by Shelley Bentley

The CBABC sponsors 73 Sections which play a vital role in keeping members informed both on changes in the law, and legal and political issues affecting a given area of practice. They are the main resource utilized by the CBABC in legislative review, law reform initiatives and in responding to matters affecting the profession. What follows is a sample of the recent activities of some Sections.

Aboriginal Law-Vancouver
The new First Nations Governance Act, Bill C-7, was introduced in the House of Commons in June, 2002, died on the Order Table and was reintroduced in the Fall of 2002. Cabinet agreed to send the Bill to a Parliamentary Committee after the First Reading at which time a formal consultation process began that focused on: legal standing and authorities; leadership selection and voting rights; and accountability.

James Aldridge, QC, Co-Chair of a Joint Ministerial Advisory Committee providing technical advice to the Minister of Indian Affairs and Northern Development in respect of Aboriginal governance, addressed Section members on the new Bill and treaty negotiation processes. He said there are a number of different processes underway in Canada in which Aboriginals are negotiating agreements over various aspects of self-government. These processes vary according to their focus, e.g., an inherent right policy, a comprehensive land claims policy, the First Nations Land Management Act, or a hybrid such as that developed in B.C. Mr. Aldridge commented that implicit in these processes is the idea that a range of solutions to the difficult issues raised by self-government is inevitable in a country such as Canada. These processes recognize that lasting solutions can only be found when each Aboriginal band is directly involved in designing and affirming the details of its own self-government regime, and its ongoing relationship with the Government of Canada.

The basic underpinnings to the reform initiative were reflected in the Committee’s instructions that amendments introduced by the Bill must:

• Not infringe existing Aboriginal or treaty rights;
• Not alter the fiduciary relationship between the Crown and Aboriginals;
• Be consistent with the Canadian Charter of Rights and Freedoms, including section 25;
• Maximize the ability of bands to determine their own governance regimes with basic rules of political and financial accountability to apply to all bands; and
• Not impose requirements on bands that would be impossible for small bands with few resources or capacity.

Criminal Justice-Vancouver
B.C. lawyers involved in human rights legal work overseas described their experiences at a recent meeting.

Vancouver criminal lawyer, Howard Rubin, spoke about his work as an observer at foreign trials and described opportunities for others to assist in this important area, as an accredited observer with Amnesty International or as a lawyer with “Lawyer’s Rights Watch.” He described a trial he attended in Singapore and noted how the attendance of foreign lawyers reporting their observations often has a chilling effect on some of the more outrageous aspects of these proceedings. For example, Karpal Singh, a lawyer, was charged with sedition in Malaysia arising from his defence of former Deputy Prime Minister of Malaysia, Anwar Ibrahim. Mr. Rubin explained that Mr. Singh had the “temerity” to complain about his client being poisoned while in custody. Local authorities viewed this as an attack on the State and charged him. A number of Vancouver lawyers were slated to attend the trial. It was adjourned. Other Vancouver lawyers were scheduled to attend the rescheduled trial. The trial was adjourned again. The government later dropped the charges.

Dirk Ryneveld, QC, discussed his experiences at the International Criminal Tribunal for the former Yugoslavia at The Hague. Prior to his appointment in 1999 he was a senior Crown prosecutor in Victoria. The Tribunal was established to investigate and prosecute war crimes committed in Bosnia, Croatia and Kosovo. Mr. Ryneveld was the senior attorney for the Kosovo component of the trial of Slobodan Milosevic, former President of Yugoslavia and the Serbian Republic. See page 19 for a Q & A with Dirk Ryneveld, QC.

Vancouver Crown Prosecutor, Nicola Mahaffy worked from July 2001 until May 2002 in Kosovo under the UN mandate established by Security Council Resolution 1244 – to provide humanitarian assistance, civil administration, democratization and reconstruction to Kosovo. The UN ran the country and justice system with near dictatorial powers until a local assembly was elected in November 2001. Until then Ms. Mahaffy worked in the department of Public Services assisting in the reconstruction of birth and death registries after the mass destruction of records following the Serbian occupation and the subsequent war with NATO. After the assembly elections she joined a team of lawyers and police officers in the International prosecuting office.

Pension & Benefits and Corporate Counsel (joint meeting)
Debra Sing, QC, a partner with Borden Ladner Gervais, and Scott Murtha, manager of the tax department at PricewaterhouseCoopers, Vancouver, spoke to Section members about recent changes in compensation and employee benefits. Their presentation topics included: executive compensation; removing post retirement benefit liability from the balance sheet; retirement compensation for executives over and above the Income Tax Act maximums; pension plan governance issues; pensions issues in a transactional context; and privacy rights in the pension and benefits context.

Changes in executive compensation have stemmed from poor investment returns and the new breed of institutional investor that is becoming active in protecting the rights of the shareholder. One of the main targets of shareholder activism is executive compensation. This has led to a shift away from stock options toward other forms of remuneration. The shift is a result of investors becoming the victims of misleading financial statements where those with inside knowledge “cash out” before the real financial picture becomes public. Alternatives to stock options include forms of “direct share ownership” such as stock grants, share appreciation rights plans, phantom stock plans and deferred stock units, all of which align the financial interests of the directors with shareholders more closely than stock options.

Shelley Bentley is in private practice at G Davies & Company.

This article was published in the August 2003 issue of BarTalk. © 2003 The Canadian Bar Association. All rights reserved.