BarTalk October 2022 | Indigenous Matters

Indigenous matters

BarTalk’s cover art features a photograph of the Cedar Women and Man Cowichan pole in Duncan, BC, carved by Simon Charlie (Hwunumetse’) in 1988. Simon was a member of Cowichan Tribes (Quw’utsun) of the Coast Salish Nation, and was trained by Kwakwaka’wakw totem artist, Henry Hunt. He applied his own style by working in the Salish carving tradition and was highly recognized for his work.

Columns

From the President

An Inflection Point Aleem Bharmal, KC

Executive Director

The End of an Era Kerry L. Simmons, KC PracticeTalk

J. Bilinsky

Nothing Official 29 They Live Among Us Tony Wilson, KC

Brandon D. Hastings, Committee Chair

Editorial Committee

Tonie Beharrell Isabel Jackson Sean Vanderfluit

Eryn Jackson Lisa Picotte-Li

Deborah Carfrae, BarTalk Editor

Staff Contributors

Alyssa Brownsmith Travis Dudfield Carolyn Lefebvre Michaela David Sylvie Kotyk Sanjit Purewal

BarTalk is produced on the traditional and unceded territories of the Coast Salish peoples, including the Musqueam, Squamish and Tsleil-Waututh Nations. BarTalk is published six times per year by the Canadian Bar Association, BC Branch (“CBABC”) and is available at cbabc.org/bartalk. This publication is intended for information purposes only and is not legal advice.

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ALEEM BHARMAL, KC

An Inflection Point

As I assume the CBABC presidency for the 2022-23 term, a phrase that keeps recur ring in my conversations with other lawyers and judges about the current state of our profession and the judi ciary (if not society in general) is “inflection point.”

After dealing with: over two years of the global pandemic; the everincreasing impacts due to climate change; the growing societal aware ness of racial inequities and injus tice brought on by the Black Lives Matter movement; and the shock and anguish raised by the recoveries of hundreds of potential graves of Indigenous children,1 reminding Canada of its (not so long ago and until quite recently hidden) brutal past, it is more than understand able why so many of us strongly believe that we must be on the cusp of significant societal transforma tion, for the greater good, we so desperately hope.

At the same time, these vast currents of change and the turmoil they are spurring, quite often in a reaction ary backlash, including an alarming rise in incidents of racial hatred and intolerance coupled with an equally alarming rise in a widespread illib eral disdain for democratic institu tions and the rule of law, are causing many of us to feel overwhelmed and despondent — it can be exhausting!

In the social justice sector, in which I work as a human rights lawyer, we often talk about “vicarious trauma” that can be inflicted from constantly dealing with various

clients’ legal issues of oppression and injustice, invoking those same feelings of despondency and despair, as described above, within the legal service provider.

But just as real, although perhaps not quite as common, are instances of experiencing “vicarious resili ence” from dealing with a client who has faced seem ingly insurmountable challenges of oppres sion and unfairness, but has somehow remained steadfast and stoic in response, guided by some inner strength and sense of justice.

I have personally experienced both, espe cially in most recently representing an Indigenous mother in her case about the egregious mistreatment she has alleged at the hands of the child apprehension system. Her example of courage

on those inspirational acts and gather strength from them. Then we can hopefully tap into that “vicarious resiliency” as we try to help build the type of transformational change we all want to see, one step at a time.

I am honoured to be able to represent an organization this upcoming term that so well aligns with my values on issues critical to the pro fession such as access to justice; equity, diversity, and inclusion; and Truth and Reconciliation.

I know that in the critical matter of the move to a single regula tor for lawyers, notar ies, and paralegals, the CBABC will stand firm and make sure the voice of our profession is heard loud and clear, especially on the issues of self-regulation and the independ ence of the profession, cornerstones to the fundamental principle of the rule of law.

I very much look forward to working with you all as we together find the inspiration and motivation to keep pushing forward in the right direction on these and other matters for the greater good of both our legal profes sion and the administration of justice.

and determination, given what she has endured, has been inspiring and uplifting.

In these turbulent times, we all need to be uplifted, time and again, by those examples of resiliency and courage in the face of it all, to focus

1 Updated Nov. 9, 2022 to reflect the evolving understanding of the burial sites at Indigenous residential schools.

Aleem Bharmal, KC president@cbabc.org

I am honoured to be able to represent an organization this upcoming term that so well aligns with my values on issues critical to the profession.

EXECUTIVE DIRECTOR

KERRY L. SIMMONS, KC

The End of an Era

Go gently into the next one

As a child of parents whose families came to Canada as recently as 1944 from Northern Ireland, Scotland, and England, my childhood included learning about the Royal Family, particularly Queen Elizabeth. Her model of service and duty was one which was lauded and followed. As a young woman in a male-domin ated field, I was curious about how Queen Elizabeth managed her role, reputation, and duties. I watched and learned from the examples of public service and public relations in Princess Anne, Princess Diana, and Catherine, Duchess of Cambridge, now Princess of Wales.

I was born in Jamaica, a country in the Commonwealth, which today is exploring becoming a republic. Amidst learning of reggae, Jamaican patties, and political challenges, I learned of my birth country’s rela tionship with Britain (as we called it then) and the negative impact of colonial policies. I have met so many lawyers whose families came to Canada from Jamaica to have greater opportunity in this country, which was also a colony.

Now, as I deepen my own learn ing and encourage people to learn more of Indigenous peoples in Canada and their relationship with the government through the years and today, I pay close atten tion to the requests of Indigenous leaders. For example, BC’s First Nations Leadership Council has suggested (bit.ly/bt1022ed1) King Charles renounce the Doctrine of

Discovery as one of his first acts. I reflect on what I know of history, the branches of government, and who has what power and authority. I consider the evolution of the role of the monarch today in Canada. That role is largely symbolic without dir ect impact. At the same time however, “the Crown in Right of Canada,” in particular, the federal government, has historical and ob viously ongoing impact. The reports of Truth and Reconciliation Commission (“TRC Report”), the Royal Commission on Aboriginal Peoples, and the Missing and Murdered Indigenous Women and Girls Inquiries clearly tell the story of the harmful con sequences of the relationship with the Crown among many others. What would be the most beneficial change with the greatest impact for Indigenous peoples?

Like many, I am experiencing con flict with the passing of the Queen and the accession of the King. On the one hand I have respect for a life of service, and an institution that is the source of the system within which I work and from which I benefit. On the other, it is a source of harm. I am constantly aware of changes needed in Canada and around the world to address the negative impacts of col onialism and cultural genocide. I rec ognize that symbols matter, words matter, and to be a fully inclusive society all of us need to carefully listen, learn, unlearn, and make deci sions to act, with respect to how we

speak of symbols and choose which to uphold.

This edition of BarTalk, shares the rich and diverse experiences and knowledge of Indigenous lawyers, judges, and communities. It clearly shows how many of the legal com munity’s institutions are providing us with opportunities to learn, to understand, and to act. That is significant progress from where we were when the TRC Report was released in 2015. That progress should encourage us to move to more substan tive work to support the significant changes still needed to make the greatest impact.

As the dialogue about reconcilia tion and the role of the monarch in Canada continues, be careful to understand what is being said, to check the sources of information, consider various perspectives, and participate from an informed pos ition whenever you can. Understand that each of us has a different experience and scope of know ledge, whether we are Indigenous, an immigrant from decades ago, or more recently. Go gently into those conversations with respect for each other, and help to make the changes that reflect what we need today.

Kerry L. Simmons, KC ksimmons@cbabc.org

TROY HUNTER

Rethinking s. 35 Aboriginal Rights from an Indigenous Perspective

Some Indigenous com munities in BC under the name “Vancouver 2030,” have proceeded with an Indigenous-led bid for the 2030 Winter Olympics to be held on unceded lands. This invi tation to the world has been issued with the same Indigenous notions that existed some 150 years ago, that is to share equally in everything.

Unceded lands in BC are contingent liabilities on BC’s books. Moreover, the Indian Act (“Act”) makes pro vision for Special Reserves (e.g., Royal Proclamation of 1763, Lands Reserved for the Indians). Within the Act are taxation rights; there fore, Special Reserves contain taxa tion jurisdiction for First Nations until the Crown has obtained quali fied title by way of, cede, release, and/or qualified surrender.

Economic rights included in the United Nations Declaration of Rights of Indigenous Peoples (“Declaration”) provides for Indigenous peoples to practice traditional and economic activities, which goes much further than the subsistence goal posts set out in Aboriginal rights jurisprudence in Canada. Moreover, the right to redress on subsistence and develop ment in a just and fair manner is a substantial economic right to Indigenous peoples, for example compensation for, decline or loss of

Pacific salmon, denial of mineral and/ or timber rights, land dispositions made without consent, etc

In Reference to the Court of Appeal of Quebec in relation to the Act respecting First Nations, Inuit and Métis children, youth and families the Quebec Court of Appeal, in February 2022, con firmed that “the inherent right of self-government of First Nations, Inuit and Métis is recognized and affirmed by section 35 of the Constitution Act, 1982.” Incidental to self-government is the right to raise funds — Article 3 of the Declaration, articulates the right of Indigenous peoples to freely pursue their economic development and Article 4 is about Indigenous peoples having the right to self-government, “as well as ways and means for finan cing their autonomous functions” (e.g., taxation, property assessments, etc.).

