Title: Visiting Speaker Thomas Isaac - Emerging Issues in Aboriginal Law 

Date: Friday, March 17, 2025

Description: Explore Aboriginal title, Métis rights and the honour of the Crown in an in-depth look at Thomas Isaac's new sixth edition of Aboriginal Law. 

Speakers: 

• Thomas Isaac, Partner, Cassels Brock & Blackwell LLP; Chair, Aboriginal Law Group
• Cherie Metcalf, Associate Dean (Research), Professor, Queen's Law

Podcast: 

Transcript:

[Auto-generated transcript. Edits may have been applied for clarity.]
Thank you so much, everybody, for coming today.

I want to first welcome you all by acknowledging that here we are gathered today at Queen's Faculty of Law,

which of course is a place where we find ourselves maybe not so much virtually, but for all of us who are here in the room today.

We are situated on traditional lands of the Haudenosaunee and the Anishinaabe.

And before we begin, especially on today's topic, we'd like to acknowledge and, uh,

remember the long connections that the Anishinaabe and the Haudenosaunee have enjoyed with these lands that fall back into history,

long predating our own association with the lands, but also that continue into the present.

And so today, what we're doing is we celebrate the ability to gather here together, um,

and especially to welcome our guest, Thomas Isaac, who's going to be speaking to us, talk about indigenous laws.

What perhaps maybe some about indigenous laws and where intersection with and interaction with the section 35 constitutional provisions that we,

for some people, may be bit more familiar as a way of providing a framework for shaping the relations between indigenous peoples

and non-indigenous peoples and promoting reconciliation as we sort of move forward together into the future.

And I think some of Thomas's topics will address, um, different ways in which that's happening.

Maybe. Yeah, I think that's. Yeah, yeah. So let me just briefly give you a little background on Tom.

Oh, I have a sense. Yeah. Okay.

So, Tom, I think that, um, if you, you know, read things in Canadian, uh, Aboriginal law, you'll have seen Tom's name before.

He is now a partner and chair of Aboriginal law at Cassels, Brock and Blackwell LLP.

And he, I think, has spent probably the majority of your career.

Right. Or all of your career. Yes. Working in Aboriginal law.

So, you know, for people who saw the bio that was circulated, like highlighted just a few of some of the roles that Thomas has played.

So chief treaty negotiator for British Columbia, that is not a small job.

Okay. Um, assistant deputy minister responsible for establishing Nunavut, working together with, um, the Inuit in Nunavut to make that happen.

Another not small project. Right. So, uh, I know he's also been involved in numerous, uh, initiatives in Saskatchewan.

He's mentioned a few also being administered special representative on a variety of different reconciliation frameworks and serving,

uh, in negotiations as well.

He's got a couple recent books that he's going to, I think, touch on in his talk today as well, um, laws of indigenous ownership and projects.

So this is a fascinating topic for me, uh, speaking directly to the involvement of indigenous peoples and in fact, like.

Agency and ownership of indigenous peoples in carrying out research projects.

Research projects and claims that stuck with my own portfolio resource projects.

Right. As one of the areas where this is a huge, uh, and important development.

And then he's also the his other book is, uh, Aboriginal Law.

So this is a sixth edition, but it also is going to incorporate important new changes.

So Aboriginal law, for one thing, is never standing still, right?

It's constantly changing.

And so we're really delighted to be able to have him here today to go over some of these themes and recent developments in Aboriginal law.

So thanks so much for stopping and speaking with us, Thomas.

I don't know my pleasure. So. Uh, thanks very much.

So we've got a limited amount of time. I, um, you know, this is sort of intended to be informal.

So this is not a formal, uh, lecture, but I will be talking about, um, a few, uh, key and emerging themes in Aboriginal law.

And really, as a result, we just, uh, just came up with the sixth edition of my textbook.

It, uh, I don't know, like, set it up like it's an order form.

Sorry about that. But, um, although, you know, I know I no one's going to argue if you decided to order a copy, but I thank you.

Um, the, um, uh, that book's now 29 years.

And I remember when I first came out with, uh, the book, uh, there was literally very little there.

You couldn't feel a hand on the available publications in the area.

You could barely fill a hand with the number of cases in the area.

