Aboriginal rights vibrant field
Aboriginal rights vibrant field
May 25, 2009 - 1:09pm
Aboriginal rights 'vibrant field' these days
By Lorraine Mallinder
The Lawyers Weekly
May 2009
Canada's resource-rich economy is going through a bit of a lull right now. Falling commodities prices and a scarcity of capital have conspired to slow down the hitherto frantic pace of development across large swathes of the energy, metals and minerals industries. But, for some, the glass is half full.
For Merle Alexander, a practitioner of aboriginal law at the Boughton Law Corporation in Vancouver, the time is ripe for reflection. "In a strange way the downturn has created a bit of a breathing space to make sure projects will be sustainable, not just from a First Nations perspective, but also from a Canadian perspective," he says.
His comments have wider resonance for, beyond present concerns about reconciling economic growth with environmental sustainability, deeper questions lie over how the natural wealth of the land should be shared. In recent years, growing numbers of lawyers have been rallying behind the increasingly assertive aboriginal lobby in its search for new answers.
It would have been unimaginable forty-odd years ago, when former Prime Minister Pierre Trudeau said that no society could be built on "historical might have beens." Since then, the legal battle for recognition of ancestral rights has swept across the entire breadth of the country - from the forests of British Columbia, via the oil sands of Alberta, to the sub-Arctic waters of Labrador.
Significant twists, most notably the Supreme Court of Canada's vigorous nod to aboriginal land rights in the 1997 Delgamuukw case, have lent undeniable momentum to the movement. In 2004, the court ruled in a logging dispute brought by the Haida Nation that governments had a "duty to consult" aboriginal groups, even in cases where land rights were unproven.
The latter ruling has created a new pragmatism in a field largely driven by ideology. As Alexander, who has represented First Nations groups in a number of multi-million dollar negotiations in British Columbia, says: "There is a value in having First Nations onside. Industry is now supportive of this because it's starting to affect their bottom line."
Alexander, who lives on the Tsleil-Waututh reserve in North Vancouver, is keenly aware that the fight for ancestral rights chimes with the growing demand for social and environmental sustainability. "They [aboriginals] have suffered the disadvantage of having been ignored, but the advantage of entering into an economy that has mysteriously shifted to their ideals," he says.
Dominique Nouvet, of Victoria firm Woodward and Company, is also driving theconsultative approach. Consultation is now the fastest-moving area in aboriginal law, having "revolutionized" the relationship between First Nations and government, she says. "Aboriginal rights are Canada's most pressing social justice issue right now. There's a lot of potential for change, but it depends on who is in power and how willing they are to breakwith the past."
At a time when reconciliation with aboriginal groups is high up on thepolitical agenda, lawyers are playing a significant behind-the-scenes role in redrawing the social, economic and political map of Canada. Roshan Danesh, an expert on conflict resolution at Vancouver firm Mandell Pinder, says that current legal and political shifts are beginning to forge a new sense of national identity.
"You see stepping stones," he says. "Certainly it's an extremely vibrant field, very dynamic with more and more people coming into it. If significant progress does unfold, we may see less focus on litigation and more focus on negotiation, on the work of building and strengthening [aboriginal groups]."
Danesh, who started practising in the area after training Inuit lawyers in Nunavut, says that traditional legal thinking involving the application of rules and principles doesn't work in this field. You have to gain insights about the real experiences, lives and world views of clients before you can even begin to figure out what the best outcome might be, he says.
While economics are important, he says, the real question of reconciliation concerns the place that groups occupy in their communities, in their country and in the world. On more than a few occasions, he says, his assumptions have been "flipped on their head."
For Peter Hutchins, one of the country's top litigators in aboriginal cases and co-founder of Montreal-based firm Hutchins Caron and Associates, today's issues stem from "simple misunderstandings" dating back to the actual discussions that took place when historical treaties on land use were being forged. First Nations understood that they were sharing the land, he says.
Questioning received legal wisdom requires a certain type of personality. In his view, "You've got to be someone who questions and challenges authority because that's what we do day in day out. To the person who says 'you can't do this, the law says so,' you have to be able to say 'what do you mean you can't do it?'"
Hutchins was one of the negotiators for the 1975 James Bay and Northern Quebec Agreement, the first modern-day land rights settlement, which involved a $225-million payment to Cree and Inuit groups in return for allowing hydroelectric projects to go ahead in Northern Quebec. He left his first employer along with two colleagues to pursue the case.
The final agreement was signed and concluded in two years, says Hutchins. Back then, negotiators had a direct line to senior government officials.
But, as land rights cases have become more commonplace, bureaucracy has grown in response, a development that has created "a big blob, a tar baby" in the system. But, he points out, Canada is still a front-runner in the field, ahead of Australia, New Zealand and the U.S.
The Liberal government in B.C., recently re-elected last month, is set to break new ground with plans to give aboriginal groups title to ancestral lands. The controversial proposals, yet to be unveiled, would draw a line under the debate once and for all, giving native groups and business shared power of decision over land and resources. It is expected that major transferrals of wealth will eventually flow to native communities as a result.
The debate has moved faster in B.C., mainly because the absence of treaty agreements for most of the province has left the legal ownership of lands open to more question. How far the proposals will go has yet to be seen, but the mere fact that they are being considered is a measure of the lines of communication that have been established between aboriginal groups and government, in large part as a result of recent legal developments. As Alexander puts it:
"One of the positive things to come out of this is that presidents of mining companies and political leaders now spend time with aboriginal communities."
Bess Brown
Communications Coordinator
Coastal First Nations
1051-409 Granville Street
Vancouver, BC V6C 1T2
Phone: 604-696-9889
Fax: 604-696-9887
www.coastalfirstnations.ca