The Fundamentals of Aboriginal Law
An In-Depth, Practical Guide for Proponents, Government and
Aboriginal Communities to Minimize Legal Risks
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DAY 1

Gaining an Understanding and Respect of Canada’s Indigenous Peoples For Successful Relationships

Christa Big Canoe
Legal Advocacy Director, Aboriginal Legal Services
Legal Aid Ontario

• What does the term ‘Aboriginal’ mean and who does it encompass?
  • clarifying the differences between First Nations, Métis and Inuit
  • what are the main language groups in Canada?
  • grasping the variety of Aboriginal communities and their different customs and traditions
• Getting up-to-date on the law governing Indian status and band membership rules
  • what is the impact of the McIvor v. Canada decision?
• Learning the history of Aboriginal people in Canada from a legal and policy perspective
  • understanding and learning to start mitigating the legacy of mistrust created by centuries of uneasy relations
• Exploring pluralism and Aboriginal legal concepts which are different than in Canadian law (e.g. ‘ownership’ of land)
• Situating Aboriginal rights in a Constitutional framework
• Respectfully communicating and approaching a particular community to begin negotiations successfully

Learning the Key Statutes and Laws Comprising the Aboriginal Law Framework to Clear up Legal Confusion

John Rowinski
Barrister and Solicitor
Law Office of John Rowinski

• Reviewing and making sense of the essential legal provisions in:
  • Indian Act, R.S.C. 1985
  • Constitution Act, 1867
  • Constitution Act, 1982
• Grasping the breadth of laws which affect and impact Aboriginal communities as well as industries and governments working with these communities
• Under what jurisdiction do Aboriginal issues fall? Reviewing St.Catherines Milling
• identifying what level of government is responsible for dealing with your concerns

How the Courts Have Shaped Aboriginal Law and Knowing How to Use the Tests Laid Out By the Supreme Court of Canada

John Rowinski
Barrister and Solicitor
Law Office of John Rowinski

• How has the Royal Proclamation of 1763 informed and shaped the law?
• Examining the controversial non-decision in Calder and the ensuing policy changes
• Reviewing Guerin to understand the birth of modern
• Aboriginal Law and Policy
• Key “Integral to a Distinctive” test laid out in Van Der Peet
• Exploring the Sparrow case and its 4-step test for the applicability of s.35 of the Constitution
  • what is the impact of this test on legal proceedings today?
• How do you know if and when you are infringing upon a right?

Effectively Managing Taxation Concerns When Dealing with Aboriginal Communities, Reserves and Companies

Manny Jules
Chief Commissioner
First Nations Tax Commission

• Clarifying what forms of taxation impact Aboriginal communities, reserves and companies
• Knowing how to troubleshoot taxation issues before they delay your project
• Getting tools to clearly understand the taxation concerns
• Assessing and limiting the risks associated with taxation issues

Clarifying Who is Métis in Aboriginal Law and Historically

Annie Thuan
Reuter Scargall Bennett LLP

• Effectively applying the Powley test to determine ‘rights holding’ members of the Nation:
  • how can you meet the duty to consult when there is so much confusion about who has the right to be consulted?
• Reviewing recent case law on Métis consultation and accommodation to avoid pitfalls and identify best practices
  • what are ‘harvesting rights’?
• Examining the Crown’s duty to consult and accommodate Métis rights and the impact of this on other Aboriginal groups and on proponents
• Distinguishing the roles and responsibilities of national, provincial and local Métis bodies

Analyzing Treaties and Their Implications For Modern Day Negotiations

Jean-Pierre Morin
Historian, Treaty Relations Directorate, Treaties and
Aboriginal Government Sector
INAC

• Exploring the treaty making amongst First Peoples pre-European contact
• Understanding the reasons behind treaty making
• What is a historical treaty and how do they affect us today?
• Grasping the ‘nation to nation’ nature of treaties
• Reviewing some of the key treaties in Canada today, pre and post Confederation
  • friendship Treaties in Ontario
  • Robinson Treaties
  • Numbered treaties
• Analyzing modern treaties and the challenges posed

Clarifying the Complicated Interplay of Aboriginal Rights, Title, Claims, Treaties and Traditional Territories to Minimize Litigation Risks

