P A C I F I C B U S I N E S S & L A W I N S T I T U T E
Aboriginal Law 2014:
Current Issues
May 28
th& 29
th, 2014 • UBC Robson Square • Vancouver, BC
Chaired by
Robert J. M. Janes
Janes Freedman Kyle Law Corporation
www.pbli.com
Aboriginal Law 2014: Current Issues
Join two days of dynamic discussion and explanation of recent developments in Canadian Aboriginal law.
To effectively work in the field of Aboriginal law, properly exercise rights and responsibilities, realize
opportunities for economic development and work toward true reconciliation, one must keep abreast of
changes in this evolving area. This forum assembles leading minds to provide delegates with comprehensive
in-depth information and practical insights. Lawyers and representatives from First Nations, the federal
Department of Justice, and academia will review current issues, key developments in legislation, significant
legal decisions, and practice changes.
Robert J. M. Janes, Principal, Janes Freedman Kyle Law Corporation, Victoria, BC. Mr. Janes
has extensive experience in Aboriginal law. He has acted in Aboriginal cases in British
Colum-bia, Ontario and Alberta and has appeared in all levels of court, including the Supreme Court
of Canada. He has acted as counsel for parties or interveners in cases such as Dene Tha’
First Nation v. Canada, Haida v. British Columbia, R. v. Marshall and Bernard and Okanagan
Indian Band v. Bonneau. Mr. Janes’ work involves advising clients regarding Aboriginal rights and title,
the Indian Act and related legislation as well as other related matters. Mr. Janes also advises various
cli-ents with regard to negotiations under the British Columbia Treaty Process. In addition to his Aboriginal
law practice, Mr. Janes practises civil litigation and has been involved in a diverse range of commercial,
administrative and environmental disputes.
Chair
THIS FORUM WILL:
• Examine current issues in the natural resource sector
including effective Aboriginal engagement, legislative
changes and impact benefit agreements
• Explore on-the-ground tensions including protests,
blockades and the Idle No More movement
• Assess the latest developments in the specific claims
process
• Highlight developments in Aboriginal litigation including
the impact of recent decisions and the potential role for
class actions
• Review important legal developments in consultation
and accommodation
THIS FORUM IS DESIGNED FOR:
• Lawyers practising in the areas of
Aboriginal law, environmental law,
human rights law and resource
development
• Aboriginal leaders, officials, councillors,
elders, negotiators, administrators and
advisors
• Owners, managers and representatives
of resource development companies and
companies operating on Crown land
• Federal, provincial and municipal
government officials and policy advisors
• Consultants, accountants, financial
planners and others assisting First
Nations with financial matters and
business operations
• Academics
Upcoming Programs
• Police and Community Partnerships: A National
Symposium - March 26
th& 27
th, 2014, Ottawa, ON
• Treaty Implementation: Honouring the Duty to Implement
in Good Faith - June 17
th& 18
th, 2014, Vancouver, BC
1982. Mr. McLaughlin practised civil litigation until 1996. He joined the Department of Justice in 1997 in the Federal Treaty Negotiation Office, Legal Services Unit. In 2000, he went to the BC Regional Office of the Department of Justice where he practised Aboriginal rights and title litigation, including acting as lead counsel in Roger William v. B.C. and Canada.
Nancy A. Morgan, Principal, Morgan & Associates, West Vancouver, BC. Ms. Morgan has been practising law for over 25 years. She works primarily in the field of Aboriginal law representing First Nations and regional First Nations organizations in British Columbia and the Yukon. She represents clients in the negotiation of treaties, impact benefit agree-ments, accommodation agreements and other sectoral governance agreements. She is also involved in the development of legislation and policy for First Nations.
Jason Z. Murray, Lawyer, Eyford Macaulay Shaw & Padmanabhan LLP, Vancouver, BC. Mr. Murray has a broad range of experience represent-ing clients in commercial, insurance and product liability litigation and Aboriginal law. Called in 2003, Mr. Murray practised for six years in the litigation department of a large national firm and, more recently, for four years representing clients in a wide variety of class actions. Mr. Murray has represented clients before all levels of court in BC and before tribunals, including the BC Utilities Commission. Mr. Murray advises clients on Aboriginal rights and title and acted as counsel in the Roger William v. British Columbia aboriginal rights land title trial. He has also advised clients with applications and appeals before the National Energy Board, BC Environmental Appeal Board, and the International Organization for Standardization (ISO). Mr. Murray holds a Bachelor of Arts (UBC) and Bachelor of Laws (Queen’s University). He served as a law clerk to seven justices of the Supreme Court of British Columbia.
