J. DE WHYTELL LAW
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The honour of the Crown is always at stake in its dealings with Aboriginal peoples. At J. de Whytell Law, we pursue justice in keeping with the original sacred agreements between Crown and Indigenous governments.
(R. v. Badger, [1996] 1 S.C.R. 771, at para. 41; R. v. Marshall, [1999] 3 S.C.R. 456)
J. de Whytell Law works closely with Delia Opekokew, IPC, LLD, to research and analyse potential claims and provide counsel to First Nations seeking to negotiate or advance claims under the Specific Claims Tribunal Act.
In 2015, the Specific Claims Tribunal confirmed it has jurisdiction to hear claims on the basis of the failure to provide “lands or other assets under a treaty” in accordance with s.14(1)(a) of the Specific Claims Tribunal Act. (Beardy’s & Okemasis Band #96 and #97 v. Her Majesty the Queen in Right of Canada, 2015 SCTC 3)
Many First Nations have not received lands or other assets they are entitled to, including agricultural and economic benefits, the means to a livelihood, access to traditional territories, etc.. Often, land bestowed was of poor quality and of far less quantity than that guaranteed under the Treaty.
The Specific Land Claims Tribunal allows a forum for objections to be heard in response to breaches of the Crown’s fiduciary duty with regard to Treaty promises.
Claims can be negotiated when the Crown accepts liability or the matters can proceed to trial to be heard at the Specific Claims Tribunal, where liability is denied.
Individual and collective inherent rights for Indigenous peoples are constitutionally recognized in Canadian Law. At J. de Whytell Law we act as a check and balance on behalf of, and with Indigenous peoples, to hold Canadian systems accountable when they have breached or infringed on these rights.
At J. de Whytell Law, we have prepared proposition papers, legal opinions, memorandums and presentations on various aspects of legal research in the field of Inherent and Treaty rights advocacy, including the Duty to Consult. We have also defended Indigenous inherent jurisdiction and Treaty rights before the courts.
Aboriginal Law relates to Canadian and Provincial Law as it applies to Indigenous peoples, and encompasses inherent and Treaty rights, as guaranteed within the Canadian constitution and Charter.
Inherent and Treaty rights are affirmed and protected under s.35 of the Constitution Act, 1982, which has led to a significant body of case law and legal jurisprudence about the scope and limits of such rights.
Disputes often arise when provincial/federal prohibitions or license grants to third parties overlap with Inherent and Treaty rights in areas such as hunting, fishing, trapping, gathering and cabin building. Josephine de Whytell has represented individuals, Nations, and Indigenous organizations charged with provincial/federal violations, defending their exercise of Inherent and Treaty rights.
Unjustified assertion of jurisdiction over Indigenous education, health or child protection are other examples where Treaty rights advocacy can be of assistance. We advise First Nations, Tribal Councils, and other Indigenous organizations on how to uphold their Inherent and Treaty rights. This has included Treaty jurisdiction, Nation Rebuilding and revitalization of Indigenous institutions.
Different identities do not confer different rights. At J. de Whytell law we fiercely advocate on behalf of individuals whose human rights have been violated. We seek to broaden the discussion surrounding the human rights of Indigenous and marginalized peoples with a desire to practice law that better reflects the experience of Indigenous and marginalized peoples and provides trauma-informed understanding and guidance.
J. de Whytell Law provides legal advice to individuals, organizations and First Nation governments regarding the protection of human rights.
We care about ensuring all children are treated equally before and under the law, including in respect of the policies and principles applied to their safety and protection.
Indigenous child-welfare illuminates one aspect of injustices Indigenous peoples are currently battling against. In the face of this humanitarian crisis, J. de Whytell Law has three aims: to prevent the unnecessary removal of Indigenous children from their families and cultures, to bring together families who have been dramatically separated from one another, and to reform the systems that separate them.
Indigenous communities have long suffered the consequences of disparities between westernized approaches to child-welfare and traditional methods of parenting and child protection. The legacy of Residential Schools, the 60’s Scoop, the application of culturally inappropriate provincial law, and intergenerational trauma is a stain on the Canadian conscience that requires true reconciliation.
At J. de Whytell Law, we have experience working, both for Indigenous child protection agencies, as well as on behalf of Band Representatives with standing. We acted as co-counsel for the Association of Native Child and Family Service Agencies of Ontario at the National Inquiry into Missing and Murdered Indigenous Women and Girls, under the guidance of Katherine Hensel of Hensel Barristers, and have experience in child welfare policy, legislation, and day-to-day court applications.
At J. de Whytell Law, we are dedicated to advancing self-governance and inherent jurisdiction in keeping with the dignity and sovereignty of Indigenous governments.
