Aboriginal Law Conference 2024

Course Chairs
Gary S. Campo X̱eyx̱kinem — Woodward & Company LLP, Victoria
Jessica Proudfoot — Woodward & Company LLP, Victoria

About the Course Chairs
In his role of partner at Woodward & Company, X̱eyx̱kinem (Gary's) work primarily focuses on a general practice for Indigenous governments. His current practice spans settlement negotiations, business transactions, taxation, economic development, reserve infrastructure projects, environmental remediation, band governance, leasing, contractual and employment matters, and 'Indian' status issues.

In addition to a general practice, Gary has an extensive background specializing in Aboriginal rights and title. He was part of the core legal team that successfully established Aboriginal rights and title for the Tsilhqot’in Nation, where he assisted in drafting the final argument and was instrumental in working with elders and experts to present oral history and expert evidence to the court.

Gary was born in North Vancouver and is a member of the Squamish Nation. He first joined the firm as a co-op student in 1999 and returned as an Articled Student in 2000. He was then called to the BC bar in 2001.

Gary is the recipient of the National Aboriginal Achievement Scholarship Award, the Keith B. Jobson Award, and the Chief Michael Underwood Award for leadership, community interest and academic excellence with respect to Indigenous issues.

Jessica Proudfoot is the chair of Woodward & Company's Lands and Governance Practice Group and an experienced litigator. Her practice is focused on providing practical, cost-sensitive advice and representation to First Nations on protecting their Aboriginal title and rights, as well as on various contract, construction, membership, and governance-related disputes. Mindful that resources are always finite, Jessica works with First Nations organizations to identify their priorities and objectives early, and to tailor their legal services to efficiently and effectively pursue those objectives.

Jessica is called to the bar in BC, Alberta and Yukon and has appeared before the Supreme Court of Canada, all levels of court in Alberta, BC Supreme Court, ICC and various arbitration panels, regulators, and tribunals. Jessica obtained her undergraduate degree, with distinction, from the University of Victoria (2006), and her Bachelor of Laws at the University of Alberta (2011).  During her legal studies she served as a Criminal Caseworker (2009-10), Executive Coordinator (2010-11) and was later the Chairperson (2013-17) for the largest student-run legal clinic in North America. Jessica spent almost 10 years at a large regional law firm, before transitioning to Woodward and Company in 2021, where she joined the leadership team on one of the longest civil trials in Canadian history. She is tasked with proving unjustified infringement of the Quw'utsun (Cowichan) Nation's Aboriginal title to their historic village at Tl'uqtinus, and responding to various procedural defences including extinguishment, displacement, limitations, laches, abuse of process, bona fide purchaser for value, etc.

In her free time, Jessica enjoys 5-pin bowling, spending time with her kids, and cross-country skiing (in no particular order).

Welcome
Chief Xats'alanexw Victor Harry — Squamish Nation, North Vancouver

Featured Speakers
The Honourable Senator Michèle Audette — Senate of Canada, Ottawa
Darius Bossé — Juristes Power Law, Ottawa

Senator Michèle Taïna Audette grew up immersed in both the Innu and Quebec cultures. She was born in Wabush, Labrador, and spent her early years in Schefferville, Mani-Utenam, and Montreal. From the moment she was born, she has experienced discrimination as both a woman and an Indigenous person, and she has dedicated herself to pursuing equality, equity, justice, and social justice.

Senator Audette is committed to advancing First Peoples' issues, including issues faced by Indigenous women, and to building bridges to create an inclusive and respectful society for all.

She studied visual arts at the University of Quebec in Montreal (UQAM) and art education at Concordia University. She holds two honorary doctorates, one from the University of Montreal for her political and social advocacy on behalf of Indigenous women and one from the Faculty of Social Sciences of University of Ottawa.

Her past roles include serving as president of the Native Women's Association of Quebec (FAQ), the Native Women's Association of Canada (NWAC), and as commissioner for the National Inquiry into Missing and Murdered Indigenous Women and Girls (NIMMIWG).

