IITIO Executive with Golden Eagle from Citizen Potawatomi Nation Eagle Aviary
On April 22, 2016 as President of the International Inter-tribal Trade and Investment Organization (www.IITIO.org) I had the honour of giving the opening address to the inaugural International Inter-tribal Trade and Investment Conference in the Bell Court Room at the College of Law, University of Oklahoma.
IITIO has the mandate to: “To support and enhance the implementation of the global flow and exchange of Indigenous goods, services and investments.”
IITIO’s purpose is to: “Apply the group’s combined international expertise, passion and experience in addressing tangible issues that can assist in the global flow and exchange of Indigenous goods, services and investments.”
The organization’s principles are:
Respect for the Indigenous teachings and, where possible, apply these teachings to the issue of international inter-tribal trade and investment.
Respect and preference for environmentally sustainable international inter-tribal trade and investment practices.
Sharing of Indigenous trading practices following the Group’s mandate to inform, educate and encourage all parties to Indigenous trade and investment to adopt these best practices where practicable.
Fostering, through international inter-tribal trade and investment, healthy Indigenous communities and more robust and stable Indigenous economies.
The IITIO Conference brought together scholars, economists, lawyers, business leaders and tribal leaders interested and passionate about international inter-tribal trade. Our results from the one day gathering will now focus on research, writing and publication of scholarly peer-reviewed papers that will offer meaningful options to further the development of various sub-topics on International Inter-tribal trade. These scholarly papers will be presented at the faculty of law, Thompson Rivers University during the next IITIO Conference in six months.
Attached the reader will find a video of the opening address of the April 22, 2016 IITIO conference held at the College of Law, University of Oklahoma.
Appearing in the above photo are members of the IITIO Executive. From left to right: Jim Ransom, Gena Timberman, Lindsay Robertson, James Collard, Bradford W. Morse and Wayne D. Garnons-Williams
Incentives & Reconciliation
Replacing the Adversarial Ideology:
By Wayne Garnons-Williams
True Indigenous reconciliation can finally start, now that federal government decision makers have real incentives for effecting change and a framework to allow for that change happen.
On December 8-10, 2015, the Assembly of First Nations (AFN) held its annual gathering of all Chiefs. As the AFN does with every important assembly, it extended an invitation to the Prime Minister of Canada. The last time a Prime Minister had actually made an appearance at an AFN all‑chiefs conference was back in the early 1980s, when, as part of his preparations for patriating Canada’s Constitution, Prime Minister Pierre Trudeau attended.
In October 2015, when Justin Trudeau was elected Prime Minister, he received the same invitation. He immediately accepted. Understanding the importance of this gathering, Prime Minister Justin Trudeau not only showed up, he also brought his Justice Minister, his Minister of Fisheries and Oceans, the Commissioner of the RCMP and the Minister of Indigenous Affairs and Northern Development.
As we all know, politicians who want to dodge an issue merely make an appearance. They are window dressing, applauding their Prime Minister’s speech and leaving immediately. Not so the top officials who formed Prime Minister Justin Trudeau’s posse. Together they made this year’s AFN gathering an historic occasion. Each one stayed for the day. Each attended the conference plenary sessions. Each made it clear that they were receptive to the concerns and ideas expressed, and that they were open to dialogue. These new heads of major government departments listened attentively to the concerns of the assembled chiefs. Along with the Prime Minister they spoke, and attempted to capture the issues of concern, suggesting steps for follow‑up. Their consultation was genuine; their action was immediate.
During the conference, the newly elected Liberal government made significant statements, promising removal of the 2% Indigenous funding cap and the re‑examination and possible roll back of Harper‑era anti-Indigenous laws. Commissioner Paulson of the RCMP formally admitted that racism is present in the ranks of the RCMP and needs to be addressed. Justice Minister Jody Wilson‑Raybould noted that the Inquiry into Missing and Murdered Indigenous Women will begin its consultation phase immediately. Hunter Tootoo, Minister of Fisheries and Oceans, emphasized that fisheries management needs to be consistent with constitutionally protected Aboriginal and treaty rights. And Prime Minister Justin Trudeau stated that Canada will sign the United Nations Declaration on the Rights of Indigenous Peoples, and will actively live up to Canada’s commitment to have a true, meaningful, Nation‑to‑Nation relationship with Canada’s Indigenous peoples.
Each of these messages in its own right is a huge leap forward for Canada, toward reconciliation with her Indigenous peoples. Most striking, however, is the fact that they aren’t just statements of good intent. They are clearly conceived goals, backed up with solid, detailed methods for making reconciliation actually happen. They include the means, and the framework, for bringing these goals to fruition.
