Case law

Legal developments in the duty to consult
By Meaghan Conroy
Currently before the Supreme Court of Canada are two matters that provide an opportunity for further guidance on the duty to consult and the honour of the Crown. 

Supreme Court of Canada agrees to hear two First Nation tax immunity cases
By Max Faille
The SCC granted leave to appeal from two decisions of the Federal Court of Appeal in which the Indian Act tax exemption was denied in relation to investment income at on-reserve financial institutions.

Little Salmon/Carmacks First Nation – the duty to consult and modern treaties
By Julie Jai
Little Salmon/Carmacks is the first case dealing with the interaction between evolving common law duties and the interpretation of a modern land claim agreement (treaty) to reach the Supreme Court.

McIvor v. Canada
By Christopher Devlin
The SCC dismissed Sharon McIvor and Jacob Grismer’s leave to appeal application respecting McIvor v. Canada, a key ruling respecting entitlement to registration (i.e. status) under section 6 of the Indian Act.

Alberta court rules membership card proof of Métis status in hunting case
By Juli Abouchar
A recent Alberta Provincial Court case has confirmed that settlement Métis in that province have a legal right to hunt or fish as “Powley Métis” pursuant to section 35 of the Constitution Act, 1982.

B.C. Supreme Court supports EA Office in its approach to consultation
By Juli Abouchar
In Nlaka’pamux Nation Tribal Council v. Griffin, the B.C. Supreme Court ruled that the province’s Environmental Assessment Office (EAO) had initiated a consultation process that, in terms of both scope and content, “cannot ... be said to be unreasonable.”
 

CBA National Aboriginal Law Conference

June 11-12, 2010 (Toronto)
Mark your calendars now for the CBA Aboriginal Law Conference. Plan to attend the annual National Aboriginal Law Section meeting scheduled for June 12, immediately following the CLE program. Conference details will be available soon on the CBA website.
 

News

Unlocking equity for locatees in CP-held lands: "A to A lease"
By Barry Porrelli
The "A to A lease" is an exciting tool that allows inclined First Nations to attempt to free themselves from certain restrictions in the Indian Act and permits their members opportunity to access equity in their CP held lands in a fashion that most Canadians take for granted. 

Negotiating funding: Using facts to persuade
By Paul Godin
Aboriginal organizations seeking funding from third party sources can take a page from the negotiator’s book to get better results. Here are some practical suggestions.

Designing aboriginal trusts for success: The investment perspective
By S. Kelly Rodgers
An aboriginal trust can be designed for success or it can be designed for failure. The trusts that fail receive a lot of attention, but the ones that succeed enjoy their success quietly.

Introducing the National Aboriginal Trust Officers Association
By S. Kelly Rodgers
The administration of First National and Settlement trusts over many decades is often a complex and challenging task. Recognizing the challenges involved, in 2006 a group of individuals came together to form the National Aboriginal Trust Officers Association.

Ontario supports aboriginal access to green energy boom
By Julie Abouchar
As part of its rollout of Ontario’s Green Energy Act, the Ministry of Energy and Infrastructure has announced three programs to help aboriginal groups and local communities participate in the renewable energy boom.
 

First person

In Memoriam: Donald Marshall Jr
By Jarvis Googoo
Halfway through my first degree, I decided that I wanted to attend law school and obtain a law degree.  While I had many reasons to seek a law degree, my strongest motivator was my cousin, Donald Marshall Junior.

Legal developments in the duty to consult

By Meaghan Conroy
Ackroyd LLP

Since the release of the Supreme Court of Canada decisions in Haida, Taku and Mikisew, Canadian courts and administrative tribunals have struggled to apply the legal principles governing the duty to consult.

In the seminal cases of Haida and Taku, the Supreme Court of Canada confirmed the Crown had a duty to consult when it contemplates action that could adversely affect asserted Aboriginal rights. A year later, in Mikisew , the Court confirmed there is also a duty to consult where Crown conduct could adversely affect treaty rights. The duty to consult is grounded in the principle of the honour of the Crown. The Crown must conduct itself honourably in all its dealings with aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties.

Currently before the Supreme Court of Canada are two matters involving the duty to consult: Rio Tinto Alcan Inc. v. Carrier Sekina Tribal Council (“Rio Tinto Alcan”) and Minister of Energy, Mines and Resources et. al. v. Little Salmon/Carmacks First Nation et. al. (“Little Salmon”).

These cases will give the Supreme Court an opportunity to provide further guidance on the duty to consult and the honour of the Crown. They are likely to have very real consequences on the ground for aboriginal groups, industry and regulators involved in consultation activities. 

Read the full article

Meaghan Conroy is an associate with Ackroyd LLP in Edmonton.

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Supreme Court of Canada agrees to hear two First Nation tax immunity cases

By Max Faille
Gowling Lafleur Henderson LLP

On Oct. 29, 2009, the Supreme Court of Canada announced that it had granted leave to appeal from two decisions of the Federal Court of Appeal in which the Indian Act tax exemption was denied in relation to investment income at an on-reserve financial institution: Succession Bastien v. Canada¹and Dubé v. Canada.²
  
This will be the first time the Supreme Court of Canada addresses the scope of the s. 87 Indian Act exemption as applied to investment income, and the first time it will examine the scope of s. 87 at all since Union of New Brunswick Indians in 1998.  As such, it will be an opportunity for the Court to closely examine the treatment of this issue by the Federal Court of Appeal over the years, which has been the object of much criticism in academic commentary.

The key issue in both cases is whether or not the investment income of a status Indian, placed in an on-reserve financial institution, is taxable based on the fact that the income is generated in large part from investment and participation in Canadian and global capital markets, even where all other factors otherwise connect the income to a reserve.

In Bastien, the taxpayer was a status Indian, a member of the Huron-Wendat First Nation, who had lived his entire life on the Wendake reserve. He engaged in the business of making and selling moccasins through a company that operated on reserve. The profits from the business were invested in the on-reserve credit union, which itself served the economic development of the reserve community through financing and the provision of financial services. All the income’s ‘‘connections’’ pointed to an on-reserve location, except for the fact that a majority of the credit union’s investments were placed in Canadian and global capital markets. This factor was enough, the court ruled, to situate this property ‘‘off reserve’’ and therefore expose it to taxation.

The Federal Court of Appeal’s rationale in both Bastien and Dube was that participation in global and Canadian capital markets has the effect of situating the property "off reserve," and takes precedence over all other factors, including the on-reserve location of the financial institution at which the funds were invested. The result contrasts starkly with that of the Supreme Court of Canada in the God’s Lake case,³ in which the Court concluded that, for the purposes of situating a bank account that is the personal property of an Indian or of a Band pursuant to the related s. 89 of the Indian Act (immunity from seizure), the location of the financial institution was determinative.

