Aboriginal Marketplace January/March 2015

VOLUME 4 - ISSUE 1 ///// JANUARY/MARCH 2015

LEGAL ALARM BELLS FOR CANADA IT’S NO LONGER BUSINESS AS USUAL

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///// COVER STORY 04 LEGAL ALARM BELLS

FOR CANADA –

IT’S NO LONGER BUSINESS AS USUAL

///// IN THIS ISSUE

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08

LEGAL DECISIONS WHAT DO THEY MEAN?

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LETTERS OF INTENT

14 PUBLISHER Geoff Greenwell 2G Group of Companies geoff@2ggroup.ca MANAGING EDITOR Marlon Louis editor@aboriginalmarketplace.com CREATIVE DIRECTOR Tina Lee Rodocker tina@2ggroup.ca

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ADVERTISING SALES Marlon Louis editor@aboriginalmarketplace.com CONTRIBUTORS Geoff Greenwell, Keith Henry, Jennifer A. Duncan, Merle Alexander, Drew Lawrenson, Lori Simcox, Amyn F. Lalji & Bruce McIvor

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PROFILE: A NEW GENERATION OF ABORIGINAL BUSINESS LEADERS

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REZLAND CONFERENCE NEW LAND DEVELOPMENT INFRASTRUCTURE AND URBAN PLANNING CONFERENCE

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WHAT TSILHQOT’IN AND GRASSY NARROWS MEAN FOR TREATY FIRST NATIONS

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THE NEW NEW RELATIONSHIP: LEGAL, POLITICAL AND BUSINESS IMPLICATIONS OF THE TSILHQOT’IN DECISION

///// FEATURES

2015 PRODUCTION SCHEDULE SPRING (April-June) SUMMER (July-September) FALL (October-December) DISTRIBUTION Aboriginal Marketplace is published by 2G Group of Companies ©2012 all rights reserved. The magazine is distributed globally online and in printed form in Canada. The views expressed in the Aboriginal Marketplace are those of the respective contributors and not necessarily those of the publisher or staff.

NABOC PRINCE RUPERT 2015 SEES CONTINUED GROWTH

06 KEEPING IT RIEL 10 LEGAL EAGLE

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WWW.ABORIGINALMARKETPLACE.COM

Aboriginal Marketplace - Jan/March 2015 3

LEGAL ALARM BELLS FOR CANADA IT’S NO LONGER BUSINESS AS USUAL

BY GEOFF GREENWELL – PUBLISHER OF ABORIGINAL MARKETPLACE GEOFF@2GGROUP.CA

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s we begin year four of production for Aboriginal Marketplace magazine it seems timely to reflect on how much the Aboriginal business landscape has progressed even in the short time we’ve been producing our magazine.

Unfortunately however, it seems to continually take legal decisions to force the government and private sector to come to the negotiating table and create more equitable business relationships with Canada’s First Peoples. It’s time for the Federal government to stop wasting millions of taxpayers’ dollars fighting legal battles with Aboriginal groups and develop a new approach to working with them.

As the title of this article infers, Canada can no longer keep its collective head in the sand and try to ignore the Title and Rights of Aboriginal people and communities.

Similarly the private sector as a whole needs to come more willingly to the table and start partnering and revenue sharing with Aboriginal business groups. In fairness though an increasing number of private sector groups are being much more proactive in their business relationships with Aboriginal businesses, and are demonstrating willingness to joint venture and profit share.

When we first started our National Aboriginal Business Opportunities Conference (NABOC) series in 2007, many of the private sector delegates were hesitant to talk with Aboriginal delegates for fear of making some cultural faux pas or being misunderstood. The divide between private sector and Aboriginal businesses was extremely wide and both sides were suspicious of each other’s motives. Fast forward to 2014, and we now see delegates mixing freely at our events, creating long lasting friendships and forming very successful and equitable business ventures together, recognizing that by working together they will enjoy much more collective success.

Conversely though under the leadership of Prime Minister Harper we have seen a steady decline in the Federal government’s relationship with Aboriginal people. His lame duck appointees as Ministers of Indian Affairs and the continuous shell game of renaming the ministry every two years and shuffling staff around has done little to garner the support and trust of Aboriginal people. Harper’s “oil export above all else” agenda has angered First Nations who worry about the potential environmental impacts oil spills would have in their traditional territories.

In this issue of Aboriginal Marketplace we have invited a number of prominent Canadian lawyers to share their 4 Aboriginal Marketplace - Jan/Mach 2015

T’S TIME FOR THE FEDERAL GOVERNMENT TO STOP WASTING MILLIONS OF TAXPAYERS’ DOLLARS FIGHTING LEGAL BATTLES WITH ABORIGINAL GROUPS AND DEVELOP A NEW APPROACH TO WORKING WITH THEM. opinions on some of the legal decisions we have seen in recent times and give predictions and advice on a better way forward for Canada in its dealings with its First peoples.

Watching Prime Minister Harper recently extolling the virtues of Sir John A. MacDonald on what would have been the anniversary of his 200th birthday gave perspective on how similar the current “anti-Indian” approach of Harper’s government is to the blatantly racist government MacDonald presided over and influenced. Our Metis columnist Keith Henry reflects in this issue on the Aboriginal view of MacDonald’s legacy in his column “Keeping it Riel.”

Generally we try to keep our magazine business focused and try to ignore politics, but legal decisions and government policy have a profound effect on the Aboriginal business world so inevitably it seems we get drawn into the political debate from time-to-time.

Since MacDonald’s time successive Federal governments have done their utmost to try and assimilate or exterminate our First Peoples and yet they remain strong and determined to preserve their culture and heritage. There is a growing recognition amongst Aboriginal communities however that they need to work with the private sector to improve their economies and create work and prospects for their young people. It is this recognition and willingness to be “open for business” that Canadians as a whole need to embrace and encourage. As Henry Ford put it; “Coming together is the beginning, keeping together is progress and working together is success.”

Happy New Year to all of our readers and their families and we at Aboriginal Marketplace wish you every success in 2015.

KEEPING IT RIEL ///// KEITH HENRY - PRESIDENT, BC MÉTIS FEDERATION K.HENRY@BCMETIS.COM

KEEPING IT RIEL MACDONALD’S INVOLVEMENT IN THE NEGOTIATIONS FOR A CONTRACT TO BUILD THE CANADIAN PACIFIC RAILWAY TO BRITISH COLUMBIA INVOLVED HIM EVENTUALLY IN THE PACIFIC SCANDAL.

PHOTO: Sir John A. Macdonald

This month I offer an opposing Aboriginal view of Sir John A. Macdonald Day as Canadians celebrate his birthday each January 11th.

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n January 11th 2014 the office of the Prime Minister of Canada offered this statement on Sir John A. Macdonald day:

“Sir John A. Macdonald first dreamed, and then achieved, great things for Canada. During his 19 years as Prime Minister, he accomplished remarkable feats at an astounding pace – herculean tasks that laid the foundation for the wealthy, prosperous country we enjoy today.

