Keep your practice current
by Fran Hodgkins

The following are brief summaries of several recent Section meetings held throughout the province. More detailed information, minutes, and Section Papers from the Section meetings are accessible online at www.cba.org/bc for enrolled CBA members.

Aboriginal Law – Vancouver
Meeting: December 4, 2007
Speakers: Christopher Devlin, Devlin Gailus, Victoria; Paul Yearwood, B.C. Attorney General, Legal Services; Mary French, Department of Justice
Topic: Willson v. A.G.B.C., 2007, BCSC 1324

Can a band of Indians sue or be sued in its own name? Who should be consulted? The issue of the legal capacity of Indian bands has plagued aboriginal law for years in a number of contexts. Christopher Devlin, Paul Yearwood, and Mary French were counsel involved in the Willson v. A.G.B.C., 2007, BCSC 1324 case which canvassed these questions. They discussed new developments on what McEachern CJSC (as he then was) once termed “an open question”: whether Indian bands are juridical persons capable of suing and being sued. Mr. Devlin, counsel for the Plaintiffs, gave an overview of the case and its background. He explained the major issue in this case which is the location of the western boundary of Treaty 8, signed in 1899 by groups of Beaver and Cree people. He then discussed the issue addressed in this interlocutory decision, noting that it was the first B.C. judgment to explicitly confirm that Indian bands may sue and be sued in their own name. Mary French, counsel for Canada, discussed the current legal status of Indian bands, the development of case law regarding the ability of Indian bands to sue or be sued in their own name and the use of representative proceedings in the future. Ms. French explained the legal capacity of an Indian band making reference to the fact that neither the Indian Act nor any Act of Parliament defines the legal status of a band, which puts into doubt the legal rights and capacities of an Indian band. Mr. Yearwood, counsel for British Columbia, discussed the procedural law related to the British Columbia Supreme Court Rules which say that a “person” can commence or defend a matter in the Supreme Court but makes no reference to bands or First Nations. The guest speakers prepared and circulated their presentations to members in attendance. The attachments were also circulated with the Section’s minutes.

Family Law – Victoria
Meeting: November 19, 2007
Speakers: Richard Stewart and Kathryn Berge, QC
Topic: Proposals for a Code of Conduct for Family Law Practitioners in British Columbia

Mr. Stewart discussed the topic, namely, whether there should be a code of professional conduct for Family Law lawyers and whether that code should be voluntary or mandatory. The history of this topic with the Law Society of B.C., which stemmed from the Family Justice Reform Working Group recommendation in May 2005, was briefly outlined. Mr. Stewart discussed codes and guidelines in other jurisdictions, such as Australia, some US states, and the UK. The mandate of the task force, comprised of specific Benchers who practise family law, is to determine whether there should be a professional code of conduct and if so, whether that professional code should be mandatory or voluntary. Mr. Stewart spoke about why family law is different. There was a discussion about family law being the most litigated area of civil law and its long-reaching effects on children, as well as how the conduct of family law lawyers, as professionals, affects children. Ms. Berge and Mr. Stewart asked for direct feedback from members in attendance. It was generally agreed, after comments and discussion at the meeting, that it would be beneficial as a best practices and not as a code that required enforcement.

International Assistance
Meeting: September 26, 2007
Speaker: Nadia Khan
Topic: Legal and Human Rights Development at the Law Society of Kenya in Nairobi

Ms. Khan gave a brief overview of Kenya, a country where 23 per cent of 30 million Kenyans live on less than $1 per day. Some of the issues and challenges facing Kenya are constitutional and democratic reform, concerns of corruption within government, and the huge refugee influx from surrounding countries. There are 6,000 lawyers in Kenya and only 90 judges for a country whose population is similar to Canada. The Law Society of Kenya has 4,000 members, the majority of whom practise in major cities, particularly Nairobi. Ms. Khan took on many tasks as an intern of the Law Society of Kenya; specifically streamlining the communications and office work in the society and working on the human rights agenda of the society. She assisted with research and implementation of projects, and speech writing. Her high levels of involvement were met with challenges including corruption. One of her accomplishments in Kenya was writing a funding proposal for the Kibera Community Youth Group which was successful in receiving a significant amount of financial support. She also participated in the development of a national legal aid program. Ms. Khan’s internship in Kenya was part of the CBA’s Young Professionals International Program.

ADR – Victoria And Civil Litigation – Vancouver Island (Jointly)
Meeting: November 27, 2007
Speaker: Nancy J. Cameron, QC
Topic: Collaborative Practice in the Civil Context

Nancy Cameron, QC, gave a presentation as to why she believes that civil practice is the next area for collaborative law. The process involves clients and lawyers signing a participation agreement that includes the retaining of neutral experts, as well as a disqualification clause, meaning that both lawyers in the collaborative process are fired if the process moves to litigation. Working a case through collaborative law means setting new rules for how you, as a lawyer, would negotiate. Transparency in negotiations is ensured by clients authorizing their lawyer to talk to the other side about all relevant matters. Lawyers’ roles are specifically defined at the beginning to assist in settlement. Of course, this means different advocacy skills for lawyers who are used to being involved in an adversarial framework. The keystone in collaborative law is good communication between the lawyers, enhanced by skills in interest-based negotiation. This model presents a move away from rights-based thinking, and lets clients frame issues to meet their needs.

With the rising costs of litigation, clients are self educating and may in the future request collaborative practice instead of an adversarial one. There have been no cases in B.C. yet where there has been a collaborative process in a non-family law context, nor is there a statutory framework to support collaborative law. Lawyers looking to deal with clients’ claims in the collaborative way must be willing to undergo collaborative law training.

This article was published in the February 2008 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2008, all rights reserved.