Course Syllabus

TOPICS IN FIRST NATIONS LAW: 
CURRENT LEGAL ISSUES
 
2019-20
 
PETER A. ALLARD SCHOOL OF LAW
UNIVERSITY OF BRITISH COLUMBIA
 
Instructor:

Dr. Bruce McIvor
Phone: 604.685.4240
E-mail: bmcivor@mail.ubc.ca
 
Class Meeting Times and Location:

Monday     9:00 – 12:00     Allard Hall 111

Contact Hours:

By appointment: please email my assistant, Stacey Poole, for details: spoole@firstpeopleslaw.com

Policies on Academic Misconduct (Plagiarism):
 
All UBC law students are subject to the University's rules on Academic Misconduct (http://vpacademic.ubc.ca/integrity/ubc-regulation-on-plagiarism/), and are expected to act with academic integrity at all times. Students should be especially aware of the University's rules in relation to plagiarism. Plagiarism includes: copying the work of another student; copying or paraphrasing from a textbook or reference book, journal article, case or electronic source without proper footnoting; copying your own work that has already been submitted for another course in this degree or another degree, passing off the ideas of another person as your own. If you plagiarize, you will be subject to penalties set out in the UBC calendar (http://www.calendar.ubc.ca/vancouver/index.cfm?tree=3,54,111,959)
 
If you would like to learn more about academic misconduct, visit the UBC Library's website on academic integrity (http://learningcommons.ubc.ca/guide-to-academic-integrity/). Examples of academic misconduct can also be found in the UBC Annual Report on Student Discipline (http://universitycounsel.ubc.ca/discipline/).
 
Course Description:

Students in this seminar will acquire an understanding of the legal issues currently at the forefront of the law surrounding Aboriginal title, rights and treaty rights. Topics will include, inter alia: private lands and Aboriginal title, treaty interpretation and infringement, infringement of Aboriginal rights, cross-border Aboriginal rights, proper-rights holders, proper Indigenous representatives, Métis rights versus other Indigenous rights, the duty to consult and administrative tribunals, UNDRIP and Canadian law, the modern treaty process, and the relationship between Indigenous legal orders and Canadian law.
 
An important additional objective is that of critically reflecting on the law as it has developed in this area. You are encouraged to enter fully into this process of critical reflection, with the aim of generating a (respectful) conversation about what might be deeper underlying forces accounting for the law as it has developed in this area.
 
Teaching Method & Expectations:
 
Students are expected to attend each and every class. Students are expected (1) to have read the assigned readings before class, and (2) to be prepared to answer questions about the material during class discussions.

Evaluation:

Evaluation will consist of class participation (30%) and a final paper (70%). 

Class participation is important. Our guest speakers are all busy practitioners or judges. They are generously making time in their schedules to travel to UBC and share their perspectives and experience. It is incumbent on the entire class to show respect for their contributions by attending all classes and actively participating in the discussion.

The final paper is due by 4pm on the last day of classes, November 29th. The final papers are to be submitted by email in PDF format. Maximum length is 6,250 words excluding supporting footnotes and bibliography. Students may write on one of topics covered during the semester or, with the agreement of the instructor, choose a different topic.

Course Materials:

Readings will consist of: case law available through Quicklaw or www.canlii.org and occasional additional readings sent to the class either as links to online locations or as email attachments. 

Suggested reading (available at the bookstore): Jim Reynolds, Aboriginal Peoples and the Law: A Critical Introduction (Vancouver: UBC Press, 2018).
 
General Structure:

Note: Subject to change, depending guest speaker availability.

Sept 9

Topic
Intro Class

Reading
N/A

Sept 16

Topic
Infringement of Aboriginal rights

Guest Speaker
Matt Kirchner

Reading

Required:
Ahousaht Indian Band and Nation v. Canada (Attorney General), 2018 BCSC 633

Ahousaht Facta (posted to the channel as PDFs)

Ryan Beaton, “Articles 27 and 46(2): UNDRIP Signposts Pointing beyond the Justifiable-infringement Morass of Section 35” in John Borrows, Larry Chartrand, Oonagh E. Fitzgerald and Risa Schwartz, eds, Braiding Legal Orders: Implementing the United Nations Declaration on the Rights of Indigenous Peoples (Waterloo: Centre for International Governance Innovation, 2019) 167-175 (posted to the channel as a PDF)

Joshua Nichols, “The Limits of Meaningful Aboriginal and Treaty Rights” in Environmental Challenges on Indigenous Lands (2019), online: Centre for International Governance Innovation

Suggested:
R. v. Sparrow, [1990] 1 SCR 1075
 
R. v. Badger, [1996] 1 SCR 771

R. v. Pierone, 2018 SKCA 30

Sept 23

Topic
Cross-border Aboriginal rights

Guest Speaker
Mark Underhill

Reading

Required:
R. v. Desautel, 2019 BCCA 151

Posted to the channel as PDFs:
Crown's leave application to the SCC (July 30, 2019)
Respondent's memorandum of argument (Sept 3, 2019)
Crown's reply (Sept 13, 2019)

Mitchell v. M.N.R., 2001 SCC 33

R. v. Green, 2019 SKPC 44

Gordon Christie, "The Court's Exercise of Plenary Power: Rewriting the Two-Row Wampum." The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 16. (2002) (Also posted to the channel as a PDF).

