First Nations Need Access to Commercial Law

By Malcolm McColl

Economic development is a promising direction for First Nations in Canada, especially since the process has come under close scrutiny from coast to coast. Earlier this year, the University of Toronto Law School hosted a unique forum on First Nation economic development. “I think the most important thing is that everyone recognizes First Nation economic development is a political matter,” said the event moderator.

Holding an economic development conference at a law school should come as no surprise. Commercial law in Canadian life is huge, and until now, seemed strangely inconsequential to First Nations.

Professor Doug Sanderson and other law faculty attended an intriguing luncheon address on day two of the conference highlighted by a speech delivered by Hon. Michael Bryant, Aboriginal Affairs minister, who suggested the need to create commercial law courts for First Nation reserves.

“How much of law in Canada is commercial law, Doug?” Bryant asked.

“Oh, about 60 percent or more,” Professor Sanderson replied. It is this type of law that sews up jurisdictional economics, and it is this law that is unavailable to aboriginal people.

Aboriginal people are born under a completely different set of rules. Does not a single realization come to light that the Indian Act excludes a race of people from the economy by depriving access to commercial law?

First Nation economic development is, in reality, written out of the realm of mainstream economics. A system of trusteeship holds all wealth, and monitored activity on an Indian Reserve has to be decided by a Minister of Indian Affairs. 122 sections of the Indian Act to make this potentate’s role very clear in the lives of aboriginal people. They are not allowed to have money.

Aboriginal economic development became a legal academic exercise with a national focus because the minster of Aboriginal Affairs in Ontario was arresting and jailing elders from Kitchenaumaykoosib Innunwig who protested Platinex Mines. Perhaps, it was out of frustration that the minister spoke to the matter as one of commercial rather than criminal concern. He called for a system to be put in place to accommodate the legal concerns of the stakeholders.

This is a fact of law, that a political document (the Indian Act) apparently deprives First Nations of a legal framework to possess money. The session’s moderator said solutions to these substantial concerns of legality are currently being sought. He believes people are only beginning to meet to address economic matters at the political level. Sanderson added that the situation is made even worse because a “settler versus native” attitude prevails and political issues remain unresolved. He noted the situation at Caledonia (and could have included the mind-boggling threat to personal security undergoing Mohawk people when they go to the store).

Sanderson said, “There are many ways for First Nations and corporate Canada to act together. . .The current political reality demands that thought and speech gravitate around ways to do economic development.” Sanderson also suggested that the best example for a way forward was cited in Minister Bryant’s speech when Bryant raised the subject of the Chocktaw Tribal Council (CTC) in the USA. The CTC has a federally-constituted commercial law court that governs activities under their jurisdiction along the Mississippi. They have American Indian judges and Chocktaw commercial law.