Martin Olszynski, Assistant Professor, Faculty of Law, University of Calgary, Calgary, AB. Martin joined the Faculty after several years of public service experience in environmental and natural resources law and policy. From 2007 to 2013, he was counsel with the federal Department of Justice, practising law in the legal services unit at Fisheries and Oceans Canada. He also spent time on secondment to the Legislative and Regulatory Affairs Division at Environment Canada (2009). Martin holds a B.Sc. (Biology) and an LL.B., both from the University of Saskatchewan, and an LL.M. (specialization in environmental law) from the University of California at Berkeley. Martin clerked for the Hon. Justice Denis Pelletier of the Federal Court of Appeal (2006). Prior to joining the University of Calgary in 2013, he was a part-time professor with the University of Ottawa Faculty of Law, where he taught environmental law.
John Richards, Professor, School of Public Policy, Simon Fraser Univer-sity, Vancouver, BC. Prof. Richards is trained as an economist. He has written extensively on social policy in Canada, primarily via the C.D. Howe Institute, where he holds the Roger Phillips chair in social policy. A current focus for his work is Aboriginal education. Prof. Richards has, on occasion, advised the Aboriginal Affairs Ministry on Aboriginal education policy, including development of a First Nations Education Act.
John A. Terry, Partner, Torys LLP, Toronto, ON. John has a leading public and international law practice, and appears frequently at all levels of Canadian courts and before international arbitration panels. He acted as counsel to the Honourable Frank Iacobucci in resolving the residential schools settlement, Canada’s largest class action settlement. He acts for First Nations, governments and corporations on a range of other Aboriginal issues, including advising project developers and lenders on issues respecting the duty to consult, facilitating discussions between governments and Aboriginal communities, and acting for a variety of clients in litigation respecting Aboriginal issues.
Charles F. Willms, Partner, Fasken Martineau DuMoulin LLP, Vancouver, BC. Mr. Willms has considerable experience in Aboriginal, corporate social responsibility (CSR), commercial, competition, constitutional, construction, energy, forestry, property assessment and mining matters. Mr. Willms has appeared as counsel before the Property Assessment Appeal Board, Competition Tribunal, Supreme Court of British Columbia, Yukon Supreme Court, Alberta Court of Queen’s Bench, Courts of Appeal of British Columbia, Alberta and Yukon, Federal Courts of Canada and the Supreme Court of Canada. He has extensive experience in alternate dispute resolution matters including negotiation, mediation and arbitration. Mr. Willms is also the Chair of Fasken Martineau’s Aboriginal Law Practice Group and the Specialty Litigation Business Unit in Vancouver.
Paul C. Wilson, Partner, Fasken Martineau DuMoulin LLP, Vancouver, BC. Mr. Wilson’s practice focus is energy, mining and other projects. He is active in relation to Aboriginal matters including negotiating impact benefit agreements and joint ventures with First Nations. Mr. Wilson has negotiated and prepared agreements with First Nations in relation to a range of projects in the mining, energy, pipeline, forestry, real estate, transportation and infrastructure sectors. Mr. Wilson chairs Fasken Martineau’s Energy practice and is listed in the Chambers Global, Best Lawyers in Canada, Who’s Who Legal and Lexpert guides.
Regional Chief Jody Wilson-Raybould (Puglaas), British Columbia Assembly of First Nations - Invited.
negligence, defamation, product liability, railway law and fire loss. He has appeared at all levels of court in BC as well as at regulatory and administrative tribunals. Mr. Eyford has extensive experience in alternate forms of dispute resolution, representing clients at arbitrations and mediations and in treaty negotiations. He negotiated the resolution of issues between the Prince Rupert Port Authority and First Nations communities involving the expansion of container terminal facilities in the Port of Prince Rupert for which he received the 2011-2012 Deputy Ministers’ Recognition Award from the Government of Canada. In March 2013, Mr. Eyford was appointed the Government of Canada’s special federal representative on west coast energy infrastructure. His report to the Prime Minister
Forging Partnerships Building Relationships, Aboriginal Canadians and Energy Development was published by the Government of Canada in December 2013.