More importantly, these cases arguably represent the logical culmination of the steady erosion of the tax exemption witnesses since the introduction of the so-called “conencting factors” test to situate property for s. 87 purposes, as articulated in the Williams case in 1992⁴ Since that case, the Tax Court and the Federal Court of Appeal have increasingly narrowed the scope of the exemption, through the addition of a series of super-added requirements: that the property, to qualify for tax exemption, must be held “Indian qua Indian,” must help to “preserve the traditional way of life in Indian communities,” must be “integral to the life of the reserve” and, must not be integrated into or in competition with the property of “other Canadians.” The overarching qualification is that the property cannot be in or arise from the so-called “commercial mainstream.” Indeed, it was the determination that the investment income was in this “commercial mainstream” that was fatal to Bastien’s and Dube’s appeals from their tax re-assessments. None of these qualifiers or limitations can in fact be found in the wording of the legislation itself.

The exercise of determining whether property is considered to be situated “on a reserve” (and therefore immune) has over the years been transformed into an exercise in determining the “Indian” nature of the property. Indeed, it is telling that in most cases, the courts, in situating the property of an Indian for s. 87 purposes have not defined the enquiry as choosing between a reserve and another actual physical location, but rather as between a reserve and the “commercial mainstream.” The “commercial mainstream” is not a location; it is a euphemism.  

In Bastien and Dube, one might well ask: if the property at issue is not situated on reserve, where is it located? 

Fundamentally, these cases pose the question as to whether reserve-based economic activity can engage with or participate in Canadian and global markets without losing the protections of the Indian Act. The Federal Court of Appeal suggests that the answer to this question is no, with the effect of limiting on-reserve economic activity to what one author has called a "separate, ring-fenced, exclusively traditional economy that has no direct or indirect analogues in the off-reserve world."⁵

The rationale appears to be that engaging in Canadian or global markets signals "integration" into Canadian society. Yet trade and economic engagement with non-aboriginal people is, far from suggestive of assimilation or integration, a defining characteristic of aboriginal people since the first moments of contact. Only through the policies of assimilation did the idea arise that entitlements and rights are foregone when a status Indian trades with or becomes engaged in Canadian or global society.

These will be important cases to watch, as they may well signal whether new life will be breathed into the s. 87 tax immunity, or whether its steady erosion will continue and lead to its effective demise.

A partner in Gowlings’ Ottawa office, Max Faille is the firm's national leader for aboriginal law and co-leader of the firm's aboriginal tax service.
 

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Little Salmon/Carmacks First Nation – the duty to consult and modern treaties

By Julie Jai
Federal Department of Justice*

On Nov. 12, 2009, the Supreme Court of Canada (SCC) heard an appeal from the Yukon Court of Appeal of a case involving the Little Salmon/Carmacks First Nation and the duty to consult.¹ Through the SCC website’s new webcast feature I was able to watch the hearing live from my computer. This webcast has been archived and can be viewed at http://www.scc-csc.gc.ca/case-dossier/cms-sgd/webcasts-webdiffusions-eng.aspx

Little Salmon/Carmacks is the first case dealing with the interaction between evolving common law duties and the interpretation of a modern land claim agreement (treaty) to reach the Supreme Court. The issue faced by the court was whether the common law duty to consult and accommodate, recently articulated by the SCC in 2004 in Haida² and in 2005 in Mikisew Cree,³applies in a situation where there is a modern treaty in place. This case is relevant to First Nation and other governments which are parties to or are negotiating modern treaties, and there were a total of eleven intervenors at the SCC.⁴

Background:

The Little Salmon/Carmacks First Nation, the Yukon government and the government of Canada entered into a modern treaty in 1997 after a lengthy and comprehensive negotiation process. The First Nation was represented by professional negotiators and legal counsel and the agreement was ratified by First Nation members. The treaty is very detailed and is over 400 pages in length. Among other things, the treaty provides for First Nation Settlement Land, and access rights over Crown lands for subsistence harvesting purposes.

In 2001, Mr. Paulsen applied for an agricultural land grant of 65 hectares of Yukon Crown land. If this application were granted, the First Nation would lose its right to access this land for subsistence harvesting purposes and a trapping concession held by a First Nation member would be affected. The 65 hectares represents less than one per cent of the trapline area of 21,435 hectares.

The Paulsen application was reviewed by various internal government bodies. It did not come to the attention of the Little Salmon/Carmacks First Nation until 2004, when it was on its way to the Land Application Review Committee (LARC). Little Salmon/Carmacks is a member of LARC, and expressed concern by letter about the Paulsen application, but did not attend the LARC meeting where it was discussed and did not ask that it be adjourned. LARC recommended approving the application, with one minor change. Little Salmon/Carmacks expressed its opposition, and complained that the process had not satisfied the duty to consult. The Yukon government’s position was that there was no requirement under the treaty to consult with respect to these types of land transfers, and that any consultation that had taken place was as a matter of courtesy rather than legal obligation.

Little Salmon/Carmacks First Nation argued in court that the duty to consult, set out in Haida (a case where there was no treaty) and in Mikisew Cree (a case involving an eight-page historic treaty from 1899) also applies to modern treaties, so that in addition to the treaty obligations, governments must satisfy the common law duty to consult. They argued that the duty to consult is a constitutional obligation which infuses all treaties, modern or historic.

At the Yukon Supreme Court, Justice Veale applied Mikisew Cree and found that there was a common law duty to consult, and also, that such consultation was an implied term of the treaty, which the Yukon had not met.

In the Yukon Court of Appeal, the Yukon argued that any duty to consult had to be found in the treaty and the treaty was clear – no consultation was required in respect of proposed dispositions of Crown land. Consultation is specifically addressed and referred to 67 times in the treaty, but is not mentioned with respect to Crown land transfers. However, the court noted that the treaty is silent on the issue of Crown land dispositions, so there was no clause to which a duty to consult could attach. The Yukon Court of Appeal found that there was a duty to consult, but the consultation required was at the low end of the spectrum, and had been met in this case.

In the YCA and the SCC, the federal government, intervening, argued that the duty to consult flows from the honour of the Crown and could exist independently from the treaty, but that it is necessary to look at the treaty as a whole to determine whether the objectives underlying the duty to consult have been met.⁵ The treaty provides for the First Nation to participate in key advisory and decision-making bodies responsible for land use planning, wildlife management and other resource management. This co-operative management regime arguably fulfils the duty to consult and replaces the need to consult on a transaction by transaction basis.

