“I was not a very good student,” says John Rich. As a Partner with one of the country’s leading law firms for First Nations issues; with over 20 years’ experience in Aboriginal rights and title, fisheries, environmental issues, and land and resource use at all levels of Court; experience on various administrative tribunals including the Canadian Human Rights Tribunal; as a founding director of Sierra Legal Defence Fund; past President of the West Coast Environmental Law Association; Advisory Council member of EAGLE; and a Director of the Georgia Straight Alliance, it’s difficult to imagine John Rich was not a very good anything. That is, until he explains.
For most of those three years of law school, Rich was also the Chairman and then Vice-Chairman of Islands Trust, mandated to preserve and protect the environmental amenities of the Gulf and Howe Sound Islands. “I used to go to law school on my way to Victoria,” he says, “and then come to law school on my way back from Victoria. I ended up having to cut a lot of classes—and a lot of the social experience that other people have.” Rich also had a family to support. “It was an extremely busy time for me. I wish I had that energy again.”
Rich earned a science degree in mathematics and philosophy in 1971 and worked a while for Statistics Canada. A growing interest in environmental and planning issues led him to Islands Trust, where he first recognized the power of law to impact things he cared about. In law school, he came to see the way law affects society on a broader scale, and paired that consciousness with a longstanding interest in social justice. “I became aware through taking Michael Jackson’s course on Aboriginal law,” he says, “of all the legal issues around First Nations.” A conversation with the partners at Ratcliff & Company led to his articles placement, and to his career.
Ratcliff & Company has been working since the 1960s to help numerous First Nations regain their lands, re-establish their rights and become active economic players in resource development and business. The firm represented First Nations in negotiations leading up to the Constitution Act of 1982, and acted on First Nations’ behalf as interveners in landmark Supreme Court of Canada cases including Sparrow, Gladstone, Delgamuukw and Haida Nation. Rich’s extensive community work forms just part of a longer list of local organizations to which Ratcliff lawyers contribute their time. And of course, the groundbreaking cases continue.
For the past 11 months, Rich’s focus has been a trial on Aboriginal fishing rights for the Lax Kw’alaams First Nation. He spoke to UBC Law Alumni Magazine just days after making his final arguments. Although there have been many Section 35 cases relating to fishing rights over the years, this case represents the first civil action; the Lax Kw’alaams Tsimshian claimed broad rights, and took the government to court to try to prove them. At press time, the judge’s decision was still pending.
Rich is also working on a similar case for a number of Vancouver Island-based First Nations from Barclay Sound to the Brooks Peninsula, who are joining together in a civil action against the government claiming Aboriginal rights and Aboriginal title to fishing areas. Again, new ground: this is the first case putting fisheries at issue in title.
Rich manages Ratcliff’s legal team on the case, which has been several years in preparation. Their job is to prove what kind of society existed among the First Nations before contact and what activities were integral to that society. The challenge is to find community members who are prepared to testify to their oral history. Given Canada’s Residential Schools history and the Potlatch Ban, the chain of oral history is broken in places, so Rich’s team must also rely on scholars for their evidence. They are also responsible for knowing the history from the earlyexplorers through the development of the colony of BC and the confederation of Canada. The case is scheduled to commence before Madame Justice Garson on February 4 of 2008.
Rich comments on the curious necessity of reaching so far into the past to argue these cases. “There are very few areas of the law where you have to look at things that happened a long time ago,” he says. “Most areas of the law cut off any inquiry by statutes of limitation and common law rules. [With these cases] you have to go back 200 years. It’s extremely difficult, and also extremely interesting.”
As Rich casts a glance toward retirement, he reflects on the role the law has played since 1982 in settling these ancient disputes: “The government of British Columbia for 100 years just denied Aboriginal rights and title, and their approach was that presumably it would all go away. That’s no longer the case. The law is established that Aboriginal people have rights. We don’t know just the extent of their rights. We don’t know just the extent of what Aboriginal title means. But there’s certainly enough there that … the provincial government has now recognized that they’re better off to be inclusive with Aboriginal people rather than dismissive of them.”
He goes on, “From the Aboriginal people’s perspective, they haven’t won every case and don’t win every case so they have an incentive as well to try to come to terms with governments and the broader society on the use of their traditional land and resources. Effectively, the law has played a mediating role by assuring that both sides in this constitutional discussion have reason to continue to talk and try and work things out.”
Written by Diane Haynes and originally published in the UBC Law Alumni Magazine, Winter 2008.