Among many noteworthy accomplishments, he saw the establishment of the Dominion of Canada, the entry into that new nation of British Columbia, Manitoba and Prince Edward Island, 6 Aboriginal Marketplace - Jan/Mach 2015

the completion of the Canadian Pacific Railway, providing Canada with its link to the Pacific Ocean, the founding of the North-West Mounted Police (later the Royal Canadian Mounted Police), the defeat of the North-West Rebellion, and the development of the National Policy, which encouraged immigration, agriculture in the west, industry in the east, and the movement of goods across the country”.

In this statement marking Sir John A. Macdonald Day, Prime Minister Stephen Harper praised Macdonald for his “drive and ambition to unite and expand the country.”

However, Macdonald’s colonial legacy was not remembered with such positive reverence for many, both Metis and First Nation people and others who have a differing narrative of Canada’s history — one that includes some of the less praise-worthy actions of Macdonald’s tenure, such as the residential school system, the Indian act, the mistreatment of Chinese railroad workers and the execution of Métis leader Louis Riel for high treason.

The perceived founder of this country’s historical accomplishments impacted many generations that continue to this day, with the first implementation in 1879 of the churchrun boarding schools to assimilate Aboriginal children under Sir John A. Macdonald’s government. In 1884, bowing from pressure from churches, Ottawa passed an amendment to the Indian act making attendance mandatory at these schools. The legacy this Aboriginal policy had on Aboriginal people was devastating, and by 1907 the Montreal star reported that 42% of children attending residential schools died before the age of 16, calling the situation a “national disgrace”. It is noteworthy that the residential school system continued until 1996.

John A. Macdonald who served as Prime Minister, as well as Superintendent General of Indian affairs, and suppressed the “Rebellion” in the Northwest. His policies of the day set the stage for the Indian Act. and the residential

school system designed to “take the Indian out of the child”.

Recent news being released by the Truth and Reconciliation Commission paints a different story which relates to a past of deprivation, abuse, poverty and despair; not the ‘noteworthy’ accomplishments of a government past. During this time Treaties and Scrip commissions were being initiated to bring forth development forcing Métis and First Nations people to choose what system they wished to live in, being Treaty Indians or takeing Métis scrip, or being disenfranchised all together.

The key aspect of policies of the day was to prepare the land with the subjugation and forced removal of Aboriginal communities from their traditional territories, essentially clearing the plains of Aboriginal people to make way for railway construction and settlement. Despite guarantees of food aid in times of famine from the Government of Canada in Treaty No. 6, Canadian officials used food, or rather denied food, as a means to politically control and shape a vast region from Regina to the Alberta border as the Canadian Pacific Railway snaked across this country.

For years, government officials withheld food from Aboriginal people until they moved to their appointed reserves, forcing them to trade freedom for rations. Once on reserves, rations intended to feed were withheld or rotted, communities fell into a decades-long cycle of malnutrition, suppressed immunity and sickness from tuberculosis and other diseases.

Thousands died.

Sir John A. Macdonald, acting as both Prime Minister and Minister of Indian Affairs during the darkest days of the famine, even boasted that the Aboriginal population was kept on the “verge of actual starvation,” in an attempt to deflect criticism that he was squandering public funds.

Macdonald’s involvement in the negotiations for a contract to build the Canadian Pacific Railway to British Columbia involved him

among such bands as are found sufficiently advanced to justify the experiment being tried.

It is hoped that a system may be adopted which will have the effect of accustoming the Indians to the modes of government prevalent in the white communities surrounding them, and that it will thus tend to prepare them for earlier amalgamation with the general population of the country.”

eventually in the Pacific Scandal. During the 1872, election large campaign contributions had been made to him and his colleagues by Sir Hugh Allan, who was to have headed the railway syndicate. The discussions of the day in 1888 parliamentary debates paid heed to Métis of “halfbreed” Scrip’s falling into the hands of Indian Agents, and predominate banks that profited by the expansion of the railroad lands.

Although it was recognized in the 1888 debate that these Métis or “halfbreed” Scrip’s were falling into the hands of the non-Aboriginal population and action needed to be taken, nothing was done about the practice.

The provisions of the Indian Act and the policy framework established for the Indian Affairs department attempted to destroy all of the traditional Aboriginal political systems and replace them with a municipal style of governance that allowed a very limited degree of internal control. Another system of election – the one year elective system of the Indian Advancement Act – was initially proposed as a municipal style government.

Sir John A. Macdonald, who was Superintendent General of Indian Affairs at the time, described the intention of the legislation in 1880: “ It is worthy of consideration whether legislative measures should not be adopted for the establishment of some kind of municipal system NII_Ad_1.pdf

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2014-04-10

THESES PERSISTENT FEATURES ARE READILY APPARENT IN MACDONALD’S STATEMENTS RIDDLED THROUGHOUT HISTORICAL PARLIAMENTARY MINUTES: • The readiness of the government to impose systems on the First Nations and Mètis; • The intention to establish band councils as municipal style governments with assimilation as the final objective; • The underlying premise that the “white” style of government was decidedly superior to any form of existing Indian or Métis government, in one grand, “experiment”.

Nothing will change for Canada’s First Nation, Inuit, Innu and Métis until missing traditional Aboriginal governance infrastructures are repaired , recognized and harmonized into both the Canadian and global systems. Only then will true Aboriginal reconciliation in Canada be achieved.

Parliamentary apologies are empty without a

true recollection of Canada’s past record on the treatment of the Aboriginal population. The Métis people cannot forget the past when Sir John A MacDonald used every length possible to ensure the wrongful execution of Louis Riel in 1885. This wrongful execution along with other oppressive, restrictive and discriminatory principles of this 19th century legislation led by Prime Minister MacDonald creates quite the opposite view of his alleged achievements.

Sir John A. Macdonald’s memory is not met with the same over exuberant fanfare upon examination of historical records. Now is the time to put forward accurate historical realities of our first Prime Minister’s relationship with Aboriginal Canada.

There must be a better way forward.

Thank you co-author Earlene Bitterman from the BC Métis Federation for our shared work on this editorial.

For more information about the BC Métis Federation please go to our website www.bcmetis.com.

Just trying to keep it Riel! k.henry@bcmetis.com

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LEGAL DECISIONS WHAT DO THEY MEAN? JENNIFER A. DUNCAN - PARTNER AT MCDONALD & DUNCAN LLP. JDUNCAN@MDLLP.CA

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egal decisions regarding Aboriginal people have been one of the major vehicles to advance Aboriginal rights in Canada.

Legal decisions are the foundation of Aboriginal economic development. With legal decisions supporting the rights of Aboriginal people, First Nations can be involved in major resource development with leadership and membership that is empowered and educated to make decisions that make their lives better.

As a law student, I was trained to help clients evaluate whether the best option was to: negotiate, litigate, or do nothing? Included in the evaluation was an opinion on what the legal decision would most likely be if the choice was to litigate. In all of the fact scenarios I was presented with in law school, to do nothing was rarely the best option.

In my legal practice, in the area of Aboriginal law, as I assist my clients, I invariably use the same paradigm I was taught in law school. In the real world, as in law school, to do nothing is rarely the best option. At one point in time, Aboriginal people did not have any other option but to do nothing and I, as an Aboriginal person had no legal ability to assist Aboriginal clients to evaluate their options.