And of course, now, 29 years later, there is absolutely no end in sight in terms of, uh, emerging, uh,

issues in Canadian law related to, um, um, Aboriginal, uh, and indigenous peoples under the Constitution.

Um, and it's true that I'm going to focus primarily what I call Aboriginal law, which is, uh, Canadian law focused on,

um, the, uh, Canadian legal systems relationship with Aboriginal peoples as defined by the Constitution Act.

Um, our group so I chair chaired group were active in every province and territory of Canada.

We have an element of our group that actually practices indigenous law, uh, for a number of the nations that we act for.

I primarily act for public governments. A lot of them are secret mandates.

Uh, also act for a lot of industry.

Every single industry sector you can imagine, uh, from nuclear to fishing to forestry to mining pipelines, uh, bitumen, um, gas and electricity.

And we also asked for, uh, a number of indigenous governments across countries.

So we have a bit of a unique perspective as a private sector firm operating everywhere in Canada, both on advocacy.

So litigation, uh, and in terms of advisory services.

So it's a bit of a unique, I think, perspective. So I'll be brief on this.

Um, uh. And we could spend the hour on this one slide because obviously, um.

Reconciliation is a dominant theme flowing out of the 70 plus.

I guess now 80 plus decisions from the Supreme Court of Canada on section 35.

So we've had over 80 decisions now since 1990 on, uh, one provision in our Constitution.

And I would say that we're still in the early days of fully understanding, uh,

and comprehending what that one provision voluntarily put into our Constitution in 1982, actually, uh, means.

But. Reconciliation is the dominant theme.

Again, I'm focused on the law. Today I'm focused on Canadian law today.

So there are two things though, to reconciliation flowing out of the.

From a legal context, one ought not surprise anyone in this room, and you've got your own experts in this room on these issues.

Reconciliation between the Crown and Aboriginal peoples.

And this can be based in large part on historic wrongs, uh, traumatic treatment by the Canadian, uh, and imperial governments.

It's the second element of reconciliation, though, that, in my view, gets very little attention.

Uh, and it's the second element that is hardwired into Canadian law.

And it's the second element of reconciliation that, in my view,

also explains the trajectory in addition to the first element of reconciliation, which I think speaks for itself.

But the second element is in every one of the Supreme Court of Canada's decisions, or 70 or 80 plus decisions,

and that is reconciliation by the crown of Aboriginal or indigenous and competing societal interests.

And this is the balancing. This is the necessary balancing the government needs to do, which governments have failed miserably in doing.

By the way, I am non-partisan too, so I am not a member of any political party in Canada.

All of them are guilty though of this I will say that I'm glad to take on any arguments.

To the contrary. They're all guilty of it, of not wanting to make the tough balancing decisions and either not making decisions at all,

hoping the private sector will make a decision,

hoping that maybe indigenous people will take their complaints somewhere else, or hoping the courts will come in and intervene.

But this theme is in every one of these decisions.

Of the burden on our public governments to do the balancing.

Not on indigenous governments, not on industry, not on indigenous and non-Indigenous taxpayers.

And this is the thing that really has built my practice, and we'll probably build it for the next.

However years I decide to practice for is government's inability and generally across the board,

their inability to engage in governance according to the toolkit that the courts have given them.

So, um, that is a lot to throw at you on a Monday afternoon.

But we're going to move on to the next slide. Um.

And so this of course, leads into in 2004, we had the Haida decision, which I had the honour of participating in.

And that decision relates to the Crown's duty to consult Aboriginal peoples

where their rights may be affected by an adverse act or decision of the Crown.

So the government's about to make a decision. It might adversely affect a potential right.

So it's a process, right? But what the court did in Haida was say it's based on this ancient common law principle of the honour of the Crown,

the requirement of the Crown to treat its subjects honourably, essentially.

That was codified into constitutional law in Haida, and applying expressly to Aboriginal peoples and their relationship with the Crown in section 35.

In 2024, we had a number of decisions.

I don't go through all of them, but I do mention this one, uh, from Quebec and I won't try to put through the First Nations name.

I've not had a reasonable, uh, pronunciation given to me yet that I can, so I won't try to, um, and I apologize for that,

but 2024 Supreme Court of Canada decision that sort of takes the Manitoba Native Federation decision some of you may be aware of.

