Cases
Beckman v. Little Salmon/Carmacks First Nation
By Jaimie Lickers and Erin Runnalls
The Supreme Court of Canada comments on Aboriginal consultation and accommodation in the context of a modern land claim treaty.
NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union; and Communications, Energy and Paperworkers Union of Canada v. Native Child and Family Services of Toronto
By Jennifer Chow
Culturally-specific services provided to Aboriginal children and families do not transform provincially-regulated child welfare societies into federal undertakings, the Court has ruled.
Professional Development
Legislation
The First Nations Property Ownership Initiative and existing alternatives
By Heather Mahony and Murray Browne
There are many questions to be answered before the FNPO initiative can be advanced, or meaningfully discussed with potential users.
The federal government’s proposed Safe Drinking Water for First Nations Act
By Christopher Devlin
Bill S-11 seeks to provide a legislative framework under which it can develop regulations to provide safe, clean drinking water for their communities. So why is there a provision to abrogate or derogate from Aboriginal and treaty rights?
Indian residential schools settlement
Is the shortage of lawyers North of 60 preventing Indian Residential School claimants from submitting claims?
By Magnolia Unka
Potential IAP claimants are coming forward in fewer numbers than in southern jurisdictions, and part of the reason is the lack of information about the process and the lack of access to legal counsel to advise and represent them.
In memoriam
Eulogy for Grand Chief Dr. Billy Diamond
By James A. O'Reilly, Ad. E.
The following is an excerpt of the eulogy that was delivered at the funeral service for the first Grand Chief of the Eeyou of Eeyou Istchee, who was among the original Cree signatories of the James Bay Northern Quebec Agreement.
Notes from the Section
Indian Residential Schools Adjudication: Opportunities for Section members
The Indian Residential Schools Adjudication Secretariat of the Department of Indian Affairs and Northern Development intends to award up to 25 contracts for the provision of adjudication services.
National Aboriginal Law Section Annual Meeting and Elections
Section members are invited to the National Aboriginal Law Section annual meeting in Winnipeg on Saturday, April 30, 2011, following the conference.
The National Aboriginal Law Section has a listserv!
If you haven’t already done so, I urge you to consider joining the Aboriginal Law Section listserv. There is no better way to keep abreast of Section activities and to network and exchange ideas with leading practitioners who share your interests.
RARE Finds Working Group
The “RARE Finds” working group of the Standing Committee on Equity is looking for success stories.
Supreme Court comments on aboriginal consultation and accommodation in the context of a modern land claim treaty
By Jaimie Lickers and Erin Runnalls
Following the Supreme Court’s affirmation of the Crown’s general duty to consult and accommodate in its decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, in Beckman v. Little Salmon/Carmacks First Nation, the Supreme Court of Canada addressed the more specific application of the duty to consult and accommodate in the context of a modern land claim treaty.
The facts of the case
After twenty years of negotiations, Little Salmon/Carmacks entered into a comprehensive land claims agreement with the governments of Canada and the Yukon Territory (the “treaty”). Under the treaty, Little Salmon/Carmacks members have a right of access in their traditional territory for subsistence hunting and fishing. Their traditional territory includes some surrendered lands. The treaty further contemplates that surrendered land may be taken up from time to time for other purposes.
The question of taking up surrendered land arose when a Yukon resident and non-Little Salmon/Carmacks member applied to the territorial government for an agricultural land grant over part of the surrendered land. The land applied for was within the trapline of a Little Salmon/Carmacks member. The territorial government’s Land Application Review Committee (“LARC”) considered the application at a meeting to which it invited Little Salmon/Carmacks. Little Salmon/Carmacks submitted a letter of opposition to the application prior to the meeting, but did not attend. The territorial government approved the application following LARC’s recommendation. Little Salmon/Carmacks brought an application for judicial review on the basis that the grant was approved without proper consultation.
