Aboriginal Law – Law is Cool http://lawiscool.com The law school blog and podcast from Canada Wed, 30 Sep 2015 13:10:01 +0000 en-US hourly 1 https://wordpress.org/?v=4.7.6 1338880 Legal Submissions in 140 http://lawiscool.com/2011/12/14/legal-submissions-in-140/ Wed, 14 Dec 2011 18:03:37 +0000 http://lawiscool.com/?p=3268

I’ve been invited to participate in the first moot to be held entirely on Twitter.  The Twitter Moot will cover environmental law and First Nations rights, and is already attracting international attention.  I’ve written a little more about this on Slaw.

The student competitors this year are:

  • Team Dalhousie: Michele Charles and Kristen Balcom from the University of Dalhousie in Halifax, Nova Scotia.
  • Team Osgoode: Nikki Peterson and Emelia Baack from York University, in Toronto, Ontario;
  • Team Ottawa: Yana Banzen and Kowlasar Misir from Ottawa, Ontario;
  • Team UBC: Meghan Trepanier and Matthew Kalkman from Vancouver, British Columbia;
  • Team UVic: Matthew Nefstead and Julie DeWolf from Victoria, British Columbia;

Press release by WCEL below.

Environmental law appeal to be argued over Twitter – for the First time ever

Tuesday, December 13, 2011

VANCOUVER. On Tuesday, February 21st, 2012 at 10am PST (1pm EST), West Coast Environmental Law will be hosting the world’s first ever Twitter Moot.  Moot Courts – a simulated court hearing – are a common activity in law schools, but are new to most of Twitter’s more than 300 million users.  Law students from 5 prominent Canadian law schools are scheduled to compete in this first moot.

Law students will represent Canadian Universities – British Columbia, Dalhousie, Ottawa, Victoria and York (Osgoode Hall) – will represent parties and present their arguments over Twitter in a simulated appeal of an actual court case: West Moberly First Nations v. British Columbia.  The judges confirmed to hear the appeal (a third judge is still to be announced) include:

  • William Deverell (lawyer and author of the critically-acclaimed Arthur Beauchamp Mystery novels); and
  • Omar Ha-Redeye (lawyer, blogger and one of Canada’s top 24 social media influencers according to Canadian Lawyer Weekly).

“Legal argument is not often limited to 140 characters or less,” said Jessica Clogg, Executive Director of West Coast Environmental Law.“ But Twitter is the perfect medium to raise public awareness about how the law can help protect the environment.”

“The Twitter Moot will tell the story of an Aboriginal Nation fighting to preserve their relationship with the land against coal mining, and of the complicated questions of law and values that come with that conflict,” said Andrew Gage, one of the Moot’s organizers. “Tweeps [Twitter users] interested in law, the environment or aboriginal issues will definitely want to follow our Twitter Moot.”

Members of the public seeking to follow the moot can follow www.twitter.com/WCELaw/twtmoot, or can visit West Coast’s website at www.wcel.org/twtmoot/  Visit the web pages of the individual teams to leave advice or good wishes to the teams.  The Hashtag for the Twitter Moot is #twtmoot.

West Coast Environmental Law thanks the sponsors of the Twitter Moot, or #twtmoot, including Iler Campbell LLP, McCarthy Tetrault, Miller Thomson LLP, Saxe Law Corporation, Skunkworks Communications, and Willms & Shier Environmental Lawyers LLP.

– 30 –

For more information contact:

Andrew Gage, Staff Lawyer, West Coast Environmental Law – 604-601-2506 (Vancouver) or 250-412-9784 (Victoria)

Jessica Clogg, Executive Director, 604-601-2501.

The TwtMoot Web Pages are available at wcel.org/twtmoot.

A pdf version of this press release is available here.

Reconsidering Columbus Day http://lawiscool.com/2010/10/12/reconsidering-columbus-day-2/ http://lawiscool.com/2010/10/12/reconsidering-columbus-day-2/#comments Tue, 12 Oct 2010 11:34:53 +0000 http://lawiscool.com/?p=2962 One year later, it’s still worth reconsidering.

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Lawlessness http://lawiscool.com/2009/11/13/lawlessness/ Fri, 13 Nov 2009 15:34:26 +0000 http://lawiscool.com/?p=2237 Caledonia family lived ‘terrified existence’

Barbara Brown writes for the Hamilton Spectator:

A Caledonia family lived inside “a war zone,” says a Hamilton lawyer whose clients will testify about being trapped inside the barricades during the 2006 native occupation of the Douglas Creek Estates.


Iacobucci: Recognizing History of Residential Schools a “Necessary Step” http://lawiscool.com/2009/11/08/iacobucci-recognizing-history-of-residential-schools-a-necessary-step/ Mon, 09 Nov 2009 00:51:47 +0000 http://lawiscool.com/?p=2223 Notes from a keynote speech by Justice Iacobucci at the Federation of Asian Canadian Lawyers (FACL) Fall Conference.

