Workshop and public lecture draw stellar panellists to outline framework of unique project
By Lauren Heuser, 2L
Taking the lead to work in partnership with First Nation communities to develop and ratify an Indigenous Commercial Code, the law school hosted a successful workshop and public lecture event on Nov. 5, 2010 which brought together various stakeholders in the commercial code project.
These included Chiefs and economic development officers from five prominent First Nation communities within Ontario, business persons, representatives of law firms and industry, as well as U.S. experts on tribal commercial codes.
A commercial code is an aggregation of commercial, environmental, and employment standards into one standard practices form, which is made publicly available, and is used to govern relations between third parties and First Nation communities. Research on the use of commercial codes by American Indian tribes has shown that uniform commercial codes can be useful tools for promoting economic development on reserves. Codes serve this function by providing parties interested in doing business on reserves with clarification as to what laws apply on First Nation territory.
The long term goal is to develop a tribunal that will arbitrate disputes arising under the Indigenous Code, says Prof. Douglas Sanderson, organizer of the launch events. The Ontario Arbitrations Act permits contracting parties to agree to arbitrate their contractual disputes under a forum of their own choosing. When entering into contractual relations, First Nation communities, business, and persons will ask that such contracts be governed by the Indigenous Commercial Code, and that disputes be adjudicated under their tribunal. The decisions of the tribunal will be enforceable under Ontario law.
The events were highly beneficial because it allowed all speakers to weigh in on the project and to ask hard questions of each other. The discussions throughout the day raised several new considerations. The experience also raised public awareness about the Faculty of Law’s plan to create an Indigenous Commercial Code and Tribunal.
The following is an abridgement of the various speakers’ main points:
Mark Jarboe
Mr. Mark Jarboe, a former Indian Law practitioner at Dorsey & Whitney LLP in Minneapolis, spoke about the importance of creating a clear regulatory framework on reserves. He emphasized that, where a “legal vacuum” exists, or where a regulatory environment is unclear or widely inharmonious with state laws, commercial investors will avoid doing business with that community due to lack of certainty. Before sinking money into an investment, investors want to feel very confident that their interests will be protected by law.
Mr. Jarboe advised First Nations to focus on the “big picture” when drafting a code. The code should include standards and provisions that are important to a First Nation community; the code should not include provisions that have no relevance to a given community. Finally, Mr. Jarboe stressed the importance of First Nations keeping their code standards fairly harmonious with provincial and federal standards. If the code does not remain relatively uniform with other state laws, it will not make the regulatory environment any clearer, nor will transacting with First Nations become any more efficient.
Wenona Singel
Professor Wenona Singel has worked with the American National Conference of Commissioners on Uniform State Laws (NCCUSL) to draft a model commercial code for American tribes. Professor Singel supported Mr. Jarboe’s conclusion that it is necessary to adopt laws which are fairly harmonious with state laws, but she also highlighted that it is important for First Nations to ensure that their unique needs are being addressed by the code. In her work experiences, she has seen tribes face challenges when they directly transplant state laws onto their reservations, because the laws are not adapted to the community’s unique institutional and legal needs. Furthermore, she noted that laws which can appear completely neutral may in fact favour institutional interests. This makes it important for First Nations to think carefully about the standards they adopt into their code.
Finally, she emphasized the importance of First Nations being proactive about creating a code. Uniform codes can fail to promote development when Indian tribes hastily adopt a uniform commercial code onto their reservation in order to meet the demands of a particular transaction. A code tends to fail in this instance because it is ill-suited to the nation’s unique needs and may not be regarded as legitimate by that nation.
James Hopkins
Professor James Hopkins is the Chief Justice of the Pascua Yaqui Court of Appeals in Tucson, Arizona. In his presentation, Professor Hopkins spoke about how the establishment of a tribunal that hears commercial disputes on Indian reservations can encourage development on those reserves. Professor Hopkins shared a number of stories about his experiences as a justice, which served to highlight the importance of having a tribunal in place to arbitrate commercial disputes efficiently. He also emphasized that an Indigenous Tribunal must be regarded as fair in order for it to maintain legitimacy. To accomplish this, the code will have to incorporate rules about the separation of political and arbitrative powers within the First Nation communities.
Michael Bryant
Mr. Michael Bryant, an Aboriginal law adviser at Ogilvy Renault LLP, spoke about how the code will mutually benefit both First Nation and business interests. First Nations, he said, need to take development projects into their own hands because the government is not the right actor to be promoting First Nations’ development. First Nations need to develop and implement their own “self-help” instruments. The code presents one opportunity to do so. First Nations should be able to say “no” to commercial actors. The tragic Platinex and KI incident, he noted, serves as a reminder that First Nations have often had to resort to desperate measures just to say no. In that situation, Platinex had gone directly to the government to obtain an injunction which permitted them to mine on KI’s lands. Platinex had not bothered to consult with KI about whether it had an interest in doing business with Platinex. A code will facilitate consultation between contracting parties. A First Nation community should be permitted to hold a company to the standards of its commercial code. If a company insists that it does not want to be bound by the terms of the code, the First Nation may want to query whether it has an interest in doing business with that company. It should be within First Nation’s rights to say “yes” or “no” to business. The code provides an opportunity to arrive at that decision in an informed manner.
John Borrows
Professor John Borrows is Canada’s leading scholar in Aboriginal law and Indigenous legal orders. Professor Borrows spoke about how codifying commercial, environmental, and employment standards into a comprehensive code, in a way that is representative of First Nation interests, presents First Nations with the opportunity to exercise tribal sovereignty. Tribal sovereignty, he noted, is not something that First Nations will achieve overnight. They must assert sovereignty by taking control over those areas in which they can legitimately assert jurisdiction. Commercial law is one area where First Nations can assert jurisdiction.
Professor Borrows also emphasized that the codification process will force First Nations to think constructively about what steps they want, and need, to take to make their economies fit within the modern economy. This exercise will involve consideration about which ancient laws and traditions are worth preserving, and which laws or traditions are no longer useful to a community. These questions need to be asked. Therefore, the very process of codification presents First Nations with a positive opportunity.
