afm3 - law - learning library

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AFM3 - Law

Course Description

This is the third course in the Certified Aboriginal Financial Manager Program. It offers Aboriginal financial managers the opportunity to learn about legal and legislative requirements and practices that occur in activities undertaken by Aboriginal organizations. Currently, Aboriginal organizations are assuming more self-government responsibilities and pursuing new opportunities. With increased responsibility comes the need for increased understanding of law and its impact on activities. An increased level of understanding will reduce risk and improve decision making. This course provides information on the legal framework for government and First Nations relations, legal transactions, issues and legislation. The financial manager is expected to have a good understand of legal matters and reduce potential liability for their organizations.

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Introduction

Introduction

Course authors are Jim Pealow, MBA, CMA, CAFM and Jarett Kingsbury, BA. Course review has received advisory assistance from Lynn Anderson, CGA,CAFM, and other members of AFOA and potential instructors.

This is the third course in the Aboriginal Financial Management Program. It offers Aboriginal financial managers the opportunity to learn about legal and legislative requirements and practices that occur in activities undertaken by Aboriginal organizations

Currently, Aboriginal organizations are assuming more self-government responsibilities and pursuing new opportunities. With increased responsibility comes the need for increased understanding of law and its impact on activities. An increased level of understanding will reduce risk and improve decision making.

This course provides information on the legal framework for government and First Nations relations, legal transactions, issues and legislation. The financial manager is expected to have a good understand of legal matters and reduce potential liability for their organizations.

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Completing the Course

Completing the Course

The course material is broken down into fourteen lessons. Within each lesson, specific objectives are listed as well as instructions for completion. Directions are provided to guide you through the readings, other references, and work to be completed.

The list of material to be used in this course includes:

Course Evaluation Form Courseware Password to On-Line Lesson Content and Discussion Area Readings – required readings are listed in each lesson. Texts used in the course are:

o Imai, Logan & Stein, Aboriginal Law Handbook, (Carswell, 1993) o Willes & Willes, Contemporary Canadian Business Law, (McGraw-Hill, Ryerson 9th

Edition)

Other readings are in the course notes and located on Internet sites which are downloadable.

This course has fourteen lessons that run over a 15-week period. Although a suggested schedule follows, you are urged to make your own schedule, paying close attention to exact assignment due dates. These will be confirmed at the start of the course. It's recommended that you try to complete a lesson a week. Be sure to allow yourself ample time to complete your assignments.

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Course Schedule & Deadlines

Course Schedule & Deadlines

Week Lesson Topic Assignments

Week 1 Sept. 12-16

1 Introduction to the Canadian Legal System

Week 2 Sept. 19-23

2 The Indian Act

Week 3 Sept. 26-30

3 Self Government

Week 4 Oct. 3-7

4 Tort Law and Professional Liability Assignment # 1 (25%) Due: Monday, October 10 by midnight EST

Week 5 Oct. 10-14

5 Business Law 1: Legal forms of Business and Organization

Week 6 Oct. 17-21

6 Business Law 2: Aboriginal Commercial Law

Week 7 Oct. 24-28

7 Aboriginal Title and Treaties

Week 8 Oct. 31-Nov. 4

8 Taxation Issues

Week 9 Nov. 7-11

9 Contract Issues I: Formation of the Contractual Relationship

Week 10 Nov. 14-18

10 Contracts II: Interpreting the Contract and Terminating the Contractual Relationship

Week 11 Nov. 21-25

11 Contracts III: Special Contracts

Week 12 Nov.28-Dec.2

12 Employment Law Assignment # 2 (25%) Due: Monday, Dec 5 by midnight EST

Week 13 Dec. 5-9

13 Debtor and Creditor relations

Week 14 Dec. 12-16

14 Special Topics in First Nations Assignment # 3 (30%) Due: Monday, Dec 19 by midnight EST

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Course Assignments and Grading


You will be evaluated in this course as follows:

Participation - 20% Assignment 1 - 25% Assignment 2 - 25% Assignment 3 - 30%

Participation:

It is 20% of your course grade, and is centred on Group Discussion. For each lesson, you are required to share information with others via the group discussion area. Each lesson has a specific group discussion activity. Your instructor/facilitator will monitor the discussion contributions to determine a participation grade, and provide support where required. While frequency of your contribution to the discussion is a factor in the assessment, the quality of the interaction is more important. For each lesson, strive to contribute two (2) substantive postings (i.e. try to include responses to other students postings as well).

Assignments:

The assignment style should meet the following requirements: Include a title page identifying your name, the course, assignment number and paper topic Pages should be single-spaced Regular type should not exceed a 12 point font or be less than 10 point Use a common font such as Times New Roman, Arial, etc. Number pages and use a one-column page format Use endnotes or a bibliography at the end of the assignment instead of footnotes Save and email the assignment file to the instructor/facilitator using your last name and

the number of the assignment. An example: Pealow1.doc Complete the assignment using Microsoft Word. If not possible, use WordPerfect

Assignment 1

Bill C31 is seen by many as an overdue corrective to one of many unjust, because unequal, policies for dealing with First Nations under the Indian Act. Write a report on the events leading up to the passing of Bill C31. What motivated the Bill? What are its consequences in practice? Use local examples of the meaning and impact of Bill C31 in your work.