When it comes to determining the economic aspect of Aboriginal rights, Justice Selbie seems to have hit the nail on the head in the context of Indigenous peoples’ legal perspectives. In 1991, Justice Selbie (the “summary appeal judge in R. v Vanderpeet, 1991 CanLII 1936 (BCSC), 59 BCLR (2d) 392 — [1991] 3 CNLR 161) determined:

… when the first Indian caught the first salmon he had the ‘right’ to do anything he wanted with it — eat it, trade it for deer meat, throw it back or keep it against a hungrier time. As time went on and for an infinite variety of reasons that ‘right’ to catch the fish and do anything he wanted with it became hedged in by rules arising from religion, custom, necessity and social change. … One of the social changes that occurred was the coming of the white-man, a circumstance, as any other, to which he must adjust. With the white-man came new customs, new ways and new incentives to colour and change his old life, including his trading and bar tering ways. The old customs, rightly or wrongly, for good or for bad, changed and he must change with them — and he did. A money economy eventually developed and he adjusted to that also — he traded his fish for money. This was a long way from his ancient sharing, bar tering and trading practices but it was the logical progression of such. It has been held that the Aboriginal right to hunt is not frozen in time so that only the bow and arrow can be used in exercising it — the right evolves with the times

In 2030, it will be 150 years since the treaty handshake medals with the buried hatchet were issued by the Crown. António Guterres, United Nations Secretary General said, “The time is now to close the inequality gaps… .”

Troy Hunter is an Indigenous lawyer of the Ktunaxa First Nation and is an LL.M. student in Constitutional Law.

As it relates to economics and self-government in light of the United Nations Declaration on the Rights of Indigenous Peoples

JENNY TOUCHIE

Jumping in the Deep End

rights and shouldn’t be interpreted as a maximum. This means the work is never done. All leaders can do is to try and keep momentum moving forward, which in a govern ment context, is honestly never fast enough for my liking.

When I recited the oath of office for my Treaty Government, I knew I was on a path that was going to be unpredictable, uncomfortable, and most likely, downright hard — three adjectives I’ve spent my life avoid ing. The Yuułuʔiłʔatล Government is one of the five Maa-nulth Nations, signatory to the Maa-nulth Final Agreement (“the Treaty”) and by governance standards, is still in its’ infancy. My term (2019-2023) is only the third term of government under the Treaty. When I reflect on the first three and a half years of my term, it’s a complete whirlwind. They have been the longest and simultaneously the shortest years of my life.

I was assigned the Executive Assets portfolio, which includes housing, infrastructure, and economic development. Portfolios can be intimidating. In my case, I was only familiar with economic develop ment because I had a seat on our economic development committee prior to being elected. The world of housing and infrastructure was com pletely overwhelming and intimidat ing. I learned quickly to rely on the knowledge, experience, and educa tion of the technical staff who make the administration run. I was not meant to be a subject matter expert. We have those — they’re the direc tors, managers, and administrative

staff (oh and all the lawyers!) who look to the governing body to make legislative and regulatory decisions to improve government services and delivery. Understanding this removed the intense pressure and allowed me to focus on the bigger picture through setting a course of strategic directions and laying out govern ment priorities that have been identified through engagement with staff and citizens.

Being a treaty nation is an interesting experi ence. On one hand, it’s incredibly exciting. As a government we’re able to claim space and autonomy through our powers to draw down our own legislation and create our own regulations. So far in my term we have enacted ten laws, amended three, and implemented seven regulations.

On the other hand, it’s incredibly exhausting! As a leader, I’ve never really felt like I was “off the clock.” Outside of business hours I’m con stantly thinking about where we are and worried about how to get to where we need to be. However, the goal post is constantly moving. New barriers are going up as old barriers are broken down. I suppose, this is the beauty of the Treaty — it’s intended to be ever green, a living agreement that only ever sets out the minimum treaty

In the end, my guiding principles to my role included bringing commun ity voices to the Executive table and making decisions that benefit all, not the few. These principles, though vir tuous, opened me up to judgement and criticism because decisions can be unpopular. This is the part of my experience that was the most diffi cult for me to reconcile. I’m having to learn to let go of judgement, not fear but welcome criticism and trust that my intentions will stay true to the oath I swore to uphold.

My late father, Harold Touchie, was a council member for our nation for as long as I could remember. One of the pieces of advice he gave was “never get into politics.” Now, having been a part of it, I can under stand why he would say that. It’s not easy, it’s thankless, it’s mostly full of criticism, and you must make difficult decisions. Despite all the bumps and hardship, over the last three years (especially with navigat ing COVID), I can say that I did the absolute best that I could, and for me, that’s enough. A jump in the deep end means there’s no where to go but up. I think I’m coming out on top.

Jenny Touchie, elected member of legislature for the Yuułuʔiłʔatล Government holding the Executive portfolio of Assets & Economic Development. LinkedIn: linkedin.com/ in/jennytouchie

My experience as a legislative member for my treaty nation

advocacy inaction

Seeking Modernization

CBABC members have spoken clearly and loudly in response to the Supreme Court of British Columbia’s announcement (bit.ly/bt1022a1) that regular Chambers would return to in-person proceedings on August 15, 2022.

Over 280 of you participated in the ThoughtExchange where you were asked to share your views on the return to in-person Chambers. One of the most highly rated thought was this:

Attendance by Teams reduces time and financial barriers to access and contributes to mitigating climate change. Selfrepresented litigants don’t have to travel and take as much time off work to access the courts. It also reduces everyone’s carbon footprints.

Overwhelmingly, the participants expressed disappointment with the reversion to pre-pandemic practices that have the effect of reducing access to justice. That impact on access to justice was expressed in terms of increased expense, wasting of time, limiting on access by those with differing abilities, limiting lawyer availability to assist more clients, and disadvantaging those in smaller and Indigenous communities. This (bit.ly/bt1022a2) is what you said.

Then-President Clare Jennings and Executive Director Kerry Simmons, KC met with Chief Justice Hinkson in July to bring these concerns to his attention. As a result of that conversation, CBABC’s Court Services Committee is finalizing a detailed Submission to the Supreme Court outlining in detail why short, straightforward Chambers matters ought to be heard virtually by

default, not upon application (another cost) which may be denied for reasons that do not accord with increasing access to justice. The Submission will also address some of the expressed reasons why the choice was made to return to in-person.

CBABC’s Submissions will also be shared with the Ministry of Attorney General, in particularly the Court Services Branch, who have been working on modernization infrastructure supports such as the Masters Chambers Records Digitization Pilot Project for hearings on Vancouver Island.

Some of the members participating in the ThoughtExchange welcomed the return to inperson proceedings citing the increased collegiality among counsel at the courthouse, more comfort to engage with the judge, and being able to hand up materials at the last minute. A few noted that there needs to be consistency in the video platform for virtual hearings to be effective. These factors will be addressed in the CBABC Submission.

In “No Turning Back: CBA Task Force Report on Justice Issues Arising from COVID-19” (bit.ly/bt1022a3) the judges and lawyers involved clearly recommended that all dispute resolution bodies should permanently implement measures to improve access to justice, modernize and address the long-standing challenges in the justice system by providing virtual proceedings for procedural, uncontested, shorter, and less complex matters.

CBABC will continue to seek modernization of the justice system, advocate for funding for infrastructure and training to support that modernization, and continue to bring the experience of members to the attention of decision-makers.

How Has the Law Contributed to Making the Lives of Indigenous Peoples

?

My friend, law school classmate, and Supreme Court Justice Russ Brown said to me not too long ago that “there’s so much to do, because there’s so much to undo.” I know there’s a level of impatience, and that there’s a need for sweeping changes. But the reality seems to be that the process of making a difference is going to be brick by brick, step by step, person by person, family by family, community by community.

Looking back over the last 25 years, I would say that Delgamuukw made a difference. Without Delgamuukw, there would have been no declaration of Aboriginal title for the Tsilhqot’in peoples. Delgamuukw was a neces sary step to get to the place where the court has actually now found Aboriginal title. Although in a dif ferent context, in my view, other ground-breaking cases like Yahey v. British Columbia (which for the first time found a treaty infringement based on the cumulative effects of development) also owe a debt of gratitude to Delgamuukw

Over the last 25 years, there have been other big advances, like the introduc tion of Indigenous sentencing courts in BC. BC’s first Indigenous female judge, Marion Buller, was the driving force behind the initiative that led to the establishment of eight such courts. I had the privilege of sitting in the one in Kamloops. Every day

that I sat in that court, I could see how the integration of Indigenous values and traditions made a differ ence in the lives of offenders, their families, and their communities. Two other important developments are the formal adoption of UNDRIP by Canada and BC, and the passage of Bill C-92 recognizing the inherent right of Indigenous communities to ensure the welfare of their children.

