A process for First Nations economic development is missing in Canada, a reality that has come under scrutiny of experienced people across the country. The Summit on Aboriginal Economic Development took place May 1 08, at the Faculty of Law, University of Toronto, and looked at “Aboriginal” economic development including Métis, Inuit, and First Nations.

The theme of the Summit was: “Developing Aboriginal Economies.” A specific discussion about ‘The Commercial Law Aspect’ of First Nation life was introduced during the lunch-time address by Ontario Minister of Aboriginal Affairs, the Hon. Michael Bryant.

The average Canadian may be nonplused about the subject of commercial law, but they all live under its massive weight, and Canadians probably realize that most of the law practiced in Canada is commercial law, unless you are people under the Indian Act, or, Indians. Those people live under a different set of rules.

The Indian Act contains 122 sections devoted to keeping ‘Indians’ out of commercial law, (just kidding) The Indian Act is about what the people on reserves are able to do, and every single activity on an Indian Reserve in Canada has to be decided by the Minister of Indian Affairs, and those 122 sections cast in stone are there to make sure this fact remains very clear, and forms the basis of protection of Indian Lands.

Turns out, the bottom-line, what the University of Toronto decided is that Canadian First Nations need Commercial Law Courts for Indian Reserves. Apparently the Choctaw Tribal Council in the U.S. set a precedent. (These are the people who came down the Trail of Tears.)

It was the Minister Bryant who brought this suggestion to the Summit lunch table.

Here is what the Choctaw have to say about jurisdiction over housing and other buildings on-reserve: Under Choctaw’s constitution, “Jurisdiction is extended over all person or entities within the jurisdiction of the Tribe who sell, rent, lease or allow persons to occupy housing, dwellings or accommodations for the purpose of human dwelling occupation or residence, and all persons who buy, rent, lease or occupy such structures.”

The Choctaw constitution continues, “Such personal jurisdiction is extended over all persons and entities, whether or not they are members of the Tribe, whether they are Indian or non-Indian and whether they have a place of business within the Choctaw Indian Reservation. Any act within the Reservation dealing with the subject matter of this title shall be subject to the jurisdiction of the Tribe.” It all sounds really legal, and here’s why:

Because here is how Jurisdiction in Choctaw land is enforced: “Jurisdiction over all matters arising within the jurisdiction of the Tribe with respect to the subjects of this title and jurisdiction with respect to any person or entity acting or causing actions which are within this title shall be exercised by the Tribal Court of the Mississippi Band of Choctaw Indians.”

Canadian First Nations are not there yet, nevertheless, “There are all sorts of very good working relationships that are already developed," said Chief Glen Nolan, the previous month (Apr 18 08) to the Canadian Institute of Mining, Metallurgy and Petroleum Sudbury branch general membership meeting.

The chief of the Missanabie Cree First Nation told the meeting of miners, "What I'm trying to do is show that we're willing partners out here," that mining companies need to build relationships with aboriginal communities in order for future projects to work.

Nolan then participated at the U of T session on May 1 08. Douglas Sanderson, professor who teaches Aboriginal law and Property Theory in the Faculty of Law at the University of Toronto. Professor Sanderson was the organizer and there were two moderators: Darlene Johnston (U of T) and Shin Imai (Osgoode Hall).

The professor described the event of the May 1 08, "It was very well received," he said, and the people who were there looked at a host of economic development models for various First Nation scenarios.

Rupert Ross participated, the Crown Attorney in Ontario, and author of titles including ‘Dancing With a Ghost,’ an examination of the remarkable disconnect between First Nations and the Canadian justice system, was the opening speaker.

Rt. Hon. Paul Martin, former Prime Minister of Canada, champion of the Kelowna Accord that failed with the fall of his government (which accord was accepted by the Assembly of First Nations Chiefs, but 'dropped' by the present government) spoke at the end of the conference.

Aboriginal economic development as an academic exercise was national in focus, "I think the most important thing is that everyone recognizes First Nation economic development is a political matter," said Sanderson. This is an important distinction to consider. The politics say, essentially one race of the Canadian mosaic is positioned outside the realm of mainstream economics.

