Aboriginal Business

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March 12, 2015 Presentation at the Fairmont Waterfront Hotel, Vancouver, BC

On June 26, 2014 the Supreme Court of Canada case Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 granted declaration of Aboriginal title to more than 1,700 square kilometers of land in British Columbia to the Tsilhqot’in First Nation, 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 or your company wish to discus 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 / wayne@garwilllaw.com

CCAB Hot Topic Series

Canadian Council for Aboriginal Business – Topic Series: The William Case

Truth Justice Ottawa

March 12, 2015
5:00 pm- 9:00 pm
Fairmont Waterfront Hotel
Vancouver, BC

 

In June of 2014, The Supreme Court of Canada granted declaration of Aboriginal title to more than 1,700 square kilometers of land in British Columbia to the Tsilhqot’in First Nation, the first time the court has made such a ruling regarding Aboriginal Land. The unanimous 8-0 decision resolved many legal questions, such as how to determine Aboriginal title and whether provincial laws apply to those lands, this will apply wherever there are outstanding land claims. The case resolved around the Tsilhqot’in First Nation’s claim to Aboriginal title over 440,000 hectares of land to the south and west of Williams Lake in the B.C. Interior. The decision, written by Chief Justice Beverley McLachlin, has future implications for economic and resource development on First Nations lands.

On June 26, 2014 the Supreme Court of Canada case Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 was released resolving many important legal questions, such as how to determine Aboriginal title and whether provincial laws apply to those lands. It also identified implications for future economic or resource development on First Nations lands. This panel will:

Discuss the implications of Tsilhqot’in on Aboriginal-industry economic partnerships; highlight promising approaches to building Aboriginal-industry economic partnerships within the current legal framework; and discuss where to go from here and how to build stronger, more effective partnerships our panel includes Robert McPhee, Managing Director, The Castlemain Group, Chuck Strahl, Director and Chairman, Manning Centre for Building Democracy, Chief Roger William, Tsilhqot’in First Nation, Wayne Garnons-Williams, Senior Lawyer and Principal Director, Garwill Law Professional Corporation, Michael Woods, Partner, Woods, LaFortune LLP.

Our moderator is Lisa Charleyboy, Co-founder & Editor-in-chief, Urban Native Magazine.

Panelists:

Robert McPhee

Chuck Strahl

Chief Roger William

Wayne Garnons-Williams

Michael Woods

Agenda:
5:00 pm Registration and networking
5:30 pm Panel discussion
6:30 pm Q&A
7:00 pm Networking reception
9:00 pm Event to conclude

Registration Information:
Individual Tickets:

CCAB Aboriginal Business Member $78.40 (taxes included)
CCAB Member $89.60 (taxes included)
Non-Members
$100.80 (taxes included)

Student (student identification required)
$50.00 (taxes included)

**Following the panel discussion we will have a stand-up cocktail networking reception, light food and drink will be served.

Click on the following hyperlink to register for this CCAB event:

https://www.ccab.com/upcoming-events-the-williams-case

 

Tsilhqot’in Implications

Parliament and Teepees

February 2015 Aboriginal Business Report article on business implications from the Supreme Court of Canada Tsilhqot’in decision.

CCAB article Feb 2015

Specific Claims Tribunal

Specific Claims Tribunal – Significant Changes without Statutory Consultation.

 

By Wayne Garnons-Williams

Principal Director and Senior Lawyer

Garwill Law Professional Corporation

 

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A picture of the culturally respectful courtroom of the Specific Claims Tribunal of Canada in Ottawa.

 

 

The actions by the Harper government against the Specific Claims Tribunal are arguably unconstitutional, and amount to a breach of judicial independence.

 

The recent gutting of the administrative authority of the Specific Claims Tribunal (SCT), along with the forced merger and physical move of the SCT to the Administration Tribunal Support Services Canada department (ATSSC), is a breach of constitutional convention on the arm’s length relationship expected between the executive and judicial branches of government. This is an attempt, by the Harper government, to reduce an independent Tribunal clothed with the powers of a Superior Court of law into an ineffectual, poorly supplied and overloaded decision making body that is mired in bureaucracy and controlled by a mega administrative department.