Grew up in the East End of Vancouver, where there was lots of diversity of people from many backgrounds.  Justice Iacobucci noted that he entered the law exactly 50 years ago, in 1959, when he graduated from UBC.  There wasn’t a lot of visible minorities in the profession back then. There also wasn’t a lot of “funny names” in it back then.  He recalls that when he told by one of his undergraduate professors that he wanted to do law that he shouldn’t go, “You don’t have the right name for it.”  But another told him that he should, because “Canada is changing.”

Canada is changing, and the proof is the numbers of visible minorities that are entering law, a profession that historically has not been welcoming to women or minorities. But there is more to do with inclusiveness, and creating strength in diversity.

He started by reminding us all that everyone in Canada can be put into two groups – native Americans, and the rest of us are immigrants.  It’s just a question of timing.  We’re all immigrants.  Many come with values, and not much else going for them.  But those values, with an opportunity, can accomplish a lot.

Not all of us have had those opportunities.  The focus of Justice Iacobucci’s talk was on the Aboriginal Residential School file, one of the most challenging files he was exposed to.  The talk was not about the legal aspects, but rather how a country deals with its past in a way that is fair and honourable.

Most of the residential schools were in the West, with some in Ontario and Quebec.  There were about 130 schools with approximately 130,000 students, but the records are incomplete. There were similar schools in the U.S. and Australia.  The intent was to assimilate these populations into society by forcibly removing them from their families and putting them in schools for up to 12 years.  They were not allowed to retain their language, culture or religion.

Some Canadian officials described it as “beating the Indianess out of the children.”  Another said, “to elevate the status of the Indian from a savage,” a role akin to one played by Christian missionaries in various parts of the world. Egerton Ryerson said in his 1847 report to the Legislative Assembly of Upper Canada,

Their education must consist not merely of the training of the mind, but of a weaning from the habits and feelings of their ancestors, and the acquirements of the language, arts and customs of civilised life.

Four major denominations of of churches ran the schools.  The Roman Catholic Church operated about 70% of them, followed by Anglicans, United Church, Presbyterians, and one Methodist school.  Although schools made children feel inferior by second-class children, this was compounded by the view of children during this time.  “Spare the rod, and spoil the child.”  Harsh treatment of  young people was commonplace everywhere.  In these residential schools the physical abuse was even worse because of the additional sexual abuse, disease, mental trauma, and separation issues about their families.

After being appointed to represent the Federal government in negotiations to create a settlement, he visited the Saugeen nation in Manitoba, where he met a Chief whose father was on his deathbed and told him,

I apologize, because I never learned to be a parent, and I find it difficult to say I love you.  So please forgive me.

Most of us can think about our parents and siblings, and are blessed with their love and support.  Even having bad parents is not as bad as this, because people rise above these issues. To deal with situations like this during the formative years creates an enormous trauma to an entire community.

Another story he heard was of an 8 year-old girl who saw a car driven to the reserve by a priest, the first white man she had ever seen.  She thought he was going for a ride in the country, but he took her to a residential school, where she stayed for 5 years.  It wasn’t the beatings or the humiliation or even losing her name that bothered her.  The first thing they did was cut off all of our hair and give us numbers.

Mine was 52.  And I’ve never been able to overcome that dehumanization.

There are thousands of other stories like these that he heard.  This episode of our history was brought to the national spotlight in the 80’s when Phil Fontaine publicly shared his experiences as a student of the residential schools, including his personal experience with sexual abuse there.  [Fontaine would go on to negotiate in 2005 the Indian Residential Schools Settlement Agreement and the $5 billion Kelowna Accord, though the latter was canceled by the succeeding Conservative government].

In the following years, legal claims against the Federal government were made, over 15,000.  Class-actions were launched across Canada, eventually totaling 23.  When faced with this the government set up an alternative dispute resolution system to address claims of physical and sexual assault.  Still, a backlog quickly developed and the system could not keep up.

In May 2005 the Federal government announced a comprehensive approach to deal with the issue.  They acknowledged for the first time that there would be compensation for everyone who attended the schools, rather than leaving the claims to the courts or alternative dispute resolution system.  Essential to this move was the redress settlement made for the 21,000 Japanese-Canadians that were interned during WWII.  Justice Iacobuci noted that we were even worse than the Americans because we confiscated internees property and never returned it.

It was at this time that Justice Iacobucci identified as the Federal representative to lead the settlement discussions on behalf of the government.  Without this settlement the claims would go on for years and years, as a continual stain on our national history.  Additionally, many of these students were dying at a rate of 4-5 a day, and for them not to see some resolution of this in their lifetime just added to the injustice.

After 5 months of intense negotiations between lawyers for the claimants,  the government, the churches, and Aboriginal groups, an agreement in principle was reached by all the parties in Nov. 2005.  It was often an intense and unwieldy process, with up to 65 lawyers, who often all wanted to talk at the same time.  It was the largest settlement in Canadian history, of $10,000 for each student’s first year of residence, and $3,000 for each additional year, for an estimated total of $2 billion for all the claimants to over 80,000 former students.  Advance payments were also put in place for the elderly and the sick who may not survive the entire settlement process, which also signaled to the other parties that they were serious about the process.  Age was used as a surrogate for illness because it was difficult to identify terminal illness, so instead an age of 65 was used.