The Supreme Court had the benefit of a wide range of arguments from the parties, the courts below, and the intervenors, and judgment was reserved.  If the court decides to superimpose a duty to consult on modern treaties, governments argue that it could undermine the modern treaty negotiation process and that the goal of certainty would be defeated. On the other hand, First Nations may argue that they have been disadvantaged by signing modern treaties if they do not also get the benefits of the evolving common law. Several of the questions from the bench suggest that administrative law principles of procedural fairness may be considered, and perhaps the court will be able to find a middle ground.

For a detailed analysis of the relationship between modern treaties and the evolving common law, see The Interpretation of Modern Treaties and the Honour of the Crown: Why Modern Treaties Deserve Judicial Deference.⁶

*Julie Jai is with the Department of Justice Canada, Ontario Regional Office. The views expressed here are the author's own and do not represent the views of the Federal Department of Justice.

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McIvor v. Canada

By Christopher Devlin
Devlin Gailus

The Supreme Court of Canada announced on Nov. 5, 2009 that it dismissed Sharon McIvor and Jacob Grismer’s leave to appeal application respecting McIvor v. Canada, 2009 BCCA 153, a key ruling respecting entitlement to registration (i.e. status) under section 6 of the Indian Act.

Sharon McIvor obtained her Indian status after the 1985 amendments to the Indian Act (“Bill C-31”) initially under section 6(3) and then, later, under section 6(1)(c). Her son, Jacob Grismer (born before 1985) obtained his Indian status under section 6(2) after 1985. However, because Mr. Grismer’s father was not a status Indian, and because Mr. Grismer’s wife was not a status Indian, Mr. Grismer was unable to pass his status to his children. Accordingly, Ms. McIvor and Mr. Grismer challenged Bill C-31, specifically section 6, on the basis that the status provisions nevertheless contained residual discrimination on the basis of sex. Earlier in 2009, the BC Court of Appeal ruled that sections 6(1)(a) and 6(1)(c) of the Indian Act violated the discrimination provisions of the Charter:

The discrimination in this case is the result of under-inclusive legislation. The combination of s. 6(1)(a) and 6(2) of the Indian Act results in a situation in which people in Mr. Grismer’s position are unable to transmit Indian status to their children only because their mothers, rather than their fathers, are entitled to status as Indians. This discrimination applies only to a group caught in the transition between the old regime and the new one (paragraph 122).

The B.C. Court of Appeal found that sections 6(1)(a) and 6(1)(c) violate the Charter only to the extent that they grant individuals to whom the “Double Mother Rule” applied greater rights than they would have had under the former legislation. Before Bill C-31, a person whose mother and whose grandmother were not Indians would lose his or her Indian status when they reached 21 years of age under the old section 12(1)(a)(iv), but after the 1985 amendments, such people received (or were reinstated to) full status (paragraph 85 and 137, 142 and 143).

The B.C. Court of Appeal held that Bill C-31 effectively went beyond just preserving rights (as Canada argued) by enhancing the right of transmitting status of the comparator group while at the same time denying to the same degree the same right to Mr. Grismer (paragraphs 140 and 143, 155).  This was a much narrower ground on which to find that the discrimination was unjustifiable in a free and democratic society that what the trial judge had found (paragraphs 145, 150 and 151).

As a result, the B.C. Court of Appeal declared sections 6(1)(a) and 6(1)(c) of the Indian Act of no force and effect. By doing so, the court eliminated not only s. 6(1)(c), the subsection by which many aboriginal women regained their status as Indians (specifically, those who had married non-Indians before 1985) but also s. 6(1)(a), the subsection by which many aboriginal men, women and children had their pre-1985 Indian status recognised and continued post-1985. The only Indians who appear to keep their status are:

1. members of new Indian bands since 1985 (s.6(1)(b)),
2. Indian men, their wives and children, who were enfranchised by Minister’s order before 1985 (s.6(1)(d)),
3. the rare cases of those who lost status pre-1985 for becoming professionals or leaving the country (s.6(1)(e)) and
4. the children of one or two such individuals (s.6(1)(f), s.6(2)).

However, the B.C. Court of Appeal suspended the effect of its judgment for 12 months (until April 6, 2010) to enable Parliament to make legislative amendments.

On Aug. 24, 2009, Canada announced a plan for the development of legislative amendments to the registration provisions of the Indian Act in response to the B.C. Court of Appeal’s ruling with the aim of passing the proposed amendments by the April 6th deadline. Since the Supreme Court of Canada will not be hearing the appeal, the process is now entirely in the government’s hands to present amendments to the Indian Act to Parliament prior to that deadline.

Canada has emphasised that if the April 6th deadline is not met, no one who has been included in the Indian Register under the existing law will lose their status because of the missed deadline. That does not mean necessarily, however, that new registrants would be possible if sections 6(1) and 6(3) are of no force and effect as a matter of law.

In its discussion paper entitled “Changes to the Indian Act affecting Indian Registration and Band Membership,” a copy of which may be found here, Canada states that it intends to solicit input and feedback from First Nations and other Canadians at a series of meetings across the country. In addition to meetings, Canada invited anyone with interest to send written comments on the proposed amendment concept by mid-November 2009.

The proposed amendments would not grant or restore status to all individuals who had a female ancestor who had lost her status upon marriage to a non-Indian prior to 1951 (when the Double Mother Rule was enacted), as the trial judge had originally ordered. 

Chris Devlin is a lawyer with Devlin Gailus Barristers and Solicitors in Victoria, B.C.

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Alberta court rules membership card proof of Métis status in hunting case

By Juli Abouchar
Willms & Shier Environmental Lawyers LLP

A recent Alberta Provincial Court case (R. v. Lizotte, 2009 ABPC 287) has confirmed that settlement Métis in that province have a legal right to hunt or fish as “Powley Métis” pursuant to section 35 of the Constitution Act, 1982. Moreover, the membership cards issued to settlement Métis in Alberta are sufficient proof of identity to exercise that right, at least within 160 kilometres of the settlement in which they reside. However, additional litigation will be needed to determine whether non-settlement Métis enjoy the same rights.

Dion Lizotte was charged with hunting without a licence after he shot a large bull moose in September 2007 about 70 kilometres south of Paddle Prairie where he lives. Although Lizotte produced a card that identified him as a member of the Paddle Prairie Métis Settlement, provincial wildlife officers demanded genealogical records that would substantiate his ancestry back to the late 1800s.

Judge Brian R. Hougestol disagreed. "The Crown wants to create a parallel world of unnamed bureaucrats to analyze Métis genealogical records and second-guess the work of the Settlements," Hougestol wrote in his judgment released Sept. 29, 2009. "This is inconsistent with the [Métis Settlement] Act, and with common sense." He concluded that “the Crown’s position in this case is inconsistent with the Alberta government’s historical approach to the Métis people.”

