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McCarthy Tétrault LLP / Geoff R. Hall Aboriginal Litigation: A Complex Chess Game.

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Presentation on theme: "McCarthy Tétrault LLP / Geoff R. Hall Aboriginal Litigation: A Complex Chess Game."— Presentation transcript:

1 McCarthy Tétrault LLP / Geoff R. Hall Aboriginal Litigation: A Complex Chess Game

2 McCarthy Tétrault LLP / The two modes of Aboriginal litigation ¬Non “real time” ¬judicial review applications, often involving the duty to consult ¬appeals from regulatory decisions ¬civil actions to address historic wrongs, e.g. trespass claims for historic flooding ¬“Real time” ¬direct action and injunctive relief

3 McCarthy Tétrault LLP / A complex chess game ¬Aboriginal litigation (both modes) entails a complex chess game: ¬First Nations adversaries have unfamiliar and complex priorities ¬First Nations reactions can be difficult to anticipate ¬sympathies are inherently against the industry proponent ¬government allies may be very little help. 3

4 McCarthy Tétrault LLP / Non real time litigation ¬Consider it first

5 McCarthy Tétrault LLP / Litigation is a chess game ¬It is necessary at all stages of litigation: ¬to consider the long-term implications of each move ¬cannot just react to the latest development ¬to consider the adversary’s perspective ¬to anticipate the adversary’s next move. 5

6 McCarthy Tétrault LLP / Litigation is a chess game (cont.) ¬Each move you make has implications: ¬for future steps you take in the case ¬for what your adversary will do. 6

7 McCarthy Tétrault LLP / The adversary’s perspective and next move ¬Understanding the adversary’s perspective and anticipating the adversary’s next move are inherently difficult: ¬takes you out of your role as advocate ¬must be undertaken without full information ¬different adversaries react in different ways depending on their priorities. 7

8 McCarthy Tétrault LLP / Priorities ¬Priorities of litigants may include: ¬economics ¬reputation ¬emotions. 8

9 McCarthy Tétrault LLP / The typical commercial case ¬In the typical commercial case: ¬economics usually play a significant role – actors mostly behave as rational economic actors, as economics textbooks would predict ¬but – can be more macro than the case ¬reputation can be a concern for some ¬emotion tends to be a minor factor except for individual participants, and can disappear completely if the individuals exit. 9

10 McCarthy Tétrault LLP / By contrast ¬The typical family law dispute is one in which emotion prevails and economic rationality disappears. 10

11 McCarthy Tétrault LLP / The typical Aboriginal case: priorities ¬Priorities of First Nations can be especially difficult to discern and understand for non-First Nations litigants: ¬this may be partly cultural ¬mostly, results from the reality that First Nations’ perspectives are complex and multi- dimensional. 11

12 McCarthy Tétrault LLP / The typical Aboriginal case: priorities (cont.) ¬Do not assume First Nations behaviour will replicate an economics textbook, as in the typical commercial case: ¬to dismiss this behaviour as irrational or unfathomable is simply wrong – misses the complexity of what is going on. 12

13 McCarthy Tétrault LLP / The typical Aboriginal case: timing ¬Litigation is inherently slow but Aboriginal litigation tends to be even slower than most: ¬may result from First Nations communities being under-resourced ¬may result from priorities differing from what purely economic actors would hold. 13

14 McCarthy Tétrault LLP / Patience, understanding, and wearing the white hat ¬To play the chess game effectively, it is crucially important to be patient and to strive to understand your adversary’s motivations. ¬In court, the industry proponent and government invariably lack sympathy: ¬better resourced that First Nations litigants ¬Canadian courts like the underdog, and First Nations have endured a 400 year history of oppression. 14

15 McCarthy Tétrault LLP / Patience, understanding, and wearing the white hat (cont.) ¬Therefore it is crucially important for industry proponents to go out of their way to be reasonable and accommodating. 15

16 McCarthy Tétrault LLP / Allies add a further degree of complication ¬In duty to consult cases, governments are usually putative allies, adding further complexity: ¬their priorities and motivations are again different from private economic actors and First Nations ¬they may be uncomfortable cooperating with industry proponents ¬the law is new and missteps are common. 16

17 McCarthy Tétrault LLP / The real time mode: direct action and injunctive relief ¬A different chess game.

18 McCarthy Tétrault LLP / The two audiences ¬When seeking an injunction, there are two important audiences: ¬the court that will be asked to grant the injunction ¬the police force that will be asked to enforce the injunction if granted.

19 McCarthy Tétrault LLP / The forgotten audience ¬Lawyers tend to focus on the courts, when in fact the police will likely be the more challenging audience: ¬their task is to keep the peace – enforcing an injunction can turn a peaceful situation into a non-peaceful one ¬the police are painfully aware that enforcement of an injunction puts their members in harm’s way.

20 McCarthy Tétrault LLP / Engage the forgotten audience up front ¬It is too late to go to the police once the injunction is issued: ¬emphasize public safety over private property rights ¬engage them up front ¬get their input into the terms of the injunction before it is issued ¬take the time necessary to get them comfortable that their intervention is necessary for public safety.

21 McCarthy Tétrault LLP / Again, a different chess game ¬The run-of-the-mill commercial injunction case has only one audience – the court: ¬as always, the Aboriginal context adds complexity to the chess game.

22 McCarthy Tétrault LLP / VANCOUVER Suite 1300, 777 Dunsmuir Street P.O. Box 10424, Pacific Centre Vancouver BC V7Y 1K2 Tel: 604-643-7100 Fax: 604-643-7900 Toll-Free: 1-877-244-7711 CALGARY Suite 3300, 421 7th Avenue SW Calgary AB T2P 4K9 Tel: 403-260-3500 Fax: 403-260-3501 Toll-Free: 1-877-244-7711 TORONTO Box 48, Suite 5300 Toronto Dominion Tower Toronto ON M5K 1E6 Tel: 416-362-1812 Fax: 416-868-0673 Toll-Free: 1-877-244-7711 MONTRÉAL Suite 2500 1000 De La Gauchetière Street West Montréal QC H3B 0A2 Tel: 514-397-4100 Fax: 514-875-6246 Toll-Free: 1-877-244-7711 QUÉBEC Le Complexe St-Amable 1150, rue de Claire-Fontaine, 7e étage Québec QC G1R 5G4 Tel: 418-521-3000 Fax: 418-521-3099 Toll-Free: 1-877-244-7711 UNITED KINGDOM & EUROPE 125 Old Broad Street, 26th Floor London EC2N 1AR UNITED KINGDOM Tel: +44 (0)20 7786 5700 Fax: +44 (0)20 7786 5702

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