In the fall of 2019, she joined Laval University as a senior advisor for reconciliation and Indigenous education. She was appointed senator in July 2021.

Originally from New Brunswick, Darius Bossé now lives in Ottawa where his passion for public law and politics has flourished. Darius focuses his practice on constitutional law, administrative law, and parliamentary and government affairs.

Complementing his focused public law practice, Darius has gained extensive experience working on civil litigation matters more broadly, including on appellate and judicial review matters. He has represented his clients' interests before the Supreme Court of Canada, the Federal Court and Federal Court of Appeal, the New Brunswick Court of Appeal, and the Ontario Superior Court.

With experience at the crossroads of law and policy, he guides his clients through legislative and policy development processes, including by proposing legislative amendments and preparing clients for appearances before parliamentary committees. He also has experience interpreting, negotiating, and implementing intergovernmental agreements.

Darius began his legal career clerking for Justice Henry S. Brown of the Federal Court and Justice Suzanne Côté of the Supreme Court of Canada. As an articling student and then associate at Power Law, Darius worked on the largest and most complex education rights trial since the adoption of the Canadian Charter of Rights and Freedoms.

Darius' work experience before and during law school greatly informs his practice. For example, while studying law, Darius worked as a Parliamentary Assistant to a member of the House of Commons, and interned at the Office of the Law Clerk and Parliamentary Counsel for the Senate of Canada.

Darius is the author of several academic articles that explore a variety of issues in the areas of constitutional law, administrative law, minority law, statutory interpretation law, and human rights. Darius practices in English and French.

Faculty
Michelle L. Bradley — Woodward & Company LLP, Victoria
Candace Charlie — Woodward & Company LLP, Victoria
Steve Graham, P.Eng, P.Geo., CSAP, PhD — S. Graham Engineering and Geology Inc., Tsawwassen
Rose Green — Squamish Nation, North Vancouver
James Hickling — Hickling Harrison Law, Bowen Island
Caolan Lemke — Woodward & Company LLP, Victoria
Leah L.J. Mack — Mack Law Corp., Victoria
Laura Mars — Mack Law Corp., Vancouver
Drew Mildon — Woodward & Company LLP, Victoria
Ses Siyám Ray Natraoro — Knowledge Keeper, Chief of Staff, Squamish Nation, North Vancouver
Elder Maria Reed Waabigekek Ikwe (Metis), Abbotsford
Yasmin Remtulla, MSW — Practice Development Consultant, Fraser Valley Aboriginal Children and Family Services Society — Xyolhemeylh, Chilliwack
Amitpal C. Singh — Yale Law School, New Haven, Connecticut
Stacey L. Trimble — Trimble Law Corporation Inc., Chilliwack

Course Materials Contributors
Peter Jones — Woodward & Company LLP, Victoria
Christa Croos — Woodward & Company LLP, Victoria
Liam McGuigan — Woodward & Company LLP, Victoria

Click here for full faculty bios

• traditional governance structures—how Squamish people sustained their natural resources and environment
• relationships to the land; marriages amongst Squamish people and neighbouring nations

• • the importance of protecting information shared by Indigenous peoples in processes designed to further reconciliation
  • explanation of case-by-case privilege and the Wigmore criteria
  • overview of recent cases grappling with this issue:
    
    • Yahey v. British Columbia, 2018 BCSC 123
    • Cowichan Tribes v. Canada (Attorney General), 2020 BCSC 507
    • West Moberly First Nations v. British Columbia, 2021 BCSC 829
    • Anderson v. Alberta, 2024 ABKB 64
  • lessons learned from these cases and the path forward