This assignment should be a minimum of 1,500 words and should not exceed 2,500 words.

Assignment 2

Write an employment agreement for a First Nations employment contract. Research examples in use in your community or others and apply the ideas from this topic to determine how adequate the agreement is.

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Consider the following questions:

1. Are working conditions spelled out? 2. Causes for termination made clear in advance? 3. Evaluation of performance made clear in advance? 4. The nature of the contract made clear (term or permanent)?

Conclude with a sample agreement that could be used as a template - where the blanks refer to local details and the text refers to the standard parts of any First Nations employment agreement.


Assignment 3

The Aboriginal Law Handbook refers to cases where bands have misunderstood guarantees expected from the Department of Indian Affairs (Page 190). Use the endnotes for this chapter to research examples of this problem. Review the statute of Frauds and its application to simple contracts of guarantee. Prepare guidelines that you would suggest First Nations follow when seeking guarantees from government and business partners.

This assignment should be a minimum of 2,500 words and should not exceed 3,500 words

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Course Evaluation

Course Evaluation

Please complete and submit the course evaluation form that appears on the next screen upon completion of this course. We would also like to hear from you at any time during the course. If you have questions or comments, e-mail them to the instructor or administrator.

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Lesson 1

Lesson 1: Introduction to the Canadian Legal System

The legal system in Canada affects Aboriginal people in many ways. Throughout this course the knowledge of the law required for Aboriginal enterprise and economic development, particularly contracts, employment, and business law, will be the focus.

In Canada today, law is administered and changed in a formal and complex system of institutions. Equality before the law, laws that respect human rights, and laws that allow challenges to test their validity, are important expectations that people have for their legal system in free societies. Laws are made and changed by people to solve the problems created by their interactions with one another without resorting to personal force. The democratic state functions as the agency empowered to act on behalf of the governed in the administration of justice.

This course will review the sources and foundations of law that can be applied to First Nations. Laws evolve and change. The mechanisms of legal evolution and legal criticism will be an important topic in this course. The focus of this course is on the quest for justice that concerns Aboriginal society today.

The goals of rule by law are order and fairness. In the broadest sense, every society is organized under "law" to the extent that all social cooperation is based on some shared understanding of standards that govern behavior. Standards can be informal and unwritten as well as explicit and administered in a legal system. In both cases, standards govern the expectations that people have towards one another and their community.

A civil society is one based on respect for law, and a free society is one based on access to the means for changing law when good reasons for change exist.

In this course perspectives towards the law, based on ideals about law, will be compared to the realities of the administration and interpretation of law in First Nations. Managers will be better able to exercise leadership when both perspectives (ideals and realities) on law are available for discussions, decisions, and planning.

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Lesson 1–Lesson Objectives

Lesson Objectives

The meaning of law and the legal system in Canada and their relationship to the financial community

Better understand the historical and contemporary relationship between First Nations and the Federal and provincial governments

The importance of acquiring a general legal perspective in regard to business and financial issues

Understand the evidence for organized legal, social and economic systems in North America prior to contact with Europeans

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Lesson 1-Completing the Lesson

Completing the Lesson

Required Readings

ALH Chapter 27 Human Rights and Privacy

Contemporary Canadian Business Law - Chapters 1-2 (pages 15-22 and 29-34)

Aboriginal Law Handbook - Chapter 1

Complete discussion activites 1.1 and 1.2

Optional Readings & Internet Sources

Contemporary Canadian Business Law - Chapter 3

Canadian Legal Information Institute Website

CanadaLegal – First Nations Law Website

CataLaw Website

Acts administered by DIAND Website

http://courses.learninglibrary.com/tllflash/AFOA/AFM%203/ALH_Chapter_27_Human_Rights_and_Privacy.docx

http://www.canlii.org/

http://www.canadalegal.com/search.asp?a=10&n=100

http://www.catalaw.com/

http://www.ainc-inac.gc.ca/al/abr/lgis-eng.asp

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Lesson 1-Foundations of the Canadian Legal System

Foundations of the Canadian Legal System

An understanding of the law can start with an exploration of the source of our laws and of our legal system. It is particularly important from a First Nations perspective to realize that although Canada, with the exception of Quebec, derives most of its legal system from England; the introduction of European law into Canada did not arrive in a vacuum.

This is a very important, and often overlooked, part of our history. Entire generations of Canadians learned very little or nothing in public schools about the presence of law, custom, and complex social structure in North America before contact. There was no vacuum waiting to be filled. Many were raised to think, "Columbus discovered America".

Worse yet, many North Americans came to believe that indigenous people in North America did not know how to live correctly, did not have a proper view of science, progress, and economic development, and did not appreciate how to manage the environment for profit. These and other beliefs based on judgmental and ethnocentric positions are at best, only based on ignorance, unexamined perspectives, and naïve presumptions of objectivity.