Daniel Ricard
Director General, Litigation Management and
Resolution Branch
INAC

• What is the nature and scope of “Aboriginal rights”?
  • what is the relationship between s.15 of the Charter and sections 25 and 35 of the Charter?
  • analysing R. v. Kapp, Sappier and Gray, and other key cases
• What is the difference between reserve land and/or a traditional territory?
• What is “Aboriginal title”? Has the concept of title changed since Delgamuukw?
• What have courts required for proving Aboriginal title?
• What is the impact of Aboriginal title on private rights, including leasehold interests?
• How can you assess the likelihood of a title claim?
• Is it possible to extinguish Aboriginal title? If so, how?
• What is the difference between a Comprehensive vs. Specific claim?
• Understanding the latest developments and navigating the Specific Claims Tribunal effectively
• Evaluating the pros and cons of utilizing the specific claims process vs. litigation
• Interpreting treaties through exploring recent decisions
• Can provinces have jurisdiction to impact treaty rights?

Deconstructing the ‘Duty to Consult & Accommodate’: What Does It Really Mean for Industry, Government and Aboriginal Stakeholders?

Stephen Lindley
Vice President, Aboriginal & Northern Affairs
SNC Lavalin Inc.

• What triggers the duty to consult? What is the latest legal definition?
  • how have courts applied Mikisew Cree, Haida & Taku River?
• Exploring the practical implications of the “duty to consult” for Aboriginal stakeholders, industry and government
  • whose duty is it? who is the Crown?
  • what are First Nations and federal/provincial government responsibilities in the consultation process?
  • what is the role of industry?
• Assessing the extent of required consultation
• Does the “duty to consult” require consensus on all points? Do First Nations have a veto?
• How can parties contract out of the duty to consult? Can the duty to consult affect existing permits and approvals?
• When can the duty to consult imply a government or industry obligation to fund the consultation process? How can funding obstacles be addressed?
• When and how can the duty be delegated?

DAY 2

Defining the Ever-Changing Concepts of ‘Honour of the Crown’ and the Crown’s Fiduciary Duties: What Do They Mean in Practice?

Amber Crowe
Nahwegahbow Corbiere

• How has the ‘Honour of the Crown’ been interpreted?
• Can this ‘honour’ be delegated?
• What is the ‘duty of good faith’?
• What are ‘fiduciary duties’? Who owes them? And to whom?
• Why has the term ‘fiduciary duty’ been used less frequently in recent case law?
• What is the relationship between fiduciary duties and the honour of the crown? Do they overlap? How do they affect First Nations’ aspirations?
• Understanding the importance of the ‘honour of the crown’ in relations with Aboriginal communities
• Where do these issues leave the private sector and local non-Aboriginal governments?
• Learning about the ‘sui generis’ relationship between Aboriginal peoples and the Crown

Negotiating and Making Successful Agreements Between Stakeholders

Doug Paget
Principal, Doug Paget Consulting
(Formerly Chief, Special Projects, INAC)

Cynthia Westaway
Gowling Lafl eur Henderson LLP

• Understanding the history and development of agreements between stakeholders in Canada
• Basic overview of the types of agreements available to start building relationships between stakeholders
• Knowing how to effectively avoid litigation through successful relationship building
• What are the hot issues that still need to be resolved when making agreements?
• Analyzing case law on “Who speaks for the band?”
• Understanding the contractual relationship: What is the authority of the band to contract?
• What critical, individual rights are affected by agreements made by the band?
• Enforcing contracts and judgments: Best practices

Effectively Managing Taxation Concerns When Dealing with Aboriginal Communities, Reserves and Companies

Harvey Sands, C.A.
RSM Richter

• Clarifying what forms of taxation impact Aboriginal communities, reserves and companies
• Knowing how to troubleshoot taxation issues before they delay your project
• Getting tools to clearly understand the taxation concerns
• Assessing and limiting the risks associated with taxation issues

How is the Advancement of Aboriginal Governance Changing Negotiations?

R. Martin Bayer
Partner
Weaver Simmons LLP

• What is self-government? Communicating the facts and clearing up misconceptions
• Understanding key legal issues in Aboriginal selfgovernment
• Analyzing the right of self-government
• Reconciling Western and traditional Aboriginal governance principles: When and how can you have both?
• In light of stronger Aboriginal governance, how should parties change their negotiating strategies?