Aboriginal court decisions shouldn’t be dealbreakers – by Drew Hasselback (National Post – July 30, 2014)

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You’ve heard varying degrees of panic over the Supreme Court of Canada’s rulings in Tsilhqot’in and Grassy Narrows.

These are clearly important aboriginal rights decisions, and each will have a profound impact on Canada’s natural resource industry. Yet I’m not sure either case justifies any fear.

The cases clarify some technical aspects of aboriginal law. And, well, that’s it. They’re not legal blocades that will halt all development in this country.

Litigation is a zero-sum game. If a case makes it all the way to judgment, you have a winner and you have a loser. Now, what is it that the winner gets? A bill from the lawyers, and a bunch of legal rights that too often require a fresh round of litigation — i.e., even more legal bills — to enforce. Just because you can win a legal case doesn’t mean you instantly get what you really want.

A lot of commentary around Tsilhqot’in and the Grassy Narrows decisions treats them like winner-takes-all victories. But that’s not how it works. If you win some rights in native litigation, you still have to speak with the other side about how you will use those rights. Indeed, a lot of lawyers who practice aboriginal law actually spend their time negotiating so-called impact and benefit agreements. These are business deals that ensures a local First Nations participates in the profits from a project on or near their lands.

“At the end of the day, what really matters on the ground is how aboriginal and non-aboriginal peoples are able to sit down and work out deals,” says Adam Chamberlain, a partner with Borden Ladner Gervais LLP who negotiates a lot of IBAs.

Keith Bergner, a partner in the Vancouver office of Lawson Lundell LLP, says the best way to get a project built is to do a deal that secures the backing of any affected First Nations. “That’s still the preferred approach. If anything, the Tsilhqot’in decision has in my mind reinforced the wisdom of that approach.”

Natives well understand there’s more to the process that just law. “We believe Ontario and industry are morally and politically obliged to seek our consent before logging our lands,” says J.B. Fobister, who was one of the plaintiffs in the Grassy Narrows case.

That said, even if law is just one part of the process, it still is part of the process. The Tsilhqot’in ruling packs a practical punch. While it’s fine to talk about negotiating deals in a business-like fashion, having aboriginal title certainly improves a First Nation’s bargaining position, says Pierre-Christian Labeau, a partner with Norton Rose Fulbright Canada LLP in Quebec City.

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