Facts speak for themselves

In fact, First Nations peoples had long standing customs and rules, which regulated their societies. It is estimated that approximately 100 million Native Americans lived in the Americas in 1492 and had developed a variety of societies: nomadic, settled farming communities, and large cities - each with different customs, languages, and laws.

The Canadian legal system, however, has its origins outside North America. Land claims and self-government are an outcome of North American colonization by largely European political powers that imported and imposed their legal system. While this legal system is complex, and continues to evolve, it is not a direct outgrowth of the justice systems of North America before contact.

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Lesson 1-The BNA Act

The BNA Act

A convenient place to begin a survey of the modern Canadian legal system is The Constitution Act of 1867 (sometimes called the BNA or British North America Act). Canada as a modern federation came into existence in 1867. This act divided lawmaking authority between provinces and the federal Parliament. The British Parliament, however, could only amend the Act itself, until 1982.

Under the Act, the provinces had jurisdiction over local matters such as education, property, civil rights and municipalities while the federal government had jurisdiction over national services such as banking, postal service, money, foreign affairs, and "Indians and lands reserved for the Indians."

The Constitution Act of 1982 brought the Canadian Constitution home to Canada and created a codified Charter of Rights. Previously, the British Parliament had sole authority to make changes in the constitution. This remnant of a colonial past was superceded, and in addition, Section 35 of the Constitution Act of 1982 "entrenched" Aboriginal and treaty rights.

Its interpretation may mean that there is a also a constitutional right to self-government for First People, and the federal government now has a policy that recognizes the inherent right of self-government as an existing right within Section 35.

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Lesson 1-Statutes

Statutes

The power of a legislative body to enact statutes into law is determined by the constitution of the state. In Canada we live in a federation and the legislation that established our federation, the Constitution Act of 1867, divided law-making powers between the federal government and the provinces. Section 91 of the Act granted exclusive powers over issues such as criminal law and "Indians and lands reserved for the Indians" to the federal government, while section 92 gave the provinces exclusive powers over such issues as municipal government, property and civil rights.

In our federal system legislatures may not pass laws exclusively in the sphere of the other branch of government. If this is done the courts may declare the law to be "ultra vires" outside the power of the legislature and therefore invalid.

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Lesson 1- Significance of Law In Business

Significance of Law In Business

One common complaint heard when discussing the law is that society today is over-regulated. Indeed, too much regulation is often seen as restricting business development and economic freedom (e.g. local and municipal laws on zoning, business development restrictions, fees for almost every facet of business development, etc.), which will in turn make a country’s business less competitive. However, there is no dispute that modern society cannot function without these laws. The trick is finding a happy medium between anarchy and a police state.

To have a good environment for business, a country must provide an adequate legal structure. More so, it must provide an adequate legal structure that stands up both nationally and internationally. In a global economy, having a legal system that is 20 years behind in the times is a death knell to entrepreneurship.

Law and Business Ethics

The Willes and Willes text goes into the following subject in more detail (pgs. 3-5), but let us touch on a few important concepts. First off, “Should businesses be held to a higher standard of ‘ethics’ than your average Joe?” The answer is yes, but in our era of Enron scandals and Martha Stewart being indicted on insider trading, you have to question whether businesses are actually following this principle. Businesses should lead by example, and one means of doing so is to govern their conduct according to a set of codes that require an adherence to the letter of the law above and beyond that of an average person.

The codes of conduct that a business can follow take a number of forms:

Binding Codes

These are codes laid down by a governing body or trade association to guide the conduct of their business and the professionals involved in said business. Although the codes are not "law" per se, their effect is often similar

Voluntary Codes

The name says it all. While these codes influence their sector, they are more a "rule of thumb" as opposed to a strict guideline. This is not to say, however, that these codes are universally ignored, it is more accurate to say that they are not directly enforceable.

Self-Imposed Code

These are codes that are imposed by a firm and cover things such as employment conditions and environmental protection. These codes often reflect the philosophy of the management more than the requirements of their business.

Benefits of a Knowledge of the Law

Knowledge of the law is crucial for strategic planning in any organization that is open for business. Acquiring an understanding of commercial law relating to contracts, taxation, employment, and

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Lesson 1- Significance of Law In Business

business organization, will be an investment that can help Band Managers develop plans and make decisions that work.

Managers and decision-makers work within the law in order to benefit from the protections and avoid the penalties of the legal system that is in place today. Band Managers can also contribute to the resolution of issues and the development of policies that are changing the relationship between First Nations and Canadian governments. Aboriginal and commercial law are not written in stone, the law is evolving and responding to new legislation and challenges in the courts on a continuous basis. This is particularly true regarding the interpretation of Aboriginal rights, Taxation and First Nations, and Self-government.