This would explain why poverty is the main issue separating First Nations from mainstream Canada, for no opening exists to permit the entry of First Nations into the bulk of Canadian law, which is commercial law. The Indian Act does not allow it.

Sanderson said, the situation is made the worse by the ‘settler versus Indian’ mentality, a split that prevails in the Canadian court system across the nation; as long as the political situations remain unresolved (and while certainly solutions are currently being sought) people are now beginning to address economic matters at the political level.

The term in vogue at present while real solutions are contemplated is called 'certainty.' Sanderson said, there are many ways for First Nations and corporate Canada to act together, ways to do economic development. The current political reality demands the thought and speech gravitate around ways to 'do economic development.'

In fact, experts like lawyer Herb George (Satsan), President of the National Centre for First Nation Governance, stated, every act of economic development is an act of jurisdiction. It is jurisdiction that makes entities behave in certain ways and sign into Impact Benefit Agreements.

"These agreements are signed between mining companies and First Nation communities in Canada in order to establish formal relationships between them, to reduce the predicted impact of a mine and secure economic benefit for affected communities,” wrote Irene Sosa and Karyn Keenan, October, 2001.

“IBAs are increasingly used by First Nations in Canada to influence decision making about resource exploitation in their lands." (IMPACT BENEFIT AGREEMENTS BETWEEN ABORIGINAL COMMUNITIES AND MINING COMPANIES: THEIR USE IN CANADA)

William J. Wolfe composed a ‘list’ of the main Impact and Benefit Agreements signed during the first 10 years of them, through the 1990s. He said, “each of these is the product of a unique negotiation. No two are exactly alike.”

He delivered a report to the Prospectors and Developers Association of Canada after observing the ten year history of IBAs.

Wolfe writes, “These agreements often contain so-called soft language and depart significantly from the style and format of the precise legal contracts to which the corporate culture is accustomed.”

And he continued, “In fact one might reasonably ask: ‘What are these Agreements?’ Are they statements of good intentions? Are they Memoranda of Understanding? Are they enforceable legal contracts with penalties for non-performance and procedures for dispute settlement?”

While no doubt the same questions remain in 2008, “IBAs,” that are initially ‘forced’ by First Nations, “provide a ‘security blanket’ to corporate Canada,” said Sanderson, who called IBAs acts of (defacto) governance, and said IBAs are helping First Nations to expand jurisdiction.

In fact, he said, governance aspects are the most important part of IBAs.

According to Wolfe, “The main expectations,” of First Nation signatories to IBAs, begin with Recognition of Aboriginal Rights and Sovereignty. Then other priorities include Employment – Percentage Targets and Hiring Policy and Training and Scholarships, and access to other governance functions.

For corporate Canada, as regards the mining sector at least, said Wolfe, IBAs must provide several things: Clarification of Resource Ownership and Taxation Powers. Assurance that Exploration Investment is Linked to an Exclusive Right to Develop, Mine and Market Mineral Products, and the usual allowances, accesses and conveyances accorded commercial activity.

Wolfe wrote, “Most of these requirements are well understood by political jurisdictions that aspire to attract mineral exploration investment. They are by no means uniformly obvious to newly constructed aboriginal political institutions Initiate processes.”

Certainty has occurred in some jurisdictions through IBA signings, but it is by no means universal and IBAs are non-binding.

In fact, the greatest boondoggle to investment with First Nations happens to be the lack of legal recourse. Neither party perceives a functional outlet in searching for resolutions to difficulties.

First Nation leaders in Kitchenumaykoosib Innunwig who are imprisoned for blocking access to Platinex mines represent a primary example the very political/economic dichotomy that exists over jurisdiction, which cannot by appearances be resolved in the existing courts.

Sanderson said, “U.S. tribal communities have their own courts.”

And at the University of Toronto, said Sanderson, examination is underway about the need for a commercial code of law for First Nations, “based on the U.S. model.

Corporations such as resource companies would be encouraged to register as business entities on such reservations as host the Court, and then encouraged to choose that venue as their choice of laws for dispute resolution, having thus registered their businesses on reserve and submitted themselves to this legal framework.”

This is a way, he said, of extending First Nations jurisdiction over commercial activities. “In the pursuit of providing certainty this is another venue that would allow it,” said Sanderson.

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