Um, I know that some of you are aware of and has taken it really to the next level

in saying that this constitutional principle was a common law principle,

now transformed into a constitutional principle.

The Manitoba Federation is applicable to contractual undertakings by governments in certain circumstances.

Now, this has been something I've been talking about for years, trying to explain to government lawyers when they're drafting contracts,

that simple contractual interpretation and contractual principles now are not good enough.

When you're contracting and this goes back a decade. This advice has been given rather publicly by me.

The court has now said, yeah, in certain instances when you're in this case implementing the right of self-government,

that's had to do with policing, Crown's going to be held accountable for promises it makes.

Unsurprisingly, I suspect most of you. Um, it has the potential to establish fiduciary duties unique to the Crown-indigenous relationship.

Um, and. Where the Crown feels like it needs to mention section 35 of the Constitution in legislation,

which again, for a long period of time I've been suggesting is redundant because it begs the question,

well, why are you saying in legislation, if it's Constitution principle,

we don't run around with the charter plugging it in with some exceptional circumstances?

Of course, in criminal law. Plugging it into every statue.

Don't forget about the charter. So the minute you do it, it begs the question, well, why are you doing well?

Of course. Starting to fill that in now. Well, you must be doing it for a reason.

Um, which, of course, the Crown doesn't know what its reason is. And I'll say broadly, provinces pick a government.

They don't know why they're doing it, other than it feels good and it seems like the right thing to do.

But it's going into our laws. And whether you're indigenous and non-Indigenous, we ought to know what it means or what its intent of meaning, uh,

beyond the constitutional interpretation, which is actually quite clear, and in the Constitution, not in legislation.

And then, uh, uh, in a few other decisions which I don't get into, uh, here, we'll get into it in remedies in a few minutes.

But, um, the requirement that the Crown diligently implement its treaty promises and these can be historic treaties going back to the 18 1700s,

um, all the way through to modern treaties in British Columbia, in northern Canada and here in Ontario.

Uh, we just had a this was a case I argued, um, this is the other end of it.

So we'll talk a bit about a spectrum.

So Saskatchewan's a bit of my poster child of a government that's not doing a very good job of recognizing and implementing section 35.

And I would argue that this is simply a matter of fact.

Uh, I don't think it's open to argument, and I won't go.

Look, I want to give you the citation if you're interested.

Supreme Court of Canada, we had this come down a couple of weeks ago and essentially what Saskatchewan said in the consultation.

So you've got the 18 nation Saskatchewan representing 80,000, section 3580, in the province of Saskatchewan going.

If you're going to approve that mine, please consult with us on our potential land and economic fishing rights or commercial fishing rights.

Uh, the province said no. The province tries to strike.

That element of the claim goes up through the wee one at the Court of Appeals, Saskatchewan Court of Appeal.

When it goes to the Supreme Court of Canada. Saskatchewan should remember that claim the 18 nation filed back in 1994.

That's in abeyance because they didn't have the money to actually produce the documents.

Well, because that claim still on the books, it's an abuse of process on this specific project.

To claim that you have. A potential Aboriginal title.

Right to land. Okay, some 30 years later.

What was a ridiculous argument? Is it in Saskatchewan?

Well, that's an abuse of process. You can't do that. So it goes up to the highest court of the country.

Three and a half months after the hearing, we get a decision.

And of course, we won. And by I don't it wasn't a very difficult argument to make because it's basic Canadian law.

Um,

but it's worth looking at that extreme end of the spectrum where what I would argue and what we argued to the court and we won at the Court of Appeal,

is that the basic Haida standard from 2004 isn't being implemented in Saskatchewan currently.

I will take you to another province that's going beyond the law, and that's B.C. will end on that point.

Um. I love just mentioning to tell very interesting Supreme Court of Canada decision.

And this is an interesting one from a macro perspective.

We're starting to see it without going into any details.

First Nations are meeting in British Columbia, certainly Manitoba, Saskatchewan along the border.

Starting to maybe question the, uh, um, the, the, um, the benefits of gay Seattle, where in this instance,

the Supreme Court of Canada said Aboriginal peoples of Canada includes the modern day successors

of Aboriginal societies that occupied Canadian territory at the time of European contact.

