Guide to the Supreme Court of Canada Hearing in Little Salmon/Carmacks First Nation v. Yukon

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A short summary of the facts is posted on the Supreme Court of Canada website.

The video webcast is on the Supreme Court of Canada website.

Here is a guide to that webcast, with the arguably most important segments marked in red:

0:00:00  judges enter the courtroom and Chief Justice McLachlin introduces the counsel for the parties. 

[On a side note: There is one unfortunate "blooper" in this opening, as Chief Justice McLachlin introduces Mr. Arvay as representing the "Kwanlin Dun First" and then looks up, appearing confused.  Perhaps the word "Nation" was missing from the pages from which she was reading, but it still seems an unfortunate error in the context of an Aboriginal law case where one might even guess that a party was more likely to be a "First Nation" than just a "First".  I of course note this with nothing other than the greatest of respect for the Court and its judges, and a little slipup can happen to anyone, but I nonetheless worry what a party watching the webcast might think.]

0:02:30 Argument of Mr. Scott Armstrong for the Yukon government.  From 0:02:30-0:27:00, one can get a clear sense of the Yukon government's aspirations for certainty in the agreement, as well as a number of concerns the judges are raising with this argument.  From 27:00-37:00, the tape randomly goes into French and anglophone viewers who do not understand French will have a problem; that said, there ceases to be a lot new in the argument.  There are some major interchanges with judges around 49:30 and 1:00:00.

[On one more side note, there is another unfortunate "blooper" in this part, when around 41:40 Justice Abella interjects to ask a question about "section 35...of the Charter".  Again, anyone can have a little slipup and most of us are fortunate enough not to have ours instantly put on webcasts.  But it's still too bad when we all spend endless time in our constitutional law classes trying to get students to realize that s. 35 is outside the Charter and why this is important.]

1:05:00-1:15:00 Mr. Mitchell Taylor for the Attorney General of Canada - in ten minutes, he explains a number of points concerning the value of the kind of resolution reached in the treaty and asking the Court not to make further decisions on the duty to consult in this case.

1:15:00-1:25:00  The argument of the Attorney General of Quebec invites thought about the implications of the decision in the case for other modern treaties and whether governments will continue as readily to enter into treaties if they then face further obligations thereafter.

1:25:00-1:35:00  The argument of the Attorney General of Newfoundland and Labrador offers a few further examples and ideas to somewhat the same end.

1:35:00 to 1:54:30 MORNING COFFEE BREAK - tape keeps running - anyone watching will want to skip this!

1:55:00 to 2:15:00 Ms. Jean Teillet begins argument for Little Salmon/Carmacks First Nation.  She frames the factual context from a First Nation perspective at
1:57:00 to 2:01:00 before ending up into various difficulties on questions from the judges.

2:15:00 to 3:06:00 Mr. Arthur Pape continues argument for Little Salmon/Carmacks First Nation.  From 2:23:00 to 2:46:00, he is into various challenging questions from the judges, with close to a majority of the Court seemingly doubtful of some of his claims.
2:48:30 to 2:52:00 Justice Binnie asks a "question" that lasts close to four minutes.  One can probably take it as reflecting some of his thinking on the case.
2:55:00 to 3:02:00 Chief Justice McLachlin asks practical questions about what Mr. Pape's argument is supposed to mean.

3:06:00 to 3:18:00 Mr. Joe Arvay presents argument for the intervenor Kwanlin Dun First Nation.  The argument is almost inaudible on the webcast version and a number of dimensions of it might raise concerns for parties thinking of presenting to the Court through the remote telecast format.  Mr. Arvay's argument is essentially that the Crown's disposition of land is the exercise of a power outside the treaty that affects treaty rights and is thus subject to the duty to consult.

3:19:00 to 3:28:00 Mr. James Aldridge presents argument for the Nunavit Tunngavik.  He argues that the honour of the Crown is not satisfied by merely following the terms of a treaty and that clear and plain language would be needed to reshape the duty to consult.  He tries to draw some analogies to marriage and divorce that Justice Abella challenges him on.

3:28:45 to 3:35:00 Mr. Brian Crane appears for the Gwichin Tribal Council and Sahtu Settlement and offers a few quick points of interest.

3:35:00 to 5:02:45 LUNCH BREAK - tape keeps running (though we do not see what anyone eats for lunch...) - viewers will want to skip this.

5:03 to 5:14:30 M. Jean-Sebastien Clement appears for the Grand Council of the Crees, with the translation shutting off for part of his presentation.  The argument is mainly that modern treaties will not cover everything and the Court's intervention remains justified.

5:15:00 to 5:23:50 Mr. John Donihee appears for the Tlicho Government, discussing implications for the very similar Agreement there.

5:24:00 to 5:34:00  In an example of some very fine Supreme Court advocacy, Mr. Robert Janes argues on behalf of the Te'mexw Nations.  He challenges the use in portions of the discussion of analogies to commercial agreements.  He discusses the relationship of the duty to consult to administrative processes.  And he makes several important points concerning the negative effects on modern treaty negotiations if the duty to consult does not continue to apply after a treaty is signed.

5:34:00 to 5:44:00  Mr James Coady appears for the Council of Yukon First Nations, reiterating some of the points presented on the respondent side.

5:44:00 to 5:55:00 Mr. Peter Hutchins appears for the Assembly of First Nations to skirmish a bit with the Attorney General of Canada, although while raising an argument that seemingly did not belong in the case, having filed late for leave to intervene, and offering an argument that is apparently unclear to the judges.  There may be more to what is happening here that is not apparent from the webcast, but on the face of it, it appears that this intervenor has not made the contributions that it could have.

5:55:00 to 6:17:00 Rebuttals on the appeal and cross-appeal - adds a few details on the exact processes but not the most compelling minutes of footage to round out the case.

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