The Court’s ruling
In assessing the Crown’s duty to consult and accommodate in the context of a modern treaty, the Supreme Court held that the first step is to look at the provisions of the treaty to determine the parties’ respective obligations and to consider whether the agreement explicitly provides for some form of consultation. Regardless of the explicit provisions of the agreement, the Court clarified that the Crown cannot contract out of its duty of honourable dealing with Aboriginal people through modern land claim treaties or otherwise. The Crown’s duty of honourable dealing arises out of the principle of the honour of the Crown and exists independently of any and all agreements between the Crown and Aboriginal people.
The Court found that the treaty issue contemplated that surrendered land may be taken up from time to time for other purposes, such as by making agricultural land grants out of the Crown’s holdings. However, as a result of the treaty’s express right of access for subsistence hunting and fishing, the Court found that it would be obvious to the territorial government that such grants might adversely affect the traditional economic and cultural activities of Little Salmon/Carmacks. Accordingly, a continuing duty to consult existed.
In determining the content of the duty to consult, the Court referenced the treaty, which itself set out the elements the parties regarded as an appropriate level of consultation (where the treaty requires consultation), stating:
- proper notice of a matter to be decided in sufficient form and detail to allow that party to prepare its view on the matter;
- a reasonable period of time in which the party to be consulted may prepare its views on the matter, and
- an opportunity to present such views to the party obliged to consult; and full and fair consideration by the party obliged to consult of any views presented.
The treaty was silent on the specific process for agricultural land grants. However, the Court held that given the decision of the parties not to incorporate a more elaborate consultation process in the treaty itself, the scope of the duty of consultation in this situation was at the lower end of the spectrum. The Court found that the duty was discharged by the territorial government being informed about and considering the nature and severity of any adverse impact of the proposed grant before making a decision to determine whether accommodation was necessary or appropriate.
The Court was wary of the possibility of re-opening or re-negotiating the treaty through the lens of consultation, cautioning that the purpose of consultation is not to do so. Rather, the Court stated that the purpose of consultation is to manage the ongoing relationship between the Crown and Aboriginal people in a way that upholds the honour of the Crown and promotes the objective of reconciliation.
On the issue of procedural fairness, the Court held that Little Salmon/Carmacks had been given proper notice, a reasonable period of time to be consulted and an opportunity to present its views. The Court went on to discuss whether there had been any breach of procedural fairness beyond the considerations of the content of the duty to consult. The Court emphasized that procedural fairness, like the duty to consult, is a flexible concept which can take into account the Aboriginal dimension of the issue at hand. Unlike the duty to consult, procedural fairness is a common law doctrine that applies to every decision made by the government affecting a citizen’s rights. The Court’s discussion of procedural fairness serves as a reminder that duty to consult cases are typically cases of judicial review where the principles of administrative law must be applied above and beyond the question of whether or not the duty to consult was discharged. The Court held that there had not been any breach of procedural fairness in this case.
This case clarifies the parameters of the Crown’s duty to consult and accommodate in the context of modern treaties. The Court has reaffirmed its earlier jurisprudence on the duty to consult while also clarifying that, in the context of modern treaties, consultation is not a means of re-opening or re-negotiating these agreements. Rather, the treaty itself can provide for proper and adequate procedural guidelines with respect to the appropriate means and scope of consultation.
Jaimie Lickers is an associate in the Ottawa office of Gowlings. Erin Runnalls is an associate the Calgary office of Gowlings.
Case Comment: NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2010 SCC 45 (from the BCCA); and Communications, Energy and Paperworkers Union of Canada v. Native Child and Family Services of Toronto, 2010 SCC 46 (from the FCA)
By Jennifer Chow
On November 4, 2010, the Supreme Court of Canada determined that culturally-specific services provided to Aboriginal children and families do not transform provincially-regulated child welfare societies into federal undertakings.