Hougestol declined to rule on the validity of a provincial policy, drafted in 2007 by Alberta Sustainable Resources Development (SRD), which says Métis only have a right to exercise their hunting rights within 160 kilometres of the settlement in which they live. The interim agreement, previously in place, allowed them to hunt or fish on any Crown land in the province or any private land so long as they had received the owner’s permission.

Gerald Cunningham, president of the Métis Settlements General Council, says the Lizotte decision affirms two important points. First, Métis settlement members under Alberta law are automatically Métis under the relevant aspects of the “Powley” case (in which the Supreme Court of Canada ruled that Métis have a constitutional right to hunt, fish and gather for sustenance). Secondly, the case ensures Métis are able to hunt off settlement, at least within a 160-km radius.

However, the ruling does not address the right to hunt and fish for any Métis who does not hold a valid settlement card. While over 80,000 Métis reside in the province, just 9,000 are listed on the settlement rolls. The Métis Nation is currently defending two other illegal hunting cases in southern Alberta in an effort to win the right for all Métis tohunt and fish throughout the province. A number of similar cases are still outstanding.

Juli Abouchar, a partner with Willms & Shier Environmental Lawyers LLP in Toronto, is an Environmental Law Specialist certified by the Law Society of Upper Canada.
 

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B.C. Supreme Court supports EA Office in its approach to consultation

By Juli Abouchar
Willms & Shier Environmental Lawyers LLP

The Supreme Court of British Columbia continues to clarify the Crown’s duty to consult, but says such consultation must be balanced against other statutory requirements. In a judgment released Sept. 17, 2009 (Nlaka’pamux Nation Tribal Council v. Griffin, 2009 BCSC 1275), Justice Sewell ruled that the province’s Environmental Assessment Office (EAO) had initiated a consultation process that, in terms of both scope and content, “cannot … be said to be unreasonable.” In a complex case that involved overlapping claims, historical infringements, and dissention among First Nations parties, the Court complimented the EAO in accommodating the conflicting views of the tribal council and one of its member bands. However, the Court said it was still too early in the process to determine whether the EAO will, in fact, adequately discharge its duty to consult and accommodate if appropriate.

Belkorp Environmental Services Inc. and the Village of Cache Creek had proposed to extend a municipal landfill site on lands northeast of Vancouver that were within, or close to, the asserted traditional territory of the Nlaka'pamux Nation. The EAO had issued an order prescribing consultation with the Ashcroft and Bonaparte Indian bands, impact and benefit sharing agreements, and involvement of First Nations in all phases of the EA; however, the order excluded Nlaka'pamux Nation Tribal Council (NNTC), a council comprised of certain First Nations communities including the Ashcroft band. Although the Ashcroft band supported the project, the NNTC did not and had also expressed long-standing opposition to the original landfill operation and its access corridors. NNTC petitioned the Court to quash the initial consultation order issued by the EAO and to declare that the EAO Director had “failed to comply with his constitutional and legal duty to consult with the NNTC in good faith.”

In dismissing the claims set out in the petition, the court determined that it was appropriate to involve the bands in the assessment of the on-the-ground impacts of the proposal. Given the broader nature of the concerns raised by the NNTC, the only truly effective way to accommodate them was through government-to-government negotiations. The landfill proponents would have no useful role to play in such talks.

The Court concluded that “the government acted appropriately in this case in making a decision to implement separate consultation protocols with the Ashcroft Band and the NNTC. I can see no objection in principle to requiring the proponents to consult with a specific Band if the government also undertakes appropriate consultation with the First Nation. That must be particularly so when there is a clear divergence of opinion between the putative representative of the Nation and the representatives of the Band.”

The Court also noted that the government has a statutory duty to undertake the environmental review in a thorough, effective and expeditious manner. This duty must be balanced against its obligation to consult. “It is to be expected that this balancing will require a flexible approach by Government to adapt to the particular circumstances of each case,” the Court advised.

Juli Abouchar, a partner with Willms & Shier Environmental Lawyers LLP in Toronto, is an Environmental Law Specialist certified by the Law Society of Upper Canada.

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CBA National Aboriginal Law Conference — June 11-12, 2010 (Toronto)

Mark your calendars now for the CBA Aboriginal Law Conference on June 11-12, 2010 in Toronto. Plan to attend the annual National Aboriginal Law Section meeting scheduled for June 12, immediately following the CLE program. Conference details will be available soon on the CBA website.
 

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Unlocking equity for locatees in CP-held lands: "A to A lease"

By Barry Porrelli
Porrelli Law

Most Canadians take for granted their ability to sell and mortgage their land without restriction. But First Nation members have a very difficult time accessing the equity in their lands. Section 89 of the Indian Act provides, inter alia, that the real property of an Indian on reserve cannot be subject to a mortgage or seizure.

There are limited opportunities for Certificate of Possession (“CP”) holders to leverage or access the equity in their lands. Government programs, with or without Ministerial Guarantees, have been obtainable in certain instances. These typically require band-backed guarantees or up-front contributions from the First Nation which show up on their books and restrict band borrowing power.  

In the past, we have used corporate structures whereby the locatee (i.e. a band member with an allotted Certificate of Possession) leases their CP lands to a company in which they are the principal, and then mortgages that lease to a lender. But few lenders are interested in this, and it presents some potential adverse tax consequences to the locatee. 

The Westbank First Nation (“WFN”) has solved this problem to a large degree with the creation of the “A to A” lease. The lands of the WFN are located in the Okanagan, adjacent to the City of Kelowna, and are some of the most desirable in Canada.  Highly urbanized, their lands are serviced and intersected by a major highway corridor with access to commercial, highway, waterfront and lake views. And unlike many reserves, the majority of WFN lands are held by CP holders rather than the First Nation.

In 2005 WFN achieved self-government which gave it tremendous powers. Section 56 of the self-government agreement provides that, except as set out therein, the Indian Act no longer applies to the WFN or its lands. Prior to that, it had Land Code under the First Nations Land Management Act but the self-government agreement superseded that as well.

The Constitution of the WFN passed under the self-government agreement, and approved by Canada, gives an “Indian” the ability to mortgage a leasehold interest (see below this article for the excerpts from s.106 and s.107 of the WFN Constitution). This achieves a couple of things:

Firstly, an Indian, not just a member of the WFN, can apparently now give a valid mortgage over a leasehold interest on WFN lands. The lands of the WFN are highly developed including many residential, condo and resort-style communities.  There are upwards of 10,000 non-natives residing on WFN lands. Any Indian, not just a band member, can now grant a mortgage of a leasehold interest on this reserve to an institutional lender. This allows them to purchase, with bank financing, into any of the many residential subdivisions on this reserve.

