An Interview with Thomas Isaac

Thomas Isaac is a partner at Cassels Brock & Blackwell LLP based in Vancouver. He specializes in Aboriginal law, representing a range of clients on Indigenous-related matters and appearing at every level of court, including the Supreme Court of Canada. He received an LL.B. from the University of New Brunswick and an LL.M. from the University of Saskatchewan.

Beginning a Career in Aboriginal Law

Isaac first became interested in Aboriginal law in school. "I went to university primarily in the 80s, and there weren't that many Aboriginal law courses," he says. However, he happened to attend St. Thomas University, where he met then-professor Graydon Nicholas, later the first Indigenous Lieutenant Governor of New Brunswick. Nicholas, of Maliseet descent, taught a Native Peoples and the Law course that Isaac took in 1985. "You've got to remember, in 1985, the Charter was just coming into effect," Isaac notes. When first implemented in 1982, there was a three-year hold on the implementation of s.15, which provides for "equal treatment before and under the law, and equal protection and benefit of the law without discrimination." As such, Isaac began his studies at a time when there were no constitutional protections for the equality of Indigenous peoples. "Dealing with the collective rights of a disadvantaged group – it was constitutional law, dealing with human rights, with a political element to it," he says.

Because of these intersecting fields, Isaac was drawn to the subject matter. His passion developed from the complexity of his course materials, and he went on to pursue this interest in his graduate studies. He obtained a Masters in Political Science at Dalhousie University, focusing his work on the Cree-Naskapi Act and constitutional protection of self-government. He then obtained an LL.B. and went on to an LL.M. program focusing on Aboriginal and constitutional issues. Isaac says the key to his career has been his passion for this area.

Litigation in Aboriginal Law

Although Isaac has appeared before every level of court, he does not think of himself as a litigator. "You know, I didn't start off saying, ‘I want to be a litigator’,” Isaac notes. "I actually think of myself as a person who specializes in Aboriginal law, which may include litigation. I do a lot of regulatory tribunal work as well." Still, Isaac explains that there are features of Aboriginal law present in litigation. "There's very much a theoretical element to this area of law, a very strong theoretical element, that has yet to be tested," he says. Since this is a new legal field, there are still relatively few court decisions to guide legal arguments.

Isaac highlights that nearly all the leading decisions in Aboriginal law focus on section 35(1) of the Constitution Act, 1982, which states that “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” Given that there are so few decisions, with the majority addressing one topic, there is much litigation work that remains to be done. "We're still in the infancy of understanding Aboriginal law in this country," which keeps Isaac excited. Isaac stresses that Indigenous laws and legal customs are based on historical realities, so while Aboriginal law is a new issue for common law courts, it is not a new subject in and of itself.

Isaac says that one of the most important features of litigation in Aboriginal law is the ability to achieve justice. He breaks this down into two elements: the ability of the legal system to achieve justice for historical wrongs and to make just decisions that place the burden of reconciliation on the Crown. Isaac emphasizes that there are many historical and systemic wrongs against Indigenous people that the legal system must reconcile, highlighting the Missing and Murdered Indigenous Women and Girls crisis and the residential schools.

Isaac also notes that justice can be achieved through legal decisions written to illustrate the Crown's obligations. "The burden is on the government – not the courts, not industry, not private citizens, and not Indigenous peoples, but public governments to reconcile Indigenous interests with competing societal interests," he says. "As simple as that statement is, we have much work to do on that front."

Challenges in Aboriginal Law

Isaac says that one of the biggest challenges in his field is the ongoing difficulty of reconciling Indigenous legal traditions with the Canadian common law legal system. Indigenous peoples discovering or rediscovering their legal traditions and moving forward as Indigenous governments present a unique problem for the courts, which have historically discounted these traditions. Some of the most famous Aboriginal law cases have touched on this issue. In Tsilhqot’in Nation v British Columbia, the Court had to grapple with a test for Aboriginal title that seemingly excluded nomadic Indigenous peoples because they could not meet the continuity of occupation component of the test. Similarly, Delgamuukw v British Columbia confronted the question of whether Canadian courts should use oral histories as evidence of the plaintiff's relationship to the land. In both cases, the Court had to determine how to reconcile the Indigenous tradition with the common law system. Isaac foresees this issue becoming more relevant in future cases.

Another challenge is determining whether the government is effectively discharging its burden of reconciliation. While Isaac acknowledges that this topic may, at first, seem more political than legal, he says that "it is legal. It goes back to s.35 [of the Charter]; it's core to understanding reconciliation, and finally, it's core to understanding the honour of the Crown." The honour of the Crown is a constitutional principle that originated with English courts’ attempts to ensure the sovereign treated all subjects fairly. Today, this principle has been applied by the Court to the Crown’s relations with Indigenous peoples and informs the duty to consult. Isaac says that the fact that the Supreme Court of Canada has used the honour of the Crown to illustrate its obligations to the Indigenous peoples of Canada is poignant: "It's the embodiment of reconciliation," he says.

Isaac’s Practice and Limitations

Isaac shares that he feels privileged to work with his team. "I work with a lot of very talented individuals in a very large litigation team in this area, and we're very proud of our litigation work," he says. Isaac is fully aware that his legal work is subject to the constraints of the Canadian common law legal system, which occasionally means he must advise potential clients that he may not be able to meet their needs. For instance, he says that "some Indigenous governments don't believe that they are necessarily subject fully to the Canadian Constitution," on account of historical legal disputes emanating from many Indigenous claims to sovereignty. "They have every right to take that position," Isaac says, "but I wouldn't be the best counsellor for them because I'm operating within the Canadian legal system." Isaac believes every aspiring lawyer should understand there are limits to what the law can achieve. But you should still pursue your area of interest. "You want to be comfortable with what you're doing, and that's a personal, obviously a personal journey," he says. "Bring whatever passion you have to whatever it is you're doing."