The SCC unanimously dismissed both appeals but split in their approach to the dismissals. Similar divergent views were also reflected in the two lower appellate courts’ judgments. Despite the split, the SCC reaffirmed the application of Four B Manufacturing v. United Garment Workers, [1980] 1 S.C.R. 1031 and its rule that provincial legislative jurisdiction over labour relations is the norm while exclusive federal jurisdiction is the exception. The SCC agreed that the exception is governed by a “functional test.” However, the SCC split on the content of the “functional test” even though both majority and minority judges relied on Beetz J.’s judgment in Four B.
It is significant that neither of the child welfare societies challenged the validity or applicability of the relevant provincial child welfare laws under which they operated. This meant that the core activities would automatically lead to the child welfare societies being characterized as provincial undertakings, unless the Aboriginal-specific activities transformed the societies into federal undertakings under the Four B exception.
The key issue before the SCC was the interpretation of Four B and the proper analytical approach to the “functional test.” The minority judges (led by the Chief Justice and Fish J. with Binnie J. concurring) essentially equated the functional test as an application of the doctrine of interjurisdictional immunity.
The treatment of the doctrine of interjurisdictional immunity was the central issue that split the court. As noted by Abella J. writing for the majority (with LeBel, Deschamps, Charron, Rothstein and Cromwell JJ concurring) viewed the minority judges’ approach as contrary to Beetz J.’s reasons. Referring to the minority judgment, Abella J. wrote:
This divergent analysis proceeds, contrary to Four B, directly to the question of whether the “core” of the head of power is impaired, without applying the functional test first.
The minority judges acknowledged that Beetz J. may have suggested a two-step test, however they interpreted his reasons to say that the “functional test is merely a particular method of applying” the doctrine of interjurisdictional immunity (para. 57).
The minority judges restated the functional test as: “whether applying a functional test, the activity falls within the core of federal power that is protected from provincial legislation” (para. 56) or put another way, “whether the operation, viewed functionally in terms of its normal and habitual activities, falls within the core of a federal head of power” (para. 58). The minority judges then examined the core of s. 91(24) and concluded that the societies’ ordinary and habitual activities “do not touch on issues of Indian status or rights” (para. 76). They explained that the core of Indianness is “narrow” (para. 73). They provided a list of “matters that may go to the status and rights of Indians” which did not include child welfare activities (para. 72). That list no doubt will prove helpful to Aboriginal law practitioners.
However, the inclusion of the doctrine of interjurisdictional immunity in the functional test was expressly rejected by the majority judges, which viewed the one-step test as an “extinguishment of the unique labour relations test” (para. 20). Abella J. wrote:
With great respect, therefore, to the contrary views of the Chief Justice and Fish J., I do not agree that consideration of the “core” of a federal head of power is part of the functional test, the first step of the analysis. Whether an activity lies at the “core” of a federal undertaking or head of power is an analysis carried out in the narrow confines of interjurisdictional immunity…The functional test is not an alternate method of determining whether an activity lies at the “core”; rather, the functional test looks to whether the “undertaking, service or business is a federal one.”
The majority restated the Four B “functional test” as a two-step test. That test requires first, an examination of the nature, operations and habitual activities of the entity to see if it is a federal undertaking. If so, its labour relations will be federally regulated. Only if this inquiry is inconclusive that a court proceeds to the second step: an examination of whether provincial regulation of the entity’s labour relations would impair the core of the federal head of power at issue. This second step was said to be a “narrow analysis” (para. 22). While the second step does not require an examination of whether an entity’s activities fall into the core of a federal head of power, it does require an examination of whether the regulation of the entity’s labour relations impairs the core of a federal head of power. That second step suggests reliance on the doctrine of interjurisdictional immunity, although a “narrow analysis” of that doctrine remains to be seen.
Does this mean the doctrine of interjurisdictional immunity is alive and well? It appears to be so given the recent SCC companion judgments in Québec (Procureur général) c. Lacombe, 2010 CSC 38 and Québec (Procureur général) c. Canadian Owners and Pilots Association, 2010 CSC 39. In Lacombe, Deschamps J. was highly critical of the majority’s resort to the doctrine of interjurisdictional immunity when she saw no need to do so.
