Fundamentals of Indigenous Peoples and Canadian Law

Overview of the Historic Narrative and Legal Implications

• The pre-existence of Indigenous peoples and the assertion of sovereignty
• Canada’s creation, expansion and settlement
• Treaty making with Indigenous peoples (pre- and post-Confederation)
• The ongoing national project of treaty making and reconciliation with Indigenous peoples
• Acknowledging the existence of Indigenous Laws

Understanding the Constitutional Framework

• The Royal Proclamation, 1763
• The Division of Powers and Section 91(24) of the Constitution Act, 1867
• The 1870 Order, the Manitoba Act, 1870, the Natural Resources Transfer

Agreements and other constitutional instruments

• The Constitution Act, 1982
• The role of International Norms and Principles and the United Nations Declaration on the Rights of Indigenous Peoples

Understanding the Historic Treaties: Context, Perspectives and Contemporary Realities

The Relationship between the Historic Treaties and the Role of the Crown,

the Division of Powers, Treaty Rights and the Indian Act

Faculty
Karen Drake
Associate Professor, Osgoode Hall Law School (Toronto)

Derek A. Simon
Burchell Wickwire Bryson LLP (Halifax)

S. Ronald Stevenson
Juristes Power Law (Ottawa)

An Overview of the History and Development of the Indian Act and its Ongoing Evolution

The Indian Act: Key Issues for Practitioners and Policy-Makers

• ‘Status’ registration under the Indian Act, including the Descheneaux case and Canada’s response
• Legal issues for business operations as well as taxation on-reserve
• Issues surrounding the negotiation of self‑government and other agreements with Bands under the Indian Act
• Land tenure and permitted uses under the Indian Act

Governance Institutions in Indigenous Communities: Indian Act Councils and Traditional Indigenous Governments

Framework Agreement on First Nation Land Management Act

• Overview of the purpose of the Act and its intersection with the Indian Act
• Practical realities of its impact
• Opting out of the Indian Act

Additions to Reserves

Faculty
John Gailus
Cascadia Legal LLP (Victoria)

Nancy J. Kleer
Olthuis, Kleer, Towns LLP (Toronto)

Hugues Landriault
Director, Lands Administration and Additions-to-Reserves, Indigenous Services Canada| Services aux Autochtones Canada (Gatineau)

Jessica Orkin
Goldblatt Partners LLP (Toronto)

Paul Seaman
Gowling WLG (Vancouver)

David Schulze
Dionne Schulze (Montreal)

Section 35 Aboriginal Rights Framework

• The legal test
• The history, development and evolution of s.35 of the Constitution Act, 1982

Aboriginal Title

• Understanding and identifying Aboriginal title and emerging issues

Constitutional and Section 35 framework for Métis Communities and Rights

Faculty
Katharine Brack
First Peoples Law

Scott Franks
Assistant Professor, Allard School of Law at the University of British Columbia (Vancouver)

Robert Janes K.C.
JFK Law Corporation (Victoria)

Matt McPherson
Olthuis, Kleer, Townshend LLP (Toronto)

Evolution of the Treaty Making Process

• Anatomy of a modern day treaty
• Approaches to modern treaty making

An Overview of the History and Development of the Modern Day Treaties: Current Policies, Opportunities and Challenges

Understanding the Modern Day Treaties through Case Studies and a Comparative Analysis Across Canada

Key Emerging Issues in Modern Day Treaty Implementation and the Road Ahead

• Treaty implementation – moving beyond the colonial model
• Environmental assessments and land and water co-management
• Funding treaty implementation and self-government (Financial Transfer Agreements)
• Business and wealth creation
• the Collaborative Fiscal Policy Development Process

The Most Significant Cases and Key Legal Concepts from the Last 40 Years

• The key cases you need to know about and their practical implications for professionals working in this area

Faculty
Douglas R. Eyford, K.C.
Eyford Partners LLP (Vancouver)

Nuri G. Frame
Pape Salter Teillet LLP (Toronto)

Thomas Isaac
Cassels Brock & Blackwell LLP (Vancouver)

Jake Kennedy
Director General, Policy & Partnerships Branch (PPB), Implementation Sector, Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) (Ottawa)

Larry Innes
Olthuis, Kleer, Townshend LLP (Yellowknife)

Colin Salter
Partner, Pape Salter Teillet LLP (Toronto)

John Topping
Senior Director General , Policy Development and Coordination, Treaties and Aboriginal Government Relations, Crown-Indigenous Relations and Northern Affairs Canada (Ottawa)

Understanding the Duty to Consult and Accommodate – The Foundations

• Origins of the Duty as a part of the Infringement Test
• Journey of the Duty since Haida and Taku
• An overview of recent developments and case law
  • Non-treaty context (Haida, Taku)
  • Historic treaty context (Mikisew)
  • Modern treaty context (Little Salmon)
• What we know and don’t know about the duty
• Identifying who, what, where, when and why

Consultation: Implementation Challenges and Opportunities

• Capacity and funding for capacity
• Consultation fatigue
• Cumulative impacts
• Time allocated for consultation
• Consent model – how to navigate
• Delegation
• Relationship between consultation and agreements

Consultation In Practice

• Practical guidance from counsel, and community and industry representatives (The panel will also discuss topics suggested by participants)

Faculty
Robert H. Brent
Senior Counsel, Ontario Ministry of Indigenous Affairs, Legal Services Branch (Toronto)

Adam Chamberlain
Gowlings WLG (Toronto)

Sandra Gogal
Cassels Brock & Blackwell LLP (Toronto)

Juanita Starr
Director, Sustainable Development, Biigtigong Nishnaabeg

Alexandria Winterburn
Aird & Berlis LLP (Toronto)

Michelle Wood
Counsel, Ministry of Natural Resources and Forestry (Toronto)

Self-Governance – the Foundations

Understanding the United Nations Declaration on the Rights of Indigenous People

• Overview of UNDRIP
• Assessment of how it has been adapted and implemented in Canada

Exercising Jurisdiction

• Overview of the principles
• Case studies of community exercising jurisdiction: Challenges, successes, lessons learned for going forward

Indigenous Child Welfare and Children’s Rights

Where Do We Go From Here?

Faculty
Michael Bendle
Legal and Strategic Advisor, Tŝilhqot’in National Government

Dr. John Cloutier
Nihkanatpat (Executive Director), Wolastoqey Nation in New Brunswick

Eric Doucet
Legal Counsel, Mohawk Council of Kahnawà:ke

Sunny LeBourdais
Director of Transformation, Qwelmínte Secwépemc

Sara Mainville
JFK Law LLP (Vancouver)

Justin Martin
Lead of Fisheries, Kwilmu’kw Maw-klusuaqn- Mi’kmaq Rights Initiative

Chief Scott McLeod
Nipissing First Nation

Krista Nerland
Olthuis, Kleer, Townshend LLP (Toronto)

Renée Pelletier
Olthuis, Kleer, Townshend LLP (Toronto)

Mary Jean Rolando
Counsel, Crown-Indigenous Relations and Northern Affairs & Indigenous Services, Legal Services, Department of Justice Canada (Ottawa)

Charlotte Rose
In-House Counsel, Qwelmínte Secwépemc

Maggie Wente
Olthuis, Kleer, Townshend LLP (Toronto)