Now, my argument with this just I'll just say it briefly is I was, of course, the greatest of respect.

I think the court did not focus enough on Sparrow its first decision from 1990, when it said Aboriginal treaty rights are not frozen in time.

They exist as of April 17th, 1982.

So when we talked about the aboriginal peoples of Canada,

it had to be in my respect for Aboriginal peoples of Canada as of 1982, not going back 150 or 200 years.

Nevertheless, I don't sit on the Supreme Court of Canada.

The Supreme Court said no groups outside of Canada non Canadian citizens can have constitutionally protected rights,

potentially in Canada and federal Canadian sovereignty.

This becomes a real issue when you're trying to balance rights of competing nations.

Now all of a sudden we've got everyone's attention. First Nations and Matea like, oh, this is interesting.

We've got a group from outside of Canada, non Canadian citizens who, according to this,

potentially have the same constitutionally protected rights in Canada.

Probably another seminar for another day. We'll move on.

So I threw in a few slides here and I'm going to be brief on this, but I really want to focus on remedies.

I remember when I went to law school a long, long time ago.

Um, there was a remedies class and it really wasn't emphasized.

You know, you really should take remedies. Just put a pitch in there for anybody teaching remedies or you really ought to take remedies.

And it's only when you get out in private practice that you realize equity.

Every day of my practice is equity. Um, and uh, remedies every single day of my practice because it's practical.

And that's nothing to say that there isn't a role for theory. I love theory two. And have you talked about theory in a few minutes?

But right now we're talking about practical.

I was on this case as well as it turns and we won this one, Grassy Narrows and here the, the court, um, well, the First Nation lost on its argument.

About Ontario's ability to legislate over um.

Um, mining and forestry, not surprisingly, by the way, I call this the across one of the acreage decisions.

It was obvious that's where the decision was going to land.

But what was really interesting, the court really, for the first time, starts talking about remedies under section 35.

And look, you can have the slides after I assume they'll be made available.

But. Pursuant to 31st courts of a wide ambit, to quote fashion innovative remedies where appropriate.

And just keep in mind this is 2014. I'm going to fast forward to 2024.

Many of you will know the decisions I'm about to go through.

So ten years later, we're going to get to these decisions, including injunctions, damages.

For 35 rights. Constitutional rights are open to monetary compensation, potentially.

Now, this was a sentence in a decision,

but it's only now is reflecting back as we were putting together the other such a wait a minute, didn't Grassy Narrows say something?

And it's very interesting when you see back in 2014, the courts at section 35 are made meaningful by strong and creative remedies.

So when there is a wrong, the court is to step in and come up with a creative remedy to effect the wrong or

to fix the wrong that recognize indigenous self-determination and indigenous laws.

And then, lo and behold, we've got a trilogy of cases.

Talk about books that 2024.

I think these cases have not gotten the attention they deserve.

I mean, I remember when Heida came out, her dog and as silk coating and title there's conference in.

These may be the three most important decisions to decide in a long time in Aboriginal law.

I'm not going through them in detail because of our time. I'm happy to chat about them.

First one is shot both sides. This is dealing with, uh, a treaty seven treaty entitlement claim.

These are claims where all of the rights under the treaty were fulfilled historically.

First nation gets to make a claim.

Um, and essentially, we had a very bad example of the, uh, a very good example of the Crown behaving badly in terms of not,

uh, implementing, um, a number of different provisions of the treaty.

And here the court said declaratory relief.

So a declaration from the court saying the government did something wrong.

Okay. In blunt terms. Is appropriate.

Even though the Blood Tribes.

Claim was statute barred by limitations period. It had run out.

And the court saying, you know, that statute because this is constitutional based, essentially this is about reconciliation with the crowns.

But the owner of the Crown remember the things we went through very quickly

a moment ago and here and I'm not going through each one of these supports,

we'd be here for another 20 minutes to actually talk about them all. But what you see here is look at that second to last bullet.

Reconciliation can be fostered by declaratory relief.

And this is why I started off by saying reconciliation has a number of different components,

but at least two of them are fixing historic wrongs and the relationship with Canadian law.

Probably a third one. Living together in harmony. Restore 2024.