After the SCC issued its judgment in Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3 and British Columbia (Attorney General) v. Lafarge Canada Inc., it was commonly thought that the SCC would rarely invoke the doctrine of interjurisdictional immunity or narrowly apply that doctrine, notably to support cooperative federalism. The recent SCC cases have thrown this thinking into doubt.
Jennifer Chow is a litigation lawyer with the Department of Justice. The opinions expressed in this article are the author’s own views and do not necessarily reflect the views of the Department of Justice Canada or the Federal Government of Canada.
2011 National Aboriginal Law Conference: Perspectives on Treaties between Aboriginal People and the Crown
April 28-29, 2011
Fort Garry Hotel
222 Broadway, Winnipeg, Manitoba
The National Aboriginal Law Section of the Canadian Bar Association will be hosting the Annual National Aboriginal Law Conference on April 28-29, 2011 at the Fort Garry Hotel in Winnipeg, Manitoba.
Save the date now and make plans to join us in Winnipeg for this not to be missed program!
Topics to include:
- Métis, Inuit, First Nation and Crown perspectives on historic and modern treaties.
- Litigating, negotiating and implementing treaties.
- Alternatives to treaties.
- Developments in the new specific claims process.
Program and registration
The First Nations Property Ownership Initiative and existing alternatives
By Heather Mahony and Murray Browne
A great deal of discussion has been generated by the proposed First Nations Property Ownership Act (FNPO). The proposal has been described as a statute that would “permit First Nations who wish to hold the legal title to their lands to do so; and ... to do so without risking the loss of their governance powers... no matter what ownership rights the First Nations may themselves decide to allow.”
Proponents argue that FNPO could bring the following benefits:
- It would allow First Nations to manage land and make land and development laws independently;
- It would enable use of land as security (e.g., mortgages);
- It would enable registration of interests in land in a torrens style registry; and
- It would provide options to transfer reserve property to non-status members.
We share our First Nation clients’ frustration with the barriers to economic development on reserve created by the Indian Act system and INAC “red tape” – both contributors to on-reserve poverty The FNPO is one response to concerns about poverty and lack of access to capital and development opportunities for First Nations. In our view, there are many questions to be answered before the initiative can be advanced, or meaningfully discussed with potential users.
Read the full article 
Heather Mahony and Murray Browne practise at Woodward & Company in Victoria, B.C.
The federal government’s proposed Safe Drinking Water for First Nations Act
By Christopher Devlin
In response to the abysmal drinking water conditions on many reserves in Canada, in 2010 the federal government tabled Bill S-11 Safe Drinking Water for First Nations Act. The bill seeks to provide a legislative framework under which it can develop, in conjunction with local First Nations, regulations to provide safe, clean drinking water for their communities.
However, as introduced in the Senate, Bill S-11 contains one troubling clause for practitioners in the area of Aboriginal and Treaty rights. Clause 4(1)(r) of Bill S-11 would provide as follows:
The regulations may...
(r) provide for the relationship between the regulations and aboriginal and treaty rights referred to in section 35 of the Constitution Act, 1982, including the extent to which the regulations may abrogate or derogate from those aboriginal or treaty rights; and...
The legislative summary written by the Library of Parliament merely provides this comment:
Clause 4(1)(r) appears to contemplate the possibility that regulations made under this Act could abrogate or derogate from constitutionally protected section 35 Aboriginal and Treaty rights.
There is significant judicial commentary from the Supreme Court of Canada (for example, R. v. Sparrow) as to when abrogation or derogation of section 35(1) may be justifiable. Looking at the bill as a whole, it is difficult to imagine how it would justifiable under the Sparrow test. Clause 4(1)(r) appears to be entirely disproportionate to the mischief sought to be addressed by the bill. While the government says there has been extensive consultation with First Nations about the bill, there is little available on the public record about consultations over this specific clause.
