CLEBC - Courses On Demand

Aboriginal Law Conference 2024

Course Date: November 22, 2024

Full Course Materials

Total: 5h 56min

Total Ethics: 1h

Welcome and Land Acknowledgement (9:00 – 9:15)

Chief Xats'alanexw Victor Harry — Squamish Nation, North Vancouver

Gary S. Campo X̱eyx̱kinem — Woodward & Company LLP, Victoria
Jessica Proudfoot — Woodward & Company LLP, Victoria

Teresa Sheward — Program Lawyer, CLEBC, Vancouver

Squamish and Coastal Nations: Land, Resources, and Environment (9:15 – 9:55)

traditional governance structures—how Coastal people sustained their natural resources and environment
relationships to the land

Síyaméythel Rose Greene — District Principal of Indigenous and Equity Education, North Vancouver Schoold District, North Vancouver
Ses Siyám Ray Natraoro — Knowledge Keeper, Chief of Staff, Squamish Nation, North Vancouver

Protecting Traditional Knowledge as Privileged (9:55 – 10:25)

- the importance of protecting information shared by Indigenous peoples in processes designed to further reconciliation
- explanation of case-by-case privilege and the Wigmore criteria
- overview of recent cases grappling with this issue:
  - Yahey v. British Columbia, 2018 BCSC 123
  - Cowichan Tribes v. Canada (Attorney General), 2020 BCSC 507
  - West Moberly First Nations v. British Columbia, 2021 BCSC 829
  - Anderson v. Alberta, 2024 ABKB 64
- lessons learned from these cases and the path forward

Michelle L. Bradley — Woodward & Company LLP, Victoria

BREAK (10:25 – 10:40)

Sq'epqotel "Coming Together” Traditional Dispute Resolution (10:40 – 11:20)

Xyolhemeylh (Fraser Valley Aboriginal Child and Family Services), in collaboration with Elders and the legal community developed and implemented Sq’epqotel, a traditional dispute resolution process rooted in cultural and traditional mechanisms
it is an alternative pathway for decision-making when Indigenous families are involved in child and family court
the program engages the family and community group in culturally intensive processes to prepare for participation in a Consensus Finding Circle to find resolution to CFCSA matters
sq’epqotel goals
- reduction in the number of children/youth in care and the length of time in care
- reduction in the number of court appearances for youth and families
- to provide all parties with processes that reflect relationship-building, trust-building, consensus-finding, and focus on child's and family's voices in outcomes
lessons learned and take-aways for lawyers
- how to work collaboratively and in community
- how to work with Elders and Knowledge Keepers
- the importance of building relationships

Elder Maria Reed Waabigekek Ikwe (Metis), Abbotsford
Yasmin Remtulla, MSW — Practice Development Consultant, Fraser Valley Aboriginal Children and Family Services Society — Xyolhemeylh, Chilliwack
Stacey L. Trimble — Trimble Law Corporation Inc., Chilliwack

Revitalizing Indigenous Languages through Legal Drafting (11:20 – 11:50)

status and state of Indigenous languages across Canada
why the inclusion of Indigenous language in legal documents is important; what purposes inclusion can serve, both for Indigenous peoples and for the broader legal landscape
practical advice for lawyers seeking to include Indigenous languages in legal documents: common drafting issues; ensuring inclusion helps Indigenous communities keep languages alive and supports Indigenous self-determination
how courts have dealt with the interpretation of documents that feature more than one language, and how that might apply in the Indigenous context
example of an agreement that features an Indigenous language: the Xwulqw'slu Agreement

Candace Charlie — Woodward & Company LLP, Victoria

Questions and Discussion (11:50 – 12:00)

LUNCH (12:00 – 1:30) with Featured Speakers (12:30 – 1:15)

Strengthening the Indigenous Languages Act: Lessons Learned from Canada's Official Languages Act Saga

The Honourable Senator Michèle Audette — Senate of Canada, Ottawa (virtual presentation)
Darius Bossé — Juristes Power Law, Ottawa

ASSERTION OF JURISDICTION AND SELF-DETERMINATION

Recognition as Reconciliation: First Nations as Direct Shareholders (1:30 – 2:00)

- how the unresolved question as to a First Nation's personhood status has created uncertainty as to whether a First Nation has the capacity under law to be a direct shareholder of a corporate entity
- the current state of the law (applicable to BC companies and Federal corporations) as to whether a First Nation can be a direct shareholder
- current strategies for mitigating the impacts of this issue (trusts); organizational complexities and administrative challenges associated with implementing such strategies
- recent legislative and case law developments: how these changes improve defensibility of First Nations as direct shareholders
- transition to direct Nation-shareholding structures and some associated best practices and foreseeable risks

Caolan Lemke — Woodward & Company LLP, Victoria

Legislative Amendment Removes Historic Barrier to First Nation Title Registration (2:00 – 2:30)

- colonial policy on land title registration
- increasing use of land for reconciliation
- recent legal and policy obstacles
- Human Rights Code implications
- amendment to Property Law Act removes colonial-era barrier

James Hickling — Hickling Harrison Law, Bowen Island

Saving the Timber: Purchasing Commercial Tenure and Creating Carbon Offset and other Stewardship Economy Opportunities (2:30 – 3:00)

- Canada 30x30 Funding and Nature Agreements with provinces and territories
- Indigenous Protected and Conserved Areas ("IPCA"s)
- Stewardship Economy opportunities including BC Carbon Offset Regulatory Environment
- structuring for appropriate governance
- options for transfers of forest assets
- tax implications for asset transfers
- managing long term stewardship costs and goals

Drew Mildon — Woodward & Company LLP, Victoria

BREAK (3:00 – 3:15)

The Implementation and Effects of the Modernization of the BC Mineral Tenures Act and the Mines Act (3:15 – 3:45)

the Province of BC is undertaking the "modernization" of the Mineral Tenures Act (MTA) and the Mines Act as a component of its Reconciliation policy
changes to these acts will likely impose substantial adjustments to the processes and practices currently followed by mining industry, First Nations, and government regulators
practical implementation of a DRIPA-compliant MTA process will be difficult as both local First Nations and active mineral exploration groups tend to have capacity limitations, and the sharing of exploration information prior to obtaining mineral tenure has always been minimal of necessity
an update on the response to the 2023 BCSC ruling in Gitxaała v. British Columbia: some practical implications for both the mineral exploration industry and for affected First Nations

Steve Graham, P.Eng, P.Geo., CSAP, PhD — S. Graham Engineering and Geology Inc., Tsawwassen

The Private Law Dimension of Aboriginal Rights (3:45 – 4:15)

in the past, contentious Aboriginal rights claims have largely been brought against the federal and provincial Crowns
this presentation explores a series of recent cases in BC and Ontario in which Aboriginal rights claims have been asserted over not just Crown lands, but also land held by ordinary property owners in fee simple
recently, the Court of Appeal for BC has confirmed that Aboriginal rights can also be the basis of tort law claims against third parties, such as nuisance
these doctrinal developments have important implications for third parties interacting with Indigenous groups, as the Crown is no longer the sole target of potential liability for breaches of Aboriginal rights

Amitpal C. Singh — Yale Law School, New Haven, Connecticut (virtual presentation)

Questions and Discussion (4:15 – 4:30)

Gary S. Campo X̱eyx̱kinem — Woodward & Company LLP, Victoria
Jessica Proudfoot — Woodward & Company LLP, Victoria