Here. The action of Anishinabe file the statement of claim in 2001.

Seeking compensatory and declaratory relief, and this had to do with the lack of proper payments under their treaty.

Um, here again, we had limitations. Legislation that restricted.

Barring claims in, um, historic treaty breaches.

Um, the court said a declaration setting out the rights and obligations of the treaty parties will be helpful and the appropriate remedy,

as it will inform now. The most important bullet for this one.

Let's look at the last one. So here you've got the highest court in our country using the declaration to order the Crown to engage in consultation.

Um. Uh, an ongoing relationship based on Anishinabe values.

Of respect, responsibility, reciprocity and renewal.

Two ordered the crowns, again from the highest court, ordered the Crown to enter into negotiations.

With the plaintiffs to increase their annuities retrospectively.

They're supposed to get money every year.

Individuals like the chiefs and address compensation for treaty breaches with a six month settlement deadline.

So the crown. You've got six months. Three. Now here's the balancing crown.

You can settle. If you can't reach an agreement in six months.

You can impose. What the compensation will be. But here's the kicker that's reviewable by the courts.

So you see the tension. I hope you do anyway, of what's going on here.

Declaration against the crown. Telling the can't go negotiate.

But at the same time saying grant. Crown if you can't. Come to a negotiated settlement.

You still have the authority to govern. But that authority, because it's related to a treaty promise, is still reviewable by the courts.

Amazing decision. When you think about it from a remedies perspective.

And then I mentioned this one earlier, this is the Quebec, uh, decision.

Um, so, uh, look, again, this deserves so much more than what I'm giving it, but I want you to just, um,

um, look at, uh, well, look at just because, uh, the First Nation is entitled to reconciliatory justice.

Direct quote and full range of remedies, including damages and other coercive relief against the government.

In my little world. Radical. In terms of how far the bar is swinging.

Um, I'm not suggesting it's a bad thing, but make no mistake about it, this is a fairly significant change in Canadian law, in my view.

The remedy relating to the owner of the Crown will vary with circumstances.

No type of remedy takes precedent over the others regarding remedies relating to the owner, the Crown, which is rooted in reconciliatory justice.

So I him. So when you breach the honour of the Crown, it's about reconciliation and justice.

If that isn't a wake up call to governments to what govern, get out in front of this and start putting mechanisms in place to do that.

Balancing.

An award of damages equal to accumulated deficits is an appropriate measure that will enable the contracting parties to undertake future negotiations.

Now they, uh. Equally and so and so.

This is about, uh, flowing from a treaty and actually an agreement to implement self-government on policing.

And there was inadequate funding provided. Every one of these agreements has an appropriations clause in it.

The government never guarantees you money. It's always subject to what?

Parliamentary appropriations. Reconciliatory justice is not intended only to compensate the indigenous claimant for harm suffered as a result of past.

It serves above all, to restore improve the relationship between the Crown and Aboriginal peoples.

Again, fairly dramatic stuff from the highest court in the country.

So those are the remedies cases, uh, probably too quickly, but nevertheless.

Aboriginal title. Um, before I end with a few concluding comments.

Aboriginal title is the highest form of Aboriginal right.

It is a right to land. It is a possessor right in land.

We know that these are direct quotes, but hey, if you're wondering Delacombe looking soccer team and a little bit from Marshall and Bernard.

Uh, upon a declaration of title. The First Nation.

Has a right to the left upon a declaration. That's a direct quote to the.

Think about that. Remember that upon a declaration, there's no negotiation.

It's a constitutional right to land. You have the right. You get the land.

That's my rather colloquial, indirect way of saying it. But now what's interesting?

Is that simple. And it's the exclusive right to land.

Now, what do we know about fee? Simple title ownership? It has something akin.

It's not directly relevant. Aboriginal title sui generis.

It's unique, but something akin to an exclusive right to enjoy the land.

There are some carve outs by every crown in the country under their respective Land Titles Act,

but it's an exclusive right to possess land, subject to those caveats.

So on it's and then we know from general law that Aboriginal and treaty rights are exercisable on private property,

subject to the rights of private property owner. So.

There are three core dimensions to title. It's inalienable only to the crown, so First Nations can't sell it on the open market.

