Mtre James O’Reilly

Mtre James O’Reilly: The Trailblazer
By Mélanie Dugré, lawyer
(Article issued on September 2, 2015) recognition of Mtre James O’Reilly’s outstanding contribution to the cause of justice, the Council has decided, with the support of the Conference of former Bâtonniers, to award the Bar of Montreal Medal to Mtre O’Reilly on the Journée du Barreau, held September 10, 2015.

For the Batonnière, Mtre Magali Fournier, “Mtre O’Reilly is a real fighter. His contribution to the development of Aboriginal Law, which was in its nascent stages at the time, makes him a pioneer and in itself warrants the highest distinction from The Bar of Montreal.”

James O’Reilly’s incredible mission in the area of Aboriginal Law began in a skating rink, where, at a much younger age, he played hockey with the Mohawks, a sport that enabled him to build lasting friendships with members of the Mohawk community. Born of an Irish father who was a police officer and a Quebec mother who was a teacher, James was educated at Loyola, before pursuing his law studies at McGill and being admitted to the Barreau du Québec in 1964. Law was a natural choice for Mtre O’Reilly, a student of philosophy and logic, as well as a history buff.

After a short stay in Quebec City, during which he obtained a Graduate Diploma in Law and worked for the government on the 1964 revised statutes project, he returned to Montreal with his better half and joined Martineau Walker once again, where he had completed his articling. As soon as he arrived, he was approached by Andrew Delisle, Chief of Caughnawaga, who wanted to assign a mandate regarding a Saint Lawrence Seaway expropriation file as well as the revision of their by-laws.

James O’Reilly dove in head first; little did he know that his career had just been steered in the direction of Aboriginal rights. Back then, this area of the law was in its infancy compared to modern times because the First Nations had just started to organize themselves in various associations across Canada. In particular, the Indians of Quebec Association was created, which contributed to the fame of the Indians of Canada Pavilion at Expo 67.

In 1966, James devoted half of his time to Aboriginal affairs, which then grew to take over his entire practice in 1972, making him one of the first three lawyers to focus completely on these types of files. During those six years, he travelled across Canada and met with various Aboriginal peoples in his capacity as legal advisor to the national research committee of the national aboriginal organization in order to identify and better understand their claims.

In 1972, James decided to leave Martineau Walker because the law firm was now representing the interests of the James Bay Development Corporation, against which the Aboriginals were getting ready to fight a pitched battle concerning the projects undertaken by Hydro-Québec. James O’Reilly’s eyes shine when he talks about the highlights of this judicial saga, and more specifically about the hearing presided by the Honourable Mr. Justice Malouf in 1973 concerning the motion for an interlocutory injunction. James decided then to adduce evidence from more than 35 Cree and Inuit witnesses, who were not aware of any of our rules of law and had never experienced life outside their territories. Some of them, who reacted violently to our food, brought their own provisions, as evidenced by a few dead birds and seals stored in hotel bathtubs. James O’Reilly also remembers memorable preparatory meetings for the witnesses, with Max Gros-Louis playing the role of the judge. The rest became history as these witnesses filed in one by one before the Court, telling the Court about their customs, culture and way of life as hunters and fishers. Mr. Justice Malouf granted the injunction after having found that the Aboriginal peoples actually had rights and not solely privileges. This judgment was reversed by the Court of Appeal six days later, and the Supreme Court, on a vote of three judges against two, refused to hear the Crees’ appeal.

Long, and sometimes arduous, negotiations of the James Bay Agreement then followed, during which James O’Reilly crossed swords with John Ciaccia and was identified as a champion of Aboriginal sovereignty. The James Bay Agreement paved the way for more than 75 agreements between the Indigenous people, the governments and the developers, which were negotiated and entered into in subsequent years.

At the end of the 1970s and during the 1980s, James O’Reilly acted in a more official capacity on behalf of the Mi’kmaq in Newfoundland and Aboriginal peoples in Western Canada. With the former, he helped to obtain recognition of Indian rights from the government and participated in creating the first reserve on the mainland. Then, in 1980, intrigued by the old treaties in Western Canada, James stood up for the Lubicons, a tribe in Alberta that had been waiting 48 years for reserve status for a territory measuring 234 sq. km that it had never relinquished but which the oil companies had begun to exploit. Proceedings extended over a number of years and in 1988, they culminated in a refusal on the part of the Lubicon Nation to recognize the jurisdiction of the courts of Canada to rule on Aboriginal rights. However, in the 1990s, five major judgments from Western Canada were rendered in favour of the Aboriginal peoples, providing a new impetus to the movement and an opening for their claims.

Obviously, James O’Reilly played a leading role in the events surrounding the Oka crisis in the summer of 1990. During this incident, he became a veritable media star and was the subject of media coverage and articles published and circulated around the world. In response to the praise and criticism, he insisted at the time that he was merely a faithful messenger because he firmly believed in Aboriginal nationalism, saying that sovereignty was something that you carried in you. The November 1990 issue of the French-language magazine Actualité reported that of all the uncompromising supporters of the Indian cause, few white men had gone as far as he.

Developments after the year 2000 confirmed the duty of governments to consult the Aboriginal peoples about projects concerning them and involving their territories, as well as their obligation to make accommodations in certain circumstances. All told, James O’Reilly relates a career punctuated with great passion, but also with bitter defeats, and in particular the defeat in the Supreme Court in 2008, when the country was immersed in a financial crisis. Seized with the issue of the government’s fiduciary duty with regard to the administration of royalties received as a result of oil production operations on Aboriginal lands, the highest court in the land ruled that the government’s responsibility consisted of taking into account the interest of all Canadians, without priority for Aboriginal peoples.

James O’Reilly’s office is filled with mementos of the great moments in his astounding and atypical career. Collages of caricatures published during the Oka crisis, maps of the huge aboriginal territories in North America, a photo of the members of the Federal Court sitting in 2000 on the Samson Reserve between Edmonton and Calgary, and gifts from band chiefs, ranging from traditional costumes to symbolic objects. And in the middle sits a figure who is larger than life and has so much to tell about his life experiences among all these peoples who are little understood by White People. James points out that the Aboriginals infinitely respect and are deeply attached to their original territory; they consider themselves to be the managers rather than the owners of their land since ownership is an arrogant concept to them. They are individuals with immense spirituality, where parallel worlds and the power of superior beings play an important role. These peoples, among whom women have significant influence in all aspects of the community, are guided by collective rather than individual values, dominated by solidarity and sharing. For James O’Reilly, the Aboriginal peoples will always be a very great source of inspiration and reflection on life and humanity.

The piles of documents in James O’Reilly’s office show that he is not yet finished with the Aboriginal cause. Even though his name has definitely been etched in the annals of history as a trailblazer, the man himself is not yet ready to retire as a legend; indeed, we have not heard the last of him yet.