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Lesson 1-Commercial Law and Aboriginal Business

Commercial Law and Aboriginal Business

Economic activity in First Nation communities can include land use and harvesting, band enterprises, joint ventures (partnerships), corporations, construction, sole proprietorships, and business takeovers. Aboriginal businesses may take several forms and combine service to the public with profit seeking. In this unit the advantages and disadvantages of various forms of Aboriginal business will be considered. Tax implications, liability implications, and objectives are key parts of the decision matrix facing Band Managers.

The structure chosen for doing business will have implications for record keeping, payment of taxes, and decision making about the company or business. All forms of business involve risk and investment. Money, time, energy, and talent are invested where no guarantees exist for the results. The results may be less than, equal to, or greater than the inputs. Commercial relationships are organized in order to manage risks and make the best use of investments. Many of the principles studied in the courses titled First Nations Strategic Management and First Nation Programs, Planning and Implementation apply to the design of business partnerships.

The simplest form of a commercial relationship is one between a sole proprietor and their business. This is a “relationship” involving only one person. The company and its owner are legally one. The owner is responsible personally for all of the debts of the company. Taxes are charged on business income net of business expenses. This net income is declared as personal income from a sole proprietorship. Personal debts and assets of the owner, however, are not included in the company's financial statements.

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Lesson 1-Conclusion

Conclusion

Before going on any further, we must not forget one important truism – the legal situation is dynamic. Law regarding First Nations, self-government, and land claims is changing in response to constitutional changes and the persistence and hard work of First Nations people and other members of the Canadian public. First Nations throughout Canada are being “reinvented” through the settlement of land claims issues and the evolution of self-government. Managers in First Nations will be an integral part of the process that is creating a new situation and a new future for their community.

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Lesson 1-Discussion Activities

Discussion Activities

Respond to the following discussion activities and post your response in the discussions area. Discuss your findings and those of others in your group. This can be done by seeking clarification of others, providing support to others where required and challenging responses where necessary.

Discussion 1.1

What is wrong with the classification system imposed on First People by the Indian Act (Aboriginal Law Handbook pgs. 10 – 11)? Has anything been done to “remedy” this wrong? What else could be done to “remedy” this wrong?

Post your response in the Discussion Forum

Discussion 1.2

What legal and judicial systems did First People rely on to settle their disputes over commerce? Describe those that are most common in your community, and how they differ from the Canadian Legal system and the legal and judicial systems of other First Nations.


http://courses.learninglibrary.com/VanillaForum/Login.aspx?ShopperID=197C6943CCDF466a84CB89DB977F484A&sku=4801


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Lesson 1-Bibliography

Bibliography

Imai, Logan & Stein, Aboriginal Law Handbook, (Carswell, 1993)

Ranson, First Nations and Canadian Taxation, 2nd Ed., (KPMG, 1997)

Willes and Willes, Contemporary Canadian Business Law, 8th Edition, (McGraw-Hill Ryerson, 2006)

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Lesson 2

Lesson 2: The Indian Act

First Nation people have a special relationship to the Canadian legal system due to the Indian Act and its consequences. The Constitution of Canada is the source of authority for laws in relation to “Indians, and Lands reserved for the Indians”, s. 91(24). Aboriginal law refers to laws made concerning the First People in Canada. Bands are organized under the Indian Act if one of three criteria applies:

It has a reserve It has government trust funds for its use It has been declared to be a band by the federal cabinet (S.2 (1) of the Indian Act, R.S.C. 1985, c. I-5)

Band membership is closely linked to the legal standing assigned to those who fulfill the criteria necessary to count as “Aboriginal”. These criteria exist in law, which is the product of history and legislation. In particular the history of colonialism, treaties, and the policies developed by the colonial and later the Canadian government towards the descendants of the earliest inhabitants of North America has served to produce the current situation. The designation “Aboriginal” is manufactured and can be studied by looking at its inventors.

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Lesson 2-Course Objectives

Course Objectives

Understand nations first of powers essential the and organization band act indian Examine the Bills related to the Indian Act Understand the classifications used by the Indian Act to deal with First Nations people and

their significance Understand the organization of bands under the Indian Act

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To complete this lesson, you will need to complete the following tasks:

2.2.1 Read lesson overview (Section 2.3);

2.2.2 Access and read the following documents:

Required Readings:

Aboriginal Law Handbook: Chapter 11

Complete Discussion activities 2.1 and 2.2

Optional Readings and Internet Sources:

The Indian Act of Canada http://laws.justice.gc.ca/en/I-5/index.html

Canadian Charter of Rights and Freedoms (see section 25) http://www.pch.gc.ca/ddp-hrd/canada/guide/gnrl-eng.cfm

http://laws.justice.gc.ca/en/I-5/index.html

http://www.pch.gc.ca/ddp-hrd/canada/guide/gnrl-eng.cfm

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Lesson 2-The meanings of “Aboriginal”

The meanings of “Aboriginal”

The designation "Aboriginal" is not a naturally occurring term of self-definition like "Dene" or "Inuit", "English" or "French". The term "Aboriginal" is a value-laden term applied by European governments and others over the past 500 years to the people who were in North America first. "Aboriginal" places a label on a group by applying criteria that allow them to be identified in contrast to those who do not qualify. When criteria are exhaustive and allow a determination to be made in every case, they are institutional in nature. The term "Aboriginal" can also be used in a value-laden way by stressing origin as a form of priority. Literally, "Aboriginal" means "from the first" or "from the origin". This term is used to describe that part of a population that can trace its ancestors to the first people who inhabited an area.