• • a Western approach to data and privacy infrastructure should not be the goal post for Indigenous communities because this methodology is fundamentally incompatible with Indigenous ways of knowing, such as oral histories
  • federal, provincial, and territorial governments must work together to facilitate access to information for IGBs, through delegated funding for technical assistance and training, the required infrastructure to access and store data and information, and staff to carry out the work
  • we will review a selection of amendments to provincial legislation that have been passed to provide for information sharing with IGBs and discuss pitfalls, challenges, and recommendations to overcome them

• Xyolhemeylh (Fraser Valley Aboriginal Child and Family Services), in collaboration with Elders and the legal community developed and implemented Sq’epqotel, a traditional dispute resolution process rooted in cultural and traditional mechanisms
• it is an alternative pathway for decision-making when Indigenous families are involved in child and family court
• the program engages the family and community group in culturally intensive processes to prepare for participation in a Consensus Finding Circle to find resolution to CFCSA matters
• sq’epqotel goals
  
  • reduction in the number of children/youth in care and the length of time in care
  • reduction in the number of court appearances for youth and families
  • to provide all parties with processes that reflect relationship-building, trust-building, consensus-finding, and focus on child's and family's voices in outcomes

• status and state of Indigenous languages across Canada
• why the inclusion of Indigenous language in legal documents is important; what purposes inclusion can serve, both for Indigenous peoples and for the broader legal landscape
• practical advice for lawyers seeking to include Indigenous languages in legal documents: common drafting issues; ensuring inclusion helps Indigenous communities keep languages alive and supports Indigenous self-determination
• how courts have dealt with the interpretation of documents that feature more than one language, and how that might apply in the Indigenous context
• case law examples and analysis of courts grappling specifically with the meaning, content, and translation of Indigenous languages in legal documents

• • the unresolved question as to a First Nation's personhood status has created uncertainty as to whether a First Nation has the capacity to be a direct shareholder of a company
  • many First Nations companies are structured using a trustee to hold legal title to shares for the benefit of the First Nation, creating additional administrative requirements for managing the corporation
  • a review of the current state of the law on whether a First Nation can be a direct shareholder of a company, and why recent developments make the practice of having First Nations as direct shareholders much more defensible
  • recommendations as to best practices in incorporating and managing companies with First Nations as direct shareholders and the foreseeable risks 

• • colonial policy on land title registration
  • increasing use of land for reconciliation
  • recent legal and policy obstacles
  • Human Rights Code implications
  • amendment to Property Law Act removes colonial-era barrier 

• • Canada 30x30 Funding
  • Indigenous Protected and Conserved Areas (IPCAs)
  • BC Carbon Offset Regulatory System
  • transfers of forest assets
  • liabilities issues and options
  • TFL Lands – Schedule A and B
  • other forest tenures
  • purchase of non-timber tenures in IPCAs
  • tax implications for transfers
  • long term stewardship costs and goals

• the Province of BC is undertaking the "modernization" of the Mineral Tenures Act (MTA) and the Mines Act as a component of its Reconciliation policy
• changes to these acts will likely impose substantial adjustments to the processes and practices currently followed by mining industry, First Nations, and government regulators
• practical implementation of a DRIPA-compliant MTA process will be difficult as both local First Nations and active mineral exploration groups tend to have capacity limitations, and the sharing of exploration information prior to obtaining mineral tenure has always been minimal of necessity
• an update on the response to the 2023 BCSC ruling in Gitxaała v. British Columbia: some practical implications for both the mineral exploration industry and for affected First Nations

• much contentious litigation has concerned the vertical aspect of Aboriginal rights: their public law dimension that implicates the Crown
• the private law aspect of Aboriginal rights—their bite against private parties—has thus far gone underexplored, as, with few exceptions, litigation concerning Aboriginal rights and title has historically been brought against the Crown alone
• this presentation explores a series of recent jurisprudential developments where Aboriginal rights were wielded against private parties, focusing on important recent developments from the BC Court of Appeal
• these doctrinal developments have important implications for third parties interacting with Indigenous groups, as they can no longer count on the prospect of the Crown being the sole subject of judicial remedies