CLEBC - Courses On Demand

Aboriginal Law Conference 2025

Course Date: November 28, 2025

Full Course Materials

Total: 5h 56min

Total Ethics: 1h

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

Teresa Sheward — Program Lawyer, CLEBC, Vancouver
Elder Syex̱wáliya Ann Whonnock — Skwxwú7mesh Uxwumixw (Squamish Nation), North Vancouver

Jeffrey R. Nicholls — Ratcliff LLP, North Vancouver
Melinda J. Skeels — Ratcliff LLP, North Vancouver

First Nations as a Third Order of Government in Post-Colonial Canada: Getting There from Here (9:15 – 10:00)

The evolution of our constitutional arrangements can achieve a fair and just reconciliation of the pre-existing sovereignty of First Nations with the assumed sovereignty of the Crown. This paper will present a proposed road map to achieve formal recognition of First Nations, their governments, territories and legal orders in a transformed relationship between First Nations and settler societies. This road map identifies critical building blocks and includes recommendations for specific, concrete, practical measures to build incrementally towards transformative change—for Indigenous nations, the Crown, and for settler society more generally.

Dr. Millie Nickason, PhD, MPA — Barrister & Solicitor, Nanaimo

Jurisdictional Gaps Facing Modern Treaty Nations (10:00 – 10:45)

Are modern treaty nations required to follow BC's new pay transparency legislation, or are they subject to federal employment jurisdiction? The answer is unclear and highlights the jurisdictional ambiguity facing modern treaty nations in many areas of law. This presentation will examine that jurisdictional ambiguity, using employment law as a case study.

the unique jurisdictional gap that modern treaty nations face after removing themselves from the Indian Act
emerging trends in the case law addressing employment jurisdiction in the First Nations context, focusing on cases that have relevance to modern treaty nations
how the general presumption that employment is provincially regulated unless the employment relates to a federal head of power raises interesting considerations in the context of a modern treaty nation or a First Nation with Land Code
practical recommendations for lawyers advising First Nations or employees in this complex and developing area of law

Mary N. Childs, KC — General Counsel, Tsawwassen First Nation, Tsawwassen
Lou Poskitt — Cooperwilliams Truman & Ito LLP, Vancouver
Josh Regnier — MLT Aikins LLP, Vancouver

BREAK (10:45 – 11:00)

Two Visions of Aboriginal Title: Recent Litigation from Coast to Coast (11:00 – 11:45) (virtual presentation)

Recent, high-profile Aboriginal title litigation across Canada, including Cowichan Tribes v. Canada (Attorney General), 2025 BCSC 1490 and Wolastoqey Nations v. New Brunswick and Canada et al., 2024 NBKB 203 sketch two fundamentally different visions of Aboriginal title concerning an issue of growing importance: does Aboriginal title have a private law dimension, such that it can ground property and tort claims against third parties, and not just the Crown? Or is it a purely public law right that can only be asserted against the Crown? This presentation will sketch these cutting-edge doctrinal developments, arguing that they call for a fundamental rethinking of the Supreme Court of Canada's understanding of Aboriginal title.

Amitpal C. Singh — Harvard Law School, Cambridge, Massachusetts

Questions & Discussion (11:45 – 12:00)

LUNCH with Featured Speaker (12:00 – 1:30)

From Litigation and Negotiation to Legislation: Modern Treaties as a New Frontier of Aboriginal Law (12:30 – 1:15)

Kwuntiltunaat, Kim Baird — Chief Administrative Officer, Tsawwassen First Nation, Tsawwassen

Implementing Indigenous Co-Governance—Legal Tools and Practical Approaches (1:30 – 2:15)

Co-governance refers to formal arrangements where decision-making power and responsibility are shared between the Crown and one or more Indigenous partners. It is a key way to further reconciliation and provides a whole host of other benefits. However, it has been challenging to implement in practice, often because of a perceived lack of legal tools. Building on experience advising on the implementation of co-governance in the context of protected areas, education and environmental assessments, this paper will consider practical legal tools and approaches to support co-governance. The presentation will include on the ground insights from a Yukon First Nation striving to implement co-governance.

definitions of co-governance
benefits of co-governance
challenges to implementing co-governance
potential legal tools to implement co-governance
an example of co-governance from the Yukon, including practical lessons learned that may assist in the BC context

Katie Fraser — Senior Negotiator for Nän Käk (Land and Environment), Tr'ondëk Hwëch’in Government, Dawson City (virtual presentation)
Ewa Holender — Ratcliff LLP, North Vancouver

Overcoming Barriers to Accessing the Courts: Judicial Notice in Section 35(1) Litigation (2:15 – 3:00)

This presentation will discuss the courts' use of the important tool of judicial notice when Indigenous peoples are pursuing a court action to uphold their Aboriginal or treaty rights under s. 35(1) of the Constitution Act, 1982.

introduction to the evidentiary and other hurdles faced by Indigenous plaintiffs in Aboriginal and Treaty rights cases and the importance of finding ways to streamline factfinding and further reconciliation
explanation of judicial notice
overview of the evolution of court cases grappling with judicial notice in Aboriginal and treaty rights cases
discussion of the lessons learned from these cases and the path forward

Michelle L. Bradley — Woodward & Company Lawyers LLP, Victoria
Ava G. Murphy — Woodward & Company Lawyers LLP, Victoria

BREAK (3:00 – 3:15)

Supporting a Plurality of Approaches to Conflict Resolution (3:15 – 4:00)

The right to self-determination includes the right of First Nations to control their own laws and associated approaches to conflict resolution in application of those laws. Indigenous-led approaches to conflict resolution are not only an important exercise of these rights, they are also an essential means of addressing the harms caused by the imposition of the Canadian state justice system on Indigenous peoples. Drawing on examples of approaches in other countries, we explore ways of strengthening legal pluralism within Canada through legislative and policy reform. We also explore approaches to vacating jurisdictional space for the operation of First Nations conflict resolution mechanisms with less interference from the Crown justice system.

We will share practical takeaways for how Crown systems could adapt to help strengthen the application of Indigenous laws within the context of conflict resolution.

Megan Vis-Dunbar — Director, Reconciling Crown Legal Frameworks Program, BC Law Institute, Vancouver

Roundtable Discussion (4:00 – 4:30)

Neegann Aaswaakshin — Director of Reconciliation and In-house Legal Counsel, Lax Kw'alaams First Nation, Lax Kw'alaams
Jeffrey R. Nicholls — Ratcliff LLP, North Vancouver
Melinda J. Skeels — Ratcliff LLP, North Vancouver
Natalia Sudeyko — Ratcliff LLP, North Vancouver