is on the Supreme Court of Canada website.
is a guide to that webcast, with the arguably most important segments
marked in red:
0:00:00judges enter the
courtroom and Chief Justice McLachlin introduces the counsel for the
[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.
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.]
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.
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
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.
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.
to 5:34:00In 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
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.