Secondly, and very importantly, the Constitution allows a locatee to grant a leasehold interest in their own CP land to her or himself (hence the term “A to A”).  That leasehold interest (rather than the CP itself) can then be charged and mortgaged to a bank. 

We have developed a form of A to A lease, and mortgage of this type of lease, that is acceptable to at least the Bank of Montreal, the Royal Bank and Peace Hills Trust, and we have placed dozens of mortgages for WFN members with these institutions.

An offshoot of this is estate planning opportunities for WFN members married to non-aboriginals or non-band members. Of course, only a band or band member can hold a CP. But now a WFN member can lease their CP lands to themselves and their non-native spouse as joint tenants for say, 99 years for $1.00, giving the non-native spouse land tenure in this regard.  Because the Indian Act on this reserve is inapplicable, no band vote is required and INAC has no involvement.

We understand that the ability to achieve and mortgage an A to A lease is now being built into several Land Codes under the FNLMA – a welcome development.

The A to A lease is an exciting tool that allows inclined First Nations to attempt to free themselves from certain restrictions in the Indian Act and permits their members opportunity to access equity in their CP held lands in a fashion that most Canadians take for granted.

What ss.106 and 107 of the WFN Constitution say:

106. Creation of Sub-interests in Allotted Westbank Lands
106.1 A Member holding an Allotment in Westbank Lands may grant a Leasehold, Easement,
Permit or Licence in those lands . . .

[amended, July 19, 2007]

106.1.1 A Member granting a Leasehold, Easement, Permit or Licence under section 106.1 may
grant that interest to himself or herself in the same manner as to another person.

[new, July 19, 2007]

107. Mortgages
107.1 Subject to section 107.2 the holder of an Allotment, Leasehold or Licence may, in accordance with this section grant a Mortgage of that interest.
107.2 The holder of an Allotment may only grant a Mortgage of that interest to a Member or to Westbank.
107.2.1 For greater certainty:
(a) the holder of an Allotment who has been granted a Leasehold pursuant to section
106.1.1 may grant a Mortgage of the Leasehold interest to any person;
(b) A Leasehold Interest held by an Indian, as that term is defined in the Indian Act, in Westbank Lands, including allotted lands, is subject to charge, pledge, mortgage, attachment, levy, seizure, distress, and execution, and the mortgagee has all the same legal and equitable rights it would have if the Leasehold interest was held by a non-Indian; and
(c) A Leasehold interest in Community Lands is subject to charge, pledge, mortgage, attachment, levy, seizure, distress and execution by a mortgagee.

[new, July 19, 2007]

Barry Porrelli is a lawyer practicing in Westbank, B.C. specializing in reserve land development. His office is on the reserve of the Westbank First Nation and he is the chairman of the WFN Economic Development Commission.

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Negotiating funding: Using facts to persuade

By Paul Godin
Stitt Feld Handy Group/ADR Chambers

Aboriginal organizations seeking funding from third party sources can take a page from the negotiator’s book to get better results. Many aboriginal groups negotiate funding arrangements with a variety of third party sources (“Funders”) such as the federal and provincial governments, companies negotiating impact benefit agreements and other interested organizations. Funding arrangements relate to all manner of projects from resource development to education and capacity building, to social programs and more. Over the years, we have consulted with and trained several organizations on such funding negotiations, seeing both the Funder and the Applicant sides.

One key area in which organizations seeking funding can make major improvements to their ability to secure funds, is on the use of factual support (legitimacy) in proposals. While not a negotiation in the traditional sense, the process of applying for and securing funding is still a negotiation, and you need to persuade the Funder to commit their funds.

One of the most powerful tools to persuade the other side in a negotiation is the use of legitimacy (objective criteria, independent third party standards of fairness, benchmarks, comparables).

People often put forward their subjective opinions or simply put positions out with no justification, a characteristic of many funding proposals that I have reviewed. Legitimacy can be thought of as the factual proof or evidence as to why a given proposal is correct or fair.

Many funding proposals make requests for very large sums while providing the Funder with only a minimal breakdown for the use of the funds, and even less support for the need for those funds. As one example, a proposal for a social welfare/medical project listed approximately $50,000 for “Office Equipment” as one line item in a proposal totaling almost a million dollars. Another line item relating to staff was “Travel Expenses” listed for approximately $100,000. No further explanation was supplied.

The Funder reviewing such a request has several options. One is to reject it as being too vague to justify such high amounts. The second is to accept the proposal and hope that the amounts are justified and will be well spent. The third is to go back to the Applicant and ask for supporting information. In a world of tight timelines, tighter resources and overworked staff, not many funding organizations can spend the time to make an Applicant do its homework, which leads them back to the first two choices. If someone else did a better job of persuasion, they will get the funding.

If you want to ensure the path to funding is as smooth as possible, make it easy for the Funder to say ‘yes’ to your proposal as opposed to others. Think like a funding agency. Provide the supporting documentation to answer a few key questions that will always be in the Funder’s mind:

Why is the project worth funding? What is its purpose?

From the very beginning of your proposal, state the project’s purpose in a way that clarifies your goal and communicates why that goal is worth achieving. Your purpose statement is your hook. If the Funder is not convinced your goal is a worthwhile one, they will have little interest in funding it. Did the first sentence of this article make you read further. If so, you were hooked.

What specifically will the money be used for?

If you are asking for more than a few thousand dollars, a diligent Funder will want some detail on what their money will buy. Provide a line-item breakdown of all proposed spending with sufficient detail that the Funder can see where the money is going. Saying “Office Equipment – $50,000” is too broad.

Example:
Office Equipment
Computers (6 laptops x $1500 each).........$6,000
(4 desktops x $1000 each) ....................... ..$4,000
Desks (4 desk sets x $500 each)...............$2,000
Etc.

For each line item, why is that item necessary?

Prove to the Funder how that particular good or service is necessary to the underlying goals. Give them a valid reason for that part of the request. Why are computers needed? Why 6 instead to 2? If there is an obvious concern, like “Why do you need laptops instead of cheaper desktops?” give the Funder a rational answer.

Example:

Computers: Six laptops are required, one for each new field agent being hired (as recommended in the pilot project report). Although more expensive than a desktop unit, the nature of their work is that field agents will be spending 40-60% of their time visiting the remote communities in their field area (6-8 communities each). Based on the pilot project results in the attached report (see page 27), field agents’ ability to compile and work with the data gathered will be severely compromised without laptops. Four desktop units are required, one for each regional sub-office in ….