 

The SCT is not like any other Tribunal of Canada – it is uniquely clothed in the powers and privileges of a superior court of record. According to the Specific Claims Tribunal Act, the SCT’s administrative independence is part and parcel of its judicial independence:

 

  • (1) The Tribunal has, with respect to the attendance, swearing and examination of witnesses, the production and inspection of documents, the enforcement of its orders and other matters necessary or proper for the due exercise of its jurisdiction, all the powers, rights and privileges that are vested in a superior court of record and may
    • (a) determine any questions of law or fact in relation to any matter within its jurisdiction under this Act;
    • (b) receive and accept any evidence, including oral history, and other information, whether on oath or by affidavit or otherwise, that it sees fit, whether or not that evidence or information is or would be admissible in a court of law, unless it would be inadmissible in a court by reason of any privilege under the law of evidence;
    • (c) take into consideration cultural diversity in developing and applying its rules of practice and procedure; and
    • (d) award costs in accordance with its rules of practice and procedure.

(emphasis added)

 

 

The arbitrary, wholesale deletion of section 10 of the Act concerning the existence of the SCT Registry, along with the removal of a key phrase (found in section 12 of the Act) which states that the judiciary controls the “duties of its staff” through the SCT Judicial Committee, are examples of the subtle and calculating changes made recently by the Harper government to cripple the SCT.

 

Prior to its removal, Section 10 of the SCT Act stated:

 

 

  • (1) There shall be a Registry of the Tribunal consisting of an office in the National Capital Region described in the schedule to the National Capital Act.

(2) The registrar and any staff that is required for the proper conduct of the work of the Tribunal shall be appointed in accordance with the Public Service Employment Act.

(3) The registrar is responsible for the management of the Tribunal’s administrative affairs and the duties of the staff of the Tribunal.

(4) The staff of the Tribunal shall be organized and the offices shall be operated in any manner that may be provided by the rules referred to in subsection 12(1).

 

 

The Harper government is attempting to gut the independent administration of the SCT by transferring all of its judges’ power to manage their own court to the ATSSC, a mega-department assigned to manage regular federal tribunals.

 

In the fall of 2014, the Chair of the SCT, Justice Harry Slade, tabled his fifth consecutive Annual Report, in which he warned the government of the significant erosion of judicial independence that would result from the arbitrary actions of the federal government. The Harper government, in what appears to be direct retaliation, issued the equivalent of an eviction notice to the SCT soon thereafter. The SCT offices are to be vacated and merged with the new mega-department for ordinary federal tribunals by March 2015.

 

The current Head Office of Specific Claims Tribunal in Ottawa is an architectural marvel, with a Courtroom that blends Aboriginal culture and design with an outstanding example of the Tribunal’s mandate for cultural accommodation, found in section 13(1)(c) of the SCT Act. The SCT Courtroom is, in short, an irreplaceable part of a reflection of our modern Canadian/Indigenous heritage.

A virtual tour of the SCT Courtroom can be found at this YouTube site:

https://www.youtube.com/watch?v=WULxMaY69d4

 

The Harper government’s actions of the removal of the administrative powers from the judiciary and destruction of the SCT Courtroom and premises runs contrary to section 41 of the SCT Act, which requires the government to undertake a review of the mandate and structure of the SCT and in so doing, to provide First Nations with the opportunity to make representations regarding the future of the SCT and its history-making Courtroom and facilities.

 

Section 41 was originally written into the SCT Act as sign of respect of Indigenous peoples which is expressed through the statutory requirement of consultation with Aboriginal people with any possible changes that could affect the SCT – a decision making body created solely to determine possible treaty breaches and  provide compensation for these treaty breaches. As such, it is a key element of justice for First Nations and Indigenous peoples of Canada.