Justice Iacobucci was quite adamant,

You can never get adequate compensation for the loss of formative years in that kind of setting… It’s hard to compensate when a person loses liberty, and this was a form of freedom and liberty.

But it was, just like the Japanese-Canadian case, a symbol of saying there was a wrong, and this is an attempt to show we want to try to make amends for that wrong.

In addition to the advance payment, there was $120 million dedicated to Aboriginal healing to the Aboriginal Healing Foundation. There were quite a number of people disturbed by these experiences, which were aggravated by a number of other social conditions such as poverty, lack of training, education.  These programs were not just for the former residents, but relatives, children, and descendants who may have been affected by these issues.  Lots of changes were made to the dispute resolution system.

But perhaps the most important component was  the Indian Residential Schools Truth and Reconciliation Commission.   They looked at many models, including South Africa and Latin America.  They did not want a formal commission that would subpoena people to come, with lawyers cross-examining them, because it would create reluctance by people to tell their stories.  It was more important that history would record this episode accurately, and not sweep it under some great national carpet to forget.  $60 million over 5 years was provided for this, plus another $20 million for commemoration projects.

The lawyers played a very important role in this process, especially in bringing the public attention to the issue.  But they also had to deal with the issue of their fees, which was not an easy issue to deal with, but an important one.  The question of liability of the churches, which would have bankrupted many of the churches if they were held responsible for the entire amounts of claims.  But they did have to bear some responsibility, and it was decided they would contribute $125 million.

After the agreement in principle, the Martin government was replaced by the Harper government in 2006.  The new Minister of Indian Affairs, Jim Prentice, wanted to ensure they were in agreement.  Although they accepted it, they made some changes, and the final settlement was made in the Fall of 2006.

Class-action settlements have to be approved in courts though, and these claims were spread all across Canada in 9 different jurisdictions.  The judges met in 2 occasions in Calgary to resolve any remaining issues.  Once it was approved by the court, it had to be advertised.  Many of the potential claimants were in remote and northern areas of Canada that were largely inaccessible, even by major forms of media, so the court had to supervise the process with notices going out in unique ways.

The approval rating was phenomenal.

Of the about 80,000 class-action members, only around 350-400 decided to opt out.  If more than 5,000 had opted out, the provisional agreement would have fallen apart.

An apology was brought up on several occasions, which Justice Iacobucci had several objections to.  It’s a prerogative of the government to apologize, not the prerogative of a negotiator to negotiate.  To negotiate an apology robs it of any genuineness, and vulgarizes it as an element of bargaining which lacks sincerity.  Finally, an apology could only be announced after a settlement.  If an apology was announced in advance of a settlement it would be used against the government of the day and compromise their legal position.

He was in the House of Commons when the Prime Minister spoke, and it was one of the most moving moments he has seen.  The Chiefs and representatives of our Aboriginal peoples were there to hear, we are sorry, this was wrong.  It was a moment to remember.  He had never been prouder to be a Canadian, because through so much of this process he was rather ashamed of what Canada had done in our name.

The apology taken together with the settlement was a way of Canada saying genuinely sorry, and a we hold out our hands in the hopes of  forgiveness.  And we’re trying to find a way for us to live in peace and harmony…

[Because of this,] it represents the most satisfying experience I’ve had in my time as a lawyer.

He thanked the government, both past and present, for the opportunity to be involved, and the parties involved to reach a settlement.  He particularly thanked former National Chief Phil Fontaine for his commitment and leadership.

No doubt the legacy of Indian residential schools have a dark side…. but to recognize that history is a necessary step for all of us to build a Canada that all of us, Aboriginal and non-Aboriginal, can be proud of, and for Canada to be a model for the indigenous peoples of the world.

Cross-Posted from Slaw

Reconsidering Columbus Day http://lawiscool.com/2009/10/12/reconsidering-columbus-day/ http://lawiscool.com/2009/10/12/reconsidering-columbus-day/#comments Mon, 12 Oct 2009 14:56:57 +0000 http://lawiscool.com/?p=2112 It’s turkey day in Canada.

But for our American neighbours, it’s Columbus Day, which commemorates the arrival of Columbus to the Americas on October 12, 1492.

Many Americans don’t see this as reason to celebrate.

The Examiner says,

For many in the United States, Columbus Day is just another holiday. It is a time to spend with family and friends, an opportunity to take a short vacation, an extra day of rest from a long work week, or it is the last chance for a barbecue before winter. But for others, it is a sharp and painful reminder that history has betrayed and forgotten the contributions of their people, the lives lost, and a rich culture that pre-dated colonization…
This drastic decrease in the indigenous populations of the Americas, later brought about the trans-Atlantic African slave trade, and was followed by indentured Chinese labor after slavery’s abolition. The thirst of cheap labor and the blood of the indigenous, Africans, and Chinese, still stain the soil that is the foundation of development in the New World.