I also think about the work that I and many others did together, on residential school cases in the 1990s and 2000s. We moved from our adversarial process that often shredded survivors and was not appropriate for the nature of the claims to the Independent Assessment Process (“IAP”). The IAP wasn’t perfect, and not everyone was ready for the process but, for the vast majority of people that I worked with, it was a big improvement over litigation. It was faster, less adversar ial, more comprehensive, and more supportive. The validation and apol ogies that claimants received at the conclusion of an IAP hearing were just as important as the compen sation that they received. Hearing an adjudicator and a Government of Canada representative say, “I believe you. That was not your fault.

That should never have happened,” was very meaningful to survivors.

As a judge, I’ve had the opportunity to interact with lots of Indigenous people, particularly in family, child protection, and criminal matters. I think it matters that I speak to them in a meaningful way, empa thize with the things they’ve been through, understand the traumas that have affected their lives, and reflect their experiences in the judg ments I’ve had a chance to write.

I’ve heard from some of these people about how my words have made a difference to them and I know it’s the same for my judicial colleagues who take such care in their interactions with everyone who appears before them. That’s a big change com pared to the way many Indigenous litigants were treated in the nottoo-distant past.

There are many success stories. Looking forward, we need to build on these successes by being open to changing processes for Indigenous peoples and other liti gants. Restorative justice principles are consistent with the values of Indigenous communities, and there are all kinds of disputes that could benefit from a less adversarial, more restorative approach. We have a fan tastic justice system. Part of what makes our justice system great is that it is continually improving and evolv ing. Lots of problems remain but the last 25 years demonstrate that we can and should try to make a difference.

The Honourable Justice Leonard Marchand was interviewed by Isabel Jackson and Brandon Hastings for the purpose of this article. This excerpt has been edited for length and style. An extended version of this excerpt is available online at cbabc.org/BarTalk

Better Since Delgamuukw

communitynews

TIPS FROM

Update from CLBC’s TRC Working Group

Five years ago this month, Courthouse Libraries BC (“CLBC”) formed an internal Truth and Reconciliation Working Group to articulate a response to the Truth and Reconciliation Report. Over the years, the Working Group has advised our leadership team and worked to train staff on cultural competency, the history and legacy of residential schools, and Indigenous law. The Working Group also ensures our collection includes more resources about First Nations peoples and Indigenous law, and ensures that the spaces inside our libraries are adorned with artwork representing the peoples on whose lands they were built.

This year, we added a new entry in Our Legal Knowledge Base on Indigenous name reclamation (bit.ly/bt1022CLBC1), and we’ve continued to build our print collection across all 30 branches. Almost all of our branches now have copies of:

„ Modern First Nations Legislation Annotated

„ 21 things you may not know about the Indian Act: helping Canadians make reconciliation with Indigenous peoples a reality

„ The Indian history of British Columbia: the impact of the white man

„

Truth and Reconciliation Commission of Canada: Calls to Action

„ Honouring the truth, reconciling for the future: summary of the final report of the Truth and Reconciliation Commission of Canada

Congratulations Ravinder Ravi & Ryan Partners

We are pleased to announce Ravinder Ravi Bindra and Ryan Greer have been admitted to the partnership. This significant professional achievement recognizes their exceptional talent as lawyers, and commitment to client success in providing forward-thinking, practical solutions for complex commercial transactions.

Visit www.kkbl.com to learn more

Ko man Kalef is a B.C. limited liability partnership of law corporations.

MIRANDA SEYMOUR

One Foot In and One Foot Out

What does an Indigenous lawyer look like?

Irecall one of the first times I explained my ancestry; it was a school day in 1990 and I was in Grade 5. There were no formal classes that day, but rather every other classroom was decorated to represent a different country, and inside were oppor tunities to experience the unique aspects of that area of the world. I remember eating vegemite for the first time in “Australia” and doing origami in “Japan.” Near the end of the day, students were put in small groups to discuss their experiences and talk about from where their ancestors originated. I have always been proud of my Indigenous ancestry and never miss an oppor tunity to declare that — I am from the Lheidli T’enneh First Nation and am a granddaughter of Mary Gouchie (d. 2019)! So, when it came around to my turn to announce my ancestry, I proudly said, “I am Aboriginal!” I distinctly remember one of my classmates saying, “But you don’t look like an Indian.”

I still remember how those words made me feel. “But you don’t look like an Indian,” while only uttered by a 10-year-old who did not know better, they were enough to plant a seed of doubt. Am I Indigenous? What does it mean to “look” Indigenous?, to “feel” Indigenous?, to “be” Indigenous? This early childhood experience set me on a path of feeling like I was walking through life with one foot in and one foot out — one foot walking proud of my ancestry, culture, and

family, and one foot walking con fused that while I look non-Indigen ous on the outside, I feel Indigenous on the inside.

Fast forward to September 6, 2011, my first day of law school. I again found myself in a small group of students. I got a confused look from one of my new classmates when I said I am from a First Nation near Prince George, BC. The words that followed were very similar to the ones spoken over 20 years ago, “I’m sorry, but you don’t look Indian.” Between Grade 5 and 1L, I heard those words many times. So, I came up with an explanation that I use for almost every interaction where my ancestry is questioned, “Well, if you want to get ‘technical,’ my grandma was 100% Indigenous, my mom is 50% Indigenous, so I guess that makes me 25% Indigenous.” This usually satisfies most people, and they simply remark, “Oh, that’s why you don’t ‘look’ Indigenous.” But I have never felt “25% Indigenous.” I was heavily influenced by a strong Indigenous grandma; I spent many summers at fish camp watching my mom, aunts, and uncles pull salmon from the mighty Fraser River while all the kids helped with gutting and smoking them; and after spending some of my childhood in Alberta, took part in many sweat lodge

ceremonies and round dances, and attended many powwows. These things make me feel “100% Indigenous” inside, even though I do not look like it on the outside.

Thanks to the hard work of Sharon McIvor and many others, I finally felt a sense of validation (in an odd way) when I got my Indian Status through Bill C-3. I felt torn, because up to that point I attrib uted my Indigenousness to a sense of belonging to the Lheidli T’enneh community, the acceptance of my family, and the different Indigenous cultures and practices I had learned over the years, not through a piece of plastic from the Canadian government. It was a strange feeling the day I received my status card; it was one of excitement as I held the card in my hands and thought to myself, “ah ha, now I have proof!,” but also a feeling of question ing, why do I need proof? It brought me back to the feelings of 10-year-old me, sad that my fellow classmates did not believe me when I said I was Indigenous. Looking back to 1990, all the years in between, and even today, where I still feel the need to “prove” my ancestry, and sadly, we have a long way to go to acknow ledging there is not necessarily one way to “look” Indigenous, to “feel” Indigenous, or to “be” Indigenous. I am happy to say that as I get older, I get closer to walking with both feet on the same path.

Miranda is a member of the Lheidli T’enneh First Nation. Miranda was part of the first class at Thompson Rivers University Faculty of Law and is currently an associate with Slaney Randall LLP in Prince George.

feature

The Specific Claims Process Advancing reconciliation

The legacy of coloniza tion has resulted in Indigenous communities not receiving adequate redress for Canada’s breach of legal obligations. For Indigenous Nations, the taking of traditional lands and interference with their resources has resulted in devastating socio-economic impacts. Recent decisions of the Supreme Court of Canada (“SCC”) and the Specific Claims Tribunal provide an evolving approach to awarding equitable compensation arising from Canada’s breaches during the creation and administration of reserve lands in an effort to achieve reconciliation.

The Southwind v Canada, 2021 SCC 28 decision clarified how to assess equitable compensation for Canada’s breaches of fiduciary duty in the context of reserve lands. Southwind addressed how the Lac Seul First Nation (“LSFN”) should be com pensated for the illegal flooding of its reserve lands. The SCC held that Canada’s fiduciary duty required it to obtain the highest possible com pensation for the flooded reserve lands, which require the lands be assessed as part of the hydroelectric project based upon their perspective, not valued as vacant bushland.

The SCC found that equitable compensation must reflect the “sui generis Indigenous interests in land,” not fee simple [para. 105]. The SCC held compensation should be based on the First Nation’s lost opportun ity to negotiate a surrender reflect ing the “highest value of the land”

to the project itself, which in this case was for “hydroelectricity gen eration” [paras. 121 and 127]. The SCC held that compensation should also reflect the value of the lands from the Indigenous perspective and based upon the impacts to the Indigenous Community [para.140].

As the SCC found that Canada breached its fiduciary duties, LSFN is entitled to equit able compensation for the lost opportunity to negotiate a surrender reflecting the highest value of the land. This decision addresses the interests of First Nations to have their perspective addressed in compensa tion negotiations and hearings. Previously, the Crown would ordinar ily negotiate compensation based upon expropriation principles, e.g., based upon the fee simple interest. Now that equitable compensation principles are affirmed, Indigenous Nations are better positioned to have their claims resolved through the Specific Claims process.

In Siska Indian Band v HMTQ, 2021 SCTC 2, a case that we were counsel on, the Tribunal considered that the core interest of Siska in the 1878 allotment of their reserves was Siska’s fishery based upon oral history [para. 50]. The Tribunal relied on evidence of Siska members to find that Siska’s “material interest in the Claim Lands reflects their dependence on salmon

for sustenance and… their historical economy [para 61.].

Siska is a precedent setting deci sion as it is the first decision of the Tribunal to:

1. award equitable compensation for fishing losses;

2. apply full compound interest to bring forward historic losses to present.