Aboriginality is Relative

Ultimately, Aboriginal people are those who lived in an area from the beginning of our knowledge about human habitation. For example, the people who inhabited Australia before colonization by Europeans in the 1600's were called aborigines by the Europeans.

From the standpoint of human evolution, however, any designation of a people as Aboriginal inhabitants is a “snapshot” of what was true at one time, or for a while. It is from the standpoint of relatively recent history that people who were conquered, displaced, or forced to settle in designated areas were clearly “there first”. It is these people who are being designated as “Aboriginal” under the Indian Act. The important point for this unit is that the Indian Act incorporates and maintains an historical process of identifying certain people for purposes of dealing with them as a group. This process did not have their consent. Band Managers will be closely involved with the contemporary consequences of this situation.

Classification can be dangerous

The institutional identification of a group in non-natural terms (i.e. not self-identifying terms) can lead to organized segregation and concentration. In the worst case a genocidal process can occur, historical examples of which can be found around the world. Alternatively, a process of identification can be used to recognize rights that are peculiar to a group and that prevent segregation, concentration, and elimination. In this scenario identification would be temporary, linked to putting things right through restitution and negotiation, and aimed at support for the ideals of fairness. Claims based on Aboriginal rights are efforts in this direction.

Community government provides an opportunity to address the issues of identification created by the Indian Act by first understanding them, and then by working to negotiate the best uses and interpretations that are possible until such time as self-government may replace the Indian Act and its system of classification, or until some other solution to the problems caused by classification can be negotiated. In effect Band managers are challenged to make ethical choices with an ethically very questionable set of instructions to work from.

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Lesson 2-Band Powers and the Indian Act

Band Powers and the Indian Act

Band powers under the Indian Act describe limited law making abilities recognized by Canadian courts. The federal government, and most provincial governments, only recognize powers that are granted to Bands under the Indian Act and other legislation. Consequently what Bands can do is circumscribed by the Act. However, there is no limit to the enterprises that Bands can develop, profit from, and market. Some have argued that Bands need to focus more on the unlimited opportunities of free enterprise than on the limited opportunities for self-government under the Act.

With the development of self-government the powers of bands may change, as may their membership and scope of responsibilities.

How Bands are created

Again, under the Indian Act a First Nation is designated a “band” if one of three conditions are satisfied:

It has a reserve It has government trust funds for its use It has been declared to be a band by the federal cabinet (s.2 (1) of the Indian Act, R.S.C.

1985, c. I-5)

All three conditions have historical examples. It is important to note that First Nations do not always refer to themselves as bands. The comments given earlier on the ethical problems associated with the term “Aboriginal” apply here as well. The legal status of a band is unique. Because the Indian Act creates bands, they exist without voluntary actions on the part of members. Yet a band is a legal entity able to enter into contracts, sue and be sued, and able to be found liable for offences.

Decision-making

An elected chief and council make most decisions in the form of Band Council Resolutions (BCR). These decisions can be binding on the band and affect the rights of band members. Indian Affairs will only recognize BCR's signed by a proper majority of chief and council.

Elections and referenda are subject to regulations that determine band council procedures. Some decisions, for example Land surrender or designation, and alcohol by-laws, require votes by the entire band membership. Because members may be widely scattered but still on the membership list, database management for elections and referenda is a management task of some importance for First Nation community governments.

Section 81 of the Indian Act formally describes the most frequently used by-law making powers available to bands. By-laws can be made by Bands in the following areas:

General (traffic, zoning for land use, observance of law and order) Residence by-laws Fishing by-laws

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Lesson 2-Band Powers and the Indian Act

Elections

The use of secret ballots for elections is a process for elections to a council that was imposed by the Indian Act. Some bands prefer to use "band custom"- choices supported by communities are still made, but the procedure and timing may vary from elections by Indian Act declaration.

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Lesson 2-The Indian Act, Status, and Impacts on Diversity

The Indian Act, Status, and Impacts on Diversity

Although the historical basis for Aboriginal law resulting from the Indian Act is the relationship between Europeans and First Nations at and near the time of contact, much of Aboriginal law is also relevant to Inuit and Metis. This is particularly the case after the passage of Section 35 (2) of the Constitution Act of 1982. This amendment to the Constitution clarified that Inuit and Metis are along with Indians, Aboriginal. In effect, the Indian Act had been modified to "keep up with diversity"

The contradictory and confusing terms Indian, Status, Non-Status, Metis and Inuit will be the focus of this section. Treaties and the important changes brought about by Bill C-31 affect each of these groups in special ways.