Maybe it’s time to reconsider Columbus Day.

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Madame Arbour Returns to Canada (Episode 20) http://lawiscool.com/2009/04/28/madame-arbour-returns-to-canada/ http://lawiscool.com/2009/04/28/madame-arbour-returns-to-canada/#comments Tue, 28 Apr 2009 23:12:21 +0000 http://lawiscool.com/?p=1576 Former Osgoode Hall law professor and Supreme Court justice, Madame Louise Arbour, recently completed a four-year term as the United Nations High Commissioner on Human Rights.

She will take on the position of President and Chief Executive Officer of the International Crisis Group in July 2009, but before that she’s making a brief return to the Canadian human rights scene.

Earlier today I heard her speak at the Public Service Alliance of Canada (PSAC) convention on the National Day of Mourning, an annual event recognized by the Federal government since 1991 to remember workers who lost their lives or were injured on the job.

Madame Arbour is perhaps best known in constitutional circles for her dissent in Gosselin v. Quebec, which would have given social and economic rights to Canadians.

Despite the court’s decision to the contrary, Madame Arbour is still making the case for social and economic rights in the future of Canada.

She characterized a dichotomy between the West and the East, with the former claiming to champion liberty, the latter championing social and economic rights, and neither side really hearing each other in the process.

Her talk was premised on the Roosevelt’s fundemental freedoms that gave way to the Universal Declaration of Human Rights, specifically the freedom from fear and the freedom from want.  She related the former fear to legal abuses by Western governments in the so-called “war on terrorism.”  The second fear is increasingly relevant in our tough economic times, the true test of which will be our treatment of migrant workers.

The key to our true security lies in addressing social and economic problems by dealing with them as fundamental rights, and the sooner we can realize this the safer and more prosperous we will all be.

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The Conflicted Relationship between Lawyers and “Indians” http://lawiscool.com/2009/01/11/the-conflicted-relationship-between-lawyers-and-indians/ http://lawiscool.com/2009/01/11/the-conflicted-relationship-between-lawyers-and-indians/#comments Sun, 11 Jan 2009 15:00:53 +0000 http://lawiscool.com/?p=1264 [The following piece was sent to us by a reader. Reproduced with permission of the author.]

An Identification of the Conflicted Relationship between the Indigenous Nations and the Legal Profession in North America

by Bruce Clark, LL.B., M.A., Ph.D.

An Indian goes into a law office and says, “Since my traditional government never agreed by any treaty to be governed by your government, why does your legal system apply your government’s laws to me on my indigenous nation’s unceded national territory?”

If he lives in Canada the Indian is likely to be aware of the fact that the original constitution for all of British North America (the Royal Proclamation of 1763) reiterated the stipulation that the first principle of all land occupancy and jurisdiction law is, “that the several Nations or Tribes of Indians with whom We are connected and who live under our Protection should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as not having been ceded to or purchased by Us are reserved to them or any of them as their Hunting Grounds.”

If he lives in the USA he may be aware that the original and authoritative and therefore binding (including upon the Supreme Court itself) Supreme Court precedent Worcester v. Georgia[1] in 1832 recognized and affirmed that this constitutional right to “Protection” against (as opposed to competition from) newcomer government jurisdiction and its constituents’ occupation continued, as the first principle of the new American constitution after Independence. The Court said, “What is a treaty? The answer is, it is a compact between two nations or communities, having the right of self government…. Except by compact we have not even claimed a right of way through the Indian lands.”

Article ii, Section 2, Paragraph 2, Clause 1 of the US constitution allots to the President the exclusive jurisdiction to contract treaties. Crucially, the original precedents interpreted that clause as implicitly incorporating the previously-established law regarding the constitutional reconciliation of territorial sovereignty rights of the indigenous and newcomer nations.

In consequence the US government no less than the government of Canada is required to obtain the consent of the Indian nations’ before assuming jurisdiction to invade, occupy and govern the yet unceded Indian national territories. Canada’s constitution also has a treaty clause and, even more explicitly, its Section 109 stipulates that the crown’s constitutional interest is “subject to” the indigenous national interest unless and until a treaty has been contracted relinquishing it.

This North American legal reality is not an “absolute truth” such as claimed by religions as the basis for everything but, relative at least to the parameters of the rule of law, it is “the constitutional truth.” As such, it is the structural foundation for civil society and government based upon the rule of law and is binding upon those whose job in society it is to uphold the rule of law for the purpose of achieving legal justice, i.e., the application of truth to affairs. That job is performed by the legal profession which provides for the lawyers and the judges who themselves are subject, as opposed to being above the rule of law.