In 1922, the Rules of the Law Society of British Columbia included Rule 39 which was relied upon to dissuade a Vancouver lawyer from encouraging an Aboriginal man from pursuing the practice of law. Rule 39 of the Law Society of British Columbia stated “no person shall be admitted or enrolled who is not … entitled to be placed on the Voters’ list under the Provincial Elections Act.” It wasn’t until 1949 that Aboriginal people were entitled to vote in British Columbia, and in 1960, Aboriginal people were granted the right to vote in federal elections.

Until 1951, it was illegal for an Aboriginal person to hire legal counsel. In 1951, amendments were made to the Indian Act 8 Aboriginal Marketplace - Jan/Mach 2015

IT WASN’T UNTIL 1949 THAT ABORIGINAL PEOPLE WERE ENTITLED TO VOTE IN BRITISH COLUMBIA, AND IN 1960, ABORIGINAL PEOPLE WERE GRANTED THE RIGHT TO VOTE IN FEDERAL ELECTIONS. to remove the section prohibiting Aboriginal people from hiring legal counsel.

To contrast the struggle for human rights for Aboriginal people in Canada with other human rights struggles, consider that in 1891, while Ghandi was a lawyer in India, in Canada, the children of Aboriginal people were forced into residential schools where they often died. I myself, narrowly avoided attending a residential school. The last residential school was closed in 1996. I can’t imagine what my life would be like if I had to live with the trauma of attending a residential school.

22 years after it was possible for Aboriginal people to hire lawyers, the first major legal

decision regarding Aboriginal people was the 1973 Calder v. Attorney -General of British Columbia. In the Calder case the Supreme Court of Canada delivered a decision recognizing that Aboriginal title could exist in Canada. Out of 7 judges, the court split 3 to 3 on whether to grant a declaration recognizing Aboriginal title, and the final judge dismissed the case on a technicality.

63 years after it was legal for Aboriginal people to hire lawyers, and after numerous significant wins regarding Aboriginal rights and title, in the 2014 Tsilhqot’in Nation v. British Columbia case, the Supreme Court of Canada delivered a decision recognizing Aboriginal title in Canada. The Tsilhqot’in case is extremely

IN 2005, THE SUPREME COURT OF CANADA, DELIVERED A DECISION FINDING BOTH CANADA AND THE CHURCH LIABLE FOR RESIDENTIAL SCHOOL ABUSE AND AWARDED DAMAGES TO THE FORMER STUDENTS. AS A RESULT OF THAT LEGAL DECISION, THE RESIDENTIAL SCHOOL CLAIMS PROCESS FOR ABORIGINAL PEOPLE ACROSS CANADA WAS IMPLEMENTED.

important as the Supreme Court advised the government and industry “to avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group.”

It’s not just legal decisions in the Aboriginal rights and title case that have had a significant impact. In 1996, in Blackwater v. Plint, 27 former residential school attendees filed a law suit against Canada and the United Church of Canada.

In 2005, the Supreme Court of Canada, delivered a decision finding both Canada and the Church liable for residential school abuse and awarded damages to the former students. As a result of that legal decision, the residential school claims process for Aboriginal people across Canada was implemented.

Often the advice is to negotiate a solution and rarely the advice is to litigate.

Aboriginal people do not always win in court, but they have the option to go to court and be heard. To litigate is now a viable option and legal decisions for Aboriginal people in Canadian courts are important.

Getting a legal decision is almost always a better option than to do nothing.

Jennifer A. Duncan is a partner at McDonald & Duncan LLP. Jennifer has extensive experience working with First Nation governments and individuals in the area of Aboriginal law with a specialization in economic development.

Specifically, Jennifer has expertise in the areas of negotiating and drafting impact benefit agreements, trust agreements, and partnerships for energy projects such as wind, hydro, oil and gas, as well as for mining projects including diamonds, coal and rare earth minerals. In the area of governance, Jennifer is assisting in the negotiation of a self-government agreement and has provided advice to First Nation governments and corporations with respect to governance policies. In addition to her solicitors work, Jennifer is a litigator with experience in judicial reviews before the Federal Court. Jennifer is Dene and a member of the Behdzi Ahda First Nation in the Northwest Territories.

Supreme Court of Canada

Aboriginal Marketplace - Jan/March 2015 9

LEGAL EAGLE ///// MERLE ALEXANDER - PARTNER, GOWLINGS LLP MERLE.ALEXANDER@GOWLINGS.COM

ABORIGINAL LAW TREND 2015 RIGHTING WHAT’S WRONG IN CANADA

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015 will be a year of extraordinary Aboriginal & Treaty rights empowerment and “rightly so”. I’m calling it. With 2014 delivering Tsilhqot’in, 2015 will seek implementation of the consent requirement within our Territories. Aboriginal Peoples cannot and should not accept anything less than consent on their own prior informed terms.

This means that all agreements whether with the Crown, Proponents or business partners must achieve mutual consent to be truly Tsilhqot’in compliant. We need to work together to achieve mutual consent as an emerging business and legal norm. Veto rights are a rare and negative exercise of consent, we can come to terms. And, yes, coming to terms with a honest, transparent and good faith discussion may lead us to agreeing that some actions or projects simply cannot proceed. Coming together can mean coming to grips with reality.

TSILHQOT’IN DOESN’T APPLY TO YOU

Immediately, there will be a chorus of naysayers that will tell you how and why this BC-based, non-treaty case has no application to your 10 Aboriginal Marketplace - Jan/Mach 2015

MOST GOVERNMENTS AND PROJECT PROPONENTS WOULD LIKE TO IGNORE THAT ABORIGINAL PEOPLES MUST SUPPORT THEIR ACTIONS AND PROJECTS TO SUCCEED.

Nation. In fact, if you’re from a BC First Nation, you may also be told that Tsilhqot’in doesn’t apply to your Nation because you have not proved Aboriginal title in Court. An even more moronic favourite of mine is “we’ve been treating your Nation as though you already had Aboriginal title, so we are already Tsilhqot’in compliant”. Isn’t that convenient? You were already so generously respecting our rights that you actually exceeded legal requirements in advance of a progressive change in the law?

If it wasn’t so sad and delusional, it would be laughable.

Tsilhqot’in is not simply a legal case to be narrowly or broadly interpreted, it is a dramatic social, political and fundamental shift in policy and law. Consultation rights ensure our involvement in projects that may adversely affect our rights. Consent ensures that our decision-making authority is given it’s due respect.

CONSENT BACKLASH

Let’s be honest. There is a consent backlash occurring. Most Crown and Industry representatives would prefer to be willfully blind to the change in business norm and the law. Most Governments and project proponents would like to ignore that Aboriginal Peoples must support their actions and projects to succeed.

I am sure most Aboriginal advocates and leaders feel like they beat this drum to death. We probably will. We will likely spend our lifetimes trying to force other Canadians to simply comply with Canadian Aboriginal law.

