Gowlings has welcomed a pair of regulatory, projects, and aboriginal law specialists to its Vancouver office. Merle Alexander, who comes to the firm as a partner, and Tamara Olding, who joins as an associate counsel, bring the Gowlings aboriginal team to 42 lawyers. The pair moved from Bull Housser & Tupper to take advantage of their new employer’s national reach.
“The other major criterion,” explained Alexander, “was practice depth. Usually, aboriginal law is focused on rights and constitutional issues, but our practice is more of a solicitor-driven practice and we need tax, forestry, oil and gas, and pipeline expertise.”
Alexander’s practice typically focuses on negotiating impact benefit agreements (IBA) and other terms of projects in First Nation territory, typically oil and gas pipelines, while Olding works with the economic developments that come as result of IBAs. Both note that a large part of their role involves tempering expectations and pushing for incremental success that can be sustained, rather than boom-and-bust scenarios.
Over the past several years, the volume of aboriginal law work has expanded as First Nations have taken a more active role in determining their economic future, according to Alexander and Olding.
Alexander observed, “One of the major drivers in the aboriginal legal marketplace, that isn’t limited to British Columbia, is the engagement of aboriginal people with the energy industry. B.C. in particular has a tremendous amount of proposed oil and natural gas pipelines that go through First Nation traditional territory.” He added, “The First Nations are limited only by the entrepreneurial creativity of the members who are their citizens. First Nation clients are thinking beyond the limits of their reserves.”
Of particular note is the Enbridge Northern Gateway, a proposed pipeline in Western Canada that would run from Alberta to British Columbia, where oil and gas could be exported to Pacific markets. The project is currently under debate in a federal cabinet, whose recommendations are expected late this year or early next year, and has attracted substantial political and legal attention. A number of upcoming Supreme Court of Canada (SCC) decisions are set to shape the aboriginal law landscape further. The SCC is set to hear two high-profile aboriginal cases: Tsilhqot’in v. British Columbia and Ross River Dena Council v. Yukon.
Tsilhqot’in v. British Columbia concerns title rights to land in the province. The Tsilhqot’in charge the government of British Columbia with allowing private companies to engage in forestry activities on their territory. A 2007 ruling was inconclusive, with a judge offering an opinion that the title claim by the Tsilhqot’in should be honored, but not officially ruling in their favor. The appeal currently pending could be the first ruling to declare that specific lands fall under aboriginal title rights.
Alexander noted, “With aboriginal title cases such as the Tsilhqot’in Supreme Court of Canada appeal, we are generally looking for legal clarity—it’s a relatively untested area. We are interested to see what evidence is needed to prove aboriginal title. There has never been a challenge of this enormity.”
In the Ross River Dena case, the First Nation counsel has sued the government of Yukon, stating that no mineral claims for mining exploration should be allowed within its traditional lands. The courts ruled that until a mineral claim was put forward, the government did not need to notify the Ross River Dena nation. The decision was overturned on appeal and now faces further appeal in the SCC, leaving both mining firms and First Nations waiting for clarification on how to proceed.
“The Ross River Dena case may determine whether there needs to be territorial, if not provincial, legislative reform in the mining sector. It is fair to say that there aren’t many aboriginal clients that don’t want to see some mining law reform. It’s a mining industry specific case, but could have a long-lasting effect on the duty to consult,” said Olding.
Alexander and Olding are themselves members of Aboriginal First Nations, Alexander of the Kitasoo/Xai’xais and Olding of the Saulteau.