As the US Supreme Court stated in 1810 in its first precedent[2] in the aboriginal rights field, the indigenous constitutional interest “is certainly to be respected by all courts.” In spite of this, the legal profession and judges knowingly elected to lie to the native and newcomer public and, more importantly, to itself rather than to uphold this constitutional truth. The profession chose political opportunism over the rule of law and, by doing so, the lawyers and judges collectively replaced emancipated constitutional democracy with paternalistic judicial oligarchy.

The political pressure to do this was identified as early as 1791 by the Chief Justice of Upper Canada John Elmsley in his Report to the Executive Council of Upper Canada dated October 22, 1798:

It is no secret to any person at all acquainted with the present state of Indian Affairs that the aborigines of this Part of His Majesty’s American Dominions are beginning to appreciate their lands not so much by the use which they themselves, as by the value at which they are estimated by those who purchase them, and either cultivate them, or dispose of them in their natural state. It is equally notorious, that if the Indians wanted penetration to make the discovery, there are a great many persons of European origin who have attached themselves to the several Tribes which surround us, and will not fail to inform them that the value of any article depends as much upon its importance to the purchaser, as on its usefulness to the present possessors. But if this were doubtful now, when the lands purchased from the Indians are distributed among His Majesty’s Subjects at a Fee hardly exceeding the prime cost of them, it cannot possibly remain so when the Indians discover as they unquestionably will, that the purchases made from them are to be converted into a source of Revenue to ourselves-slow as their progress is towards civilization they are perfectly apprised of the value of money and of its use in maintaining them in those habits of indolence and intemperance to which most of them are more or less inclined. In order therefore to exercise that foresight which our Indian neighbours are beginning to learn, and in which it certainly cannot be our interest to promote their improvement, we submit for your Honour’s consideration the propriety of suspending the promulgation of the plan which has been laid down for us until we can make a purchase sufficiently large to secure for us the means of extending the population and encreasing the strength of the Provinces so far as to enable us before our stock is exhausted to dictate instead of soliciting the terms on which future acquisitions are to be made.

Instead of making sure that the Indian beneficiaries of that constitutional trust obligation fully are informed before making treaties ceding their sovereign jurisdiction and possession, the Chief Justice’s concern was that others would do the informing and that in the result the crown governments would have a hard time buying up the Indian land at pittance prices. By the 1870s the indigenous nations had learned the lesson that the Chief Justice was concerned they not learn.

Faced with the prospect that the Indians might not “sell” at ridiculously low prices the “Protection” duty of the crown and its law officers knowingly and intentionally was corrupted by the judiciary, not necessarily for the direct benefit of any individual judge or lawyer, but rather in the service of the newcomer public’s interest in stealing the Indians’ possession and usurping their jurisdiction.

Specifically, in the 1870s the governments of both the USA and Canada dealt with this threat by invading, occupying and governing the yet unceded indigenous national territories under the auspices of their own legislation, regardless of the absence of treaties. The legal profession and judges permitted and led the invasion

The breach recommended by the Chief Justice in 1791-of the fiduciary obligation of “Protection”-was enlarged in the 1870s into omnibus war and genocide, which thereafter became the perfect crime, precisely because it was supported by the legal profession’s suppression of the constitutional law. Since the 1870s it has been impossible to persuade the North American judiciary to address the constitutional truth. The issue itself has been buried, though the law pertinent to it has never been repealed in a constitutionally legal fashion.

In my essay “Judicial Culpability for War and Genocide in the Age of American Empire,” Global Jurist: Vol.8: Iss. 3(Frontiers), Article6 (2008), I have identified the stages by which this judicial abandonment of the truth standard in favour of judicially-backed political opportunism-the big lie-is the basis for the unconstitutional war and genocide upon which the empire of the “free world” is based.

Among other things the essay illustrates the weight of the burden of judicial lie by the example of the criminalization and disbarment of me personally for persisting over of thirty year period in raising in North American courts the above-mentioned constitutional enactments and precedents. In my situation the lie was that the law I raised was addressed every time I raised it which, if true, would be evidenced by court records.

This is the background that determines the legal relationship between constituents of the traditional indigenous nations who would, if allowed, resist the war and genocide upon the basis of the consensus of law as between their own law and the constitutional law of the newcomers’ society.

As an institutional class the legal profession in North America labours under a conflict of interest and, even for those few lawyers who might be inclined to defend the truth standard, the futility of repeating the conduct for which I was and still am being persecuted. Even the most knowledgeable and empathic lawyer knows from professional experience that the legal system is above the law, in as much as it has the last word on legality. Even if the lawyer is aware of the constitutional and international law that supports the sole authority of the ancestral law, the lawyer will feel bound to say the law does not matter given the legal system’s prior suppression of its existence.

The strategy rationally dictated by this point of view is to sue or threaten to sue the government in the government’s court system, while being careful not to impugn the court system itself. Upon this basis one asks the court to exercise its (unchallenged) judicial discretion by recognizing:

  1. a judge-made “right to be consulted” in relation to development (as opposed to the constitutional and international law right of veto that exists by virtue of the indigenous national right to withhold treaty consent to development);
  2. a “right to money damages” (as opposed to the constitutional and international law right to reparations for war and genocide against another nation); and/or,
  3. a “right to a primitive practice” (as opposed to the constitutional and international law right to sole possession and exclusive jurisdiction pending proof by the government of a treaty consenting to relinquishment.)

