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

McCarthy Tétrault LLP / mccarthy.ca 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

McCarthy Tétrault LLP / mccarthy.ca 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

McCarthy Tétrault LLP / mccarthy.ca Non real time litigation ¬Consider it first

McCarthy Tétrault LLP / mccarthy.ca 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

McCarthy Tétrault LLP / mccarthy.ca 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

McCarthy Tétrault LLP / mccarthy.ca 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

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

McCarthy Tétrault LLP / mccarthy.ca 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

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

McCarthy Tétrault LLP / mccarthy.ca 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

McCarthy Tétrault LLP / mccarthy.ca 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

McCarthy Tétrault LLP / mccarthy.ca 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

McCarthy Tétrault LLP / mccarthy.ca 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

McCarthy Tétrault LLP / mccarthy.ca 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

McCarthy Tétrault LLP / mccarthy.ca 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

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

McCarthy Tétrault LLP / mccarthy.ca 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.

McCarthy Tétrault LLP / mccarthy.ca 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.

McCarthy Tétrault LLP / mccarthy.ca 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.

McCarthy Tétrault LLP / mccarthy.ca 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.

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