The Aboriginal and Canadian economy will not advance if our Peoples substantive role remains ignored. In criminal law, we are informed that there are two ways of committing a crime: by act or omission. For the most part, Aboriginal law is contravened by omission, by inaction, by Governments and Industry ignoring the fact that the law has changed.

Using BC as an example, you might imagine that after consent became a compliance standard that there would be some policy, administrative or legal reform sweeping this Province. You might expect that negotiation mandates would be revisited and that there would be dramatic and notable change at negotiation tables. There hasn’t. Not one single law or policy has changed, six months later. Environmental assessments steamrolled their way to approvals. Neither the Federal or Provincial Crowns have noticeably changed their consultation policies. There is little evidence that the Crown is accepting the legal reality that the law has changed and more importantly that Tsilhqot’in is really the beginning of consent as a legal requirement, not an exception.

What can we do to ensure that Tsilhqot’in is implemented in good faith?

Many advocates have spent a lot of the last six months simply bringing clients up to speed on what the Court has said and the legal background behind the case. We have been focussed on implementation. I found very early on in giving updates that clients wanted to know “how does this apply?”and “what do we do to create change?” Once I was told “OK, lawyer, I already heard this, cut to the chase, we are busy Chiefs”, we changed our approach.

HERE ARE OUR GUIDING TIPS THAT HAVE BECOME UNIVERSAL ADVICE ON IMPLEMENTATION:

“MANY ADVOCATES HAVE SPENT A LOT OF THE LAST SIX MONTHS SIMPLY BRINGING CLIENTS UP TO SPEED ON WHAT THE COURT HAS SAID AND THE LEGAL BACKGROUND BEHIND THE CASE. WE HAVE BEEN FOCUSSED ON IMPLEMENTATION.”

•Strength at the Negotiation Table draws from Strength in your Rights and Title affirmation; •Developing an arsenal of collected evidence is key; •First Nations with a rich data base demonstrating occupation and use of Territory have immediate advantage; •You hold all the cards in loaded deck; •Proponents and Crown only have the cards and knowledge you share; • Your house, means your rules; • The key to an innovative legal strategy is to put your Nation in a position to play lead on someone else’s project or to make the project your own; • No proponent will hand you the lead: your Nation must get current and develop a clear vision of what it wants; • Taking the lead will help your Nation identify and achieve its goals, build capacity, and assert control over your lands and resources; and • Implementing innovative legal strategies will help your Nation maximize its leverage–to secure maximum benefits or to say No.

Closing remarks Ultimately, the heavy weight of being an instrument of change falls on Aboriginal Peoples shoulders. More specifically, it is Aboriginal leaders that must now take this fundamental change and make it a true reality in our communities. We have taken our thoughtful pause, seen how those adverse to change have or have not reacted and now, it is time to make this happen.

Aboriginal Marketplace - Jan/March 2015 11

LETTERS OF INTENT DREW LAWRENSON LEGAL COUNSEL WITH MILLER TITERLE + COMPANY LLP - DREW@MILERTITERLE.COM

“Penticton Indian Band considers growing medical marijuana” Band moving forward, signs letter of intent with cannabis producer - The Canadian Press Posted: Nov 09, 2014 “B.C. government, Petronas sign letter of intent to support LNG” - The Globe and Mail: May. 05 2014, 10:18 PM EDT

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he media is full of press releases and news stories about “letters of intent”, “memorandums of understanding” and “term sheets” being entered into between First Nations, governments and private enterprise. But what are these documents, and what do they do?

Each of these documents (for the purposes of this article, we will call them all “LOI”s) is commonly used in a complex transaction to establish a framework for the transaction without necessarily creating legally binding obligations. An LOI helps parties to work through the key issues early on in the negotiation process and identify any deal breakers before unnecessary expense has been incurred. If agreement is reached on key terms, the LOI can establish a moral (if not legal) obligation to attempt to negotiate a transaction in good faith.

BINDING VS. NON-BINDING

Under Canadian law, an “agreement to agree” is not an enforceable agreement.

Often, because the LOI’s primary purpose is to set the framework for a successful negotiation rather than to finalize the deal, they are intended to be “agreements to agree” and to have no legally binding effect.

However, many LOIs create confusion because they are stated to be non-binding letters of intent only, but then are written as if they are binding agreements.

“IF AGREEMENT IS REACHED ON KEY TERMS, THE LOI CAN ESTABLISH A MORAL (IF NOT LEGAL) OBLIGATION TO ATTEMPT TO NEGOTIATE A TRANSACTION IN GOOD FAITH.” 12 Aboriginal Marketplace - Jan/Mach 2015

To avoid this confusion, the LOI should clearly state that it is non-binding, except for sections that are expressly designated as binding. Commonly only a few of the sections are explicitly designated as binding (such as exclusivity, confidentiality and obligation to negotiate).

A note of caution: While non-binding LOI does not legally commit a party to conducting a deal,it can establish a moral obligation to negotiate in good faith based on the terms set out in the LOI. It can sometimes be very difficult to introduce or change key deal terms in a negotiation after the LOI is signed.

LEVEL OF DETAIL

The level of detail in a LOI varies.

Sometimes a party is very interested in obtaining certainty about as many key terms as possible prior to preparing a binding agreement. Other times, a party may want to leave wiggle room in the LOI to retain the flexibility to negotiate key terms at a later date (although care should be taken not to negotiate an LOI that is so vague that the deal falls apart later on when the parties realize they didn’t agree on the basic terms). It is important to balance the benefit of settling key terms in the LOI against the risk of early burnout from over-negotiation of the LOI. However, at a minimum, we generally recommend including the following items when preparing an LOI

PRICE AND TERMS OF PAYMENT

If the LOI relates to the purchase and sale of something (like a piece of equipment, a company or a service), then the LOI should set out how payment will be made – timing, forms and location of payment. The parties to an LOI should also consider whether there will be any escrows, holdbacks or indemnities that might affect payment of the stated price.

ITEMS TO BE SOLD OR SERVICES TO BE RENDERED

The LOI should clearly identify what is subject to the LOI. If there are items to be sold or services to be performed, the LOI should clearly identify what they are. If there are certain assets or services that are to be excluded, this should also be identified.

FINANCING

If the deal is subject to financing, this should be set out in the LOI, as well as timing for sercuring financing. Sometimes, if financing is a condition to the deal happening, the other party may be less

inclined to offer exclusivity because the risk that financing cannot be secured puts the deal at risk.

EXCLUSIVITY PERIOD

Often, a party may ask the other party to commit to an exclusivity period so it doesn’t waste its time and money carrying out due diligence and negotiating while the other party is shopping the deal to other interested parties. The exclusivity period is generally somewhere between 45 and 120 days (sellers often want shorter periods and buyers often want longer ones).

If you are a seller, you should not agree to an exclusivity period unless you are reasonably confident that the buyer is likely to go through with the transaction.

Exclusivity not only takes what you are selling off the market for a significant period of time, but, if the negotiations fail, you will likely have to go back to the same pool of potential buyers to find someone else – and they may be less enthusiastic about the deal knowing that the your negotiations with your preferred buyer failed.