Genocide continues in consequence of the lawyers’ and judges’ institutional and profound conflict of interest with justice-based upon the truth, the whole truth and nothing but the truth-which the rule of law in idealistic theory exists to serve.

They will not address the constitutional question that exposes their own culpability for war and genocide as against indigenous and foreign nations whose values deeply conflict with, and pose an ideological threat to, theirs.

The strategic choice presented by the lawyer, if any choice is identified at all, is as between a no chance court case based upon the consensus of ancestral, constitutional and international law, versus a good chance of something for going along with the fraud, war and genocide.

The lawyer (if interested in accepting Indian work at all) will have a promotional tactic, the client’s approval of which shall be the marching order to appeal to the court’s ego as dispenser of fairness. Thus is pleaded the court’s “fiduciary relationship” with Indians-the modern term for the great white father relationship-the hallmark of the exploitation and abuses.

For some persons of indigenous ancestry the judicial receptivity to the right to be consulted, money damages and practicing the occasional hunting or fishing technique as did their ancestors, is a bird in the hand. For such as these many lawyers exist who are ready, willing and able to get whatever is on offer.

For those indigenous people who nevertheless still want to pursue the constitutional and international law, I can only suggest they consider the conclusion of my recent essay. The gist of it is to resort to international judicial opinion to persuade the North American judiciary to do its duty: to uphold the truth standard and the principle of constitutional democracy under the rule of law, at home.

There is no legal point to be served in troubling to draft declarations and petitions to the government. The government knows and has heard it all before. Its whole policy as against Indian and foreign nations is to lie and to wear down resistance to the lie by the unconstitutional and mortal use of force. There is no possibility of negotiations in good faith relative to treaties regarding territory that the government has already invaded, occupied and governed in bad faith.

Good faith presumes truth is of determinative relevance to the framework for the negotiations and unless and until the legal profession reforms itself, truth will remain irrelevant.

The old style Indians knew and warned of the threat that the demise of the truth standard constitutes to the continuity of life on earth. Their predictions are coming to pass not only with respect to the environment but with regard to the rampancy of the self-destructive greed and the fraud that feeds it in the economic realm.

The theme that the continuity of all life depends upon the integrity and paramountcy of the truth standard in human affairs-the ultimate indigenous truth being the interconnectedness and interdependency of all things-was reiterated in the modern sociological arena by Jűrgen Habermas’ Legitimation Crisis (1975).

The current conjunction of global economic and environmental crises will not likely be resolved unless a structural approach that goes to the root of the catastrophe is identified and addressed, by the authors of the problem: the North American legal profession and judiciary. They must be persuaded to place themselves under the rule of law, if reform is to be other than cosmetic and futile.

Those Indians who want genuine justice rather than money damages in exchange for continued injustice have no alternative but to keep bringing actions based upon the constitutional truth. Since lawyers will not aid in this, they can only do this pro se.

[1] 6 Peter’s 515. Adopted and applied as to Canada not only by Section 109 of the Constitution Act as settled by the Judicial Committee of the Privy Council (gb) in Attorney General of Ontario v. Attorney General of Canada: In re Indian Claims, [1897] ac 199, but explicitly by the Superior Court of Quebec in Connolly v. Woolrich in the very year of the Canadian Confederation: (1867), 11 lcj 197, 205-07 (sc Quebec); affirmed (1869), rlos 356-7 (ca Quebec).

[2] Fletcher v. Peck, 6 Cranch’s 87. 142-3 (1810): “The majority of the Court is of opinion that the nature of the Indian title, which is certainly to be respected by all courts, until it has been legitimately extinguished, is not such as to be absolutely repugnant to seisin in fee on the part of the state.”

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Conflict of Interests Taskforce Reports http://lawiscool.com/2008/08/19/conflict-of-interests-taskforce-reports/ Tue, 19 Aug 2008 10:14:07 +0000 http://lawiscool.com/?p=670 The Canadian Bar Association (CBA) has adopted the recommendations of its Task Force on Conflicts of Interest.  Background on the Task Force and their report can be found on the CBA website.

CBA President Bernard Amyot said,

Lawyers, law societies, judges and the Canadian public will benefit from the principled approach developed by the task force. The recommendations will contribute to the evolution of the conflicts regime to reflect changes in the practice of law.

Members of the Task Force, Scott Jolliffe, Simon Chester and Gordon Currie, can also be heard in a podcast interview moderated by Jordan Furlong.

Conflicts of interest have made headlines in Ontario recently, with some claiming that they are used as an aggressive tool to have opposing counsel removed from a case.

Tracey Tyler of The Star explains,

The payoff comes in putting an opponent to the expense and aggravation of fighting the claim and – if they lose – finding a new lawyer.

