BCBusiness

NOVEMBER 2015 BCBusiness 63 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. Virtu- ally every major legal Šrm in the country now employs aboriginal law consultants, and there are dozens of smaller boutique ¢irms that focus solely on aboriginal law; there are about 10 of these Šrms 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 Šrst law school in Canada to introduce a mandatory course on the subject for Šrst-year students. A leader in the Šeld, UBC now o•ers six di•erent courses in indigenous legal studies. erle Alexander calls himself "a child of aboriginal law." Origi- nally 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 strate¤y 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 conŠrmed aboriginal title as a right to the land itself, not just to hunt, Šsh and gather—"and watch it being argued by the legends of aboriginal law. It was a great experience." Today, the 44-year-old Alexander is a partner in the Vancouver o¦ce of Gowlings LLP and a member of the Šrm'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 busi- nesses and other organizations in the negotiation and implementation of impact and beneŠt agreements, resource revenue-sharing arrangements and other business transactions. Although the hands-on experience he gained at law school Šred 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 balanc- ing 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-consum- ing litigation. "Despite legal victory after legal victory and a greater deŠnition of the law, the Crown continues to avoid its responsibilities," he says. In aboriginal circles, says Alexander, the Crown is jok- ingly 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 adver- sarial politics, Alexander opted to focus on the solicitor side of aboriginal law, Šg- uring it was the best way to obtain tangible beneŠts 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 deŠning rights to one increasingly involved with the nego- tiation of business opportunities. 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 aborigi- nal groups involved in negotia- tions over major projects such as the Northern gateway pipeline. 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 inter- ests. the court also states that the duty to consult applies even when title has not been proven. 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 aborigi- nal 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 terri- tory 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. NatiVE jOuRNal; Bc achiEVEMENt fOuNdatiON;istOck; NathaN EiNBiNdER/altERNatiVEs jOuRNal

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