CONFIDENTIALITY

Whether set out in a separate nondisclosure agreement (sometimes called an NDA), a separate confidentiality agreement or in the LOI, the parties should ensure that confidential information disclosed as part of the due diligence process is protected.

The confidential information disclosed to a party should only be usable for the purpose of assessing and completing the transaction.

Confidentiality is often of heightened importance when economic development enterprises owned by a First Nation are engaged in negotiations regarding resource development. In that case, the economic development enterprise will

want to ensure that not only is information that relates to cultural and traditional use is protected as confidential, but that it will not be used by the government or industry in a way that might compromise rights and title issues (this type of protection is often called “without prejudice” protection).

CLOSING CONDITIONS

An exhaustive list of closing conditions is not necessary, but each party should set out the key conditions that will need to be met in order for it to close the deal (eg. key government or third party consents, noncompetition agreements from principals, financing, etc.).

BREAK FEE

Each party should consider whether it is in a strong enough position to require a break fee to cover its expenses if the other side decides not to proceed with the transaction.

In our experience the benefits delivered from considering the key deal points listed above at the LOI stage far outweigh the costs associated with preparing these documents. A well written LOI facilitates negotiations and that is a positive step on the path towards finalizing the ultimate definitive agreement.

ABOUT MILLER TITERLE + COMPANY LLP

Drew Lawrenson is legal counsel with Miller Titerle + Company LLP, a Vancouver based business law firm focused on First Nations Economic Development. MT & Co. is comprised of experienced business lawyers whose commercial legal expertise and deep experience in Aboriginal law enables them to help First Nations communities develop prosperity in a manner consistent with traditional values.

Aboriginal Marketplace - Jan/March 2015 13

NABOC PRINCE RUPERT 2015 SEES CONTINUED GROWTH

I

t seems that Prince Rupert is about to experience the ‘perfect storm’ from an economic development standpoint as numerous mega projects in the surrounding area come closer to fruition.

With the growing resource development in the LNG, energy, mining, forestry, agriculture and transportation sectors, Northwest BC’s economic development opportunities are on the rise and are attracting new businesses to the area.

In the last 6 months Prince Rupert has seen a large increase in the number of businesses moving to the city in anticipation that one or more of these mega projects will go ahead. Last year one of Canada’s largest crane companies, the NCSG Crane and Heavy Haul Services Group, bought out Broadwater Industries, a local crane company that has operated in Prince Rupert for over twenty years. Both Metlakatla and Lax Kw’alaams have been very busy creating new joint ventures and more mergers and acquisitions are expected as the beginning of the ‘economic boom’ approaches.

Each year the National Aboriginal Business Opportunities Conference (NABOC) Tour stops in Prince Rupert for an annual event. The two community hosts, Chief Harold Leighton of the

14 Aboriginal Marketplace - Jan/Feb 2015

Metlakatla First Nation and Mayor Garry Reece of Lax Kw’alaams First Nation will once again be welcoming businesses and First Nations groups to attend the 3 day networking event from April 28th – May 1st, 2014.

Prince Rupert is rapidly becoming the next big Canadian business hot spot, and the annual NABOC event looks like it will be bigger than ever. Prince Rupert will welcome over 400 First Nations and private sector delegates who will all have a focus on creating joint ventures, partnerships, and long-lasting business relationships with one another. Guests will travel in from across Canada, Asia, Europe and the USA for 3 great days of business networking.

The NABOC events have become well known as gathering places of leaders. Each year, companies attend the NABOC Prince Rupert event in hopes of establishing equitable and beneficial relationships with First Nation groups.

More and more First Nations communities are declaring themselves ‘open for business’ and they are actively seeking joint ventures and partnerships with private sector groups. All groups who will attend share a common interest in exploring opportunities and getting involved in the upcoming projects scheduled to take place

in the Pacific Northwest.

“Over the last four years we have watched companies attend the NABOC event and walk away with very positive results from the mass of opportunities that were presented at the events.

Mega projects that were only topics of discussion at the first NABOC Prince Rupert in 2010 are now close to realization. At that first event, over $60 billion worth of investments were announced that were to happen over the next decade in the region and now with the addition of more recently announced projects we’ll certainly see an increase in that number at the 2014 event” says Geoff Greenwell, CEO of 2G Group.

Each year Aboriginal Marketplace Events and Magazine showcase existing private sector/ Aboriginal business partnerships and focus on creating new ones through the NABOC Conference Tour. As usual there will be a NABOC Prince Rupert special edition issue of the Aboriginal Marketplace magazine that will be given out to all of the delegates at the event.

Organizations and individuals interested in submitting an ad and/or article should email the editor at editor@aboriginalmarketplace.com Major sponsors for the 2015 event are Northern Savings Credit Union, Smit Marine

“NOT ONLY HAS NABOC PRINCE RUPERT BECOME THE MOST POPULAR PRIVATE SECTOR/ABORIGINAL BUSINESS NETWORKING EVENT IN NORTHERN BC; IT HAS ALSO SPAWNED NUMEROUS MULTIMILLION DOLLAR PROJECTS THAT HAVE BEEN INITIATED DUE TO RELATIONSHIPS FORMED AT THIS UNIQUE CONFERENCE.”

and Opus Stewart Weir; Quickload Logistics is sponsoring the banquet dinner wine, RBC and RBC Dominion Securities are sponsoring the audio visual, Britco is sponsoring Mayor Garry Reece, Safway Services Canada is sponsoring Chief Harold Leighton, LNG Canada is sponsoring the host communities and helping more delegates from Metlakatla and Lax Kw’alaams attend, IBEW Local 502 and Horizon North Logistics are sponsoring the lunches, Voice Construction is a refreshment break sponsor, CMAW is sponsoring the delegate lanyards and Pacific Northwest LNG is sponsoring a vessel that will bring job seekers from Lax Kw’alaams to the job fair component of the conference. Over 100 other private sector companies have also already registered to attend the 2015 Prince Rupert NABOC event.

Major themes at this year’s event will be updates from many of the LNG proponents contemplating terminals in Prince Rupert, a general update from the Port Authority on how 2014 was and what new developments are happening in the port. The host communities will give presentations on their ongoing capacity building work, high profile keynote speakers will discuss the economic progress being made

George Leach will be performing at NABOC Prince Rupert

in BC and a variety of informative workshops are scheduled. April 30th has been set aside as a day for networking between delegates with the civic centre and arena hosting the expanded tradeshow and career fair.

Not only has NABOC Prince Rupert become the most popular private sector/Aboriginal business networking event in northern BC; it has also spawned numerous multimillion dollar projects that have been initiated due to relationships formed at this unique conference.

If you’re looking to expand and/or open up your business in the north of BC and are interested in creating successful joint ventures and partnerships with local First Nation and other private sector groups, then you will want to register to attend this event. Join the movers and shakers of the north at the Jim Ciccone Civic Centre in Prince Rupert from April 28th – May 1st for 3 great days of networking. To register go to www.2ggroup.ca

Aboriginal Marketplace - Jan/March 2015 15

PROFILE:

A NEW GENERATION OF ABORIGINAL

BUSINESS LEADERS

A PHOTO: Lori Simcox

new generation of business people are sitting at board room tables in Vancouver involved in high-end and high profit business development and negotiations.

