TOPICS IN FIRST NATIONS LAW:
CURRENT LEGAL ISSUES
PETER A. ALLARD SCHOOL OF LAW
UNIVERSITY OF BRITISH COLUMBIA
Dr. Bruce McIvor
Class Meeting Times and Location:
Monday 9:00 – 12:00 Allard Hall 111
By appointment: please email my assistant, Stacey Poole, for details: firstname.lastname@example.org
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/).
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 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.
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).
Note: Subject to change, depending guest speaker availability.
Infringement of Aboriginal rights
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
R. v. Sparrow,  1 SCR 1075
R. v. Badger,  1 SCR 771
R. v. Pierone, 2018 SKCA 30
Cross-border Aboriginal rights
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).
Treaty interpretation and infringement
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).
R. v. Marshall,  3 SCR 456
R. v. Marshall; R. v. Bernard,  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
Current issues in Aboriginal title
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
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
Métis rights versus other Indigenous rights
R. v. Powley,  2 SCR 207, 2003
Daniels v. Canada (Indian Affairs and Northern Development),  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).
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
Duty to consult and administrative tribunals
Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA
Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council,  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
Chippewas of the Thames First Nation v. Enbridge Pipelines Inc.,  1 SCR 1099
Clyde River (Hamlet) v. Petroleum Geo‑Services Inc.,  1 SCR 1069
Duty to consult and legislation
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).
Haida Nation v. British Columbia (Minister of Forests),  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
The modern treaty process
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
Mark Stevenson, "Treaty Daze: Reflections On Negotiating Treaty Relationships Under The British Columbia Treaty Process" (posted to the channel as a word doc).
Indigenous legal orders and Canadian law
Chief Leah George-Wilson
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 (posted to the channel as a PDF).
Heiltsuk Adjudication Report (2018)
Nulh Ghah Dechen Ts’edilhtan (Tŝilhqot'in Nation Wildlife Law, 2019)
Tsleil-Waututh Nation Assessment of the Trans Mountain Pipeline and Tanker Expansion Proposal
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)