Since 1973, aboriginal law has emerged as an exciting field of law. This area involves constitutional law as First Nations struggle to define the aboriginal and treaty rights protected by section 35 of the Constitution Act, 1982 (e.g. hunting, fishing, trapping, aboriginal title, etc.). These "section 35" rights are constantly evolving as litigation adds to the knowledge of what they mean within our present legal system.

We provide advice on all aspects of aboriginal and treaty rights from negotiations to litigation. We can provide cost-effective legal services to First Nations that are in the process of defending their aboriginal and treaty rights in court.

There has grown, as a subset of "section 35" rights, a distinct body of law respecting the Crown's fiduciary duty to consult with First Nations respecting land use decisions that affect aboriginal and treaty rights protected under section 35. This "duty to consult" has resulted in formal consultation policies being adopted by various provincial governments and negotiations between the Crown and First Nations for large resource development, particularly in light of the Haida and Mikisew decisions by the Supreme Court of Canada.

Our firm can assist in all aspects of the consultation process, from assisting First Nations to set up their own distinct consultation process through to the actual consultation with governments to the negotiations of impact and benefits agreements with resource companies. We also assist First Nations to challenge land-use decisions made by government without adequate consultation.

Treaty making continues to play an important role in aboriginal law and social justice for First Nations. There are two main treaty-making processes in western Canada: the British Columbia Treaty Commission ("BCTC"), and the federal bilateral process (Comprehensive and Specific Claims). The BCTC is a tripartite approach to modern treaties in British Columbia, where little of the land is subject to older Crown treaties like the rest of Canada. Under the BCTC, a First Nation negotiates with both the federal and provincial governments a treaty for land and rights, based on unextinguished aboriginal title. The BCTC process is a six-stage process which can result in a modern, comprehensive treaty.

Under the federal Comprehensive Claims process, the federal government determines whether a First Nation has a valid claim against the Crown for aboriginal title or self government; if so, then Canada negotiates with the First Nation to settle the claim. In British Columbia, comprehensive claims are conducted under the auspices of the BCTC process.

Under the federal Specific Claims process, the federal government determines whether a First Nation has a valid claim against the Crown under the federal Specific Claims Policy; if so, then Canada negotiates with the First Nation to settle the claim. The new Specific Claims Tribunal Act, S.C. 2008, c.22 provides First Nations, for the first time, with statutory leverage to ensure their specific claims no longer languish for decades in Ottawa. After a First Nation files a specific claim, Canada has only three years to decide whether to accept or reject the claim. If no decision is reached within that time, the First Nation can take the claim to the new Specific Claim Tribunal for a binding decision on Canada. The Tribunal will be staffed with new federally appointed judges. As well, if negotiations of an accepted claim take longer than three years, the First Nation can refer the claim to the Tribunal for a binding decision.

Our firm provides all-encompassing legal services in the treaty negotiation and specific claims area. These services include assistance with funding proposals, hiring researchers, providing legal reviews and options, and conducting negotiations with government through ratification. We assist First Nations experiencing problems with overlapping claims to their traditional territories from other First Nations. We also provide legal services for the adjudication of rejected or stalled claims, in the courts and before the new Specific Claims Tribunal.

Another area of aboriginal law concerns the federal Indian Act and other regulatory initiatives respecting aboriginal, Inuit and Metis people. Issues include band membership, council elections, development of reserve lands, land and resource management, self-governance, property and commodity taxation, bylaw-making, and so forth. Band councils function under the Indian Act very much like small municipal governments, and they have the same business and litigation needs as any local authority.

We have extensive experience in providing Indian Act advice to First Nations. Moreover, we are currently involved in negotiating agreements with the federal government in areas of governance and taxation.

Related to this area is First Nations economic development. Many aboriginal people are not waiting for treaties to begin creating their own futures. First Nations buy and sell real estate, start businesses, purchase businesses as ongoing concerns, and enter joint ventures with other companies. They often seek to capitalize on the intrinsic value of their reserve, which tend to be prime parcels of land. First Nations develop their reserves and lands in numerous ways commercially: residential sub-divisions, retail shopping centres, hotels, restaurants, cultural centres, farms, oil and gas wells and facilities, and so on. Taxation is becoming a relevant concern, due not only to the long-standing tax exemption under the Indian Act but also to the tax-room provided by the federal government for First Nations to levy property taxes and even GST.

Our firm is well versed in providing legal assistance to First Nations seeking to develop their reserve lands. There are unique challenges and opportunities for First Nations in this area. We provide advice and assistance to maximize the benefits flowing to the First Nation while minimizing liability and taxation issues.

Survivors of Indian residential schools have long sought compensation for the physical and sexual abuses they suffered attending residential school. Several class actions were launched across Canada seeking such compensation from Canada and the churches involved in running the residential schools. In May 2006, Canada reached an out of court settlement of those class actions with legal counsel for former students, the churches, the Assembly of First Nations and other aboriginal organizations. The settlement agreement came into force on September 19, 2007. Compensation to survivors is available in two forms. First, a Common Experience Payment will be paid to every eligible former student who resided at a recognized Indian residential school, and were alive on May 30, 2005, the day the negotiations were initiated. Each eligible survivor who applies will receive $10,000 as well as an additional $3,000 for each year of residence beyond the first year. Second, the settlement agreement established an enhanced alternative dispute resolution process called the Independent Assessment Process (“IAP”) for survivors who have claims for serious physical and sexual abuse. For the five years following September 19, 2007, the IAP is the only way a former student may pursue a sexual or serious physical abuse claim, unless he or she has formally opted out of the Settlement Agreement.

In addition to the two forms of compensation, Canada established a Truth and Reconciliation Commission on June 1, 2008. The purpose of the TRC is to educate Canadians about the legacy of residential schools and to enable survivors and their communities an opportunity to share their experiences in a safe and culturally-appropriate environment.

Our firm was an advocate for the settlement agreement, urging the government to adopt this three-tiered approach to settling residential school claims (see our Law Reform page). We have experience assisting individuals in personal injury matters, and can bring our knowledge of aboriginal law and history to help survivors put forward their best case in the IAP process.