Educated, fast thinking, experienced and confident Lori Simcox, an Aboriginal business women and entrepreneur, is helping to lead the way for new innovative business opportunitiesmost so new they are grabbing the attention of heads of large British Columbia companies.

Lori Simcox, a member of the Tr’ondek Gwech’in First Nation in the Yukon, has an undergrad in Business from Simon Fraser University, an MBA from Royal Roads University and is a Certified Management Consultant with the Canadian Association of Management Consultants. Her knowledge and education in mainstream business and her understanding of the general economic goals of First Nations are working together to help build bridges between areas of the British Columbia business economy that were previously only barely seeing the benefits of knowing each other .

Most notable is recent work with the TsleilWaututh Nation in North Vancouver. Under the guidance of community members Director Leonard George and Economic Development

Officer, Matt Thomas, Lori Simcox is at the helm of major business partnership development as CEO of SPAL General Constructors Corporation, a wholly -owned community business that provides general construction management services.

“For the past three years SPAL has been building and developing partnerships in the construction industry and going after aboriginal procurement bid opportunities provided by government and private and public sector business,” says Simcox. “ We have had huge success winning bids tendered by large companies such as Seaspan, the Evergreen Line, BC Hydro and Port Metro Vancouver and other private sector companies who want to develop relationships with local First Nations,” added Lori.

Building partnerships and creating working relationships with mainstream business takes time and patience and an understanding of the need for mutual benefits to make business succeed. Agreements need to be carefully managed and maintained.

Lori says the first partner to the table under her management was Fraser River Pile and Dredge. The introduction to Mike Pritchard through a mutual business contact, led the way

“I WORK HARD APPROACHING LARGE PUBLIC AND PRIVATE SECTOR TENDERING COMPANIES TO CONVINCE THEM OF THE BENEFITS OF WORKING WITH FIRST NATIONS AND THEIR PARTNERS TO MEET THEIR ABORIGINAL PROCUREMENT OR CORPORATE SUSTAINABILITY GOALS.” 16 Aboriginal Marketplace - Jan/March 2015

and their partners to meet their Aboriginal procurement or corporate sustainability goals.”

In some cases Lori has helped large companies putting out bids to develop procurement policies that would benefit their projects and her partners. To date, as a result, Lori has obtained letters of support to provide priority to Tsleil-Waututh partners from Seaspan, Evergreen Line and BC Hydro to mention just a few.

It takes patience and a lot of confidence to sit head to head with Presidents and CEO`s of affluent companies to convince them their

processes need to change. Business with First Nations should never be about a hand out, to be successful it has to be about real, obvious and attainable mutual benefit. “If you can make that clear to all parties at the table, you have a winning deal everytime,” says Simcox.

Lori Simcox is co-owner of three fashion clothing accessories stores, Unity Clothing Inc and Unity Accessories, located at Lower Lonsdale Vancouver and Whitehorse, Yukon.

She is also Treasurer and a board member of the Aboriginal Tourism Association of British Columbia.

PHOTO: Leonard George & Lori Simcox

to what is now a very open and transparent business relationship. They had the opportunity to connect at conferences such as NABOC Prince Rupert and from that, a legal and detailed memorandum of understanding was formed that is specific to the needs and working processes of both the First Nation and company.

Mike Pritchard, a huge supporter of First Nation partnerships, then made the introduction to the Gateway Infrastructure Group made up of FRPD, BEL Contracting and Kingston Construction and from there contracts grew.

Through many meetings and company site visits Lori has since cultivated over 10 other business partnerships in the construction industry. “Some companies such as Domcor see the benefits of working with First Nations immediately, others need to be convinced and educated on the opportunities available; communication and being available for business are key factors to success.”

Lori also makes sure that every partnership is vetted and approved through Director Leonard George. It`s important that Leonard understands and meets the companies signing agreements with his First Nation.

Leonard says that having similar business values and doing good work is a must for the business reputation of future generations of his community.

In addition, the bid process can be complicated, helping to work out and negotiate costs, revenues and profits, creating business agreements and finding employment and training for community members where possible. A huge benefit that the Tsleil-Waututh Nation brings to the table is the contacts it has built over decades of residing so close to downtown Vancouver.

“SPAL works hard to open doors for our partners and to provide a competitive advantage in a competitive marketplace,” says Lori. “I work hard approaching large public and private sector tendering companies to convince them of the benefits of working with First Nations 17 Aboriginal Marketplace - Jan/Feb 2015

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MARKETPLACE E V E N T S

RezLAND FIRST NATIONS INFRASTRUCTURE, LAND DEVELOPMENT & URBAN PLANNING CONFERENCE JUNE 16TH – 18TH, 2015 NK’MIP RESORT, OSOYOOS BC

JOIN US AT THE OSOYOOS INDIAN BAND’S SPECTACULAR NK’MIP RESORT FOR AN INFORMATIVE AND INNOVATIVE CONFERENCE FOCUSING ON ALL TECHNICAL ASPECTS OF THE DEVELOPMENT OF COMMUNITY INFRASTRUCTURE, URBAN PLANNING AND LAND DEVELOPMENT ON RESERVATION LAND IN CANADA.

WHO SHOULD ATTEND: • BAND MANAGERS • PUBLIC WORKS MANAGERS • CHIEF AND COUNCILS • ECONOMIC DEVELOPMENT OFFICERS • PROFESSIONALS FROM THE LAND DEVELOPMENT SECTOR

FOR COMPLETE INFORMATION ON THE CONFERENCE GO TO WWW.2GGROUP.CA

NEW LAND DEVELOPMENT, INFRASTRUCTURE AND URBAN PLANNING CONFERENCE

R

EZLAND 2015 is the first conference of its kind and will be held at the Osoyoos Indian Band’s spectacular NK’MIP Resort from

June 16th – 18th.

The focus of the event will be technical in nature with industry experts giving presentations and workshops on community infrastructure such as sewer, water and roads. There will also be informative sessions around land development and good urban planning.

As more First Nations join the movement towards the development of Land Use codes/plans to get them out from under the cumbersome regulations in the Indian Act, the pace of development on Reserve land is rapidly increasing.

There are lots of examples of successful land development on-reserve across Canada and several communities such as Squamish, TsleilWaututh, Westbank, Membertou and Osoyoos will give presentations on how they achieved their success.

As always at Aboriginal Marketplace events there will be a focus on networking and information sharing as private sector and First Nations delegates rub shoulders at the conference. This event is designed for First Nations Public Works managers, Band Managers/Administrators, Housing managers and Economic Development officers. The intent of bringing together private sector

“WE EXPECT VERY STRONG ATTENDANCE FROM THE ABORIGINAL SECTOR AS THERE HAS NEVER BEEN AN OPPORTUNITY FOR THIS KIND OF KNOWLEDGE SHARING IN THE PAST.” Aboriginal Marketplace - Jan/March 2015 21

land development experts with First Nations delegates with land development and community infrastructure responsibilities, is to share information on the latest technological advances and best practices in the industry sector.