Indians, Metis, Inuit

Canada has more than sixty indigenous First Nations within its borders and while to the federal government they fall into one of several categories, this categorization artificially places vastly differing cultures in arbitrary categories. Administrative convenience, expectations of assimilation, and ignorance of significant differences, contributed to the form of the Indian Act.

Status

The current Indian Act defines Indian as "a person who, pursuant to the Indian Act, is registered as an Indian or is entitled to be registered as an Indian." This definition has given rise to the term Status or Registered Indian. It is important to recall that the Act was designed with the intent to "protect" Indians until they were "ready" to be assimilated and treated like other Canadians.

As Imai et. al. Conclude :

"Because of the dual policy of paternalism and assimilation, the Indian Act status provisions were a mishmash of nonsensical, ethnocentric, and sexist rules. For example, Eurocentric patrilineal rules on family lineage were imposed on all First Nations, even on those First nations, such as the Mohawks, which were matrilineal.” (Aboriginal Law Handbook p. 123)"

Status Indians are further divided into Treaty and non-Treaty. The ancestors of Indians in parts of British Columbia, Yukon, Quebec, and the Atlantic provinces did not sign treaties although they may be in the process of signing modern treaties.

Non-Status Indians are classified as "Non-Status" if their ancestors were not registered under the Indian Act or were taken off the register. In the past there were many reasons for giving up status usually to get the benefits available to ordinary citizens.

The most common reason however, was a provision of the Indian Act, which declared that any Status woman who married a Non-Status man lost her status along with her children. Bill C-31 allowed some of this group to reclaim their status and has lead to an increase in the number of Status Indians.

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Membership or citizenship codes

First Nations can now create membership codes provided that the new list first includes those on the Indian Affairs lists. The Minister of Indian Affairs must recognize the new code if the procedures for establishing it, as prescribed in the Indian Act, are followed. Five steps are involved based on a free and open democratic model:

The First Nation council must draft a citizenship code Notice must be given appropriately announcing a vote on the proposed code Over one half of all the people entitled to vote must accept the code for it to pass The vote must allow people to consent to:

o Take over the existing membership list from Indian Affairs; o Consent to the proposed citizenship code

A copy of the code must be sent to the Minister at once

Indians

(from Aboriginal Law Handbook pages 10-11)

The group that is classified as "Indians" are from diverse nations. They range from Mi’kmaq in the east to the Iroquois in central Canada to the Cree in the Prairies to the Haida in the west. There are 45 different nations with 56 different languages. These different nations had different rules for deciding membership. Some were matrilineal, and took their family affiliation from their mother. Others were patrilineal.

The federal government ignored these differences, and imposed a registration scheme under the Indian Act which made membership dependent on descent down the male line. Indians registered under the Indian Act are referred to by the federal government as “status Indians”, and their communities are called "Bands". The federal Indian Act organizes registered Indians into about 609 Bands. Most Bands have small reserves of about twenty square miles.

Indians who, for one reason or another, are not registered under the Indian Act are called "non-status Indians". Before 1985, the largest group of non-status Indians was Indian women who were ‘de-registered’ because they married men without Indian status.

Metis

The definition of who is and who is not a Metis is complex because there is no simple legislated definition. Metis are generally understood to include those who were part Indian, and who lived a distinct Metis lifestyle – often associated with the fur trade and the French fur trade industry during colonial times. Metis are now included under Section 35 of the Constitution Act of 1982.

In the Northwest Territories, and Manitoba, between 1870 and 1923, the government used “scrip” to address Metis’ interests in land. These paper certificates were promissory notes for small parcels of land. Some claims today are based on the failure on the part of the government to honour scrip given to Metis, for example a Metis community in Moose Factory.

The Metis in Alberta are in a unique situation. Alberta is the only provincial government that has specific legislation dealing with both local government and a land base of over one million acres for

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Metis. The model of self-government and administration set out in the Alberta Metis Settlements Act of 1990 is an example of changes taking place to the relationship between Canada and First People. Determining who is a Metis has been a problem since the formation of the Metis Nation in 1972. Metis in the Northwest Territories do not come under the treaties 8 and 11 that apply to Northern First Nations. A relationship between the Metis and treaty First Nations is being negotiated. Several Metis groups exist in the Northwest Territories and a variety of approaches are involved in federal negotiations. Some Metis negotiate with the Dene while others choose to negotiate directly with the government.

Inuit

In 1939 the Supreme Court of Canada, in the case of R v Eskimos determined that the Inuit are within the legislative authority of the federal, although not included within the definition of Indian in the Indian Act.

The Nunavut Land Claims Agreement of 1993, which settled the Inuit comprehensive claim in the central and eastern Arctic, resulted in a land settlement (350,000 square kilometres) along with a cash settlement ($580 million over 14 years). The example of Nunavut and the management of land and resources after the claim are explored in Law, Land Claims, and Self-government. The Agreement contains a release of Inuit claims, and surrenders to Canada all Aboriginal rights, title and intents within Canada. This is a significant historical step away from the fiduciary role of the government towards First People.

