BCBusiness

60 BCBusiness NOVEMBER 2015 istOck; ViRtual MusEuM Of caNada; VaNcOuVER puBlic liBRaRy aRchiVEs the Haida Nation objected to a tree-farm- ing 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 pro- tected from clear-cutting and its damag- ing e•ects. The dispute sparked a lengthy legal battle that culminated in a land- mark 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. 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 a•ected the entire country, but in B.C. the e•ect was especially pro- found," says Keith Bergner, a 48-year-old specialist in aboriginal law and a partner with Vancouver-based Lawson Lundell, a legal Šrm that advises a variety of pri- vate and public sector clients, includ- ing resource companies working across Canada's West and North. "Two things made B.C. di•erent," 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 legiti- mate land claims is now circling back like a heavy boomerang. Today in B.C. some 170 First Nation land claims, cover- ing much of the province, remain unre- solved 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 estab- lished—that was a new development." Still, Bergner notes that it's "not a duty to agree" and that the extent of consulta- tion depends on several factors, notably the strength of the claim to aboriginal title and the potential impact of a devel- opment. "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 owner- ship rights similar to fee simple, includ- ing the right to occupy the land and decide how that land will be used. The decision marked the Šrst formal decla- ration of aboriginal title by a Canadian court—and although First Nations hailed it as a major triumph, the test for proving 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 aborigi- nal 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. (Below from left) George III; J.D. Kelly's painting of the signing of the British North America Act; a congregation of Squamish First Nations in the 1890s; residential school stu- dents; Frank Calder; and Queen Elizabeth, who in 1982 signed Canada's Constitu- tional Act, section 35

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