Statements alone are nothing new. Generations of Indigenous peoples have heard endless promises from successive governments, complete with slogans like “outstanding business,” “in all fairness,” and “Justice at Last.” None of these promises has ever been followed through with meaningful and positive change, or even with a re‑start to the relationship. There has always been a disjuncture between the word at the top, and the action on the ground. Government of Canada institutions have always, since pre-Confederation, engaged in adversarial brinkmanship against Indigenous interests. They have done this despite countless promises from successive new governments. Government of Canada managers have always lacked the will and the mechanism to effect true change. Until today.
Structural Incentives for Reconciliation Results
The new Liberal government of Justin Trudeau has accomplished something that no other previous government of Canada has ever managed. It has made a Nation‑to‑Nation relationship possible, through individual letters of mandate issued by the Prime Minister to his senior Cabinet Ministers. These are no ordinary orders. They make Nation‑to‑Nation partnership a national priority and provide the means for government to effect these positive changes.
Prime Minister issues mandate letters to the Ministers who run the government. Mandate letters empower Ministers to set political priorities and to express those priorities in terms of policy. They set up a framework to be carried out by a Ministerial Deputy Head or Deputy Minister (DM), the specialists who oversee and run government departments. Armed with a mandate letter, a DM can issue specific and detailed expectations to his or her assistant deputy ministers (ADM), in the form of annual personal and tailored performance objectives. To the degree his or her performance objectives are met, each executive gets a bonus ranging from 3% of salary for “fully satisfactory” performance to 10‑12%, for performance deemed “exemplary.”
Prime Minister Justin Trudeau has issued a Mandate Letter to each of his Ministers that empowers them to steer their departments toward true Nation‑to‑Nation relationships with First Nations. This priority, as apportioned in each performance agreement, will resonate all the way to the pocket books of senior managers in every department in the Government of Canada. It provides monetary motivation to every senior manager in government to achieve concrete results. The better the senior managers are at achieving these measurable performance objectives, the greater their personal financial reward. The effect will be galvanizing.
A Nation‑to‑Nation relationship between Canada’s Indigenous peoples and the federal government of Canada is much more likely to be achieved at the grassroots level of each government department.
Replacing Adversarial Ideology with Partnership
There is an outdated old ideology, still prevalent in the federal government, that depicts Canada’s Indigenous peoples as a threat to the Crown. This hostile system needs to be replaced, in the hearts and minds of federal government decision makers, department heads and senior managers, with a new mind-set viewing the original and rightful owners as cooperative partners.
Carolyn Bennett, Minister of Indigenous and Northern Affairs, has captured the new ideological framework needed: only recognition of “Rights, Respect, Cooperation and Partnership” (which has already come to be known, in government circles, as “Triple RCP”) will allow government departments to consult and work with Indigenous peoples toward reconciliation and a Nation‑to‑Nation relationship. This new approach applies to every government decision maker, at every level. As a problem solving tool for Indigenous issues, Triple RCP is a brilliantly constructed. It will dissolve reluctance on the part of bureaucrats to move away from the status quo.
If real change is going to happen, there are crucial next steps. A lot of work will have to be done by both Indigenous peoples and government decision makers.
The Prime Minister’s Mandate Letter prioritizing the Nation‑to‑Nation partnership provides a yardstick for measuring results; there can now be a significant move toward true reconciliation with Indigenous peoples of Canada.
About the Author:
Wayne is Senior Lawyer and Principal Director of Garwill Law Professional Corporation. Garwill Law offers Litigation, Advocacy, and ADR representation as well as policy, regulatory and legislative analysis, opinion, and development in most areas of federal government.
Specific Claims Tribunal Review
Specific Claims Tribunal Act Five Year Review
Wayne Garnons-Williams, Senior Lawyer and Principal Director,
Garwill Law Professional Corporation
Gordon Lafortune, Managing Partner,
Woods Lafortune, LLP
April 13, 2015
These submissions are made in response to the Request for Views to be considered as part of the Five-Year Review of the Specific Claims Tribunal Act (the “Act”).
The Request for Views document issued by the Department of Aboriginal Affairs and Northern Development lists nineteen questions which are intended to elicit comments on five specific issues which comprise the focus of the review as set out in Section 41(1) of the Act. Rather than separately address the mandate, structure, efficiency and effectiveness of the Specific Claims Tribunal (the “Tribunal”) separately, this submission will focus on the fifth specific issue listed in Section 41(1); “other matters related to the Act.”