“For private sector companies REZLAND will provide an excellent opportunity to meet with the individuals from First Nations responsible for public works, housing and land development decisions and management. It’s a very unique networking opportunity for the private sector to have these kinds of key decision makers from numerous First Nations communities gathered

together in one place,” said our CEO, Geoff Greenwell, when we talked about the concept of this event. “We expect very strong attendance from the Aboriginal sector as there has never been an opportunity for this kind of knowledge sharing in the past,” added Geoff.

Across the country we are seeing an increasing amount of development on reserve land with global companies such as Walmart opening numerous mega-stores on First Nations lands.

Development land with appropriate zoning for commercial and industrial development is becoming very rare and expensive in

municipalities and so reserve land on the edge of municipal boundaries is much sought after by the development community.

Over the last decade there has been a lot of media attention on the continuing issues around poor quality drinking water on-reserve. The Federal government’s cumbersome approval process for community infrastructure funding perpetuates the problems, and so now many First Nations are seeking P3 partnerships to help build and repair critical community infrastructure such as water, sewer and roads. There will be opportunities at the conference for discussions amongst delegates on how best to work together to alleviate the funding and operating issues of community infrastructure.

The two day event will include charity golf, a wine tour and banquet dinner with live entertainment. As always with Aboriginal Marketplace events delegates are guaranteed to have a good time as well as take away useful information and new contacts. For more information on the conference and to register go to www.2ggroup.ca

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WHAT TSILHQOT’IN AND GRASSY NARROWS MEAN FOR TREATY FIRST NATIONS BY: BRUCE MCIVOR FIRST PEOPLES LAW CORPORATION BMCIVOR@FIRSTPEOPLESLAW.COM

C

ommentators and governments continue to downplay the significance of the Supreme Court of Canada’s Tsilhqot’in decision for Treaty First Nations. Below I summarize both Tsilhqot’in and the Supreme Court’s Grassy Narrows decision from the perspective of treaty rights. I then explain how together the two decisions lay the foundation for a new age of respect and recognition for Treaty First Nations.

TSILHQOT’IN

PHOTO: A historical coin representingTreaty 8. It was a historic event that had a significant impact on the northern First Nations in Alberta. The Making of Treaty 8 in Canada’s Northwest discusses the importance of this treaty and its impact on Northwestern Canada. Learn about the people involved, view a map of the area covered, and take a look at the actual treaty. This is where you will be able to learn everything you need to know about Treaty 8 and how it has affected Canadians, and more importantly Alberta Natives, since its inception in 1899.

In Tsilhqot’in the Court addressed two main issues.

First, can Indigenous peoples advance Aboriginal title claims on a territorial basis or is Aboriginal title confined to dots on a map? Second, if Aboriginal title exists, can provincial legislation

Source: http://www.virtualmuseum.ca/virtual-exhibits/exhibit/the-making-of-treaty-8-in-canadas-northwest/

apply to Aboriginal title lands?

On the first issue the Court put to rest the dots-on-a-map theory of Aboriginal title. Regular use of definite tracts of land on a territorial basis for hunting, fishing and otherwise exploiting resources is sufficient to establish Aboriginal title.

“TOGETHER THE TWO DECISIONS LAY THE FOUNDATION FOR A NEW AGE OF RESPECT AND RECOGNITION FOR TREATY FIRST NATIONS.” 24 Aboriginal Marketplace - Jan/Mach 2015

involving Canada. The Court concluded that the right to take up lands attaches to the level of government with the beneficial interest in the land and the necessary constitutional legislative and administrative powers.

The Court also held that both the federal government and provinces are responsible for fulfilling treaty promises. Consequently, Ontario is bound by the Crown’s treaty obligations, the honour of the Crown and the Crown’s fiduciary obligations to Indigenous peoples.

Finally, based on Tsilhqot’in, the Court held that the division of powers doctrine of interjurisdictional immunity does not apply to limit a province’s legislative authority to interfere with the exercise of treaty rights. Ontario has the power to take up lands without the federal government’s supervision but must fulfil the duty to consult. If it takes up so much land that there is no meaningful ability left to exercise treaty

have far-reaching effects for Treaty First Nations.

Here I highlight two of the most important effects.

First, in many situations provincial governments will have to do more than fulfil the duty to consult. This is because not all government action that affects treaty rights constitutes a ‘take up’ under treaty. Taking up land is generally considered to be putting the land to a use visibly incompatible with the exercise of a treaty right, e.g. a farm yard, a mine site, etc.

Many provincial decisions that affect treaty rights are not a take up of land under treaty. For example, the enforcement of wildlife and fishery laws or the development of forest management plans. In those instances, provincial governments would need to meet the requirements for justifying the infringement of the treaty right.

The basic requirements for justifying the infringement of Aboriginal title and for justifying the infringement of a treaty right are the same.

“AS WITH ABORIGINAL TITLE, THE PROVINCES SHOULD BE EXPECTED TO SEEK FIRST NATIONS’ CONSENT FOR INFRINGEMENT OF TREATY RIGHTS.” On the second issue, the Court held that as a general rule, provincial laws of general application apply to Aboriginal title lands subject to the Crown’s obligation to justify an infringement of Aboriginal title, its fiduciary obligations and s. 91(24) of the Constitution Act, 1867.

When Aboriginal title is established, the Crown must do more than fulfil its duty to consult. The Crown must either obtain the consent of Indigenous peoples to use Aboriginal title lands or meet the legal requirements for justifying an infringement.

Finally, the need to preserve Aboriginal title lands for the use and benefit of future generations is an inherent limit on Indigenous peoples’ use of Aboriginal title lands as well as any attempt by the Crown to justify an infringement of Aboriginal title.

rights, it may be liable for infringement of the treaty.

WHAT NOW FOR TREATY FIRST NATIONS?

Together, Tsilhqot’in and Grassy Narrows will

First, the Crown must establish a compelling and substantial objective consistent with the Crown’s fiduciary obligations to Indigenous peoples. For a government objective to be compelling and substantial, it must be considered from both

GRASSY NARROWS

In Grassy Narrows the Supreme Court also answered two questions. First, when lands are ‘taken up’ under Treaty 3, did the Treaty Commissioners intend there to be a two-step authorization process involving the federal government? Second, can provincial legislation apply so as to infringe the exercise of the treaty rights?

The Court concluded that the trial judge’s overriding error in Grassy Narrows was her finding that the ‘taking up’ of lands under Treaty 3 requires a two-step authorization process

PHOTO by: Photo credit: Tom Riessner Aboriginal Marketplace - Jan/March 2015 25

PHOTO by: Photo credit: Barry Calhoun

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26 Aboriginal Marketplace - Jan/Mach 2015

the public and the Aboriginal perspective. It must also further the goal of reconciliation of Indigenous peoples’ rights and interests with the Crown’s assertion of sovereignty over Indigenous lands.

In addition, the Crown must establish that the infringement of the treaty right is necessary to achieve the compelling and substantial objective.

