The first four weeks of the trial were to be heard in Thunder Bay. So when we were invited to attend a Sweatlodge in the middle of winter, we all went.
PRINCIPLES IN THE PROFESSIONAL DISCIPLINE OF INDIGENOUS LAWYERS: A COMMENT ON
Abstract
I INTRODUCTION
Before going further, however, I emphasize that the panel reached the result in McCullough by applying both Gladue principles and the express commitment to conciliation by the Law Society of Ontario.7 It is unclear from the panel's reasons in McCullough or Gladue principles would have had the same impact on punishment in the absence of such an express commitment. What was "unique"—indeed, "truly extraordinary and compelling," in the panel's opinion—in McCullough was the circumstances and background of the attorney, which led to the unusual penalty of suspension instead of the presumptive penalty of revocation for embezzlement .13 These circumstances included "cultural displacement",14 "experiences of hardship, disadvantage and violence",15 her adoption of four nieces and nephews (who would otherwise have gone into child protection),16 the "significant stress" - financial and otherwise—from the support of family members,17 and her largely indigenous clients.18 Indeed, the. See also paras drug history, violence; murder of the lawyers' daughter and subsequent trial; depression).
In other words, while Gladue principles make it possible to rebut the presumption of revocation, specific evidence ("remarkable, extraordinary personal circumstances of the wrongdoer") will be required for that possibility to engage.21 More specifically, those circumstances must "rise to the level where it will be apparent to other members of the profession, and to the public, that the underlying circumstances of this individual clearly preclude the need to provide them with assurances of the integrity of the profession."22 The panel displaced the presumptive penalty of rescission as an exercise of The panel noted that "no customer actually lost money nor was tangibly deprived of any money."24 As for remorse, it is worth to repeat the words of the panel: "[s]he is deeply remorseful and admits that after 30 years of "an impeccable practice".
III DISCUSSION
On this basis, disciplinary counsel could have argued that the panel in McCullough should have decided for itself whether the Gladue principles were properly applied or should have expressed unease or doubt about whether Robinson remained good law. Thus, it is notable that both disciplinary counsel and the panel in McCullough did not interpret Kokopenace or Anderson as weakening the applicability of the Gladue principles in the context of professional discipline of Native lawyers. Given that the Law Society's disciplinary advisers in McCullough accepted that the Gladue principles apply to the discipline of Indigenous lawyers, it seems unlikely that the same question of law will come before an appeal panel of the Law Society Tribunal or before the Divisional Court on judicial review in future.
While the specific effect of Gladue principles will depend on the circumstances of the individual case, the effect of those principles in McCullough is greater than in any of the three previous Bar Association disciplinary decisions applying the Gladue principles. Fourth, in McCullough a Gladue report was filed by counsel and relied upon by the panel.
IV REFLECTIONS AND CONCLUSION
Finally, and more broadly, McCullough is the second Law Society Tribunal decision in 2022 in which a hearing panel appeared to soften the application of the presumption of revocation for misconduct involving dishonesty. While the appellate panel in Law Society of Ontario v. Wilkins held that the presumption "is essentially inexcusable," 47 the hearing panel in McCullough quoted with approval from the hearing panel's reasons in Suzor that the presumption "is not without mercy." 48 This call for mercy, along with compassion,49 suggests that the Court of Justice may be more willing to substitute the presumption of revocation in future decisions. Apparently, the penalty would be sufficient to maintain the confidence of the injured clients, as members of the general public, in the profession.58.
Thus, while conciliation in general and the Gladue principles more specifically may remain controversial in some corners of the public and the media,59 the provision suggests that the Law Society Tribunal and the Law Society's disciplinary counsel believe that these principles should be accepted , and indeed, are now accepted. from the general public, such as the importance and appropriateness of "compassion and mercy":60. Most importantly, they [factors related to Gladue's principles] rise to the level where it would be clear to other members of the profession and to the public what is underlying.
INDIGENOUS PROJECT SUPPORT AND THE GRASSY MOUNTAIN PUBLIC
INTEREST DETERMINATION
ABSTRACT
A joint review panel made up of federal and provincial chairs ruled the project is not in the public interest due to the potential negative impacts on western slope cutthroat trout. This article provides a clear discussion on how we can more fully and courteously consider Indigenous support for projects. It suggests ways in which the law can be developed, and it proposes means by which indigenous nations can gain greater recognition in their support of major projects and, relatedly, how administrative actors can better take into account indigenous interests.9 The Grassy Mountain decision is an effective platform for this.