Okay. Its source is the prior occupation of Canada, and it's communal in nature.

It's not individually held. In 2024.

The government of B.C. by agreement which is permissible.

Governments can acknowledge title by agreement when it's done properly.

Acknowledged. Title. Too high to glide for the high Venetian hideaways formerly known as the Queen Charlotte Islands.

It's a. A relatively large chunk of northwest Coast, British Columbia, and very beautiful if you haven't been there.

What was interesting and what the government of B.C., uh, one of them is me, has been highly criticized, didn't criticize the Haida,

criticize the government of British Columbia and ultimately Canada for recognizing Aboriginal title and privately owned lands.

How can you acknowledge an exclusive right of one over an exclusive right of another when Aboriginal title is possessor?

Now you might say, well, Tom, in the agreement they redefined Aboriginal title.

Right. You know, a duck can be an elephant if you define it the right way.

Problem is this. When you read the agreement, a duck is a duck. There's no Aboriginal title.

This is the Common library title. You're not wrong.

It's exclusive. Right to see Google. Wait a minute.

How is it possible that Aboriginal title, which can't be alienated to anyone but the Crown, is communal in nature?

How could that possibly be helped by private?

Citizens and I would say including Haida and non Haida.

In terms of Aboriginal title, they may be able to give another interest in the land, but the two cannot co-exist under current Canadian law.

And I'm going to suggest you that's a matter of fact. That's not open for debate based on current law.

Remember I said B.C. was at the other end of the spectrum? So um, then BK says, well, we're going to figure out later how this is all going to work.

About governance in the land. Yeah, no, that's not how Canadian law works.

Soco team DoCoMo commercial are very clear upon a declaration of title.

It's a possessor, right? It's an interesting land. It's a right to the land.

And I'm quoting former Chief Justice McLaughlin directly.

And then there's a transition period. Where the hibernation prompts continues.

Are existing charities have no. No, no.

That's not Aboriginal title.

Aboriginal title gives the exclusive right to govern the land with the First Nations, save and accept for what justifiable infringements by the Crown.

Nowhere in the agreement doesn't mention justifiable infringement, which would have been helpful to reconciliation, I would argue to all of you.

I asked the deputy minister, uh, at a conference we were at.

And there seemed to be an openness to considering that maybe that's what they did, but this doesn't help.

I would suggest almost anyone, um. And then they can negotiate subsequent agreements.

Um, what the height agreed to in the agreement is one sentence.

The nation will, quote. Honour private property.

End quote. Now, you go take that to a bank and try to get a mortgage and see what the bank says to you.

As you're trying to attract. So we act for many indigenous groups that are trying to attract capital to their land.

So the province didn't, in my view, and I stand by this, did no one any favours.

By doing what I would call an extremely poorly drafted agreement.

That's it. That's all you've got for. They will honour private property.

Well, there's an argument since they don't have the authority to on her private property if the lands being held by Aboriginal title.

So what is the theory holding all of this together? The province is silent on the theory.

Again. I've gone through this. It's inalienable to third parties.

You would think the simple is obviously if it's an exclusive, right?

Oh, one last thing. We also know from Silcott, I can't forget this one from Cisco Teen and Dell.

What is required from the Crown in order for declaration of Aboriginal title to be granted?

The beneficial interest in the land. For the property law experts in the room of which I am not one.

You will also know. What does the Crown give to fee? Simple titleholders across this country in every jurisdiction.

The simple end. The beneficial interest in the land.

The governments literally do not possess that which is required for title.

You would think this would garner some form of response, some legal theory, to hold it together.

It didn't. And we are still asking questions. Communal nature.

Um, again on its face. Um.

All right. He simple would conflict with the communal nature of Aboriginal title.

And um, the argument is, is that Aboriginal title was likely justifiably infringed by most fee simple titles.

Um, I make the argument that justifiable infringement is not a dirty phrase.

No government uses it. No one will talk about it. It's like it it.

I'm going to be very clear in what I'm about to say. It's the only tool government have in the toolkit.

Save and accept for agreements. When constitutionally protected Aboriginal treaty rights are at stake.

The only tool they've got. They have no other tool. Please, if somebody has another tool.