This appears to be the first time that a federal statute would expressly acknowledge the use of the federal government’s power under section 91(24) to abrogate and to derogate section 35(1) rights. That such power could be exercised in the form of regulation is even more troubling. Such legislation needs to be scrutinized closely and concerns raised, so that a legislative trend of using section 91(24) to limit section 35(1) rights does not emerge.
The government talks about creating a collaborative framework through the regulatory approach between Canada and First Nations to address drinking water standards on reserves. Legislating the power to abrogate and to derogate from section 35 rights seems a very odd way to do that.
Christopher Devlin is a lawyer at Devlin Gailus Barristers & Solicitors in Victoria, B.C.
Is the shortage of lawyers North of 60 preventing Indian Residential School claimants from submitting claims?
By Magnolia Unka
On June 11, 2008 Prime Minister Harper stood up in the House of Commons to apologize to former Indian Residential School students for Canada's assimilation policy meant to "kill the Indian in the child." Today lawyers are working hard to assist former residential school students to meet a fast approaching deadline of September 19, 2012 to submit their applications for compensation through an out of court adjudicative process called the Independent Assessment Process or IAP.
One week before Harper's apology, I commenced articles and since my call to the bar have been providing legal services to IRS claimants. As a lawyer of aboriginal descent with parents who both attended residential school in the North, I find many of my clients are happily surprised to find that they will be represented by one of their own people. For me the opportunity to represent my people has proven rewarding, both personally and professionally. However, there have also been challenges.
My experience as counsel has taken me to many small communities in the NWT. My discussions with people in the communities have brought to light a seeming lack of lawyers working in this area of law.
With increasing frequency recently, radio and television broadcasters in the NWT have started discussing the IAP process. One can hope this will assist in providing information about the IAP process to potential northern claimants. Until now I believe a lack of such information has helped contribute to the proportionately much lower percentage of IAP applications in the NWT compared to southern jurisdictions.
There are 15 former Indian Residential Schools qualified under the settlement agreement in the NWT. Thousands of former residential school claimants applied for the Common Experience Payment ("CEP") and compared to southern jurisdictions a very low percentage of NWT CEP recipients have applied to the Independent Assessment Process. A reason for this is the shortage of lawyers willing to travel to remote communities to meet with and ultimately represent IAP claimants.
How did the IRS settlement agreement and resulting IAP process develop? In the 1990's lawyers, including my firm, commenced actions across Canada on behalf of former IRS students for the abuses and harm they suffered as children while residing in Indian Residential Schools. The schools were in operation across Canada for over a hundred years and were often jointly owned and/or operated by the federal government and one of the various church organizations. The actions included allegations of sexual, physical, and emotional abuse and cultural loss filed against both the federal government and the churches as guardians of the children.
As a result of these actions, in May 2006 numerous parties came together and signed an out of court settlement agreement. The parties included Canada, represented by the Honourable Frank Iacobucci; the claimants represented by various plaintiffs counsel; the Assembly of First Nations and Inuit representatives; and the Anglican, Presbyterian/United and Catholic Churches. Among other things the agreement resulted in two processes, the CEP and IAP, by which former residential school students could be compensated for the abuses and harms they experienced.
What are the CEP and IAP? The lack of information about these processes available to potential claimants in remote northern communities has often resulted in confusion and misunderstanding. In some instances, people are unclear about which residential schools qualify under the IAP. There is also confusion about whether or not former students of Federal Day Schools qualify for the IAP. The answers to these questions require a thorough and detailed knowledge of the settlement agreement, its implementation orders and the rules of the IAP. In most cases this knowledge and advice is best provided by experienced legal counsel who have practiced in this specialized area.
The CEP was created to compensate all former IRS residents for the poor living conditions and maltreatment experienced at the schools. Former students who apply for CEP receive payment based on their attendance at a qualified IRS. This includes a payment of $10,000.00 for a student's first year of attendance, or portion thereof, and $3,000.00 for each subsequent school year. The deadline of September 19, 2011 for CEP applications is less than a year. Lawyers may assist applicants in this process and often times will. Lawyers who are signatories to the settlement agreement cannot charge claimants for their time spent assisting with CEP applications.