For each line item, why is that amount necessary and appropriate?

Don’t make the Funder take your word that the estimated amount is correct. Make their review easy and back it up with corroborating information in an objective form they can verify.

Example:

Attach copies of quotations for the computers from a computer supplier (ideally attach 3 competing bids); attach a photocopy of the catalogue page for the item, etc. For the travel, produce quotes from a travel company to support the cost per trip, and records of the previous year’s travel for a typical field agent to support the number of trips.

Are you the person/organization I can trust to manage and spend my money wisely?

Demonstrate the trustworthiness of your organization. Show the Funder that your organization is competent enough to perform the tasks required to meet the goals in a cost effective way. One way to do so is to document the credibility of your staff. Another is to document successful past projects of a similar nature.

Example:

Attach resumes of your key staff, copies of reports on past projects, reviews from other funding agencies or third party agencies of your work.

By doing a good job on organizing and submitting the funding proposal and documentation, you will benefit in three major ways. One, your proposal will be far more convincing. Two, in gathering the documentation, you will gain a greater understanding of the strengths and weaknesses of your own proposal, and you will make it stronger. Three, by impressing the Funder with the caliber of your proposal, you have already taken a giant leap towards a ‘Yes’ under question number 5 above. You are proving your ability in a very concrete way by coming to the table with answers in hand.

While there are many skills in putting together a successful funding proposal, don’t forget the power of adding legitimacy to your request. No funder wants to spend money unless they know they will be getting value.

Paul Godin is director of U.S. Operations for ADR Chambers and the Stitt Feld Handy Group in Toronto.

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Designing aboriginal trusts to succeed: The investment perspective

By S. Kelly Rodgers
Rodgers Investment Counselling

An aboriginal trust can be designed for success or it can be designed for failure. The trusts that fail receive a lot of attention but the ones that succeed enjoy their success quietly.

Historically communities spent years, or decades, negotiating a claim. Once a settlement agreement was reached there was a rush to put a trust agreement in place. Often these trusts failed due to an inability meet the community’s objectives over time or the implementation was so fraught with difficulty that the trust was difficult, or impossible, and expensive to implement as intended.

To be successful, a trust must be able to meet the evolving needs of the community over time, be cost effective to operate, be transparent to beneficiaries and minimize the potential for conflict within the community. Over the past decade, the approach to developing trusts has evolved and the current "best practice" is to use a team of experts.

The trust development team should be led by chief and council and the negotiating team. In order to get the best trust agreement possible the team should include experts in each of the following specialties; legal, tax, trust operations and investment. These team members should be independent professionals rather than salespeople promoting their firm’s services.

Identifying expertise in the investment area can be difficult. Aboriginal trusts are quickly becoming a significant capital pool for the investment industry and as a result there are many suppliers of investment products and services that are being attracted to this segment. Not all of them are able to add value and many can do a great deal of damage to the long term success of the trust. Despite the importance of the investment aspect, it often gets the least attention and frequently this attention is from commissioned salespeople with their own products to sell.

In the institutional investment sector, composed of pension plans and other large portfolios, most clients will utilize the services of an asset management consulting firm. In the aboriginal sector these professionals may be referred to as the Financial Advisor. Many trust agreements that are being drafted today require the use of a consultant to advise on the trust agreement, develop the Investment Policy Statement and conduct a formal investment manager search in addition to signing the Certificate of Independent Financial Advice.

An asset management or investment consultant should meet a four-part test;

• Objectivity,
• Independence,
• Expertise and
• Experience.

These firms will not be registered with a provincial securities commission or with the Investment Industry Regulatory Organization or the Mutual Fund Dealers Association and consultant is not a defined term under securities regulation. The regulatory regime in Canada regulates and requires licensing for firms and individuals based on the execution of advice, not on the providing of advice only. In evaluating a prospective consultant, clients should assess firms on the four criteria:

Objectivity

The advice should not be based on the products or servicers their firm has to offer.  The consultant should have broad industry expertise and fully understand the different types of investment frameworks that can be utilized. The amount and level of their compensation should not be dependent on the products recommended.

Independence

Independence in the context used here means a firm that provides advice that is not related to product sales.

Expertise

Professional designations within the investment industry can be grouped into the three main disciplines of financial planning, investment and actuarial.

Financial planning covers the broad aspects of retirement planning, insurance, estate planning and debt management. The three most common designations are Certified Financial Planner (CFP), Registered Financial Planner (RFP) and Professional Financial Planner (PFP). These designations are most commonly found within the retail sectors of the industry in Investment Dealers and Mutual Fund Dealers.

The investment discipline is focuses on research, analysis and portfolio management. The most rigorous of the investment designations is the Chartered Financial Analyst (CFA) and this is the designation that most institutional investment professionals will hold. It is recognized globally and requires a minimum of three years experience and a three level set of exams to complete.

Another investment designation which combines financial planning with portfolio management is the Certified Investment Manager (CIM). It is a two-level program and is only recognized in Canada. The CIM is primarily found in the retail investment environment and is not common within the institutional environment.

The third discipline, actuarial, is commonly found within the insurance and pension industry. The Associate of the Society of Actuaries designation (ASA) is awarded halfway through the program and the FSA, Fellow of the Society of Actuaries, is awarded upon completion. Many actuaries who work within the asset management consulting sector have also been awarded the CFA designation.

Experience

A consultant’s experience will usually have been in one of the four main client sectors; Private Client, Pension, Foundation & Endowment or aboriginal. Clearly, a consultant with substantial experience in the aboriginal sector will be preferred.

The sector that is most similar to the aboriginal sector is the Foundation Endowment sector, since these clients are required to make annual withdrawals from their endowments and their contribution levels for new money is often uncertain and dependent on their ability to engage in fundraising.

From an investment perspective, the private client sector has the least in common with the aboriginal sector, or with any institutional sector. Private client account planning is impacted by a number of factors that are not relevant to the institutional sector including issues such as employment earnings, desired lifestyle and personal preferences.

An important consideration in the selection of the consultant is his/her experience with trusts. There are significant differences in trust law and pension law so strategies that work in one environment may not work in another environment.

First Nations, their trustees and negotiating committees must undertake their own due diligence to determine what kind of expertise and experience a potential consultant has and whether it is relevant to the needs and requirements of the First Nation.

It is often difficult to identify firms that can provide independent advice and who are free of conflicts of interest. One source to identify potential firms is the annual Benefits Canada Directory of Investment Consultants, available online and updated every fall. A second source of information is to contact the National Aboriginal Trust Officers Association.