The Supreme Court of Canada weighed in on the issue this year in Strother v. 3464920 Canada Inc. Binnie J. stated for the majority,

34 When a lawyer is retained by a client, the scope of the retainer is governed by contract.  It is for the parties to determine how many, or how few, services the lawyer is to perform, and other contractual terms of the engagement.  The solicitor-client relationship thus created is, however, overlaid with certain fiduciary responsibilities, which are imposed as a matter of law.  The Davis factum puts it well:

The source of the duty is not the retainer itself, but all the circumstances (including the retainer) creating a relationship of trust and confidence from which flow obligations of loyalty and transparency. [para. 95]

Not every breach of the contract of retainer is a breach of a fiduciary duty.  On the other hand, fiduciary duties provide a framework within which the lawyer performs the work and may include obligations that go beyond what the parties expressly bargained for.  The foundation of this branch of the law is the need to protect the integrity of the administration of justice: MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, at pp. 1243 and 1265.  “[I]t is of high public importance that public confidence in that integrity be maintained”:  R. v. Neil, [2002] 3 S.C.R. 631, 2002 SCC 70, at para. 12.

35 Fiduciary responsibilities include the duty of loyalty, of which an element is  the avoidance of conflicts of interest, as set out in the jurisprudence and reflected in the Rules of Practice of The Law Society of British Columbia.  As the late Hon. Michel Proulx and David Layton state, “[t]he leitmotif of conflict of interest is the broader duty of loyalty”:  Ethics and Canadian Criminal Law (2001), at p. 287.

The issue appears to be a particular problem in specialized areas of law such as intellectual property and Aboriginal law.

Chronic Drunk Driver Gets 20 Years, but not Designated a Dangerous Offender http://lawiscool.com/2008/06/13/chronic-drunk-driver-gets-20-years-but-not-designated-a-dangerous-offender/ http://lawiscool.com/2008/06/13/chronic-drunk-driver-gets-20-years-but-not-designated-a-dangerous-offender/#comments Fri, 13 Jun 2008 17:48:54 +0000 http://lawiscool.com/?p=471 A few months ago while listening to CBC Radio, I heard about the controversial case of a man being tried in Alberta for habitually drunk driving.

The man, Raymond Yellowknee, had already been convicted of drunk driving three times, when in 2006 he decided to drink and get behind the wheel yet again.

According to police, Yellowknee had a blood alcohol level of 0.22 (about three times the legal limit), and was driving a stolen pickup truck. Police pursued the vehicle, but Yellowknee refused to stop and instead provoked a high speed chase.

Just minutes later, Yellowknee lost control of the truck and crossed the center divider. He collided head-on with a passing car.

Inside the car were a mother, who was nearly finished her training to become a teacher, and her three young daughters. All were killed.

I became interested in the case when the radio broadcast reported that the Crown would be seeking a dangerous offender designation for Yellowknee under s. 753 of the Criminal Code. The designation allows the convicted offender to be sentenced to an indeterminate prison term.

The dangerous offender provisions are usually reserved for the most serious violent offenders that a court believes cannot be rehabilitated. This would have been the first time that the designation would be used for a habitual drunk driver.

A judge would have to acknowledge that drinking and driving is a serious personal injury offence: one which carries a sentence of ten years or more, and involves “conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person” (CC s. 752).

The Canadian Press reports that yesterday judge Ernie Walter of the Alberta Provincial Court decided not to name Yellowknee a dangerous offender. I should point out that Yellowknee, 35, had by this point:

… amassed a total of 71 offences and has been out of jail for only one year since he was 18.

Instead, judge Walter felt (for whatever reason) that there was a chance for rehabilitation. The court sentenced Yellowknee to 20 years (less time already served) under the “long-term offender” provision.

Section 753.1 of the Criminal Code defines a long-term offender as one posing a substantial risk of re-offending but also one where “there is a reasonable possibility of eventual control of the risk in the community.”

Robert Solomon, Professor of Law at the University of Western Ontario, provided us with his opinion of yesterday’s decision:

The Crown had sought a dangerous offender designation, which carries an indeterminate sentence and lifetime parole. Instead, the judge held Mr.Yellowknee to be a long-term offender, which means that he will be supervised in the community for 10 years after his release from prison. Yellowknee was sentenced to 20.5 years imprisonment reduced to 16 years to reflect his pre-trial detention. In my view, several elements of the Yellowknee decision are gratifying. First, the judge clearly stated that Mr. Yellowknee’s long history of impaired driving offences, coupled with his horrific conduct on the day in question, met the criteria for being designated a dangerous offender. Although it is long overdue, this is the first case in which a Canadian court has acknowledged that repeat impaired driving offenders who pose ongoing risks can justifiably be labelled dangerous offenders. Second, Mr.Yellowknee’s long-term offender designation and lengthy sentence will protect the public for almost as long as a dangerous offender designation.