The Indigenous perspective adduced through oral testimony enables Indigenous Nations to honour their stories to inform the resolution of claims. The Tribunal’s reliance on oral history evidence, the import

ance of the Indigenous perspective and the practice of holding oral evi dence hearings in community are sig nificant steps in the Specific Claims process that assist with achiev ing reconciliation. Addressing out standing Crown liabilities for his toric breaches through this process will aid in the reconciliation of past wrongs and will assist Indigenous Nations with their self-determina tion aspirations. The resulting com pensation from the settlement of claims assists with reconciliation of past wrongs and provides a source of funds for Nations to provide opportunities for a better tomorrow.

DARWIN HANNA AND CAROLINE ROBERTS

Darwin Hanna and Caroline Roberts, with Callison & Hanna.

sectiontalk

New Programs

Section Executives are planning a host of virtual, in-person, and hybrid Section meetings and events for you to enjoy this year. Members had over 20 Section activities in September alone! For a look at the great programs ahead, visit our Programs and Events page (cbabc.org/Sections-and-Community/ Upcoming-Events).

GET THE MOST OUT OF YOUR MEMBERSHIP!

CBABC members have complimentary access to live and on-demand continuing professional development (CPD) programs through Section meetings and unlimited access to all BC and National Sections and Forums. Members also enjoy preferred rates on professional development webinars, series, and conferences. But you need to update your profile (cbaapps.org/ BC_Sections_Enrolment/Login.aspx) and enroll (cbabc.org/sections/enroll) in Sections to take advantage of these and other membership benefits. Be sure to do that today!

HOSTING A HUB

Want to gather your colleagues in person to attend a virtual Section meeting? Let sections@cbabc.org know and your workplace’s location will be promoted to local members to join you there. Have the best of both worlds!

Indigenous Matters: A Year in Review 2021-2022

ABORIGINAL LAWYERS FORUM (“ALF”)

ALF supports social networking and mentoring for Aboriginal law students, graduates, and lawyers.

ALF creates opportunities for members to celebrate and remain connected with Aboriginal culture and responds to issues facing the Aboriginal legal community, including how to retain Aboriginal peoples in the profession and enhance their contributions to the practice of law in BC. ALF hosted nine webinars and socials last year, including: „ Information Sessions with Indigenous candidates for Law Society Bencher

„ 11th Annual ALF Holiday Banquet celebrating law students and leaders „ Consultations on the next Reconciliation Action Plan

ABORIGINAL LAW — VANCOUVER AND VANCOUVER ISLAND SECTIONS

Members of the Aboriginal Law Sections stay current on the political, social, and economic developments and opportunities involving Canada’s Aboriginal communities and help shape legislation and government policy on Aboriginal matters. Noteworthy meetings from last year include: „ Annual Aboriginal Law Review „ Framework and Process for Additions to Reserve under the Additions of Land to Reserve and Reserve Creation Act

Indigenous Lands and Land Owner Transparency Act

BRITISH COLUMBIA

The Aboriginal Lawyers Forum (“ALF”) extends great appreciation for your support of its projects and events in 2022.

Our main events were among the first in-person gatherings as the legal community adapted to changes resulting from the pandemic. ALF’s Annual Retreat: “Indigenous Thriving” offered members an opportunity to reflect on the importance of wellbeing in the profession.

ALF worked diligently to raise funds and contribute $20,000 to the Warrior Project in partnership with the Everyone Legal Clinic.

Our online Indigenous Peoples Day Auction continues to reach funding milestones to support the Warrior Project.

CONNECTING WOMEN LAWYERS

Indigenous women in Canada continue to experience the disproportionate effects of mandatory minimum sentences. More likely to be found guilty of or plead guilty to an offence that attracts a mandatory minimum, defences predicated on intimate partner violence are more often rejected.

Senators Kim Pate and Murray Sinclair recently authored a report outlining the miscarriages of justice in the cases of several Indigenous women who were issued mandatory minimum sentences,

The REAL Initiative Securing the Future of Rural Practice

The REAL initiative connects rural firms and 2L students for a valuable summer experience. Participating firms receive funding to hire this student for the summer in hopes that they will find their path in rural practice.

Help shape the future of your firm and secure the future of rural practice by registering today at cbabc.org/REAL

*Approximately ten firms are selected each summer based on the highest need communities in the province as well as ability/willingness to offer an articling position the following year.

RURAL EDUCATION & ACCESS TO LAWYERS

WLF UPDATE by Kyla Lee

Continuing with this issue’s theme of “Indigenous Matters,” CLEBC is pleased to announce their in-person annual Aboriginal Law Conference; a new course: Negotiating Free Prior and Informed Consent Agreements; and a complimentary recording of their recent Indigenous Women and the Law Conference.

The Aboriginal Law Conference takes place on Friday, November 25 and CLEBC is excited to have Bruce McIvor as Course Chair (he has also recently been appointed to their Board of Directors). The conference will focus on the legal and pragmatic implications of current developments affecting Indigenous peoples, provincial and federal governments, and industry.

Negotiating Free Prior and Informed Consent Agreements takes place on Friday, October 7. Chaired by Merle Alexander, KC. It will be

of interest to lawyers practising in the area of Aboriginal law, in private practice, industry, and government (amongst others) and will outline the steps to successfully negotiate FPIC/UNDRIP compliant agreements.

Finally, CLEBC is now providing a complimentary video recording of their recent Indigenous Women and the Law Conference. This program was a huge success and marked the first time that CLEBC has had a full faculty of Indigenous women from across the province.

For more information on these upcoming courses and recordings, please visit the Truth and Reconciliation portal at: cle.bc.ca/tandr

Indigenous Criminal Justice & Health Correlations in light of new legislation

of the Indigenous child population within the child welfare system by promoting Indigenous identity.

Recently, the Government of Canada, under Prime Minister Justin Trudeau’s wing, enacted several Indigenous-specific stat utes in policy sectors such as lan guages, child welfare, and legisla tion to domesticate the international human rights instrument in the United Nations Declaration on the Rights of Indigenous Peoples Act.

In light of this new wave of federal statutory changes, this article con siders the correlations between Indigenous criminal justice and population health.

The correlations become clear when it is considered that there is a significant overrepresentation of Indigenous prisoners as compared to the rest of the Canadian popula tion; and this cannot be considered a healthy social dynamic or status quo. Rather, it can be seen as a symptom of past discriminatory challenges playing out among the social dynamic of the Indigenous population, which is still recovering from harmful systemic and racial discrimination. In fact, Canada’s Gladue sentencing principles reflect this consideration.

According to Carly Teillet, a Métis lawyer: “Altering Canadian laws to uphold inherent rights set out in UNDRIP is two pronged; it needs to be at its core about state recognition, respect, and resources for self-deter mination of Indigenous Nations, choice for Indigenous individuals AND undoing structural racism and ongoing colonial policies. What many think of as Gladue factors are colonial state created conditions

such as poverty, disrupted families, poor housing, unsafe drinking water, intergenerational trauma etc. that assure ongoing state interventions, including criminalization.”

In the child welfare sector, recent legislative changes were made that guide provinces and territories around Indigenous jurisdictional overlap. This complicated dynamic is newly being explored and clarified within federal-level legisla tion rather than just left to policies. After years of distrust among Indigenous peoples toward the Canadian government due to the harmful exercise of authority discre tion and now illegal racist policies within the Indian Act, it is a brave move for Indigenous peoples to now shape new legislation with the federal government.

Ontario is one example of how the new legislative dynamics work between the provincial and federal child welfare legislation. Both the provincial Child, Youth and Family Services Act, 2017 and the federal statute, An Act respecting First Nations, Inuit and Métis children, youth and families, enacted in 2020, regulates child welfare. Section 9(2) of the federal Act includes a “cultural continuity” principle clarifying that Indigenous children’s best interests includes their Indigenous identity. This federal rule guides provincial child welfare nationally. This con sideration may improve the health

Indigenous peoples have many strengths, are savvy negotiators and businesspeople within the economy, are Inherent, Aboriginal and Treaty Rights-holders, and have beauti ful cultures that they share in stories and ceremonies; and yet, Indigenous peoples are still recovering from past assimilationist policies. On June 21, 2021, the United Nations Declaration on the Rights of Indigenous Peoples Act came into force domesticating international Indigenous rights dec larations into binding Canadian law. This Act must guide all other stat utes in Canada and is currently being

implemented so that there is alignment and an overall reversal of systemic dis crimination integrated within all other existing and future laws.

Teillet’s two-pronged approach, lends well to conceptualizing these changes within the context of interconnected legislative relationships, complex intergenerational and ongoing experi ences of state created inequality as well as overall autonomy and Indigenous population health.

Carrie Robinson is an Anishinaabe lawyer. She currently works as a Senior Policy Advisor at the Assembly of First Nations and is called to both the Law Society of Ontario and Law Society of British Columbia. Randolph W. Robinson

CARRIE ROBINSON AND RANDOLPH W. ROBINSON

is an Anishinaabe lawyer in public service and Chair of the Aboriginal lawyers Forum. Carrie and Randolph are siblings.

practicetalk

DAVID J. BILINSKY

A Growing Reality

Time to Reframe Competence

r Oh, we won’t give in We’ll keep living in the past... r — Music and Lyrics by Ian Anderson, recorded by Jethro Tull.

