Articles 2019

On November 12, 2018, the OBA's Aboriginal Law Section and its Sexual Orientation and Gender Identity Committee co-hosted a program focusing on the experiences of Indigenous Two Spirited people, bringing together a learned panel with an unparalleled level of knowledge, experience, and expertise to the program that was well received by its over 50 online and in-person attendees. The panel discussed the historical discrimination experienced by Two Spirited people, progress made, and paths forward.

According to the recent Supreme Court of Canada decision in Mikisew Cree First Nation v. Canada (Governor General in Council), members of Parliament who are developing legislation that might affect aboriginal or treaty rights do not have a duty to consult with the bearers of those rights. But beyond this point, the case leaves some big questions unsettled.

Following are the summaries for this week’s civil decisions of the Court of Appeal for Ontario. In Shah v LG Chem Ltd, the Court of Appeal certified a class action for claims of conspiracy at common law and conspiracy to price fix under the Competition Act, in relation to lithium-ion batteries. The Court determined that the concept of “indeterminate liability” in negligence law should not be imported into the analysis of common conspiracy or Competition Act claims.

The Court of Appeal's decision in Yaiguaje raises concerns regarding the interaction between resource extraction corporations and Indigenous communities that apply internationally and in Canada. These issues may test the meaningfulness of the oft-lauded concept of corporate-social responsibility.

At the Law Society of Ontario’s (LSO) Annual General Meeting (on May 9, 2018, Treasurer Paul Schabas, announced that the LSO will be conducting a review of the “good character” requirement for licensee applications. There is a need to ensure not a different or lower standard, but that the process for admission to the bar is fair and does not unduly prejudice Indigenous applicants.

Indigenous women’s voices are missing—figuratively and literally—in the #MeToo conversation while Indigenous women are over-represented among Canada’s missing and murdered women. The #metoo movement is simply not accessible to the most marginalized women. For some Indigenous women, the safer choice is not to testify about sexual assaults to protect themselves and their families. It’s not safe for them to say, “me too”.

Recent events in the Canadian legal world temper the otherwise optimistic tone of the OBA Aboriginal Law Section program at Institute 2018.

The OBA's Institute 2018 session “Advancing Reconciliation: Review of recent key decisions and what deconstructing the current colonial legal structure could mean”, included a case law update, and panel discussion on the current state of Crown-Indigenous relationships.

In this article we describe the background to the Ecuador Chevron case and argue that the Ontario Superior Court decision, and subsequent developments in the Fall of 2017, signal that challenges remain to achieve greater accountability, transparency and Corporate Social Responsibility in the oil and gas, mining and other resource extraction sectors.

On September 28th, 2017 the OBA Aboriginal Law Section held a panel entitled “Duty to Consult: Implications of the Clyde River and Chippewas of the Thames Decisions.” Counsel to the Crown, Clyde River, and the NEB, discussed the outcome and implications of the Supreme Court of Canada's most recent decisions on the duty to consult and accommodate.