The IAP, sometimes referred to as the second step in the IRS process, was developed to compensate former IRS students for their individual abuses suffered, including sexual abuse, extreme physical and emotional abuse and resulting harms. The deadline for IAP applications comes a year after the CEP deadline on September 19, 2012. The standard of proof in the IAP is the standard used by civil courts for matters of like seriousness, a balance of probabilities. More cogent proof may be required for more serious alleged acts. Given the requirements of legal standards of proof and extensive document disclosure, claimants are encouraged to obtain legal counsel to advise and assist in their claims. Further, the process may require medical and psychological assessments, and claimants often require psychological counselling as part of their healing process. Access to professional counselling and the high cost of travel from remote communities presents an additional hurdle to potential claimants in the NWT.
When compared to the number of CEP applicants the number of IAP applicants in the NWT is very low. Where in southern jurisdictions the ratio of IAP applicants to CEP applicants is between 25 to 35%, in the NWT the ratio is around 5%. There is no reason to expect that former students of NWT schools suffered any less than in southern schools, yet it appears that as a proportion of CEP applicants, potential IAP claimants are coming forward in fewer numbers than in southern jurisdictions. The question is why this is and I believe a significant part of the answer is a combination of the lack of information about the process and the lack of access to legal counsel to advise and represent them.
Dancing northern lights and endless summer days provide for an unforgettable living and working experience in the NWT. Working in the north is the beginning of a long career filled with opportunity to give back to my people who face difficulties retaining legal counsel for a legal process that for many brings confusion.
Magnolia Unka practises at Field Law in Yellowknife, N.W.T.
Eulogy for Grand Chief Dr. Billy Diamond
By James A. O'Reilly, Ad. E.
The following is an excerpt of the eulogy that was delivered at the funeral service for former Grand Chief Dr. Billy Diamond, the first Grand Chief of the Eeyou of Eeyou Istchee (the James Bay Cree), by Mr. James O’Reilly in Waskaganish, Quebec on October 6, 2010. Grand Chief Diamond was among the original Cree signatories of the James Bay Northern Quebec Agreement (JBNQA). Mr. O’Reilly was legal counsel for the James Bay Cree in their injunction proceedings against the Quebec government and later in the negotiations that culminated in the JBNQA.
Wachiya,
I wish to thank the Diamond family and particularly Elizabeth and Ian for the honour they have bestowed on me to speak about the life of Grand Chief Billy Diamond, a giant of history who accomplished so much for his people. However, I can never do justice to what he has done. As Billy told me often, we can only do our best.
The Blackfoot Chief Crowfoot asked, “What is life?” He said that it is the flash of a firefly in the night. It is the breath of a buffalo (the Crees would say moose) in the wintertime. It is the little shadow that runs across the grass and loses itself in the sunset.
Yet Billy cast a very big shadow.
The Creator sometimes creates great men and calls upon them to do great things. So it was with Billy.
I had the singular privilege of working very closely with Billy, particularly in the 1970s and 1980s, especially in regard to the political and legal struggles regarding the preservation of the Cree way of life, the recognition of Cree rights and the James Bay and Northern Quebec Agreement. Billy was not just a natural leader: he was a brother to me, in arms and in spirit. He was also a mentor to me.
Although there have been and are many outstanding Cree leaders who have been involved in the struggles for the recognition of Cree society, Cree values and Cree rights, it is Billy who has set the highest of standards. It is no small tribute to Billy, the first Grand Chief, that the Cree Nation has been so strong in its leadership through the last four decades.
Billy’s testament will always include his key and successful roles in the gigantic struggle for the preservation of the Cree way of life and Cree traditional territory, notably against the James Bay hydroelectric project, in the negotiations relating to the James Bay and Northern Quebec Agreement, in the contents of the Agreement, in the elaboration of federal and provincial legislation adopted pursuant to that Agreement, in the development of the 1983 constitutional amendments and in respect to the struggles regarding implementation of the James Bay and Northern Quebec Agreement.