For example, this paper does not discuss the interplay of state and indigenous legal rules when dealing with extractive resource projects. The author also recognizes that Indigenous concerns are as diverse and unique as Indigenous nations themselves and appreciates that, as a case study, the circumstances of the Grassy Mountain Project may not be representative of all public interest determinations.
II THE GRASSY MOUNTAIN COAL PROJECT A. The Grassy Mountain Project
The Decision of the Joint Review Panel
The report describes in 657 paragraphs the panel's consideration of the project's impact on the relevant 14 indigenous nations. The panel agreed that the project would have an overall positive economic impact, but could not assess the socio-economic impact due to the confidential nature of the impact benefit agreements. Overall, we conclude that the project is likely to result in significant adverse environmental impacts on westslope cutthroat trout and surface water quality, and that these adverse impacts will outweigh the low to moderate positive economic impacts of the project.
In paragraph 9, the panel notes that “as part of our review of applications made to the AER, we must consider the potential impacts of the project on the rights and interests of indigenous peoples.”26 The panel then discusses the impact on indigenous peoples. peoples in minute detail over 657 paragraphs. Government of Alberta, “Restatement of Coal Policy 1976”, online:
The Decision of the Court of Appeal of Alberta
III THE CONSULTATION GAP
- The Haida Nation Framework
- The Duty to Consult Must Apply Necessarily
- A Unidirectional Duty to Consult Leaves Rights Unprotected
- The Right to Self-Determination
- Economic Rights
- Mineral Rights
- A Note on the Duty of Fairness
Since its inception, courts have relied on section 35 to ground various indigenous legal doctrines, such as aboriginal rights, the honor of the crown, the duty to consult and accommodate, and the necessity of reconciliation. Indeed, this approach is exemplified in a recent appellate case challenging a lower court's application of the duty to consult. Indigenous peoples possess a right to self-determination, and increased judicial recognition of the right to self-determination provides a significant positive and justified refinement of the existing legal structure.
Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Winnipeg: Commission, 2015). Ermineskin argued that the work stoppage would diminish, delay or eliminate the benefits of the IBAs. Justice Fisher, also of the BC Supreme Court, agreed and ordered the minister to consult with DAFN.
For an Indigenous nation promoting a new use of the duty to consult, perhaps elements of their argument fit similarly with the duty of procedural fairness.
IV THE DETERMINATION GAP
Reconciliation is a Required Public Interest Consideration
The nations agreed to build the lines in exchange for an ownership option. The Alberta Utilities Commission approved the sale, ruling that the transfer was in the public interest, provided the lands would bear the costs of the external auditor and hearings. This includes considering the interests of indigenous peoples in participating freely in the economy and having sufficient resources to effectively self-govern.”118.
First, the decision maker must be cognizant of the fact that indigenous nations have a unique constitutional status among those considered in determining the public interest, and accordingly their interests must carry significant weight. In the Grassy Mountain case, both the panel and the appeals court noted that the panel was left without detailed information about the project's economic impact on the reservation, and ultimately concluded that the economic benefit was low to moderate.
Meaningful Consultation Demands an Accounting of Competing Considerations
The impact on public interest provisions of the right of self-determination and the necessity of reconciliation is that we must accept that indigenous nations are capable of determining for themselves whether the opportunities outweigh the risks, and decision makers must take the answer to that question at its highest. Keep in mind that trout received almost as many mentions as paragraphs in the report, while indigenous concerns were summed up in just five. Especially under those circumstances, the panel should have spoken directly to the indigenous nations in their reasons.
At what point would the wishes and potential mitigation measures of the indigenous nations outweigh the trout and tip the scale of public interest toward approval? All these questions come together to answer one fundamental question: how was self-determination taken into account, not only in the presentation of evidence, but also in the final conclusion?
V CONCLUSION
One can look to Vavilov.128 The methodological principles involved in the drafting of reasons are the same whether the parties are indigenous or non-indigenous - only the stakes are higher with the former because, as Hamilton and Kislowicz describe, Vavilov ' a broad application of appellate standards to the duty to consult.129 Put differently, the administrative actor's reasoning must be correct, and their reasons must be justified, transparent and understandable.130 While a decision-maker does not have to respond to every argument or explicitly a finding on each constituent element of his decision, he must grapple with the central arguments raised by parties to show that he was alert and sensitive to the matter before him.131. The reasons in Grassy Mountain demonstrate why reasons are so important, as they show the exact overshadowing or displacement of indigenous issues that the Supreme Court warns us about. It was clear years before the final decision that trout would be the decisive issue and that government policy was decidedly against coal development, whether metallurgical or thermal.
Administrative decision-makers must answer this question explicitly and unequivocally if justice is to be done and seen to be done.