Articles 2019

The single most significant step a lawyer can take in serving the aboriginal community is to avoid assumption making. Particularly in aboriginal rights litigation, lawyers need to be mindful that each segment or individual in a community will have a story to tell much of which will be quite relevant. In this article, Chief Kelly Larocca, of the Mississaugas of Scugog Island First Nation, discusses considerations for practitioners when it comes to understanding cultural sensitivities.

On November 28, 2019, the OBA's Aboriginal Law and Child and Youth Law Sections hosted a program titled: “Legislative Spotlight: Bill C-92 and Its Impact On Your Practice”. This timely program was intended to provide a space for interdisciplinary discussion on the impacts of the implementation of the new federal Indigenous child welfare legislation, Bill C-92: An Act respecting First Nations, Inuit and Métis children, youth and families, which comes into force January 1, 2020.

In this article, legal scholar, Kent McNeil, offers a glimpse of his recent book, Flawed Precedent: The St. Catherine’s Case and Aboriginal Title, where he investigates the 1888 St. Catherine’s decision, the racist assumptions about Indigenous peoples present at the time and how the decision shaped Canadian law and policy until the 1970s, when its authority was finally questioned by the Supreme Court in Calder, then in Delgamuukw, Marshall/Bernard, Tsilhqot’in, and other key rulings.

On August 28, 2019, Canada’s new federal environmental legislation under Bill C-69 and Bill C-68 came into force. These new statutes and legislative amendments introduce enhanced Indigenous consultation requirements for mining, pipeline, and other projects that require federal impact assessments and certain federal regulatory approvals and permits.

This article explores the responsibilities of Canadian mining companies operating in a global context after the Supreme Court of Canada heard a case in early 2019. Plaintiffs allege Nevsun Resources Ltd. is liable for the actions of its subsidiary in Africa. One issue is whether British Columbia, Nevsun’s corporate jurisdiction, lacked subject matter competence in respect of the claim. The author agrees with the lower courts that British Columbia should hear the case.

On November 12, 2018, the OBA's Aboriginal Law Section and its Sexual Orientation and Gender Identity Committee co-hosted a program focusing on the experiences of Indigenous Two Spirited people, bringing together a learned panel with an unparalleled level of knowledge, experience, and expertise to the program that was well received by its over 50 online and in-person attendees. The panel discussed the historical discrimination experienced by Two Spirited people, progress made, and paths forward.

The Court of Appeal's decision in Yaiguaje raises concerns regarding the interaction between resource extraction corporations and Indigenous communities that apply internationally and in Canada. These issues may test the meaningfulness of the oft-lauded concept of corporate-social responsibility.

At the Law Society of Ontario’s (LSO) Annual General Meeting (on May 9, 2018, Treasurer Paul Schabas, announced that the LSO will be conducting a review of the “good character” requirement for licensee applications. There is a need to ensure not a different or lower standard, but that the process for admission to the bar is fair and does not unduly prejudice Indigenous applicants.

Recent events in the Canadian legal world temper the otherwise optimistic tone of the OBA Aboriginal Law Section program at Institute 2018.

The OBA's Institute 2018 session “Advancing Reconciliation: Review of recent key decisions and what deconstructing the current colonial legal structure could mean”, included a case law update, and panel discussion on the current state of Crown-Indigenous relationships.