New York State has become the first US jurisdiction to mandate that attorneys take continuing legal edu cation courses in cyberse curity, privacy and data protection.

All attorneys must complete one hour of training every two years in either the ethical obligations surrounding cybersecurity, privacy and data protec tion, or in the technological and prac tice-related aspects of protecting data and client communications.

Florida and North Carolina’s mandate on technology training, as part of a lawyer’s CLE, do not specifically address cybersecurity, etc

Back on October 19, 2019, The Federation of Law Societies of Canada amended its Model Code of Professional Conduct to add the following commen tary to the competence rule (r. 3.1-2):

[4A] To maintain the required level of competence, a lawyer should develop an understanding of, and ability to use, technology relevant to the nature and area of the lawyer’s practice and responsibilities. A lawyer should under stand the benefits and risks associated with relevant technology, recognizing the lawyer’s duty to protect confiden tial information set out in section 3.3.

[4B] The required level of technological competence will depend on whether the use or understanding of technology is necessary to the nature and area of the lawyer’s practice and responsibilities and whether the relevant technology is reasonably available to the lawyer. In determining whether technology is rea sonably available, consideration should be given to factors, including:

a. The lawyer’s or law firm’s practice areas;

b. The geographic locations of the law yer’s or firm’s practice; and

c. The requirements of clients.

Cybersecurity attacks show that this commentary badly needs updating. But BC has not even added this com mentary to its Code.

The “number and perni ciousness of cyberattacks increased dramatically” in 2021, according to a new report by Canadian firm Blake Cassels & Graydon (bit.ly/bt1022pt1). BC&G also stated that the number of reported cyber security breaches — just in Canada alone — has risen by more than 2,000% over the past decade.

BC&G states: “[T]he “game” is changing monthly in cases like ran somware — which made up 55% of cybercrime incidents. Approximately 25% of ransom payments exceeded US $1 million.

IT World Canada (bit.ly/bt1022pt-2) reports that: “Quebec-based IT servi ces firm NoviPro released a poll in Feb. 2022 that found: “Just over half of sur veyed Canadian organizations hit by ransomware or malware have paid the amounts demanded by cybercriminals.”

The same report stated: “28% of respondents estimated the cost of a cyber attack on their firm was less than $50,000. The same number estimated the cost was between $50,000 and $250,000. 25% of respondents esti mated the cost was over $500,000.”

But this is not all. Sharon Nelson and John Simek in a post on slaw.ca: Small and Midsized Law Firms Slammed by Ransomware (bit.ly/bt1022pt-3), quoted Coveware Quarterly Ransomware Report (Q1 2021):

“The most notable change in indus tries impacted by ransomware attacks in Q1 was the Professional Services industry, specifically law firms. Small and medium sized law firms continue to succumb to encryption ransomware and data exfiltration extortion attacks.”

Some further disturbing facts from the Report:

„

The average ransom payment: $220,298 (+43% from Q4 2020)

„ The median ransom payment: $78,398 (+59% from Q4 2020)

„ The average number of downtime days: 23 (+10 from Q4 2020)

„ 77% of ransomware attacks include a threat to leak the stolen data (up from 70% in Q4 2020).

The time has come to act. Any lawyer working on a computer connected to the internet has an obligation to rea sonably maintain current knowledge of their ethical obligations in the areas of cybersecurity, privacy and data pro tection as well as the current best prac tices to protect client and firm data. Anything less may amount to willful blindness to a clear, present, and growing extortion risk. The time for a change is here — unless of course, you wish to keep living in the past.

The views expressed herein are strictly those of David Bilinsky and do not reflect the opin ions of the Law Society of British Columbia, CBABC, or their respective members.

David J. Bilinsky is the principal of Thoughtful Legal Management, a technology and practice management consultancy and is the former Practice Management Advisor, Law Society of British Columbia.

Email: daveb@thoughtfullaw.com Blog: thoughtfullaw.com

fromthebranch

2022-2023 CBABC Board of Directors

ALEEM S. BHARMAL, KC President Community Legal Assistance Society Vancouver

RANDY W. ROBINSON Aboriginal Lawyers Forum Rep Crown Counsel Vanderhoof

MYLENE DE GUZMAN Director at Large De Guzman Law Centre New Westminster

SCOTT MORISHITA 1st VicePresident Rice Harbut Elliott LLP Vancouver

RUPINDER GOSAL Equality Rep Department of Justice of Canada Vancouver

SARAH L. KLINGER Director at Large Law Office of Sarah Klinger Victoria

L EE M.G. NEVENS 2nd VicePresident Department of Justice Canada Vancouver

DAN MELNICK Young Lawyers Rep Cook Roberts Victoria

ADAM MUNNINGS Director at Large Munnings Law West Vancouver

JUDITH JANZEN Finance & Audit Committee Chair Onyx Law Group Vancouver

PATRICIA BLAIR Director at Large River Valley Law Duncan

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MAEGEN GILTROW, KC

Court Remedy Enables Reconciliation

The BC Supreme Court decision in Yahey v. British Columbia, 2021 BCSC 1287, marks several important pre cedents in the recognition and enforcement of the constitutional rights protected by section 35 of the Constitution Act, 1982.

The case was brought as a final effort by the members of Blueberry River First Nations to get relief from the unceasing development of the territories they have traditionally relied upon in northeastern British Columbia. For more than 20 years, Blueberry had been raising alarm bells with government that the accumulating effects on the land scape and wildlife from decades of forestry, oil and gas, hydroelectric, agricultural, and other develop ment was increasingly encroach ing on their ability to carry on their Indigenous way of life and infringing their rights under Treaty 8.

After 160 days of trial, Blueberry successfully obtained a Court dec laration that the province had breached the treaty rights recognized under s. 35. The Court found that the promises in Treaty 8, and under s. 35, are to protect the way of life of the Indigenous plaintiffs, and the measure of infringement lies in the Indigenous experience. Infringement arises when meaningful diminish ment of the way of life is shown, which can arise from the cumula tive impacts of development. Justice Burke found it would be “illogical and, ultimately, dishonourable” to

conclude that the infringement of Blueberry’s treaty rights occurs only when there is no ability left to exer cise treaty rights, and the Crown has a positive obligation to proactively protect the rights.

Importantly, the Court found that Blueberry’s way of life requires a healthy and stable environment, and that this is constitutionally protected.

The Court order pre vents further author ization of development over 3.8 million hec tares until the infringe ment of Blueberry’s treaty rights is removed. The order directs the province to work with Blueberry to develop a land man agement regime that demonstrably protects the ecosystems necessary for the exercise of treaty rights and effectively manages the cumulative impacts of development. The Court held that site specific mitigation measures do not prevent infringe ment. Instead, a holistic land man agement system that protects treaty rights and prevents development beyond sustainable limits is required.

In a significant and historic step, the province did not appeal the Court’s decision, enabling Blueberry and the province to work on implementing the Court’s order. Since the deci sion, the provincial government has created the Ministry of Land, Water and Resource Stewardship,

conceding the old ministry respon sible for land and resource manage ment was too big and conflicted to handle the complexity of Indigenous reconciliation and cumulative effects. The new Minister, Josie Osborne, has said to the Globe and Mail that the business-as-usual, project-by-project approach is no longer appropriate, citing the Yahey decision as under scoring the importance of addressing cumulative impacts.

“The Treaty always contemplated balance,” Blueberry River Chief Judy Desjarlais has said. “But, after decades upon decades of industrial develop ment occurring without Blueberry River’s input or consent, there is no longer a place free from impact, no way to practice our culture and traditional way of life. The Court decision confirmed Treaty 8 pro tects our way of life and changes to how the land is used must be made.”

Ultimately, the strong Court remedy enables reconciliation more than the regime of consultation ever did. The Court noted that in the decades of consultation preceding the trial, the Crown held the power in the rela tionship, proceeding as it intended where there was disagreement, never denying a permit based upon concern for the treaty rights. This approach contributed to the infringement. The decisive remedy issued by the Court addressed this imbalance, creating the space for Blueberry and the prov ince to work together to develop a land management regime to restore and protect the land and ecosystem for future generations.

Maegen was counsel for Blueberry River First Nation. Her practice serves Indigenous clients, focusing on litigation, negotiation and law, and policy development.

Constitutionally protecting First Nations way of life

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Land Back Movement

If you walk the streets of any large Canadian city today, chances are you’ve seen the words “land back” spray painted on the sides of build ings. I was recently in Prince George to meet a client and saw a few such statements appearing on buildings there. One could say, I quite lit erally saw the proverbial writing on the wall.

The land back movement has also entered mainstream Canadian con sciousness through the advocacy of artists. Well-known rock band Rage Against the Machine, for example, recently raised the profile of the land back movement at their concert in Ottawa this past summer.

The concept of the return of lands is at its core grounded in restitu tion. This is not the first redress movement in Canada. Japanese Canadians, for example, organized a redress movement which culmin ated in a settlement in 1988 with the federal government, in recog nition of their expulsion from the West Coast during World War II.