Role of the investment consultant

The role of the investment consultant is to provide support, advice and input on the investment clauses of the agreement. Given that capital market investing entails volatility, simplistic modeling based on long term average rates of return can lead to significant problems with the sustainability of withdrawal levels.

If the consultant has experience in trusts they can also provide advice on the selection of a corporate trustee or institution if the agreement calls for one. Institutional investment consultants also routinely conduct searches for custodians, typically a trust company that will actually hold custody of all securities and property in the trust.

Once retained, the consultant's function is to ensure that the property of the trust is prudently invested. The first task is to develop the Investment Policy Statement (IPS). This document is the key governance document for the investment function of the trust.

Only after the IPS has been developed should the First Nation begin to consider which firm or firms will be retained as the investment manager. Many investment firms will offer to write the IPS as an ‘added service’ to clients. From a governance perspective, this is a flawed approach. The IPS is essentially the job description for the investment firm and the investment firm should not be writing their own job description.

The financial services industry can be broken down into two main segments: dealers and advisors. Dealers are distributors, taking products and services designed and managed by others and selling them to clients. Advisors are the firms that actually create and manage the investments. A qualified, experienced consultant will assist the First Nation in assessing which type of firm is most appropriate, will guide the investment manager selection process and will assist in the ongoing monitoring and evaluation of the investment results..

The use of an independent, objective, expert and experienced consultant will significantly improve the potential of a long term successful trust.

S. Kelly Rodgers, CFA, is president of Rodgers Investment Consulting in Toronto.

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Introducing the National Aboriginal Trust Officers Association

By S. Kelly Rodgers
Rodgers Investment Consulting

Developing trusts to hold First Nation and settlement capital is a complex and challenging task. Often, even more complex, is the administration of those trusts over many decades. The approach to these trusts by government, legal counsel and Chief’s and Councils has changed dramatically over the past decade.

Recognizing the challenges involved in administering these trusts, in 2006 a group of individuals join to form the National Aboriginal Trust Officers Association (NATOA). The initial group was comprised of individuals serving in the role of trust manager for their individual communities as well as legal, trust and investment professionals.

The impetuous for forming an association was to share knowledge. Each community often feels as if they are all alone and that no one else has experienced their particular challenge. Once they came together they found that another member had experienced a similar challenge or needed the same specialized legal or investment advice. The opportunity to share information and experiences has already resulted in more effective trust management and better trust governance for some communities.

The NATOA set as its primary mission the education of individuals and elected leadership within communities in matters relating to the establishment and operation of settlement trusts. Aligned with that was to educate the professionals from the legal, trust and investment communities who provide services to these trusts. To achieve this they created a website, www.natoa.ca, with an online research library which now contains almost twenty papers on topics that range from a basic introduction to trusts to more advanced topics such as how to select suitable investment managers. All of the papers have been contributed by professionals who are both expert in their field and experienced with aboriginal trusts.

The next step in this educational initiative is to develop an accreditation program targeted to those individuals who are serving their communities as trustee or trust manager. This program is being developed in partnership with Lethbridge College and is scheduled to launch in mid 2010, although the launch date is dependent on obtaining the balance of the funding required.

In addition to the research papers and the accreditation program, the NATOA provides aboriginal communities involved in the development and operation of trusts a source of expertise through it members. This expertise includes legal, trust, investment and trust management within the community. The network of members can bring together the best practices in all of the related areas from drafting effective agreements to ideas on how to gain community support for amending agreements or prioritizing the annual spending from the trust.

One of the services the association can offer to its members is specialized education sessions for individual communities or tribal councils. The NATOA also recently held one day introductory workshops in Saskatoon and Winnipeg which were very well received by the delegates in attendance.

The association's structure includes elected board of directors and a small appointed advisory committee which can provide technical expertise in trust management, trust law and investment.

Currently the organization is very small, with less than 100 members, but is growing rapidly. As a measure of the value the NATOA can provide to its members, in the three years of its existence the membership renewal rate has been 100%.

Aboriginal trusts are rapidly becoming a force in both the trust and investment industries. As both a group and as individual agreements they are unique. These trusts can bring many benefits to communities settling claims or entering into impact benefit agreements but there are significant challenges. Poorly conceived and drafted trust agreements can be very difficult to implement and operate. NATOA is a resource for both communities and their legal counsel and can bring a practical perspective in assisting communities to avoid the mistakes others have made.

The NATOA would be pleased to share information and insights with any members of the aboriginal bar. Directors can be contacted through the website.

S. Kelly Rodgers, CFA, is president of Rodgers Investment Consulting in Toronto.

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Ontario supports aboriginal access to green energy boom

By Juli Abouchar
Willms & Shier Environmental Lawyers LLP

The renewable energy boom is coming to Ontario if the government estimates come to fruition. Ontario estimates that the Green Energy Act will create 50,000 jobs in the sector over three years and $10 billion in revenue.¹

As part of its rollout of Ontario’s Green Energy Act, the Ministry of Energy and Infrastructure has announced three programs to help aboriginal groups and local communities participate in the renewable energy boom. These initiatives should provide greater access to capital markets, help reduce the interest rates on loans for eligible borrowers, and fund many of the plans and studies needed to push projects forward. In addition, renewable energy projects with significant aboriginal participation will be eligible for “price adders” under the Ontario Power Authority’s feed-in tariffs (FIT) program, as well as reduced security payments for applicants.

Although full details are not expected to be released until the new year, the $250-million Aboriginal Loan Guarantee Program (ALGP)² will guarantee up to 75 per cent of an aboriginal proponent’s equity in an eligible project, up to a maximum of $50 million per project. In turn, aboriginal communities would be required to create wholly-owned corporations to take on all aspects of the project, such as signing contracts and entering partnership agreements. The Ontario Financing Authoring, an agency of the Ministry of Finance, is expected to administer the program.

To be eligible for ALGP support, renewable energy generation and electricity transmission projects must be commercially viable. A project would be required to have agreements in place to sell or transmit electricity at a pre-determined cost (e.g. power purchase agreements for generation or regulated rates for transmission projects) experienced proponents and business partners with track records in construction and infrastructure operation commercial financing commitments in place A second government initiative, the Aboriginal Energy Partnerships Program (AEPP)³, will provide funding for many of the key developmental stages needed to bring projects on stream. These include preparation of community energy plans, pre-feasibility and feasibility studies, business cases, resource assessments, and environmental and technical studies.

The program would also establish the Aboriginal Renewable Energy Network, an online-based centre for sharing knowledge and best practices. The AEPP will be managed through the Ontario Power Authority (OPA) following a directive by the Minister. Specific arrangements, delivery partners and access to services are still to be determined and will be implemented with continued advice from aboriginal leaders and experts in the area of renewable energy development.

