Law Times

Page 12 April 30, 2018 • lAw Times www.lawtimesnews.com consent is the issue. It would be even more helpful for everybody if there was a more obvious ref- erence in judicial writing. And, second, it sure would be handy if the Crown would check that and look itself in the mirror and say: 'When you have to pay damages, it's because you took something away.' And what the Crown took away was consent," she says. "We can say they damaged a forest. We can say they put kids in residential school. But if we wanted to go deep into it, we can say that they didn't ask permis- sion. And when the Crown loses in court, it's because it didn't ask permission." Legislation might work, she says, but one province has to take the lead. Former Ontario premier Bob Rae, a partner at Olthuis Kleer Townshend LLP, says the chal- lenge is that the provinces have jurisdiction over natural re- sources, mining, forestry and a lot of environmental issues but there's been no clear indication of movement at that level. "It will be that the provinces will need to respond to the UN Declaration by negotiating with First Nations," he says. "And I think, to be very blunt about it, I think the provinces have been very slow to respond to what is a moveable feast; it's changing. I think the provinces have been just continuing along a path with- out really being aware or wanting to admit that there is now a chal- lenge for them and for everyone else, as well, in terms of exactly how this is going to go forward." But until legislation includes the right of free, prior and in- formed consent for First Na- tions, Kahgee says, they must argue and hope to negotiate a deeper level of involvement for every project that is proposed. Along Lake Huron, the Sau- geen Ojibway Nation obtained a third commitment from OPG in its plans for the Bruce plant site. In addition to consent and ac- tive participation in the project and recognition of legacy issues including the impact on rights, health, environment and the broader context of the land and water, the First Nations will be in- volved as the project owners work toward a permanent solution to waste issues in the territory. "With those commitments and now with the most recent commitment from the Nuclear Waste Management Organiza- tion, that creates the full space now for our communities to have the dialogue they need to have and ultimately come to hopefully an informed decision about what that means," says Kahgee. LT corporated into the court are fantastic to watch, how they're happening. For instance, the opening of court with a smudg- ing ceremony, the use of feathers as something for an Indigenous person to swear upon when they give evidence. These are cultural differences that I find are re- ally interesting and I think lead Indigenous persons who find themselves before the court to be more comfortable with the pro- cess itself because we are trying to pay as much respect as pos- sible to the Indigenous culture." And while time is of the es- sence in the traditional court system, the pace in the new court is not rushed, allowing for more conversation and input from the accused, offering the Indigenous community and us- ers of the court a sense of owner- ship in the hope that they begin to put some trust in the system. The court, he adds, is part of a bigger picture. It works alongside a support system established for Ottawa's large Indigenous popu- lation. That includes the develop- ment of Gladue reports and let- ters. Stephanie Bean, the senior manager for the Gladue case- worker program in Ottawa for Aboriginal Legal Services, says a focus of the court is on heal- ing and that is reliant on services and supports available in the community to address underly- ing issues that may have led to the individual's appearance be- fore the courts. "There's a large Indigenous population here and I think to have a court that really under- stands and values the unique cultural differences within the court, I think that's important," she says. "I do see that there's a recognition that there's a need." Bean, a lawyer, sees value in having a specialized court con- nected with community service workers that link up to supports right away. But Rudin points out that the structure of the court changes depending upon the location and the services available there. But in all cases, the courts need to reach out for suggestions on how it should operate. And, at first blush, they can appear the same as any other court, using the same space and having a judge, Crown prosecu- tor and defence lawyers in place. But the differences eventually become obvious to an observer. An expert might be asked to speak to the court without hav- ing to take the witness stand. Or the accused might be asked for their opinion. "So, resolutions are more easily developed in that court. Because people understand the FOCUS Continued from page 10 Continued from page 11 Focus of court is on addressing underlying issues realities of both the individuals that are coming into that court and the capacity of the com- munity to address that," he says. "The courts are able to resolve things that might otherwise be more contested. "The fact that you can have a court where Indigenous people feel that they are getting some- thing that is more akin to justice is a real accomplishment." LT Provinces 'very slow to respond' Medico/Legal Your case is too important. 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To book your seats or to inquire about sponsorship, contact us at 416-649-8841 or MediaSolutions.Sales@thomsonreuters.com Date: Sept. 20, 2018 Location: Arcadian Court, Toronto 5:30 p.m. Cocktail Reception 7 p.m. Gala Dinner and Awards Presentation Emcee: Jennifer Brown, Managing Editor, Canadian Lawyer InHouse/Law Times Dress: Business Attire Keynote Speaker: The Right Honourable David Johnston, C.C. Governor General of Canada (2010 - 2017) Chair, Rideau Hall Foundation Executive Advisor, Deloitte FORGING A STRONGER FUTURE www.innovatio-awards.com Signature Sponsor Untitled-6 1 2018-04-17 1:00 PM Randall Kahgee says while obtaining con- sent for projects that impact First Nations is possible, it is laborious and not always within the means of all First Nations.

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