In mid-August of this year, I read with interest that the Wei Wai Kum First Nation (Campbell River) and the Province of British Columbia signed an Incremental Treaty Agreement that will transfer 2,276 hectares of territorial lands back to Wei Wai Kum and help boost the Nation’s economic activities.

Clearly, lands are being trans ferred back to Indigenous Nations, and more frequently now and in

larger tracts than in past decades. However, the question remains: are these tracts large and valuable enough, and do they adequately correspond to appropriate redress, all circumstances considered?

If the consensus answer is no from the perspective of Indigenous Nations, which I expect to be the case, then British Columbia can expect to see more title declaration lawsuits launched. The oftencited Tsilhqot’in Nation v British Columbia decision of 2014, one will recall, granted the declaration of Indigenous title to more than 1,700 square kilo metres (656 square miles) of land in British Columbia to the Nation.

This is not the first redress movement in Canada. Japanese Canadians, for example, organized a redress movement which culminated in a settlement in 1988 with the federal government, in recognition of their expulsion from the West Coast during World War II.

namely, Indigenous Nations used and occupied Canada prior to the arrival of European settlers.

The reality is that the land back movement is still embryonic. It is just getting started. At the risk of over simplification, the Crown has a stark choice to make. Step up, do the right thing, and proactively transfer back substantive tracts of land in a manner that does justice to the concept of restitution, or engage in bazaarlike haggling with the descendants of those who were dispossessed of their lands.

The former action has the potential to bring increased certainty to the existing Torrens system and private property regime, and to unlock wealth for the broad benefit of British Columbians and Canadians. The latter action, by con trast, will likely frus trate such certainty and related wealth creation. For example, will private property (fee simple land) remain off the proverbial land back table going forward, or will its legit imacy be increasingly challenged in the years ahead?

In my view, there is a bargain to be made, one which simultaneously promotes economic certainty, resti tution, and the private property regime, which is a cornerstone of our democracy. There is a limited window in which to act — is the Crown prepared and able to see the proverbial writing on the wall?

The reality is that Indigenous Nations tend to win redress-ori ented actions involving lands. The reason for this is patently obvious,

MALCOLM MACPHERSON

Malcolm Macpherson is a partner at Clark Wilson LLP and the Chair of the Indigenous Practice Group. He is Indigenous and leads a large Indigenous client practice focused on the natural resources sector.

communitynews

Call for Expressions of Interest: The Indigenous Advisory Circle of the Law Foundation

The Law Foundation of British Columbia receives funds from the interest on lawyers pooled trust accounts generated across many Indigenous territories that make up British Columbia, and administers grants supporting programming across those territories. Given this, the Foundation shares an extraordinary duty to build good relationships with Indigenous peoples in British Columbia, and a responsibility to ensure that Indigenous justice initiatives are a priority in its grant-making.

As an important part of existing efforts to support Indigenous justice, the Foundation is establishing an Indigenous Advisory Circle for the first time in its history. The Circle will advise the Foundation on any of its work and particularly that which has a pronounced impact on Indigenous peoples and communities. The Circle will guide the Foundation in its efforts to build a renewed relationship with Indigenous peoples that promotes trust, respect, accountability, and reciprocity. The Circle will also be a space intended for dialogue about the Foundation’s activities and practices, and how they may be developed and improved over time.

The Foundation is seeking expressions of interest for the Indigenous Advisory Circle. Indigenous peoples and their perspectives will be centred in this work, and therefore only those self-identifying as Indigenous may submit an expression of interest. Indigenous Advisors will be financially compensated for time spent preparing for and attending meetings. More information about the process will be available on the Law Foundation of BC website on September 30, 2022. Expressions of interests will be due no later than November 18, 2022.

Lawyers, trust companies and other professional advisors trust our estate litigation group‘s commitment to understanding their clients’ motivations, nuanced family dynamics, emotional costs and the many other non-financial factors that inevitably come into play in an estate dispute.

By combining a deep knowledge of estate law with a culture that prioritizes excellence and client service, we‘ve earned our reputation as the preeminent estate litigation group in the Fraser Valley. Now, the addition two new partners in that group makes our team one of the deepest in Metro Vancouver.

Reach us at hamiltonduncan.com.

“... They made me feel like I wasn’t so alone in this.”

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PROFESSOR ANNE UTECK

Decolonizing First-Year Torts

This summer, Allard Law Indigenous Legal Studies (“ILS”) again brought together faculty, Indigenous alumni, and other members of the community to offer a 5-credit intensive course to incoming Indigenous first-year law students: the ILS Summer Intensive in Tort Law. For seven weeks over May and June 2022, students engaged in academically rigorous study, including an examination of tort law through the lens of Indigenous perspectives.

Developed and co-led by ILS Associate Director Lee Schmidt and myself, supported by a dedi cated team of upper-year students, and with the generous support from donors, Allard Law and the Law Foundation of British Columbia, the course focuses on substantive skill development, community building, cultural support, and mentorship. Mentoring events and academic sup ports throughout the entire summer gave students the opportunity to strengthen the Indigenous law stu dents’ community and continue to build skills in preparation for firstyear law school.

Many in the legal community gen erously gave their time and exper tise to inform and broaden students’ study of the curriculum, including on topics such as the challenges of studying colonial law, the Indian Residential Schools Settlement, the Independent Assessment Process, and systemic issues faced by Indigenous peoples in Canada. In addition to Allard Law faculty, guest speak ers included Musqueam Councillor

Morgan Guerin; IRSSS Counsellor Yvonne Jones; and lawyers Bruce McIvor, Micah Clark, Nigel BakerGrenier, Tamara Starblanket, Melinda Skeels, and Judge Alex Wolf. Lawyer and teacher Terri-Lynn Williams Davidson, a citizen of the Haida Nation, returned as guest lec turer, speaking to stu dents about Haida laws, the Haida worldview and the fundamental dif ferences between how Western legal systems and Haida and Gitxsan legal systems address civil wrongs.

We have been very fortunate to have Elders working with us as cultural mentors and providing

away in July. Elder Kat’s legacy of contributions will endure as a gra cious source of wisdom, strength, and humour.

Indigenous Legal Studies student

Gabriel George of the Tsleil-Waututh Nation completed the course in 2021 and says it has had a profound impact on his life and the lives of his classmates. “There are these intan gible barriers to success, such as selfdoubt, cultural differences and a sense of social alienation,” says Gabriel.

“The course helped us overcome these problems and build a sense of belonging and confidence among the Indigenous law student community.”

Although the Canadian legal system is a vehicle of colonialism, it’s crucial for more Indigenous peoples to get involved in this field to help assert our inherent rights and to provide Indigenous peoples with meaningful representation and protection in the colonial justice system.

students with teachings to guide them through a colonial educa tion. Sadly, Elder Kat Zucomulwut Norris, an active and enthusiastic supporter of Indigenous students, was ill during the course and passed

Now entering his second year of law school, Gabriel says completing the Summer Intensive laid the groundwork to approach his studies through a unique Indigenous lens: “Although the Canadian legal system is a vehicle of colonialism, it’s crucial for more Indigenous peoples to get involved in this field to help assert our inherent rights and to provide Indigenous peoples with meaningful representation and protection in the colonial justice system.” Métis student Rikki Logan adds: “I think it’s crucial that to be a competent lawyer, you understand law that reflects more than the predominant colonial perspec tive... students can take this know ledge with them through their careers and use it to achieve Indigenous clients’ success.”

PICTURED ABOVE: Student Vaughn Beaulieu-Mercredi, of the Dene Tha’ First Nation, was the 2022 recipient of the ILS Summer Intensive in Torts Spirit Award in recognition of his teamwork, leadership, and community building, enriching the course and students’ experience

Anne Uteck, faculty, Allard School of Law.

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Indigenous Economic Reconciliation Tectonic reform for empowered peoples

Title requires us to ask ourselves, will this deprive generations of their future rights?

Indigenous peoples have affirmed constitutionally pro tected economic rights, yet we remain impoverished benefici aries of the economic cycles in our Territories. We must be proactive and stop being reactive, as the duty to consult has taught us. There is a material tectonic shift occurring in our favour and we will seize this change for the betterment of generations.

In this short article, I will speak about (i) the Aboriginal economic rights test; (ii)UNDRIP/C15/DRIPA; and (iii) UNDRIP implementation.

First, let’s talk about that constitutional economic right. Since the Van der Peet Trilogy, Aboriginal law has affirmed and developed three recognized cat egories of Aboriginal economic rights in Canada. These three purposive categories are:

1. food, social and ceremonial;

2. sale, trade and barter for liveli hood, support, and sustenance, but not for the accumulation of wealth; and

3. sale, trade, and barter of a com mercial nature.

The Delgamuukw and Tsihilqot’in cases further elaborated that Title and all Aboriginal Rights have an “inescapable economic aspect.”

That is powerful. There is no other peoples that the highest court has recognized that have constitutionally protected economic rights. There is a powerhouse to harness here.

Second, the empowering implementation of UNDRIP is at its infancy.

BC is the sole jurisdiction where both Provincial and Federal Crown agree to make all laws consistent with UNDRIP. On economic rights,

„ Article 3 connects the right to self-determination and our right to pursue economic, social, and cultural development.