Robert C. Freedman, Principal, Janes Freedman Kyle Law Corporation, Vancouver, BC. Mr. Freedman practises Aboriginal law with a focus on advising clients in consultation processes and assisting them in litigation to protect their section 35 rights. His practice focuses primarily on advis-ing First Nations and First Nation organizations on a variety of matters including environmental assessments, treaty negotiations, treaty and Aboriginal rights, environmental issues, oil and gas related matters, hydro-electric matters, and water rights. He has particular expertise assisting First Nations in their consultations with federal and provincial governments and industry, and in negotiating consul-tation/accommodation agreements. Mr. Freedman has appeared at all levels of court in Canada, including the Supreme Court of Canada. Since 2008, he has been recognized by Lexpert as a leading lawyer in Canada in the field of Aboriginal law.
Grand Chief Edward John (Akile Ch’oh), Political Executive, First Nations Summit. Grand Chief Edward John is a Hereditary Chief of Tl’azt’en Nation located on the banks of the Nak’al Bun (Stuart Lake) in Northern BC. He has dedicated his life to the pursuit of social and economic justice for Canada’s Indigenous peoples, having worked as a leader in Indigenous politics, business and community development. Chief John has been a lawyer for more than 30 years. He holds a B.A. (UVic), an LL.B (UBC) and two Honorary Doctor of Laws degrees (UNBC, UVic). Chief John has served in many leadership roles at the local, provincial, national and international levels. He is currently serv-ing his tenth consecutive term on the First Nations Summit Task Group (political executive), which is mandated to carry out specific tasks related to Aboriginal Title and Rights negotiations with British Columbia and Canada and other issues of common concern to First Nations in British Columbia. He is a former Co-Chair of the North American Indigenous Peoples’ Caucus and participated in the develop-ment of the Declaration on the Rights of Indigenous Peoples which was adopted by the United Nations General Assembly in September 2007. He was recently re-appointed for a second three-year term as a North American Representative to the United Nations Permanent Forum on Indigenous Issues.
Kirk Lambrecht, Q.C., Shores Jardine LLP, Edmonton, AB. Mr. Lambrecht advises and litigates in the areas of administrative, civil, constitutional and Aboriginal law. He has experience before the National Energy Board, the Energy Resources Conservation Board or the Alberta Energy Regulatory, and the Alberta Utilities Commission, amongst other Tribunals. In respect of Aboriginal consultation, Mr. Lambrecht was involved on that subject matter in the Mackenzie Gas Project, the Enbridge Northern Gateway Project, the Total Joslyn Oil Sands Mine Project, and the Shell Jackpine Oil Sands Mine Expansion Project. He has appeared at all court levels in Alberta and the Federal Courts system, and has numerous appearances before the Supreme Court of Canada. Mr. Lambrecht actively contributes to continuing legal education through publishing and speak-ing. In addition to many papers, he has published two books: The Administration
of Dominion Lands, 1870 to 1930 (Canadian Plains Research Center, 1991) and Aboriginal Consultation, Environmental Assessment and Regulatory Review in Canada (University of Regina Press, 2013).
Mary Locke Macaulay, Partner, Eyford Macaulay Shaw & Padmanabhan LLP, Vancouver, BC. Ms. Macaulay’s civil litigation practice is in the areas of Aboriginal, personal injury and commercial law. She has acted as counsel to First Nations in British Columbia, Ontario, and Alberta. Ms. Macaulay is the author of the book Aboriginal & Treaty Rights Practice (Toronto: Carswell, 2000), and of “Snow Houses Leave No Ruins”: Unique Evidence
Issues in Aboriginal and Treaty Rights Cases (The Saskatchewan Law Review, 1996,
vol. 60). She has both chaired and presented extensively on Aboriginal litigation issues. Ms. Macaulay has served as a member of the executive and as co-chair of the Canadian Bar Association – Ontario, Aboriginal Law Section (1995-1998). In addition to an arts and law degree, she has a Master’s degree in alternative dispute resolution from Osgoode Hall Law School.