J. de Whytell Law has experience preparing funding applications under the Nation Rebuilding Program and assisting Nations to develop Work Plans to realize their goals towards pursuing greater self-governance. In addition, J. de Whytell Law has prepared educational materials and presentations on various aspects of self-governance, including the realization of rights under the United Nations Declaration on the Rights of Indigenous Peoples.
Indigenous inherent rights to self-government were never ceded to the Crown, and were in fact protected under various Treaties. Despite this, the Indian Act has remained “a tree with deep roots”, under which many First Nations have suffered arbitrary enforcement of provincial law without proportionate representation in the creation of such legislation. Moreover, provincial laws that apply have been found to be culturally irrelevant and even discriminatory.
Indigenous peoples’ inherent rights to self-governance are affirmed in the Constitution Act, 1982 and recognized and supported by the United Nations Declaration on the Rights of Indigenous Peoples.
First Nation Self-Governance can take many forms, including the creation and adoption of Indigenous laws governing areas of local jurisdiction, and the development of capacity to take on a greater role in managing and protecting Indigenous resources.
We recognize the importance of ensuring self-government in the manner of selecting Indigenous governments, and tailor our services to advance Indigenous democracy in keeping with traditional practices and protocols.
J. de Whytell Law has experience in drafting and revising First Nation Election Codes based on community consultations and the inherent laws of the Nation, as well as litigation at Federal Court with regard to Election Appeals.
Many First Nations have opted out of the Indian Act with regard to their governance and election processes. First Nations have either elected to adopt and enforce their own Election legislation, or to use the federal First Nations Election Act to support their communities’ democratic rights and select their Chief and Councill.
Elections are often called into question when the Election legislation is either not followed, or where issues arise impacting the appropriate enforcement of democratic principles.
Intervening to protect your interests ensures leading decisions respect your rights.
J. de Whytell Law has experience preparing intervention applications as well as direct experience at the Court of Appeal on behalf of indigenous clients across Canada, including Saskatchewan and British Columbia.
Your livelihood is everything. At J. de Whytell Law, we prioritize your interests and empower you to make the best decisions for your specific needs.
J. de Whytell Law has experience representing both sides of employment law disputes for Indigenous organizations and individuals, as well as individuals whose human rights have been impacted by employment-related decisions.
Interventions and Appeals
Intervening to protect your interests ensures leading decisions respect your rights.
J. de Whytell Law has experience preparing intervention applications as well as direct experience at the Court of Appeal on behalf of indigenous clients across Canada, including Saskatchewan and British Columbia.
Employment Law
Your livelihood is everything. At J. de Whytell Law, we prioritize your interests and empower you to make the best decisions for your specific needs.
J. de Whytell Law has experience representing both sides of employment law disputes for Indigenous organizations and individuals, as well as individuals whose human rights have been impacted by employment-related decisions.
Public Inquiries, Inquests, Justice and Policing
Perspectives of justice are fundamentally important to ensuring equality in justice. At J. de Whytell Law, we embody our duty to be zealously partisan to our client’s interests, leaving no stone unturned in the search for truth and defence of innocence.
At J. de Whytell Law, we have considerable trial experience in the field of criminal law, and use these skills to advance wider, bigger picture goalsJ. de Whytell Law has experience in high level public inquiries, such as the National Inquiry into Missing and Murdered Indigenous Women and Girls. Over 2,000 witnesses exposed injustices on a national scale rooted in colonialism. The public inquest uncovered a culture of neglect calling the treatment of Missing Indigenous Women and Girls a “Canadian genocide”. The National Inquiry revealed hard truths about the attitudes towards Indigenous peoples within institutional structures.
J. de Whytell Law has experience in coroner’s inquests, including as counsel to the family of Kinew James surrounding the public inquest into her death at the Regional Psychiatric Centre in Saskatoon. This Inquest involved analysis of the treatment of women prisoners, in particular, the combination of physical and mental health issues and institutional responses to same.
Cannabis Law
We respect your right to choose, medicate, socialize, and economize, within the law and Constitution of Canada.
On behalf of the Indigenous Bar Association, Josephine de Whytell made submissions regarding amendments to the Criminal Code of Canada relating to the Cannabis Act before the Senate Standing Committee on Justice and regarding the introduction of the Cannabis Act to the Senate Standing Committee on Aboriginal Affairs.
J.de Whytell Law has experience representing individuals charged under the Cannabis Control Act, Ontario, and has worked closely with Russell Bennett (Author of Canada’s Cannabis Act: Annotation and Commentary) with a view to advancing a religious right to Cannabis.