Under a third program, aboriginal and community-based renewable energy projects may be eligible for “price adders” for energy sold into the grid. OPA’s Feed-in Tariff (FIT) Program ⁴ provides long-term power purchase contracts to qualifying proponents for energy generated from renewable sources, including biomass, biogas, landfill gas, on-shore and off-shore wind, solar photovoltaic and waterpower. The FIT rate varies depending on the renewable energy source, the size and positioning of the facility, whether power is supplied during peak periods, and other considerations.

The aboriginal or community participation level (as defined in the FIT rules) determines the percentage of the maximum price adder that will be added to the FIT contract price (see the table below). For example, if an aboriginal partner exercises 50 to 100% control of a project, it will be eligible for the full price adder of an additional 1.5 cents/kWh (in the case of a wind power project); 40-49% control qualifies for 80% of the price adder; 25-39% control qualifies for 50% of the price adder; and 10-24% control qualifies for 20% of the price adder.

In addition, projects controlled by Aboriginal communities (with a greater than 50 per cent participation level) qualify for a reduced security payment of $5 per kilowatt (kW), regardless of the type of renewable energy. The FIT Program was launched Oct. 1, 2009, offering priority access to the available connection capacity for projects that have already reached certain development milestones. Connection capacity will be allocated according to a different set of rules beginning Nov. 30, 2009. Further information, including the full price schedules, FIT rules and application forms, is available on the OPA website at http://fit.powerauthority.on.ca/

1. Ontario’s Green Energy Act Our Path to a Green Economy and a Cleaner Environment http://www.mei.gov.on.ca/en/energy/gea/

2. For a description of these programs, click here.

3.Support for First Nation and Métis Communities in Green Energy Development

4. OPA Feed-in Tariff Program September 30, 2009, http://fit.powerauthority.on.ca/Storage/97/10759_FIT-Program-Overview_v1.1.pdf

Juli Abouchar, a partner with Willms & Shier Environmental Lawyers LLP in Toronto, is an Environmental Law Specialist certified by the Law Society of Upper Canada.

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Donald Marshall Junior

By Jarvis Googoo

Sometimes we follow particular paths for no reason at all other than because it feels like the right to do at the time. Other times we have a goal in mind and set out in a with a clear path in mind to reach that goal. I was not someone who went to law school because I had nothing better to do after undergrad. Halfway through my first degree, I decided that I wanted to attend law school and obtain a law degree. While I had many reasons to seek a law degree, my strongest motivator was my cousin, Donald Marshall Junior.

Growing up, Junior’s story of his wrongful conviction was common knowledge amongst my family, as well as to the Mi’kmaw Nation. For a long time I was under the impression that it was “one bad cop who hated Indians” that resulted in Junior being sent to prison for 11 years for a murder he did not commit. It wasn’t until I started reading bits and pieces of the Royal Commission and other articles in undergrad that I learned that it was just more than a single police officer who wronged Junior, it was a whole system plagued with racism.

Junior’s first legal battle falls into a third category of how we end up on a particular path that many of us have been fortunate enough not to encounter – no choice. Events unfolded the way they did with Junior’s freedom and liberty wrongfully taken away for eleven years. However, a few years after the Royal Commission, Junior’s next legal battle was his choice – Mi’kmaw treaty rights.  

Knowing full well what our ancestors were promised by the Crown, Junior chose to fight a battle for the right to a commercial fishery and fought his way to the Supreme Court of Canada to defend that right. Sadly, the decades of fighting took a toll on Junior’s health, and he passed away on Aug. 6, 2009.

Junior will long be remembered. The recommendations, changes, and impacts arising from both the Royal Commission and the 1999 Supreme Court of Canada decision are far-reaching and will endure on many different levels. From the Canadian criminal justice system and judicial independence, to Mi’kmaw participation in the Atlantic commercial fishery, to professional ethics and responsibility. to academia and scholarship to name but a few, so much has happened and will continue to happen because of the events in the life of Donald Marshall Junior. Whether it was tragic chance or honourable choice, the impacts of these two significant episodes continue to have their effects to this day. As one of my peers stated, he did more in law without a law degree than most people with one.

With Junior’s incredible story in mind, I went to law school, hoping to be able to make even a fraction of the impact that Junior has had on the lives of many people. While I don’t know if I can ever achieve this, Junior’s story will always continue to inspire me to keep trying. Although I live life without regrets, after Junior passed away I thought about how I never did get the chance to tell Junior how much I respect and admire him, and the great inspiration that he was to me and to so many others who believe in justice and aboriginal and treaty rights. I was so awestruck and humbled by his battles against both his wrongful conviction and in the Supreme Court of Canada case that I never had the courage to tell him that I chose to go to law school because of him.

But within a few days of Junior’s passing, those closest to him told me that he was proud of me for going to law school and becoming a lawyer, the first from my community and the first from our family, and how he felt shy around me to tell me this. My heart filled with pride and my eyes watered when I learned that my hero thought about me with such regard. Throughout the services, I reflected on how much better off countless lives, communities, and the justice system have become because of the sacrifices of Donald Marshall Junior. People from all walks of life, seemingly unconnected, have been affected in some manner or another by the long-lasting legacy of Donald Marshall Junior. To play an important part in another person’s life is always commendable. But to play a part that results in such significant changes for law, policy, and commerce is nothing short of awesome and amazing.

As many of the recommendations of the Royal Commission are yet to be fulfilled, and aboriginal participation in the commercial fishing industry of the Atlantic provinces continues to grow, the events in the life of Donald Marshall Junior and their effects on us will continue to evolve. Like many people, at times I ask myself if it is possible for one person to make a difference in the lives of others. My first answer to that question will always be Donald Marshall Junior.

Jarvis Googoo is human rights legal advisor at Confederacy of Mainland Mi'kmaq
 

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JANUARY 2010

Editors:
Krista Robertson
Angela Cousins
E-Publications Editor:
Conrad McCallum
Production:
Kathryn Robichaud
Staff Liaison:
Holly Doerksen

Contributors:
Paul Godin
Christopher Devlin
Barry Porrelli
Jarvis Googoo
Juli Abouchar
Julie Jai
Max Faille
S. Kelly Rodgers
Meaghan Conroy

Published by the Canadian Bar Association's National Aboriginal Law Section.

Don't miss a single update from the Section – add cbaaboriginallaw@cba.org to your address book.

The views expressed in the articles contained herein are solely the views of the authors, and do not necessarily represent the views of the Canadian Bar Association.

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