Other than agreement. No government wants talk about justifiable infringement because there's a negative connotation to what you're doing.

Well, yeah, we're country 40 million.

There are going to be examples where and I'll tell you where it happens a lot is where you might have conflicting views on a project from.

You might have ten First Nations, seven of them want the program, nine of them want the project.

One doesn't. Constantly happens, but the ability to manage and govern the country in an honourable way, I think is at issue.

Here, the province responded to a claim. Um.

Um, this has to do with the silk coating. Title. The only part of Canada, right?

Well, actually, there's another example on Vancouver Island now,

but so Aboriginal title was actually acknowledged by the Supreme Court of Canada in Silk Road.

There's a private party affected and they said, I'll turn you over some money.

And the Crown said, no, that's on you. You knew.

Now think about this from the hydro agreements with the with the government saying, no, only you can trust us.

We'll take care of everything. They're telling the height of the same thing.

And here, if you read the quote, this is the province's response basically going that's on you.

Good luck. If you're operating a business, whether you're indigenous or non-Indigenous, I might add the province doesn't discriminate here.

It's everyone. You're on your own. Now can you imagine the warm fuzzy feeling and being sarcastic?

Businesses, yet again indigenous and non-Indigenous, trying to attract capital to their business.

When you've got the government going. Yeah, we signed an agreement, I'll say in this case with the Haida.

And if you want an explanation while you're on your own. We don't have a legal theory to hold this together.

They could have pushed back on this third party claimant in a different way, but they chose to say you knew what was coming.

It's on you as we deal with the constitutional rights of Aboriginal people, which, by the way, is the right thing for government to be doing.

The issue is just how are they doing it responsibly? Is that that balanced approach that is transparent?

Uh, I asked a question. Well, what if the Hydra rip up the agreement?

To which I got an awkward silence from. So they acknowledge and of course, the owner of the Crown.

They're going to be held by their acknowledgement. They've acknowledged that the high to have Aboriginal title over every square inch of Haida Gwaii.

Two. They didn't settle the litigation. So you're thinking, gee, that got 100 or $200 billion worth of land and resources.

They must have settled the title litigate. No, that wasn't part of the agreement.

And then three, the high. You can walk away from the agreement any term that would be there.

Right? I don't think anyone could get to me.

They have every right to walk away from the agreement, and the government will be left holding the acknowledgement of title Bay.

So again, not a great example.

I think over the long run. Canada did the same thing.

Um, I would say sloppy drafting as well. We'll just keep going.

Um. So to conclude the role of public governments, one of my best examples right now is under the U.N. Declaration on Rights of Indigenous Peoples.

We've got legislation in B.C. and in Canada that says all three of those jurisdictions,

and there's no effective date other than when the, um, legislation came into effect, which there's no.

So it's all in effect now has an obligation to ensure what, you know, through jurisdictions.

Every single law and regulation is consistent with all 70 paragraphs of under.

What I said publicly and I'll say to you is that's impossible.

That can't be done. The indigenous groups that I work for know that too.

Almost everyone seems to know that except for the governments.

So then you go. Is under a bad thing?

No, not at all. In fact, I'm. By the way, I'm coming with the third book.

Uh, next 12 months, within 12 months, uh, book coming out in September on underpinned Canadian law.

And it's a very balanced view of, look, there's a lot of good stuff and under.

But this notion that every law. It's impossible.

Cannot be done. So then. Well, how does that help reconciliation other than being a good headline?

And so this is, uh, we could talk about this in a few minutes.

Um, being thoughtful, playing the long game.

And by the long game, I mean don't. Not taking your time. I don't mean it that way.

I mean, not moving the coconut shells around. Public governments constantly do this.

You'll see that I comment on the desperate need in this country,

along all party lines of a sustainable, long term public policy approach to these issues.

That's fair to any Metis and First Nations people.

And that is clear and transparent to indigenous and non-Indigenous people in the country.

We do not have a single example of it currently in the country. And I don't think we will.

For the foreseeable future, unfortunately. Um.

I talked about the toolbox. So.

Relationship building and reconciliation. So reconciliation, I'm not going to talk too much about it other than what I've already said.

It is a dominant theme. It occupies most of my days in one form or another.

And that's a good thing. Uh, I am very comfortable legally as a practising lawyer.