Sept 30

Topic
Treaty interpretation and infringement

Guest Speaker
Joe Arvay 

Reading

Required:
Restoule v. Canada (Attorney General), 2018 ONSC 7701

Michael Asch, "Confederation Treaties and Reconciliation: Stepping Back into the Future" in Michael Asch, John Borrows and James Tully, eds, Resurgence and Reconciliation: Indigenous-Settler Relations and Earth Teachings (Toronto: University of Toronto Press, 2018) 29-48 (posted to the channel as a PDF).

Suggested:
R. v. Marshall, [1999] 3 SCR 456

R. v. Marshall; R. v. Bernard, [2005] 2 SCR 220

Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48

First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58

Beckman v. Little Salmon/Carmacks First Nation, 2019 SCC 53

Oct 7

Topic
Current issues in Aboriginal title

Guest Speaker
Greg McDade

Reading

Required:
Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan Inc., 2015 BCCA 154

John Borrows, “Aboriginal Title and Private Property” (2015) 68 SCLR 91-134

Kent McNeil, "Indigenous Law and Aboriginal Title" (2016) Osgoode Legal Studies Research Paper Series 1-24

Robert Hamilton, “Private Property and Aboriginal Title: What Is the Role of Equity in Mediating Conflicting Claims” (2018) 51(2) UBCLR 347-390

Suggested:

Elsipogtog Statement of Claim (2016)

Kwikwetlem First Nation Notice of Civil Claim (2016)

Giesbrecht v. British Columbia, 2018 BCSC 822

Stk’emlupsemc te Secwépemc First Nation Notice of Civil Claim (2015)

Cowichan Tribes v. Canada (Attorney General), 2017 BCSC 1575

The Council of the Haida Nation v. British Columbia, 2018 BCSC 277

Oct 21

Topic
Métis rights versus other Indigenous rights

Guest Speaker
Paul Seaman

Reading

Required:
R. v. Powley, [2003] 2 SCR 207, 2003
 
Daniels v. Canada (Indian Affairs and Northern Development), [2016] 1 SCR 99

Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14

Zoe Todd, “From a Fishy Place: Examining Canadian State Law Applied in the Daniels Decision from the Perspective of Métis Legal Orders”, Topia, 36, 2016, pp. 43-57 (posted to the channel as a PDF).

Suggested:
A New Era for Métis Constitutional Rights? Consultation, Negotiation and Reconciliation, 2014 CanLIIDocs 262 (co-authored by our guest speaker)

Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37

L'Hirondelle v Alberta (Sustainable Resource Development), 2013 ABCA 12

R v Hirsekorn, 2013 ABCA 242

Oct 28

Topic
Duty to consult and administrative tribunals

Guest Speaker
Maxime Faille

Reading

Required:
Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA
153

Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, [2010] 2 SCR 650

Angela D’Elia Decembrini and Shin Imai, “Supreme Court of Canada Cases Strengthen Argument for Municipal Obligation to Discharge Duty to Consult: Time to Put Neskonlith to Rest” (2019) 56(3) ALR 935-950

Suggested:
Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., [2017] 1 SCR 1099

Clyde River (Hamlet) v. Petroleum Geo‑Services Inc., [2017] 1 SCR 1069

Nov 4 

Topic
Duty to consult and legislation

Guest Speaker
Robert Janes

Reading

Required:
Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40

Sarah Morales, “Braiding the Incommensurable: Indigenous Legal Traditions and the Duty to Consult” in John Borrows, Larry Chartrand, Oonagh E. Fitzgerald and Risa Schwartz, eds, Braiding Legal Orders: Implementing the United Nations Declaration on the Rights of Indigenous Peoples (Waterloo: Centre for International Governance Innovation, 2019) 65-81 (posted to the channel as a PDF).

Suggested:
Haida Nation v. British Columbia (Minister of Forests), [2004] 3 SCR 511

Julia Hughes et al, “Gendering the Duty to Consult: How Section 35 and the Duty to Consult are Failing Aboriginal Women” (2017), online (pdf): Urban Aboriginal Knowledge Network <uakn.org>

Robert Hamilton and Joshua Nichols, “The Tin Ear of the Court: Ktunaxa Nation and the Foundation of the Duty to Consult” (2019) 56 ALR 729-760

Nov 18

Topic
The modern treaty process

Guest Speaker
Mark Stevenson

Reading

Required:
Recognition and Reconciliation of Rights Policy for Treaty Negotiations in British Columbia (2019)

Gamlaxyeltxw v. British Columbia (Minister of Forests, Lands & Natural Resource Operations), 2018 BCSC 440

Suggested:
Mark Stevenson, "Treaty Daze: Reflections On Negotiating Treaty Relationships Under The British Columbia Treaty Process" (posted to the channel as a word doc).

Nov 25

Topic
Indigenous legal orders and Canadian law 

Guest Speakers
Chief Leah George-Wilson
Justice Favel

Reading

Required:
Whalen v. Fort McMurray No. 468 First Nation, 2019 FC 732

John Borrows, “Revitalizing Canada’s Indigenous Constitution: Two Challenges” in John Borrows, Larry Chartrand, Oonagh E. Fitzgerald and Risa Schwartz, eds, Braiding Legal Orders: Implementing the United Nations Declaration on the Rights of Indigenous Peoples (Waterloo: Centre for International Governance Innovation, 2019) 29-37

Heiltsuk Adjudication Report (2018)

Nulh Ghah Dechen Ts’edilhtan (Tŝilhqot'in Nation Wildlife Law, 2019)

Suggested:

Heiltsuk Notice of Civil Claim (2018)

Haida and Heiltsuk Submissions to BC Court of Appeal as Interested Parties in the Environmental Management Act Reference Case (BCCA File No. CA45253)


Secwepemc Lands and Resources Law Research Project (2016)