Dr. Bruce Stadfeld McIvor, Principal, First Peoples Law, Vancouver, BC. Dr. McIvor, lawyer and historian, is the principal of First Peoples Law, a Vancouver-based law firm dedicated to defending and advanc-ing Aboriginal title, Aboriginal rights and treaty rights. Dr. McIvor holds a law degree, a PhD in Aboriginal and environmental history, and is a Fulbright Scholar. He is extremely proud of his Red River Métis heritage. His family lineage includes Cree and Anishinaabe women, Scottish men from the Orkneys and Outer Hebrides, coureurs de bois, and two of the oldest French and Acadian families in North America.
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Aboriginal Law 2014: Current Issues
Wednesday, May 28
th, 2014
1:45
Current Issues in Aboriginal Engagement:
“Forging Partnerships Building Relationships”
Douglas R. Eyford
Eyford Macaulay Shaw & Padmanabhan LLP
Grand Chief Edward John (Akile Ch’oh)
First Nations Summit
• Key findings as the Prime Minister’s special envoy on west coast energy infrastructure
• How has the Government of Canada responded to the recommendations?
• How can governments most effectively address First Nations’ interests with respect to the proposed west coast energy infrastructure projects?
3:00 Questions and Discussion
3:15 Refreshment Adjournment
3:30
Developments in Aboriginal Education:
The New Approach
John Richards
Simon Fraser University
• What can we learn from the 2011 census about Aboriginal education in Canada?
• Assessment of the federal government’s initiative to legislate a First Nations Education Act and the path forward
4:20 Questions and Discussion
4:30
Faculty Roundtable:
Ethical Considerations in Aboriginal Law
5:00 Forum Concludes for Day One
9:00
Welcome & Introduction
Robert J. M. Janes
Janes Freedman Kyle Law Corporation
9:10
In the Courts: Legal Developments
in Consultation & Accommodation
Nancy A. Morgan
Morgan & Associates
• Brief overview of the legal foundation for consultation and accommodation law
• Review of consultation and accommodation cases from the last 12 months
• Upcoming consultation and accommodation rulings
9:50 Questions and Discussion
10:00
Who Are the Rights Holders and
Who Can Consult on Their Behalf?
Charles F. Willms
Fasken Martineau DuMoulin LLP
Brian McLaughlin
Department of Justice
• Band membership, election codes and governance structures
• Authority to speak vs. standing before the courts • Recent cases
11:00 Questions and Discussion
11:15 Refreshment Adjournment
11:30
On-the-Ground: Protests, Blockades and
the Idle No More Movement
Robert J. M. Janes
Janes Freedman Kyle Law Corporation
• Behn v. Moulton Contracting Ltd. and blockades
• Injunctions and blockades • The Idle No More movement
• Ethical implications of advising and representing protestors
12:10 Questions and Discussion
12:20 Networking Luncheon
Youth Sponsorship Program
We are pleased to offer our successful sponsorship program for First Nation, Métis and Inuit youth to attend forums offered by Pacific Business & Law Institute. For further information about applying to attend this or other programs, please go to
Aboriginal Law 2014: Current Issues
Thursday, May 29
th, 2014
9:00
Welcome & Reflections on Day One
Robert J. M. Janes
Janes Freedman Kyle Law Corporation
9:10
Aboriginal Litigation Practice Update
Mary Locke Macaulay
Eyford Macaulay Shaw & Padmanabhan LLP
• A review of recently decided cases in the following areas: - Pleadings: Particulars of pleading and striking out claims - Parties: Interventions
- Discovery: Scope of examinations for discovery
9:50 Questions and Discussion
10:00
A Practical Approach to Negotiating
“Impact Benefit” and other Agreements
Robert C. Freedman
Janes Freedman Kyle Law Corporation
Paul C. Wilson
Fasken Martineau DuMoulin LLP
• The role of the Crown and the delegation of “procedural aspects” of consultation/accommodation
• Keys points and practical advice for negotiating successful agreements
• Agreement drafting tips, including sample clauses
• Dealing with potential conflicts of interest, payment issues and compliance with foreign corrupt practices laws
• Challenges and key steps for implementation of the agreements
10:50 Questions and Discussion
11:00 Refreshment Adjournment
11:15
Getting a Perspective on Project Proposals in
a Shifting Regulatory Landscape
Kirk Lambrecht, Q.C.