„ Article 5 speaks to our right to economic institutions.

„ Article 20. 1. right to maintain and develop our… economic… institutions…

„ Article 21. 1. right, without discrimina tion, to the improve ment of our economic and social conditions…

2. Requirement of Crown to take effect ive measures and… special measures to ensure continuing improvement of their economic… conditions.

Third, let’s talk application. Indigenous peoples have at least two powerful arms. (1) the substan tive economic rights arm, (2) the consultation, intergovernmental, and co-jurisdiction arm. An empowered peoples fight with both arms, not one tied behind our back.

The substantial economic rights need to be determined by our Indigenous knowledge and Indigenous legal orders to be fully informed of the applicable law. One universal know ledge and wisdom is that unlike other economic development, we have a built-in sustainable develop ment requirement to preserve our Territories for future generations.

On the co-jurisdiction arm, UNDRIP will create an empowered future, not because governments are altruistic or that they even strictly follow the spirit and intent of their own law, but… because we are relentless, we are advo cating for our children’s future and we take it personal, familial, and col lective. Within a generation, Canadian laws will be consistent with UNDRIP. It will take time. It is frustrating because no one should be patient with racism or a colonial mindset.

We will reform laws as co-drafting partners over time, and it will dra matically change the legal, economic, and social landscape. Our economics in BC will add an “I” to ESG.

We will also herald a trend of joint ven tures, impact benefit agreements and equity participation becoming UNDRIP and FPIC com pliant. This will create the most legally certain jurisdiction in Canada and inter nationally. When you invest here, you will know the law is settling or settled. It will be what treaties once promised, real but dynamic legal certainty.

Finally, the entire DNA of revenuesharing is being examined for dramatic expansion. Consultation created the minimal sharing of forestry agreements, ECDAs in mining, PBAs in LNG, etc. FPIC will raise this bar. It will be a wealth transfer, but… it will also be a wealth re-investment. BC First Nations spend in their own home territories.

Merle Alexander, KC practises Indigenous Law at Miller Titerle + Company in Vancouver, with a focus on empowering Indigenous Nations through Title and Rights affirma tion, sustainable economic development, and environmental stewardship.

MERLE ALEXANDER, KC

BCLI’s Reconciling Crown Legal Frameworks Program

Implementing BC’s Declaration on the Rights of Indigenous Peoples Act requires new approaches to law-making, legal practice and law reform.

The BC Law Institute’s new Reconciling Crown Legal Frameworks (RCLF) program, guided by an advisory committee of public servants, practitioners, and Indigenous leaders, will build resources and recommendations to support the reconciliation of Crown law with Indigenous laws and forms of governance. BCLI sees the UN Declaration on the Rights of Indigenous Peoples as a blueprint for revitalizing the legal pluralism that has always existed, and which colonialism has denied and diminished.

Our vision is for BC to progressively realize UNDRIP’s promise by stepping back from Indigenous jurisdictional spaces, by finding new ways and tools that protect and promote individual and collective Indigenous human rights, and by collaboratively (re)building inter-societal practices and institutions of co-governance and conflict resolution. These are the pillars of strong Indigenous-state legal pluralism, both in principle and practice.

We also see Indigenous peoples as legal pluralism experts. Our program for reconciling Crown legal frameworks must therefore also consider ways to learn from Indigenous laws, knowledges, and forms of governance.

This is our challenge; these are our commitments. Stay in touch by visiting us at bcli.org

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Consensus in Process Design Dismantling the tools

We are seeing significant (and overdue) reflec tion and change in approaches to dispute resolution and con sensus-building with Indigenous peoples. The Crown has commit ted to advancing reconciliation and implementing principles of cooper ation with Indigenous peoples set out in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Recent BC legislation contemplates development of col laborative decision-making processes with Indigenous communities. Both agreements under the Declaration Act and reconciliation agreements with the Crown emphasize detailed, con sensus-seeking processes. Yet, while these shifts are positive indications of change, there remains a risk that unexamined ideas about dispute reso lution process options may uninten tionally impede developments.

When we imagine consensus-based dispute resolution processes, many of us draw from a very limited range of experience and exposure. We learned about a “spectrum” of processes that are framed as alternatives to litiga tion; this necessarily gives primacy to the values of one party in these discussions. Processes informed by common law legal tradition, includ ing “alternatives” (e.g., media tion and arbitration), may include assumptions about what constitutes evidence, and what comprises legal issues, who should participate, and more. Selecting from or building on these existing processes necessarily limits possibilities to build new and inclusive processes along with build ing trust and understanding.

In any consensus-building process, facilitators strive to support the needs of all parties. They are best able to do so when processes are respon sive and flexible. In the context of dispute resolution with Indigenous communities, this includes taking the lead from the community as to the process itself. What works in com mercial mediation or labour concili ation may not be ideal where con stitutionally protected rights are at issue and where culture and ways of life are threatened. A responsive facilitator, in these circumstances, must be open-minded and willing to learn from all parties as they help to build a mutually supportive process.

Taking the necessary time to build a collabor ative dispute resolution process with the genuine input of all parties yields vast benefits. Where care is taken, the steps of going through a facili tated dispute resolution process can build and strengthen relationships, increase understanding between the parties, and reduce the likelihood of problems arising in the future. The very act of co-developing a collab orative dispute resolution process invites understanding between parties regarding process needs and mutual respect for traditions and values. For the Crown, co-developing an appropriate collaborative process with an Indigenous community can be a way to advance reconciliation, and to address systemic issues and power imbalances. For Industry, such as proponents of a major project

operating in a Nation’s territory, a thoughtful collaborative process may help to reach understanding on key interests, and may be especially helpful for future conversation in ongoing relationships.

It is helpful to recognize explicitly that the act of co-developing a process is, itself, an important step in resolving conflict and building trust. In under taking that co-development, it is important to avoid replicating systems that prioritize some perspectives over others. A feature of colonialism is the imposition of values, beliefs, and prac tices. In dispute resolution, this impos ition of values is often embedded in process design, and unquestioned assumptions about the necessary qualifications of facilitators. As facili tators, it behooves us to be curious and creative, to seek to learn, and to challenge ingrained assumptions about how to structure a consensusbuilding process.

It is an exciting time in dispute resolution: legislation and agree ments increasingly prioritize out-ofcourt resolutions. Nonetheless, there remains a need for both parties and facilitators to question assumptions around available processes and for process facilitators to make space for diverse forms of knowledge and legal traditions. There is a real opportun ity to develop new approaches that can lead to strengthened relation ships and greater understanding between parties — but for this to succeed, embedded process assump tions and power imbalances must be addressed.

Co-authored by Mediate BC’s Calls to Action Committee. The Committee is cochaired by mediators Julie Daum and Gina Delimari. Twitter: @mediatebcsoc LinkedIn: ca.linkedin.com/company/mediatebc

feature

KEENAN MILLER

Q&A with Keenan Miller, a Young Indigenous Lawyer

Keenan Miller is a newly minted lawyer with the Ministry of Attorney General, Indigenous Legal Relations group, called to the Bar in 2021. He pro vides legal advice on treaty negotia tions, consultation on administrative decision making, and benefit and interim treaty agreements between First Nations and British Columbia.

Keenan is a member of West Moberly First Nations, a signatory to Treaty No. 8 (circa, 1899) whose territory is in northeast British Columbia.

Q. You articled at the Attorney General of British Columbia (“AGBC”). Why did you want to work for the AGBC? What was your experience articling there as an Indigenous person?

I initially applied for articles at the AGBC simply because I needed a job and an articling position. It wasn’t until after I began preparing for the AGBC articling recruitment process that I became more informed about what work the AGBC does, and I became much more interested in working for the AGBC because of the range of work that the AGBC does within its various groups within the branch. The prospect of being an Indigenous person working for the AGBC could be an exciting oppor tunity. Looking back on the articling year, it was a great experience in terms of learning and forming friend ships and relationships.

There was also an unfortunate element. My articles took place

(mostly) remotely as I started during the beginning of the pandemic in the summer of 2020. I suspect that I did not quite get the typical articling experience due to the pandemic.

As a member of the West Moberly First Nation, I had to do my best to avoid any updates or news from the AGBC about developments involv ing my community (my Nation was challenging the Site C Dam). Anything from muting myself in meet ings, not attending meetings, and restrict ing the office space I could use when I was working at the office. I had to be more “selfaware” than the average articling student.

Q. You now work in Aboriginal law on behalf of the Province of British Columbia. Please describe why you chose that specialized practice area, and your experience since you joined the profession as a lawyer.

This position allows me a unique opportunity to provide advice and help meet the provincial government’s commitments toward reconciliation. Through this position, I have the unique experience of advising min istry clients on issues that affect Indigenous peoples throughout the province. I enjoy being at the fore front of reconciliation by assisting in implementing the recent significant steps toward reconciliation from the Federal Truth and Reconciliation Commission of Canada to the prov incial Declaration on the Rights of

Indigenous Peoples Act. I actively engage with furthering reconcilia tion within the province, and that work component is gratifying.