The mandate, structure, efficiency and effectiveness of the Tribunal are important and should be periodically considered and amended, as necessary. However, a review of these specific issues is premature at this time because actions taken by the Government of Canada since the Tribunal was established have undermined operation of the arbitral process underlying the Act and the Tribunal. Consequently, a fair and balanced review of the Tribunal’s mandate, structure, efficiency and effectiveness is not possible at this time.
The Purpose of the Specific Claims Tribunal
The Specific Claims Tribunal Act was drafted, and the Tribunal was established, to improve the previous procedures for addressing specific claims.
The Act which created the Tribunal was based on an Agreement between Minister Chuck Strahl and Phil Fontaine, National Chief of the Assembly of First Nations; the Political Agreement between the Minister of Indian Affairs and Northern Development and the National Chief of the Assembly of First Nations in Relation to Specific Claims Reform (the “Political Agreement”).
The Political Agreement is an important foundational document that cannot be overlooked in this Five-Year Review, because it sets out the agreement between the parties and their intentions in establishing an arbitration process to address specific claims. The key comments in the Political Agreement that cannot be ignored in this review are as follows:
The Preamble states, “… it is a legal and moral imperative of Canadians to address the Specific Land Claims of the First Nations in a just and timely manner.”
The Preamble further states that “[t]he Minister and the National Chief celebrate the fact that we have developed together a draft Bill to address Specific Land Claims in a fair and final manner.”
In the section entitled “Future Work,” the Political Agreement notes that “[i]n an effort to continue to seek out improvements … the Minister and the National Chief are committed to work together to inform ongoing policy work ….”
In the section entitled “Five-Year Review,” the Political Agreement states that “[t]he Assembly of First Nations will participate in the five-year review as set out in the Specific Claims Tribunal legislation.”
In the section entitled “Communications,” the Political Agreement states that, “[t]o the extent possible, the parties will work together to produce and communicate information/materials designed to explain the proposed legislation, best practices and other matters within its mandate.”
Based on these clear and unequivocal statements, the Political Agreement executed the following:
It committed the parties to establishing an arbitral process to address specific claims in a just, timely, fair and final manner.
It confirmed that the Act and the Tribunal were the natural consequence of an agreement between the Minister and the National Chief.
If committed the Minister and the National Chief to work together to on the future development of the Act and the Tribunal.
In 2007, Minister Jim Prentice released the document entitled “Specific Claims: JUSTICE AT LAST” to set out the Department’s views on the new Specific Claims Act that would be introduced later that year. The Minister’s Message at the beginning of the document is particularly relevant. The Minister notes that “the First Nations’ frustration with the slow pace of progress in resolving their outstanding claims is understandable.” The Minister further noted that “the number of unsettled claims in the federal system has doubled since 1993 and there is a growing backlog of claims awaiting attention or action.” The Minister concluded on this point by saying
This is an unacceptable situation for First Nation people and for all Canadians – a situation that delays economic and social progress in our country, to the detriment of Canada as a whole.
Minister Prentice went on to state:
Recognizing that tinkering around the edges of the process is not enough, we are proposing major reforms that will fundamentally alter the way specific claims are handled. Our approach builds on the lessons learned from years of study and past consultations and responds to major concerns expressed by First Nations. The Specific Claims Action Plan will ensure impartiality and fairness, greater transparency, faster processing and better access to mediation. It is a critical first step in bringing the specific claims program into the 21st century to deal with the existing backlog once and for all.
Thus, the Minister announced a significant change in approach away from the courts and to a stand-alone process.
Consequently, the purpose of the Act and the Specific Claims Tribunal is to give effect to the Political Agreement between the Minister and the National Chief to quickly, efficiently, effectively and finally resolve specific claims of First Nations outside the court process. Regardless of the authority conferred on the Tribunal in the Specific Claims Act, the Tribunal is clearly intended to be an alternative dispute resolution mechanism that is more like the arbitral procedures set out to resolve disputes in commercial contracts than a superior court. The distinction between an agreed arbitral procedure and an imposed court is important. Arbitral procedures are established by the parties to the agreement for the benefit of those parties and, like procedures before the Courts, arbitral procedures include a clear obligation to act in good faith throughout.
