the precedents were established long ago.” Dwyer—a member of the Splatsin First Nation from near Salmon Arm—also notes that it is one of the few areas of law today that actually deals with social justice: “You can really make a difference in people’s lives.”
Keith Bergner, who has long harboured a historical interest in the subject of aboriginal rights, points out the great irony that frames the profession. “Although it’s a brand-new sphere of law, it’s focused on one of the oldest issues in the country,” he says, noting how negotiating treaties with aboriginal tribes was one of the first challenges faced by the early colonists. But of course this only enhances its relevance. “I think it’s one of the major issues of our lifetime. It’s an unresolved area about the way we organize ourselves in society—history casts a long shadow over this field.”