That's what I do. Uh, working, uh, with reconciliation, whether I'm acting for an indigenous client,

a corporate client, a nuclear client, a mining client, or a public government.

But what's interesting is there are public governments seem to be particularly

challenged in understanding the transactional nature right now in Canada,

these relationships. And so we see this in contracts not being properly thought through.

Will they last the test of time. We saw that with the police in Grenoble.

Sign up a policing agreement with no guarantee of funding for the policing.

For the for the particular First Nation at issue.

And so what we see, I think, with reconciliation, is an absolute requirement for governments to think long term, think affordable as well.

Think fair. Think transparently.

And it's a very challenging proposition. When this issue has been particularly prone to election cycle thinking.

And the problem with this issue, it's not really the problem with this issue.

I think I misspoke. The challenge with this issue is the genie doesn't go back in the bottle.

Governments are going to be held accountable every promise they make. Appropriately, by the way.

They should. But if you've got government's not thinking long term.

So let me give you a very practical example. I live in British Columbia.

I was mentioning this earlier. Live in a lovely neighbourhood, and we have 201st Nations in British Columbia.

50 of them do. Okay. Some may argue with that. Maybe it's 40, maybe it's 60.

But they've got the attention of the federal government. They got the attention of the provincial government.

There's money coming in from the local mines. Crown lands are being sold.

I won't name them. You probably can. All.

I bet all of you come up with at least five. I bet some of you 30 or 40 or 50 or 100.

You're all 200. So what about the other 150?

And again, we could argue, but it's at least. 120.

They don't have deputy ministers popping on jets going to see them.

They a lot of them don't have clean drinking water. They don't safe roads to drive their kids to school on.

And so. This this lack of long term visioning.

For how we're going to achieve reconciliation in British Columbia for 201st Nations.

They can't all have a height agreement that was 100% of height is claimed territory.

Well, BC's claimed about 160% of B.C. is claimed with traditional territories.

That means there wouldn't be a province of British Columbia. Now, if that's the game plan.

Then what's the road to get there? No one talks about it, just not on the table for discussion.

You go, so where are we going? And what about that community?

So I mentioned my neighbourhood right over the mountains for me.

Is a neighbourhood that doesn't have clean drinking water, that doesn't have safe roads for their kids, that has poor housing conditions.

There's no sort of public infrastructure for themselves, and they likely won't have it for the foreseeable future.

Yet. They're probably about 40 clicks as the crow flies from Vancouver.

50. So there's something wrong there. There's something desperately wrong.

Um, talked about the tool kit. We've talked about the declaration briefly.

Um, there's a lot of good in the declaration on social issues in particular.

I think Canada could learn a lot on health education, um, indigenous property rights, intellectual property rights.

However, this notion that Canada lags behind the rest of the world on protecting indigenous rights against unilateral state action.

I fundamentally disagree with I want to see the evidence.

I want to see a country who has fettered its sovereignty that, at the end of the day, equivalent to Canada,

where the wishes of Parliament can be overruled by true constitutional protection of Aboriginal treaty rights?

I'm not an apologist for our country. Please don't mistake that comment.

Still, we're all still welcome to criticize Canada, but this notion that we're somehow further down the line.

No, no we're not. We are actually. And maybe some would argue, maybe not a very bright light, but we are in fact the light on the hill, in my view,

looking at the objective evidence of the ability for other states to unilaterally fetter and trample upon indigenous rights when they feel like it.

We're still doing it in Canada, by the way. I'm not again, I'm not an apologist, but this notion that Canada lags behind us, not now.

There's no legal regime like this. There's not even a close second.

I welcome people to, um, give me an example.

And I mean genuinely, by the way, um, but we haven't found one yet, and we are advising in other countries around the world,

and at the end of the day, their legislatures, including how they amend the Constitution.

So, you know, if you if you're thinking of Bolivia or a few of those, they can amend the Constitution pretty quickly, pretty quickly.

It's Canada can't uh, as a federal state.

And so these rights are really cemented in, um, seventh edition, I thought I'd mention a whole new chapter on remedies.

And that's me trying to emphasize the importance of that case law from 2024 and the need for sustainable long term public policy.

So that's it.