I will return to some of the special qualities Billy had in a few moments. However, any account of Billy’s life would be incomplete without at least some reference to the events leading to the strong Cree opposition to the James Bay hydroelectric project, to the epic James Bay Court proceedings and to the James Bay and Northern Quebec Agreement.
In 1971, with the announcement of the James Bay project, the aboriginal and non-aboriginal worlds collided in the North.
For thousands of years, the Crees had survived off the land with a distinct culture and society, largely undisturbed by non-aboriginals. For the Crees, it was inconceivable that the non-aboriginal society in the south could with impunity destroy part of their land and compromise their existence as a people.
Worse, the conventional Canadian wisdom was that the Crees (and Inuit) had no rights under Canadian law to the land and resources.
It was into this context that young Chief Billy Diamond was catapulted and destined to play a crucial and pivotal role.
For Billy, the fight against the project was not just for the protection and preservation of Cree society and the Cree way of life but a fight for the very survival of the Cree people.
Billy went all out to stop the James Bay project. Under his leadership, the Crees and Inuit succeeded in obtaining from the Courts (Justice Malouf) an unprecedented temporary injunction bringing the project to a grinding halt on the basis of Cree and Inuit rights. This was a first in North America in regard to such a large project.
This injunction was short-lived and its dissolution was a bitter pill to swallow for the Crees. However, the recognition of Cree rights remained. In addition, governments and Hydro-Québec had a rude awakening, especially about Cree rights.
After a 3 to 2 ruling of the Supreme Court of Canada against re-instating the temporary injunction (in December of 1973), the Crees were faced with the reality that even the Courts would very likely let the project continue. The Crees and particularly Billy, Robert Kanatewat, Philip Awashish and other Cree leaders, such as Smally Petawabano and Lawrence Jimiken, suddenly had to decide whether it was possible to somehow reconcile the continued existence of Cree society with the intrusion and projects of the larger Quebec and Canadian societies.
Billy realized that the stakes were too high for his people to either abandon the fight or accept what the governments were proposing. First and foremost, under his leadership, intensive consultation meetings took place in the various Cree communities to determine the future course of the Crees. Only when the Crees gave permission to their leaders to negotiate did the James Bay Agreement negotiations begin.
What followed was in retrospect truly remarkable. Billy was instrumental in interpreting the fundamental aspirations of his people, combining these with a unique and innovative vision for the future and persuading non-aboriginal governments that there could be and should be a new constitution for over 3/5 of the area of Québec. Thus was born the first modern and comprehensive treaty in Canada, the James Bay and Northern Quebec Agreement, which will forever bear Billy’s stamp.
Billy often referred to the Agreement as the “Charter” of Cree rights. He was at ease with Premier Lévesque and Prime Ministers and Ministers in insisting upon integral respect for the Cree rights set out in the Agreement. Yet, Billy well knew and mentioned to me on a number of occasions that the Agreement was a solid foundation but a still incomplete work. Billy and other Crees who have succeeded him as leaders of the Cree Nation and of the various Cree First Nations have successfully taken up this challenge.
I wish to come back now to the characteristics I referred to before.
Billy the Cree was a Cree through and through and most proud of his heritage. He was respectful of the Cree hunters and trappers and families who survived off the land, respectful of the land, respectful of the animals and always true to the fundamental values of the Crees. This gave him inner strength and confidence in the battles he had to fight. Billy respected the Elders and followed their advice. Billy always treasured the teachings of his father, Malcolm, and held in high esteem the authority and responsibility placed upon his brother Charlie as the tallyman and protector of the Diamond family trapline.
Billy the person was very human, very humorous and very volatile. Billy was devoted to his family and friends. At the same time, I believe he considered that he had a number of missions to accomplish for the good of all the Cree people.