Without reading the decision [it seems to be unreported as yet], it is difficult to understand why the judge exercised his discretion not to label Mr. Yellowknee a dangerous offender. The facts are as close to a worst case scenario as one can imagine and a dangerous offender designation was clearly justified. However, the Supreme Court of Canada has previously indicated that the dangerous offender designation should not be used if a less onerous sentence would adequately protect the public. Perhaps the judge was concerned that a decision to label Mr. Yellowknee a dangerous offender would be overturned on appeal. Clearly, finding Mr. Yellowknee to be a long-term offender is less controversial than finding him to be a dangerous offender. Moreover, defence counsel had indicated that they would accept a long-term offender designation. The choice between the designations would not have made a great difference in this case, given the 16 year prison sentence.

Regardless of the ultimate designation handed down for Mr. Yellowknee, yesterday’s decision should set a precedent (admittedly, non-binding) for dealing with habitual drunk drivers and the substantial risk of harm that they pose to the community.

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Supporting Lawyer Mothers is a Bad Thing? http://lawiscool.com/2008/06/02/supporting-lawyer-mothers-is-a-bad-thing/ http://lawiscool.com/2008/06/02/supporting-lawyer-mothers-is-a-bad-thing/#comments Mon, 02 Jun 2008 22:59:18 +0000 http://lawiscool.com/?p=459 Single MotherWe’ve all heard it from some of those more sharp-tongued friends of ours – all those single mothers are eroding our economy and stealing our taxes.

The Law Society of Upper Canada (LSUC) is getting heat now for supporting single mothers of another type – sole practitioners – and also those in smaller firms.

In a unanimous vote, LSUC will increase it’s fees by a measly $5-15 per lawyer to assist mothers and fathers seeking parental leave by providing grants of $3,000 a month.

But Karen Selick of the National Post slams the program, calling it “creeping socialism” (that’s a bad thing, by the way).

She forgets that Canada is often classified as a socialist democracy, especially the structure of our health care system, which to most Canadians is our proudest symbol of nationalism.

Selick also neglects to mention that the initiative was the result of a province-wide consultation by LSUC’s Working Group on the Retention of Women in Private Practice, which included many different social and ethnic groups and firms of all sizes. LSUC heard from 900 lawyers and students and received over 55 written submissions.

But consulting, of course, is so very undemocratic.

The Working Group states,

Women have been entering the private practice of law in record numbers for over two decades. However, they have also been leaving in great numbers, largely because private practice has not adapted to their realities, such as childbirth and taking on a significant portion of family responsibilities.

Also overlooked is that the move is part of a major plan to address the issue of equity in the workplace. Other recommendations adopted include:

  • a think tank to promote retention and advancement of women in law
  • direct support for women
  • practice locums, for more leave and flex-time
  • career development resources
  • creating an advisory group
  • networking strategies for minority (Francophone, Aboriginal) women
  • a review program

But they also clearly express that this initiative begins in the law schools by preparing female law students for the realities of law.

The entire comprehensive 174-page report can be found here.

If valuable legal talent is being lost to inflexible and inadvertently discriminatory work practices, you would think this would be perceived as a progressive move.

Selick says,

What I have never understood is why anyone gives a damn whether women are leaving private practice and clustering in government or corporate jobs, or quitting entirely.
[emphasis added]

Beyond ethical and humanitarian concerns, the legal industry loses millions of dollars a year due to skilled practitioners leaving the law.

Sean WeirSean Weir of Borden, Ladner, Gervais stated in May 2006 edition of Canadian Lawyer,

We invest a lot in education and programs and do a lot of intensive training from new associates and junior partners.

So when you have a well thought out plan that will save the legal industry mega bucks, and it’s also the right thing to do, why would someone think that it’s a bad thing?

Maybe it’s because they also think that human rights laws are phony too.

h/t Sharon Kour of UWO Law


Selick justifies her stance using legal economic theory. This type of analysis is frequently used by libertarians and the far right, as they create arbitrary cost-benefit analysis that attempt to prove their position.

More recently, legal economics has become popularized by books such as More Sex is Safer Sex. The author comes to some absurd conclusions, such as it’s better for a sexually inactive person to have a fling with a more promiscuous partner and contract a STD before returning to their inactive lifestyle, because they removed the opportunity of another more active person from getting the disease and passing it on to others.

But they also come up with some quite scary policy stances, such as justifying racial profiling. The problem with legal economics is that their supporters selectively choose the facts and statistics they include in their calculations. In the case of racial profiling, for example, many other studies have demonstrating that it actually increases cost and decreases effectiveness. Legal economists rarely have scientific or statistical backgrounds.

Canada invests hundreds of millions of dollars into our publicly subsidized education system. Despite rising tuition costs, they are still relatively low compared to other nations. But this means that your tax dollars are going into funding the education of women, who are now comprising 50-60% of law school classes. By not creating a more favorable career environment, we lose the incredible investment we put into these individuals. It’s these types of figures that are conveniently overlooked by strictly utilitarian legal economists, who falsely present their arguments as as logical and well-thought out.

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