Wuskwatim Project:

Manitoba Bar Association Mid-Winter Presentation January 27, 2006 – Gladue Panel “The Crown Perspective” – Anthony J. Kavanagh
The 1999 “Gladue” case provided significant direction for all of us in the Criminal Justice System, Crown, Judge and Defence alike. It directs us to consider – at the very least - the aboriginal background of the convicted at the time of sentencing per section 718.2 (e) of the Criminal Code.

When the case first came out, there was the usual misunderstanding by some in the media as to what this meant for aboriginal offenders. Some simplistic initial comments included the notion that somehow, all aboriginals were to get a “free pass” from incarceration. Of course this is not the formulae at all.

What the legislation and the Supreme Court really direct is to ensure that society take account of the unique history of the aboriginal offender. If we are to rehabilitate the offender, and reach the objectives of the Criminal Justice system, we must understand. The best way to do that is by means of what has become the “Gladue Brief”. This paper provides some general insight for and from the Crown but the real “meat” will be the sharing that takes place at the presentation by all the participants.

Learning Consultation: The Crown/Aboriginal Consultation Experience for the Wuskwatim Project

This article was presented by Mr. Gordon Hannon as a CLE at the 2007 Mid-Winter Meeting. It details the development of a First Nations consultation process in order to handle the proposed development of the Wuskwatim Dam and Transmission projects. It considers the fact that the Haida Nation and Taku River framework set out by the court do not necessarily apply in treaty situations which are typical in Manitoba. The article also discusses the findings of the court in Mikisew which did concern a treaty. Furthermore, the article lays out 17 principles that, based on case law, apply to the duty to consult.

Section Reports