It must demonstrate that the infringement minimally impairs the treaty right and that the benefits to the general public are not outweighed by the negative impacts on the First Nation.

As with Aboriginal title, the provinces should be expected to seek First Nations’ consent for infringement of treaty rights. Without consent, authorizations may be quashed and damages awarded.

The second major issue that should be emphasized is that Tsilhqot’in and Grassy Narrows call into question governments’ assumption that the historical treaties were cede, release and surrender treaties under which First Nations agreed to give up their Aboriginal title. Given that both Indigenous peoples and the Crown are constrained by the necessity of preserving Aboriginal title lands for the use and benefit of future generations, can the common intention of the treaties have been to extinguish Aboriginal title? Also, interpreting the treaties as extinguishment documents would be inconsistent with the Supreme Court’s discussion of the Crown’s fiduciary obligations and the honour of the Crown in Tsilhqot’in and Grassy Narrows.

As with most Supreme Court Aboriginal law decisions, it remains to be seen how lower courts will interpret and apply Tsilhqot’in and Grassy Narrows, especially in relation to treaty rights.

While together the decisions provide the basis for renewed respect for the spirit and intent of historical treaties, the Supreme Court may eventually may be called on to clarify the extent of the provinces’ obligations and the limits on their authority.

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THE NEW NEW RELATIONSHIP: LEGAL, POLITICAL AND BUSINESS IMPLICATIONS OF THE TSILHQOT’IN DECISION. AMYN F. LALJI, PARTNER MILLER THOMPSON LALJI@MILLERTHOMSON.COM

PHOTO: Tsilhqot’in Leaders outsite the Supreme Court

I

n 2014, the Supreme Court of Canada’s decision of Tsilhqot’in Nation delivered a clear message to all Canadians.

That message was that Indigenous Nations and their legal orders demand recognition, respect and space. In making the first declaration of Aboriginal title over a large tract of land occupied by the Tsilhqot’in Nation located in the Chilcotin region of the west central interior of British Columbia, the Court warned against Crown and third party incursions that proceed on a basis inconsistent

with the honour of the Crown. As such, the Province of British Columbia and third parties can manage uncertainty and risk by seeking relationships with First Nations founded on agreement as opposed to coercion. At the very least, we know that maintaining the status quo will not work moving forward.

The Tsilhqot’in Nation decision equips and empowers Indigenous leaders participating in efforts to advance Indigenous rights including title, laws, environmental stewardship and conservation, land use management and

economic development. The prospect of Aboriginal title being declared in other parts of Province bestows power on Indigenous leaders by dismantling antiquated positions rooted in Canada’s colonial myths, including the Doctrine of Discovery. Canadians will now have to answer the difficult question of how will we manage the recognition of Aboriginal title beyond the specific area in the Chilcotin region to the meet the rest of our boundaries?

A question facing First Nation governments is how to effectively utilize the Tsilhqot’in Nation

“IF THE CROWN BEGINS A PROJECT WITHOUT CONSENT PRIOR TO ABORIGINAL TITLE BEING ESTABLISHED, IT MAY BE REQUIRED TO CANCEL THE PROJECT UPON ESTABLISHMENT OF THE TITLE IF CONTINUATION OF THE PROJECT WOULD BE UNJUSTIFIABLY INFRINGING.” 28 Aboriginal Marketplace - Jan/Mach 2015

WE ARE OPTIMISTIC THAT THERE WILL BE A “NEW NEW RELATIONSHIP” BASED ON RESPECT, EQUALITY, SHARED DECISION-MAKING AND MUTUAL PROSPERITY.

and other recent favourable decisions to meet and advance its own objectives and agenda.

Given the unique nature of each Indigenous Nation, we expect that different strategies will be deployed. However, the goal of addressing past grievances and wrongdoing on part of the Crown will be pursued whether or not that means by way of negotiated settlements or taking a stand in Canadian courts.

In light of the complexity and cost of the Tsilhqot’in Nation litigation, which took approximately twelve years, including 339 days spent in court at the trial level, the Court appears to be suggesting that parties should pursue negotiated settlements outside of the courtroom.

This policy objective of the Court is embedded in its statement that “if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing.”

This is a call for the Crown to depart from its de minimus approach towards Indigenous Nations’ rights and interests.

Not only does this language seek to import the “Free, Prior and Informed Consent” language of the United Nations Declaration on the Rights of Indigenous Peoples into Canadian domestic law to ensure good faith negotiations, it affects third parties. Crown – First Nation disputes will place third parties in a state of uncertainty, if the Crown fails to meaningfully address the issue of Aboriginal rights including title. This state of uncertainty has been elevated with the Tsilhqot’in Nation decision, as Aboriginal title is not only a possibility, it is a reality. As such, third parties wishing to conduct resource activities on lands within British Columbia will be unable to rely on government approvals as being final and binding in circumstances where actual or prospective claims to aboriginal title exist upon the same lands which are subject to their approvals. Given this context, it would be diligent of third parties to take matters into their own hands and build a relationship directly with First Nations through contractual agreements.

The relationship agreements between such First Nations and a third parties which offer First

Nations consent to particular projects are often referred to as Impact Benefit Agreements or Accommodation Agreements. Such agreements ensure that First Nations communities both benefit and are accommodated for developments within their territories by the third party.

Benefits may take the form of employment and business opportunities and direct involvement in the environmental monitoring and stewardship activities. Accommodation may take the form of project planning, equity participation and annual financial payments.

On the other hand, First Nations advancing title claims in the courtroom should still concurrently engage tactically in the consultation process. As the Crown will not finance a First Nation’s title claim, exploring immediate economic accommodation by way of agreement may be helpful to First Nations in need of a war chest. It is also important for First Nations to strategically engage in the consultation process given the recently development of the reciprocal onus on First Nations to not thwart meaningful engagement. First Nations that simply refuse to participate on the basis that it is advancing a title claim may be prejudicing themselves and limiting certain available remedies.

Of course, strategic, higher level governmentto-government negotiations must be be sought by First Nations relating to prospective

resource developments within their territories as the honour of the Crown can never be delegated. First Nations and the Province of British Columbia should enter into meaningful discussions in respect of land use planning, resource management, tenuring and revenue sharing. These four areas have been identified as mutually important objectives pursuant to “The New Relationship” vision statement. Indeed, “The New Relationship” will need to be revisited as it was established pre-Tsilhqot’in Nation. We are optimistic that there will be a “New New Relationship” based on respect, equality, shared decision-making and mutual prosperity.

Even though we recognized that each Indigenous Nation is unique, all eyes will remain on the Tsilhqot’in Nation and the results of its current negotiations with the Province of British Columbia.

Amyn Lalji is a partner at Miller Thomson LLP and Kennedy Bear Robe is an Associate that work extensively with First Nations across the country on consultation, governance and resource development initiatives. Should you have any questions about this article, please feel free to contact us directly - Amyn Lalji –

604-643-1201 alalji@millerthomson.com and Kennedy Bear Robe – 604-643-1206 – kbearrobe@millerthomson.

Aboriginal Marketplace - Jan/March 2015 29

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