 

 

A Brief History of the Establishment of the Specific Claims Tribunal

 

 

There have been numerous calls for an independent body to adjudicate specific claims. In 1947, the Special Joint Committee of the Senate and House of Commons recommended

 

“That a Commission … be set up with the least possible delay to enquire into the terms of the Indian treaties …and to appraise and settle in a just and equitable manner any claims to grievances arising thereunder.”

 

– In 1961, this recommendation was re-stated by another Special Joint Committee of the Senate and House of Commons.

 

– In 1962, draft legislation was approved by Prime Minister Diefenbaker’s cabinet, although the legislation was never introduced because of the 1963 election call.

 

– In 1963, Prime Minister Lester B. Pearson introduced Bill C-130 ,entitled Indian Claims Act, but he then withdrew the Bill, to allow for First Nation consultation.

 

– In 1965, the same legislation was reintroduced by Prime Minister Pearson’s government, although it, too, died on the order paper, due to the 1965 election.

 

– Following the Supreme Court of Canada case of Calder, in 1973, the government of the day announced a policy for addressing both specific and comprehensive claims. At that time the total number of specific claims on record was 1308.

 

– In 1979, an unpublished government of Canada report recommended the creation of an independent body that would “for all purposes be a specialized court.”

 

– In 1982, the government explained their policy, with a publication entitled Outstanding Business: A Native Claims Policy, Specific Claims.

 

– In 1983, the “Penner Report” called for a quasi-judicial court for managing failed negotiations and for neutral facilitation of negotiated settlements.

 

– In 1990, a House of Commons Standing Committee reiterated the need for an independent claims body in a report entitled “Unfinished Business: An Agenda for All Canadians in the 1990s.”

 

– That same year a joint Canada-First Nations working group looked at creating a permanent, legislative entity with tribunal-like powers.

 

– In 1991, the Indian Specific Claims Commission was established as a temporary, independent body to review specific claims rejected by the government and to issue to the government non-binding recommendations. Policy had shifted to allow, for the first time, consideration of pre-confederation claims.

 

– In 1996, the Royal Commission on Aboriginal Peoples recommended an independent lands and treaties tribunal to replace the Indian Specific Claims Commission.

 

– In 1998, a Joint Task Force Report on the Specific Claims recommended the establishment of a tribunal to facilitate negotiations.

 

– That same year, the Canadian Bar Association recommended “the creation of a legislative-based Specific Claims Tribunal with clearly defined mandate to adjudicate the resolution of specific claims.”

 

– In 2003, Bill C-6, The Specific Claims Resolution Act, received Royal Assent, but was left un-enacted, after it was rejected as inadequate by First Nations.

 

– In 2006, the Standing Senate Committee on Aboriginal Peoples conducted a thorough review of the specific claims process and issued its recommendations in the report entitled Negotiations or Confrontations: It’s Canada’s Choice.  In this report, they focused on the lack of independent adjudication available and, among other things, and recommended that the government create an independent claims court with true decision making powers.

 

– In 2007, the Government of Canada released a new policy initiative entitled “Specific Claims: Justice At Last.” A key element to that plan was the creation of an independent tribunal.

 

– That summer, Canada and the Assembly of First Nations worked together on a Joint Task Force, to shape the necessary legislation. By the fall of 2007, the result of their work was tabled in the House of Commons.

 

– In June 2008, the Specific Claims Tribunal Act received Royal Assent.

 

– On October 16, 2008, the Specific Claims Tribunal Act came into force and created an independent tribunal to adjudicate specific claims under treaty. There were approximately 765 specific claims still outstanding in 2008, and some claims of those claims were over 90 years old.

 

As of 2015, however, Canada’s single achievement toward final settlement of its injustices is a judicial body that is being starved. Today the Specific Claims Tribunal has only what it started out with in 2008: one full-time and two part-time judges, while the Harper government has refused to appoint the full roster of judges that were supposed to sit on the Tribunal. Under the Act, the federal government is supposed to have appointed to the SCT up to 18 part-time provincial superior court judges, or six full-time and two part-time judges.