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Lesson 2-Discussion Activity

Discussion Activity

Respond to the following discussion activity and post your response in the discussions area. Discuss your findings and those of others in your group. This can be done by seeking clarification of others, providing support to others where required and challenging responses where necessary.

Discussion 2.1

Answer one of the following questions. Try to keep your response to 500 words or less. Look at the answers provided by other students. Compare and contrast them to yours, and discuss the differences with the other author.

What is a Metis? Discuss the Metis Nation in your First Nation (if applicable). What criteria and issues about criteria are important? What are the facts? What model of self-government is being developed for Metis in your community? How has Bill C31 and the 1982 Constitution affected the Metis?

Who is an Inuk? (Plural: Inuit) What criteria and issues about criteria are important? What are the facts? What model of self-government is being developed in Nunavut? How has Bill C31 and the 1982 Constitution affected the Inuit?

Post your response here.

Discussion 2.2

What are the powers of a band council in your First Nation? Answer this question by a series of exercises:

Compare a band council to a municipal council and make a list of similarities and differences Contact three bands in your area and review their plans for decision-making Using these three (3) bands, ask for examples of their by-laws

Conclude with a summary of the powers a band may exercise under the Indian Act. Again, keep your responses to 500 words or less.

Post your response here



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Lesson 2-Conclusion

Conclusion

The Indian Act is the basis for Aboriginal law. Bands were created under this act and the powers bands have to make laws are those recognized under the act. The term "Aboriginal" is defined by a complex and ethically questionable system of classification. The problems of status, non-status, Metis, Inuit, and on reserve vs. off reserve populations were reviewed and applied to recent settlements, Alberta Metis and Nunavut, that illustrate the unique historical and cultural circumstances of different First Nations. The inherent and treaty rights of First Nation are evolving in a series of interpretations coming from court cases that recognize, to varying degrees, the Aboriginal right to self-government.

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BIBLIOGRAPHY




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Lesson 3

Lesson 3: Self Government

First Nations regard their claim to self-government as part of a series of claims based on rights that will ensure their existence when they can be exercised. Self-government is more than exercising the right to be independent; it is also the fulfillment of a desire to practice a way of life that is productive, chosen freely, and able to contribute to the welfare of society as a whole by preserving identity and culture.

Other Canadians who believe that self-government will only be possible at a cost to the larger society may perceive claims to self-government on the part of First Nations as a threat. The belief that a gain for one group necessarily causes a loss for others will be challenged in this course. The reversal of this proposition: that a gain for one group is a gain for all - will be explored as an alternative.

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Course Objectives

Understand the nature and origin of First Nation self-government Develop decision-making plans for First Nations self-government models Identify the means through which self-government may express itself Examine land claims agreements and their impact on self-government Examine federal statutes pertaining to land claims and self-government Understand the powers available for self-government under the Indian Act Understand several models of self-government Examine a case study on self-government

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Required Readings:


Complete discussion activities 3.1 and 3.2


Federal Policy Guide on Aboriginal Self Government Website

National Aboriginal Document Database Website

R. v. Sioui, [1990] 1 S.C.R. 1025

R. v. Sparrow, [1990] 1 S.C.R. 1075

R. v. Pamajewon, [1996] 2 S.C.R. 821

Delgmuukw v British Columbia [1997] 3 S.C.R. 1010

R. v. Van der Peet, [1996] 2 S.C.R. 507

http://www2.parl.gc.ca/content/lop/researchpublications/962-e.htm

http://epe.lac-bac.gc.ca/100/205/301/ic/cdc/aboriginaldocs/m-stat.htm

http://courses.learninglibrary.com/tllflash/AFOA/AFM%203/5895_sioui.pdf

http://courses.learninglibrary.com/tllflash/AFOA/AFM%203/5896_sparrow.PDF

http://csc.lexum.org/en/1996/1996scr2-821/1996scr2-821.html

http://courses.learninglibrary.com/tllflash/AFOA/AFM%203/5898_1997rcs3_1010.pdf

http://courses.learninglibrary.com/tllflash/AFOA/AFM%203/5899_vanderpeet.PDF

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Lesson 3-Self-government and the Indian Act

Self-government and the Indian Act

The forms self-government can take are compared with the provisions of the Indian Act and the treaties. Self-government is a process that is dynamic and rapidly evolving. The issues facing self-government models are many and can be organized by jurisdiction, powers, functions, and purposes. In section 3.3.5 we take a look at the situation in the Northwest Territories (NWT) to identify movements towards self-government and the positions being negotiated today.

In this lesson we will examine the evolution of the concept of First Nations self-government from the narrow range of government powers granted in the Indian Act, to the concept of an inherent right to self-government. As there is no universally accepted operational definition of self-government, positions from "total sovereignty outside of Canada" to quasi-municipal powers will be examined.

Since the 1980s self-government has become an increasingly important issue and we will examine both the political and legal evaluation of the concept - politically there was an attempt to include an inherent right to self-government in the Charlottetown Accord of 1992, and although the Accord failed, there has been an acceptance by the federal government that the inherent right exists.