Since I started with this group in February 2022, I have been fortun ate to work in a dynamic area of law with colleagues who have taken a personal interest in providing mentor ship to assist my development. This group’s collegial environment is ideal as it frequently involves navigating complex issues with Indigenous legal matters. A large part of my practice is advising various ministries on consultation and accommodation as well as the provincial commitments to the Declaration on the Rights of Indigenous Peoples Act for proposed legislation.

Q. Tell us about a day in your life as a solicitor practising Aboriginal law with the Attorney General of British Columbia.

Every day is different as there is a wide range of issues or work that my group has to address.

On the one hand, it is nice to know that I won’t be doing the same thing each day as part of this job, and I will get to experience and be part of exciting things with the province. On the other hand, there can be matters that come up spontan eously that my group has to address.

To provide some context, in British Columbia, there are 203 First Nations, and any number of them could raise an issue with ministries that my group would then have to provide advice on. The daily unknown aspect of this job is what makes this role so unique.

Keenan Miller (pictured above) is a lawyer with the Ministry of Attorney General, Indigenous Legal Relations group. Interviewed by Joel Oliphant who is also a lawyer with the Attorney General of British Columbia.

professionaldevelopment

Truth & Reconciliation

CBABC is committed to supporting BC’s legal community to work toward reconciliation through education and skills-based programming. Our annual Truth & Reconciliation Series dives deeper into how colonization shaped Canada’s relationship with Indigenous peoples and communities, and how lawyers can reframe their practice to move reconciliation forward.

Truth & Reconciliation Series: Working Together

This annual, three-part series aims to transform how lawyers use their Indigenous cultural training to develop strong, symbiotic relationships with Indigenous peoples. CBABC appreciates Clark Wilson’s sponsorship.

On-Demand Indigenous Laws in Practice | bit.ly/TRSeries1

This session brought lawyers together to gain a practical understanding of how Indigenous laws, legal orders, and principles intersect with the everyday practice of law. Participants learned how to identify and engage with key resources and community networks to design a practice that recognizes and respects Indigenous laws and perspec tives on key legal issues.

Oct 13

Working with Indigenous Clients and Community in Practice | bit.ly/TRSeries2

Building trust with Indigenous clients and communities requires a step back to consider how our own attitudes, beliefs, and biases shape legal service delivery. Using practice-based scenarios, speakers will teach lawyers how to apply a trauma and culturally informed approach to practice to avoid retraumatizing and revictimizing Indigenous clients, witnesses, and communities.

Oct 26

Building Business Relationships bit.ly/TRSeries3

Using case studies, presenters explore different governance and decision-making structures that apply to Bands, Band Councils, and Hereditary Chiefs. Participants will gain practice advice and strategies to build stronger business relationships with Indigenous communities.

Truth & Reconciliation On-Demand — Access: cbabc.org/ondemand

CBABC’s On-Demand catalogue offers instant access to a host of valuable programming to expand your Indigenous cultural awareness in topics that range from Indigenous Rights & Title, an introduction to UNDRIP, creating a Reconciliation Response Plan, and what it means to have economic reconciliation. Gain industry-wide perspectives on what private and public sector lawyers need to move reconciliation forward!

nothingofficial

TONY WILSON, KC

They Live Among Us

Wisdom has been chasing them, but they’re faster

Crackpot conspiracy theories and their pro ponents are a great source of interest for me. Whether it’s Rudy Giuliani claiming that Dominion voting machines caused Donald Trump to lose the last US election, Alex Jones claiming the Sandy Hook mass murders were a hoax, Bill Gates plotting to inject 5G chips into our bodies to track our movements, or anything promoted by QAnon, it’s reassuring when conspiracy theorists have their day in court, and their inane theories fold like cheap tents. The fact that Alex Jones must pay over $45 million in punitive damages should scare the willies out of all conspiracy theorists. As we saw earlier this year, Canada isn’t immune from this kind of toxic stupidity, and it’s interesting to see how it’s treated in the courts.

In Bank of Montreal v. Karen Wai King Lew 2022 BCSC 1320, a mort gagor in foreclosure argued that her mortgage had been forgiven under the Global Economic Security and Reformation Act (“GESARA”). This is a law that involves new currencies backed by gold, the abolishment of all debt, and the elimination of the IRS in the US. No one knows about it because a secretive “New World Order” used the World Trade Center attack in 2001 and the subsequent invasion of Iraq as a diversion that prevented the law’s full implementation. When this was argued in court, Madam Justice Matthews wisely determined that GESARA was not part of the Canadian legal landscape and was of no force and effect. I would have used a few choice four-letter words in my reasons, but that’s probably why she’s a judge and I’m not.

GESARA proponents seem to share very close degrees of consanguinity with the Freemen on the Land and similar anti-government movements. They see themselves as sovereign cit izens and Children of God; independ ent of government and the rule of law (other than the Magna Carta). When embroiled in litigation, sovereign citizens are normally vexatious and nonsensical, particularly when they attempt to overwhelm the justice system with volumin ous documentation and unhinged pseudo-legal arguments. The Alberta decision of Meads v Meads 2012 ABQB 571 weighed in on these OPCA (Organized Pseudolegal Commercial Argument) litigants, stating: “this category of litigant shares one other critical char acteristic: they will only honour state, regulatory, contract or family, fiduci ary, equitable and criminal obliga tions if they feel like it. And typically, they don’t.”

The jurisprudence on Canadian con spiracy theorists may expand during the coming year. Romana Didulo is a prominent anti-vaxxer and QAnon media darling who fash ions herself as the “Commander and Chief and Queen of the Kingdom of Canada.” Global News and other media outlets reported that Didulo had previously called for violence against anyone who allowed for the vaccination of children, posting: “shoot to kill anyone who tries to inject children under the age of 19 years old with coronavirus vaccines/ bioweapons or any other vaccines”

(although “shoot to kill” was sub sequently changed to “arrest”). In previous posts, she said: “Please, use airports, hospitals, schools, stadiums and other public venues to hold and detain all traitors” … “They will stay there until Military Tribunal is held for each one of them until the day they are executed via firing squad or hanging.”

In August, she went to the police station in Peterborough Ontario with 30 of her followers to arrest the police for crimes against human ity relating to COVID19 vaccines. Needless to say, five of her followers were arrested and will have their day in court.

Reflecting the exasperation that many Canadians have had with conspiracy theorists, antivaxxers, and the Freedom Convoy this year, the Mayor of Peterborough, Diane Therrien has my undying respect and admiration for saying publicly what a court could never say. In a tweet, Mayor Therrien said: “People have been asking me to comment on the events of the past weekend in #ptbo…. I hate giving airtime/spot light to these imbeciles. Here is my comment: f*** off, you f***wads.”

She may never be a judge, but she’s one hell of a politician.

Tony Wilson, KC is a Life Bencher of the Law Society, a Vancouver Franchise Lawyer, hu mourist, self-professed thought leader and all-around raconteur. Consequently, the views expressed herein are his alone and do not reflect the opinions of the Law Society, the CBABC, or their respective members.

barmoves

Who’s Moving Where and When

Gale Kim

became a partner at Mackoff Mohamed. Gale is experienced in employment law, insurance defence, and civil litigation.

Bar Moves space is at a premium and available for free to members on a first-come first-served basis, so send your Bar Move (max. 30 words) and a high-resolution headshot photo to bartalk@cbabc.org now.

TO VIEW ALL BAR MOVES GO TO CBABC.ORG/BARMOVES

Brandon Wiebe

Following two years of serving as the in-house litigator, Brandon has accepted the role of General Counsel with the IWA-Forest Industry Pension and LTD Plans.

Tevia Jeffries

joined Farris as Counsel. Tevia advises debtors, creditors, court officers, receivers, and banks on a variety of issues, including corporate restructuring and insolvency matters.

Kyle Hyndman joined the partnership at MKS Immigration Lawyers in Vancouver, as he wraps up his term as Chair of the CBA’s National Immigration Law Section.

Dan W. Melnick joined Clark Wilson’s Infrastruc ture, Construction & Procurement group where he will advise and assist clients on a range of con struction matters, including build ers lien matters and delay claims.

Winkie Chan joined Clark Wilson’s Commercial Real Estate Law group where she will assist clients on a range of matters, including the acquisition and sale of commercial property and commercial leasing services.

Mark Guiton

After five years of serving as General Counsel, Mark Guiton has accepted the role as Chief Executive Officer of The IWA–Forest Industry Pension Plan and Long-Term Disability Plans.

Jessy

Khind

is now a member of the corporate commercial team at Hamilton Duncan. He specializes in commercial real estate and real estate development.

Ellen Ripley

joined Hamilton Duncan as an associate counsel with a focus on real estate development, commercial finance and lending, and commercial real estate and leasing matters.

Jimmy Burg

joined Hamilton Duncan as an associate, practising commercial litigation out of its new Downtown Vancouver office location.

We all have our reasons for buying life insurance. Those reasons are big. And getting bigger. Before we know it, those reasons will be able to reach the top of the fridge, they’ll ask to borrow the car, they’ll tell us our music isn’t cool, that they can handle it, whatever it is, and just when they’ve come around to our music, which is, it turns out, retro, and retro, it turns out, is cool, those reasons are graduating, moving out, growing up, and meeting reasons of their own. You’ve got your reasons.

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