The Government’s Action since 2008
Although the Tribunal was clearly established with the intention that it would impartially, fairly, quickly and efficiently resolve specific claims, the Tribunal’s ability to resolve specific claims has been undermined by subsequent Government decisions to take steps to delay resolution of specific claims. Since the Tribunal was established, the Government has consistently taken steps that have prevented First Nations from quickly and efficiently pursuing claims before the Tribunal, by delaying notice of its intention not to engage in negotiations with the First Nation, by refusing to consent to claims being filed with the Tribunal, by using its superior financial resources to delay arbitrations that proceed before the Tribunal, and by using its superior financial resources to file nuisance Applications for Judicial Review of Tribunal decisions. Examples are too numerous to mention; however, submissions by most First Nations to the AFN review panel clearly support these statements.
In addition, the Government has not fully engaged the Assembly of First Nations in this Five Year Review. The Minister has indicated that it will accept the views of any interested parties, including the Assembly of First Nations, but this is not equivalent to cooperating to shape the questions and communication that are the basis for this Five‑Year Review. By denying the Assembly of First Nations the right to participate in the Five-Year Review process fully and from the beginning, the Government of Canada is apparently seeking to unilaterally amend the terms of the Political Agreement that gave rise to the Act and Tribunal in the first place.
The Government of Canada is fully aware of the financial limitations and resource restrictions facing First Nations who are attempting to use the Tribunal to resolve specific claims. The Government of Canada must realize that the delay and unnecessary legal steps that it is imposing on the arbitral system through its actions make it more difficult, if not impossible, for many First Nations to pursue claims through the Tribunal process. Through its actions, the Government is clearly acting in bad faith, to the detriment of all Canadians.
The mandate, structure, efficiency and effectiveness of the Specific Claims Tribunal should be periodically reviewed, and changes should be made to ensure that the Tribunal provides the intended impartial, fair, transparent, efficient and effective mediation process. As noted above, a review is imperative and timely, because the Government’s deliberately sharp practice taints the Tribunal’s mandate, structure, efficiency and effectiveness.
Since it is impossible to compel parties to act in good faith through legislation, we recommend that the Specific Claims Tribunal Act be amended to limit the Government’s ability to act in bad faith.
First, that a full complement of judges be appointed to the Tribunal in accordance with the Act. This means that funding to the various superior courts of the province be guaranteed so that the bench strength of judges taken away for work at the Tribunal can be replenished.
Second, that the reference to “three years” in Sections 16(1)(a) and (d) be deleted and replaced with “six months.” This amendment would prevent unnecessary delays in filing specific claims with the Tribunal while giving the Minister sufficient opportunity to determine whether or not s/he intends to engage in negotiations to resolve the specific claim.
Third, that Section 12(1) of the Act be amended to allow the Tribunal to award costs on a punitive scale in cases where proceedings are unnecessarily delayed by any means.
Fourth, that the Tribunal have the authority to hear submissions on case funding prior to a Stage One submission to the Minister. This application to the Tribunal for funding would include, but not be limited to, research funding, hiring of experts and the projected cost of hearing a matter at the Tribunal.
Fifth, that the specific claim be filed in the Tribunal simultaneously at the Stage One submission to the Minister, and that all negotiations take place under the supervisory authority of the Tribunal from the point of filing.
Sixth, that Tribunal judges not involved with the actual Tribunal hearing be designated as case management judges able to mediate/arbitrate any and all issues leading up to either a settlement or hearing at the Tribunal.
Seventh, that upon filing of a claim with the Tribunal by a First Nation, the Crown be given 90 days to provide full disclosure of any and all related documents and to file a complete list of those documents with the Tribunal for case management.
Eighth, that funding for Tribunal operations and administration be separate, distinct and robust and not part of the money allocated for claim research or claim development.
The Act and Tribunal were established so that specific claims could be addressed quickly, efficiently and effectively; this remains an important goal. That the First Nations have, and will have, specific claims is clear and has been admitted by the Government through the actions it has taken to establish the Act and Tribunal.
That specific claims are legitimate is also clear; these claims are part of debts owed to the First Nations resulting from the treaty process undertaken between the Government and First Nations. Specific claims are not unfair burdens imposed on other Canadians, nor are they handouts given to First Nations. These are legitimate claims that First Nations are entitled to pursue through a process that must and will result in fair resolution.
Resolution of specific claims is not only important to First Nations, but to all Canadians. Resolution of specific claims will address the potential liability of the Government of Canada to First Nations and result in the certainty required for the Government, First Nations, businesses and investors to move forward with the knowledge that underlying claims have been addressed and resolved, thus achieving the Minister’s objective of supporting “economic and social progress in our country” to the benefit of Canada as a whole.
Therefore, we urge the Minister to consider the recommendations set out in this submission and to incorporate these recommendations into the Act.