Many people are unaware of his great feat in 1983 in persuading Premier Lévesque not to oppose an amendment to the Constitution to constitutionalize rights under modern land claim settlements or treaties which benefited not only the Crees but every aboriginal nation which has signed a treaty since 1983. Billy was able to convince Premier Lévesque, notwithstanding Quebec opposition to additional constitutional amendments, to remain neutral, primarily because the Premier accepted Billy’s argument that the Cree Nation and the Québec “Nation” had much in common in their quests.
Billy will be much missed, but he will also be much remembered for a long, long time.
Indian Residential Schools Adjudication: Opportunities for Section members
The Indian Residential Schools Adjudication Secretariat is responsible for the implementation and administration of the Independent Assessment Process (IAP). The IAP, which emanated from the settlement of a class-action suit, is an out-of-court dispute resolution process that deals with claims of abuse suffered at Indian Residential Schools. This involves an adjudication process conducted by independent adjudicators who are retained on a contractual basis by the Secretariat.
The Secretariat is currently in the process of awarding up to twenty-five such adjudicator contracts, in addition to the 90-some that are currently in place. Accordingly, we are now accepting proposals from interested and qualified individuals. The request for proposals (RFP) is posted here, on the website of the electronic tendering service MERX.
As well, this process includes a "set-aside" for aboriginal businesses.
This RFP closes on March 4, 2011.
For further information, please contact Akivah Starkman:
Akivah L. Starkman, Ph.D.
Executive Director
Indian Residential Schools Adjudication Secretariat
2723 Chemin Lancaster Road
Ottawa, ON K1A 0H9
613-949-9849
National Aboriginal Law Section Annual Meeting and Elections
Section members are invited to the National Aboriginal Law Section annual meeting in Winnipeg on Saturday, April 30, 2011, following the CBA National Aboriginal Law Conference.
At the meeting, Officers and Executive Members for the term September 1, 2011 to August 31, 2012, will be chosen based upon a list of candidates recommended by the Section Executive Committee. The Section is soliciting expressions of interest from Section members. Please contact Holly Doerksen by April 15, 2011.
The National Aboriginal Law Section has a listserv!
If you haven’t already done so, I urge you to consider joining the Aboriginal Law Section listserv. There is no better way to keep abreast of Section activities and to network and exchange ideas with leading practitioners who share your interests. Membership is free to all Section members. Active participation is more than welcome, but membership involves no time commitment.
Join the listserv
In order to join a listserv you must be a member of the relevant CBA Section. Please contact your Branch if you wish to join the National Aboriginal Law Section.
RARE Finds Working Group
The RARE Finds working group of the CBA Standing Committee on Equity is looking for success stories.
We are developing a peer—to-peer resource centre dealing with issues relating to attrition of women and members of marginalized and vulnerable groups from the legal profession. Called the RARE Finds Resource centre, this will be a set of online texts, profiles and links designed to address issues relating to Retention, Advancement and Re-Entry (hence the acronym RARE) into the profession for members of equality-seeking groups.
Part of the resource centre will be a showcase of “RARE Finds.” As a complementary frame to documentation of struggles and barriers, we want to tell good stories about members and member firms that are doing strong work with respect to equality initiatives and who are experiencing success. Accordingly, I am writing to ask you to let me know if you have in your firm, jurisdiction or practice area encountered:
- particularly progressive law firms/ in-house or government departments and/ or leaders within those firms who have undertaken innovative tactics to address attrition/advancement for members of equality-seeking groups.
- diversely identified individuals who are successfully staying/ advancing in firms/ governmental settings and can provide good role models/ offer tips for member success.
- lawyers who have successfully re-entered the legal profession after a period of absence, especially if that period of absence was in relation to child care or other care giving obligations.
If you know of anyone or any firm you think we should celebrate, please contact Rebecca Bromwich, Equality and Law Reform Lawyer at the CBA National Office.
The deadline for input is March 1, 2011.
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