Shores Jardine LLP
Martin Olszynski
Faculty of Law, University of Calgary
• The regulatory landscape under new federal legislative regimes
-Canadian Environmental Assessment Act amendments
- Navigable Waters Protection Act amendments - Fisheries Act amendments
• The regulatory landscape under new legislative regimes in Alberta
- The Alberta Energy Regulator created by the Responsible
Energy Development Act, Alberta’s Aboriginal Consultation
Office, The Government of Alberta’s Policy on Consultation
with First Nations on Land and Resource Management 2013 and the Aboriginal Consultation Levy Act
12:10 Questions and Discussion
12:20 Networking Luncheon
1:45
The Residential Schools Settlement Model and
Its Potential Application to Other Issues
John A. Terry
Torys LLP
• Triggers for the residential school settlement process – the role of class and individual actions
• Strengths and weaknesses of the process • Current status of the process
• Its application to resolving other issues – e.g. issues arising from past health care
2:30 Questions and Discussion
2:40
Class Actions in Aboriginal Litigation:
Beyond Residential Schools
Jason Z. Murray
Eyford Macaulay Shaw & Padmanabhan LLP
• Opportunities and challenges for class actions beyond the residential schools cases
• Sixties Scoop class actions
• Challenges after Kwicksutaineuk/Ah-Kwa-Mish First Nation v.
Canada – are Aboriginal plaintiff classes still possible?
• Appropriate representatives, standing and representative actions
3:15 Questions and Discussion
3:25 Refreshment Adjournment
3:40
Looking Closely at Specific Claims:
Second Decision, First Judicial Review
Dr. Bruce Stadfeld McIvor
First Peoples Law
• Kitselas Specific Claim for Gitaus (September 29, 2011) • Tribunal decision on the Kitselas Specific Claim (February
19, 2013)
• Canada’s application to the Federal Court of Appeal (March 21, 2013)
• Update on Federal Court of Appeal proceeding
4:20 Questions and Discussion
4:30
Faculty Roundtable:
Reconciliation – Are We Moving Any Closer?
Regional Chief Jody Wilson-Raybould (Puglaas) - Invited
British Columbia Assembly of First Nations
Dr. Bruce Stadfeld McIvor
First Peoples Law
John A. Terry
Torys LLP
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Course Accreditation: Attendance at this course can be listed for up to 12 hours of continuing professional development with the Law Societies of BC and Upper Canada. For Alberta lawyers, consider including this course as a CPD learning activity in your mandatory annual Continuing Professional Development Plan as required by the Law Society of Alberta.
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Register today at www.pbli.com/1063
Aboriginal Law 2014:
Current Issues
May 28
th& 29
th, 2014
UBC Robson Square • Vancouver, BC
Four Ways to Register:
1. Telephone us: 604-730-2500 or toll free 1-877-730-2555 2. Fax us: 604-730-5085 or toll free 1-866-730-5085 3. Mail your registration form with payment 4. Register at www.pbli.com/1063
Registration: The registration fee is $1,175.00 plus GST of $58.75 total-ling $1,233.75 for both days. Registration covers your attendance at the program (in person or by live webinar), written materials, a light breakfast, a networking luncheon and refreshments on each day.
Group Discounts: Register four persons from the same organization at the same time and you are entitled to a complimentary fifth registration.
Payment: You may pay by VISA, MasterCard or cheque. Cheques should be made payable to Pacific Business & Law Institute. Registration fees must be paid prior to the program.
When and Where: Check-in begins at 8:30 a.m. The program starts at 9:00 a.m. UBC Robson Square is located at the basement level of 800 Robson Street in Vancouver, BC. Please visit http://www.robsonsquare. ubc.ca/find-us/ for directions.
Materials: The faculty will prepare papers and/or other materials explaining many of the points raised during this program. Materials will be available for pick-up at the program. Please contact us at [email protected] if you are unable to attend the program and wish to purchase a set of materials.
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Cancellations: Full refunds will be given for cancellations if notice is received in writing five full business days prior to the program (May 21st, 2014). After that
time we are unable to refund registration fees. Substitutions will be permitted. We reserve the right to cancel, change or revise the date, faculty, content or venue of this event.
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Pacific Business & Law Institute
305 – 1681 Chestnut Street Vancouver, BC Canada V6J 4M6
Telephone: 604-730-2500; Fax: 604-730-5085 Email: [email protected]