Articles 2021

A significant problem facing many Indigenous Peoples is the lack of an effective enforcement mechanism for Indigenous laws, which can render them ineffectual. On October 15, 2020, the OBA’s Aboriginal Law Section hosted a program on “Critical Issues in the Enforcement of Indigenous Laws,” chaired by R. Martin Bayer and Naomi Sayers, that explored the various challenges that prevent the enforceability of Indigenous laws as well as opportunities to overcome these hurdles.

Five years ago, the Ontario Bar Association’s Aboriginal Law Section held a program titled: “Practical Perspectives on Hot Topics, Emerging Issues & Game-Changing Cases” and since then, the practice of Aboriginal law has changed dramatically. To bring fellow members, non-members and students up to speed, the OBA Aboriginal Law Section hosted an updated version of this program during the OBA’s 2020 Institute. This article summarizes the 2020 program highlights.

In 2014, the SCC opened its landmark judgment in Grassy Narrows with the statement that on entering into Treaty 3, the Ojibway “yielded ownership of their territory” to the Dominion of Canada in exchange for reserve lands, payments, and limited rights on non-reserve lands. There is no mention of the fact that the Court’s opening statement is contrary to the Ojibway understanding that the treaty was an agreement for both parties to share in and benefit from the lands.

The single most significant step a lawyer can take in serving the aboriginal community is to avoid assumption making. Particularly in aboriginal rights litigation, lawyers need to be mindful that each segment or individual in a community will have a story to tell much of which will be quite relevant. In this article, Chief Kelly Larocca, of the Mississaugas of Scugog Island First Nation, discusses considerations for practitioners when it comes to understanding cultural sensitivities.

On November 28, 2019, the OBA's Aboriginal Law and Child and Youth Law Sections hosted a program titled: “Legislative Spotlight: Bill C-92 and Its Impact On Your Practice”. This timely program was intended to provide a space for interdisciplinary discussion on the impacts of the implementation of the new federal Indigenous child welfare legislation, Bill C-92: An Act respecting First Nations, Inuit and Métis children, youth and families, which comes into force January 1, 2020.

Legal scholar Kent McNeil offers a glimpse of his recent book, Flawed Precedent: The St. Catherine’s Case and Aboriginal Title, where he investigates the 1888 St. Catherine’s decision, the racist assumptions about Indigenous peoples at the time and how the decision shaped Canadian law and policy until the 1970s, when its authority was finally questioned by the Supreme Court in Calder, then in Delgamuukw, Marshall/Bernard, Tsilhqot’in, and other key rulings.

On August 28, 2019, Canada’s new federal environmental legislation under Bill C-69 and Bill C-68 came into force. These new statutes and legislative amendments introduce enhanced Indigenous consultation requirements for mining, pipeline, and other projects that require federal impact assessments and certain federal regulatory approvals and permits.

This article explores the responsibilities of Canadian mining companies operating in a global context after the Supreme Court of Canada heard a case in early 2019. Plaintiffs allege Nevsun Resources Ltd. is liable for the actions of its subsidiary in Africa. One issue is whether British Columbia, Nevsun’s corporate jurisdiction, lacked subject matter competence in respect of the claim. The author agrees with the lower courts that British Columbia should hear the case.

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.