 

A clear 85% of the specific claims that have reached the negotiations phase with the federal government of Canada have ended up as rejections to settlement, allowing these claimants to file their cases with the Specific Claims Tribunal. There are in total currently more than 400 potential specific claims cases coming up.

 

Prior to the drastic action taken by the Harper government in gutting the administration and forcing the Specific Claims Tribunal out of its courtroom and offices, the judges of the SCT had proven that the Tribunal can fulfill the task for which it was created. Notwithstanding its lack of sufficient judges or budget, the SCT has since its inception resolved specific claims under treaty both fairly and adequately. As an independent Tribunal clothed in the powers and privileges of a Court of Superior Record, the legitimacy of the SCT has been proved.

 

A true pessimist could argue that it is the Specific Claims Tribunal’s very success in rendering fair and just compensation decisions that is motivating the Harper government to undercut the SCT. Instead of killing the SCT outright, the Harper Government is gutting it of any ability to render fair and just compensation decisions in a timely manner. Under current working conditions, SCT Chair Mr. Justice Slade estimates that it will take over two years just to address the Tribunal’s current case load of 61 cases.

 

This stripping away of judicial independence and authority allows the Harper government to minimize the effectiveness of the Tribunal and to scare away any potential additional Superior Court Judges who might have been willing to take on an assignment at the SCT.

 

The Harper government may cite cost savings, budget re-profiling, and other economic motives, but it appears to have committed a serious breach of the constitutional convention of judicial independence, as well as a failure to follow the statutory obligations found in section 41 of the SCT Act. The Harper government is failing to provide First Nations with the statutory right to make representations on their own behalf prior to the implementation of any changes.

 

In significantly altering the Specific Claims Tribunal without providing consultation as required under section 41 of the Act, the Harper government has effectively issued a warning to all First Nations contemplating a Treaty process with Canada: should there be any dispute under a federal treaty, signatories should expect further broken promises with regards to timely and fair determination and/or compensation.

 

 

Strategic Alliance

Wayne Garnons-Williams and Michael Woods are pleased to announce that a strategic alliance has been developed between Garwill Law Professional Corporation and Woods, LaFortune LLP to facilitate cooperation in providing advice and guidance to clients in the growing field of First Nations/International Trade, Business and Investment law. The firms are also jointly supporting the work of the International Inter-Tribal Trade and Investment Organization, a cross-border organization that focuses on the development of First Nations/International Trade Law and the re-invigoration of First Nations’ participation in international, inter-provincial and inter-tribal trade.

 

Wayne Garnons-Williams, senior lawyer and principal director at Garwill Law Professional Corporation stated that “the strategic alliance allows both firms to better provide international inter-tribal trade and investment advice and counsel to both foreign and domestic parties wishing to play a role in developing indigenous trade and investment – as combined our two firms bring to the clients a vast array of trade, investment and indigenous law knowledge”.

 

Michael Woods, Senior Partner at Woods, LaFortune LLP, stated “The Supreme Court of Canada has established that First Nations have the right to economically benefit from land under aboriginal title… Because of these decisions, First Nations have a significant role to play in trade relations, including regulation of investment on First Nations’ land, and have to be considered by government and investors alike.”

 

The Supreme Court of Canada’s decision in Tsilhquot’in Nation v. B.C. has changed the landscape in Canada by making it clear that First Nations have economic rights over land subject to aboriginal title.  These rights will affect business, trade and investors seeking to do business on First Nations’ land.  To discuss the implications of the Tsilhquot’in decision and the impact it may have on your business or investment feel free to contact Wayne Garnons-Williams by phone at (613) 778-8685 or by email at wayne@garwilllaw.com or contact Michael Woods by phone at (613) 355-0382 or by e-mail at woods@wl-tradelaw.com.

 

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Pictured from left to right are Gordon LaFortune, Managing Partner of Woods LaFortune LLP, Wayne Garnons-Williams, Senior Lawyer and Principal Director of Garwill Law Professional Corporation and Michael Woods, Partner, Woods LaFortune LLP.