March 12, 2015 Blue Ribbon Panel Discussion of Aboriginal-Industry Economic Partnerships at the Fairmont Waterfront Hotel, Vancouver, BC
JP Gladu, President CCAB
Chuck Strahl, Director & Chair, Manning Centre for Building Democracy
Lisa Charleyboy, Co-founder & Editor-in-chief, Urban Native Magazine
Wayne Garnons-Williams, Principal Director & Senior Lawyer, Garwill Law Professional Corporation & Chair, International Inter-tribal Trade and Investment Organization
Robert McPhee, Managing Director, The Castlemain Group
Miles Richardson, OC, Interim Director, National Consortium for Indigenous Economic Development
Discussion focused on the the Supreme Court of Canada case Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 and the Aboriginal-Industry partnership opportunities and challenges.
In the Tsilhqot’in case, the Supreme Court granted to the Tsilhqot’in First Nation a declaration of their Aboriginal title to more than 1,700 square kilometers of land in British Columbia, the first time the court has made such a ruling regarding Aboriginal Land. The decision, written by Chief Justice Beverley McLachlin, has future implications for economic and resource development on First Nations lands.
My presentation stated the following:
1. Tsilhqot’in clarifies First Nation–Industry partnership.
2. Tsilhqot’in allows greater control for First Nation business development.
3. Aboriginal–Industry Business Development cannot exist in a vacuum.
4. Aboriginal small business infrastructure must be further developed.
5. Inter-tribal trade and investment is key to stronger Aboriginal–Industry economic partnerships.
Should you wish to learn more about the economic opportunities and challenges that await a company or First Nation in this new and developing business climate, contact me so that we can discuss your circumstances and how you can best move forward.
Wayne Garnons-Williams (613)778-8685 / firstname.lastname@example.org
The new law and how to do business within it: Paradigm shift inside the recent the Tsilhqot’in and Grassy Narrows Supreme Court of Canada decisions
First Nations, international and domestic organizations all need to understand the new realities, opportunities and challenges for conducting business on Aboriginal title land and treaty territory.
The Supreme Court of Canada confirmed the existence of exclusive Aboriginal title for the Tsilhoqot’in people of the interior of BC and in doing so also clearly outlined a road map for other First Nations across Canada seeking recognition of their title rights. This road map developed a three part occupancy test of “Sufficiency, Continuity and Exclusivity” which if successfully proven, sweeps away an underlying Crown Interest in the land and requires “consent” from the First Nation aboriginal title holder for any party wishing to use the Aboriginal title territory.
The successful First Nation Aboriginal land title holder has extensive possession and ownership rights including the right to decide the land use; the right to profit from its economic development and the right to pro-actively use and manage the land. For entities wanting to conduct business on these Aboriginal title lands it means that there is an early obligation to provide full and fair consultation, accommodation with the goal of obtaining the Aboriginal land title holder’s consent to engage in the business activity.
Likewise within weeks a second decision was rendered from the SCC concerning the use of treaty lands. The court examined lands in Ontario under treaty number 3 wherein the Grassy Narrows First Nation challenged the issuance of provincial forestry licences. The SCC ruled that Ontario had the authority to “take up” the lands and that the federal government did not need to be involved. Citing its recent Tsilhqot’in case it reinforced the requirement for “consultation” and if appropriate “accommodation” for First Nations in a manner consistent with the honour of the Crown.
Crown infringement of treaty rights (like the issuance of resource development/harvesting leases on treaty lands) will require the Crown to act in a manner consistent with the fiduciary relationship between the Crown and the Treaty rights holder.
For organizations seeking to conduct business on Aboriginal title lands or treaty lands or currently conducting business on these lands, the rules of the relationship have shifted, clarified and at the same time placed an obligation for business to understand and correctly apply the legal concepts of “consultation”, “accommodation” and “consent”.
Whether your organization seeks to do business with First Nations or you are currently in a business relationship on these lands, you need to know how to strengthen that business relationship to ensure mutual long-term prosperity. The law firm alliance of Garwill Law Professional Corporation and Woods LaFortune LLP is strategically placed to assist both foreign and domestic businesses, by guiding your business through not only the SCC requirements but also understanding the need to develop and grow healthy relationships with First Nations that start with respect and cultural understanding of the link between the people, culture, language, history, and use and enjoyment of the land for future generations while accommodating sustainable development of the land.
These cases will affect business, trade and investors seeking to do business on First Nations’s land. To discuss the implications of the Tsilhquot’in decision and the impact it may have on your business or investment contact us and we will be pleased to assist you:
*This article and other publications on our website are provided as general information and commentary and is not intended as or to be relied upon legal or policy advice.