The history of the longstanding relationship between the federal government and various Aboriginal organizations reveals changes to the understanding of the Aboriginal right to self-government. The mandate of the Department of Indian Affairs and Northern Development (DIAND) will be discussed along with DIAND's relationships with other departments affecting Aboriginal rights including Justice, Health Canada, and Finance. The federal government’s recognition of the inherent right of self-government as set out in their Aboriginal Self-government Policy will also be reviewed.

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Lesson 3-The Indian Act & Self-government

The Indian Act & Self-government

The Indian Act was enacted (first in 1876) in response to the allocation to the federal government of exclusive legislative authority for "Indian and Lands reserved for the Indians" in Section 91(24) of the Constitution Act of 1867 and provided a form of self-government on reserves. Participants will examine Section 81 of the Act, which conferred on band council’s powers analogous to those of a municipal government dealing with such issues as zoning and the regulation of traffic.

The present day Indian Act is based on the major revisions to the Act in 1951. In the 1951 version of the Act women who married a non-Indian lost their status unless they subsequently re-married a status Indian. In response to this inequality Bill C-31 was passed in 1985, which allowed many Indian women to regain their lost status. The new rules determining status were so complex that they tended to have almost as many unfair consequences as the previous legislation. Until 1985 the federal government controlled membership when amendments were made to the Indian Act allowing a band to assume control of its own membership.

A band council elected under the Indian Act or chosen by traditional methods has powers specified under the Indian Act and may have far greater powers because of the growing acceptance of self-government. Generally speaking a band council has bylaw making authority over such issues as:

Regulation of traffic Zoning Construction Taxation on reserve

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Lesson 3-Taxation

Taxation

Prior to the enactment of the Indian Act in 1876, Indian exemption from taxation was recognized. The Indian Act confirmed this exemption and under the terms of section 87, the property of an Indian or a band on a reserve is exempt from taxation. Courts have held that the exemption applied even if the work was done off reserve. The exemption rules, like taxation itself, have become increasingly complicated and issues such as residence, location and type of employer and where the work is performed are considered in determining exempt status.

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Lesson 3-Federal Policies

Federal Policies

In August 1995, the federal government amended its policy approach to the implementing the inherent right to self-government stating that:

Aboriginal peoples have the right to govern themselves The government would prefer to have inherent rights resolved through negotiations not

court litigation The Charter of Rights and Freedoms binds all governments Costs of self-government to be shared between federal, provincial, territorial, and

Aboriginal governments That Aboriginal groups should commence negotiations

The scope of negotiations for self-government will be examined including issues seen by the federal government as subjects for recognition including:

The more contentious areas where the federal government is not prepared to cede authority will be examined including:

Canadian external affairs Money and monetary policy Criminal law Postal services Charter rights

The move towards self-government has not only been driven by the political powers but through various court cases including:

R v Sioui; R v Sparrow; R v Pamajewon; Delgamuukw v British Columbia; and R v Van der Peet

Each of these cases have a significant impact on self-government, and the boundaries to which an Aboriginal can claim rights under self-government versus the legal framework established in Canada.

Constitutions Membership Adoption Language and culture Health and social services, housing Policing Property rights

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R. v. Sioui

In the case of R. v. Sioui, the respondents, Regent Sioui, Conrad Sioui, Georges Sioui and Hugues Sioui, were members of the Huron band on the Lorette Indian reserve. They were convicted by the Court of Sessions of the Peace of cutting down trees, camping and making fires in places not designated in Jacques-Cartier Park contrary to subsections 9 and 37 of the Regulation respecting the Parc de la Jacques-Cartier, adopted pursuant to the Quebec Parks Act.

The respondents appealed to the Superior Court against this judgment by way of trial de novo. They admitted committing the acts with which they were charged in the park, which is located outside the boundaries of the Lorette reserve. However, they alleged that they were practising certain ancestral customs and religious rites which are the subject of a treaty between the Hurons and the British, a treaty which brings section 88 of the Indian Act into play and exempts them from compliance with the regulations.

The treaty that the respondents rely on is a document of 1760 signed by General Murray. This document guaranteed the Hurons, in exchange for their surrender, British protection and the free exercise of their religion, customs and trade with the English. At that time the Hurons were settled at Lorette and made regular use of the territory of Jacques-Cartier Park. The Superior Court held that the document was not a treaty and dismissed the appeal. A majority of the Court of Appeal reversed this judgment. The court found that the 1760 document was a treaty and that the customary activities or religious rites practised by the Hurons in Jacques-Cartier Park were protected by the treaty. Section 88 of the Indian Act made the respondents immune from any prosecution.

The appeal to the Supreme Court was to determine:

1. Whether the 1760 document is a treaty; 2. Whether it is still in effect; and 3. Whether it makes subsections 9 and 37 of the Regulation respecting the Parc de la Jacques-

Cartier unenforceable in respect of the respondents.

R. v. Sparrow

The appellant, Ronald Edward Sparrow, was charged in 1984 under the Fisheries Act with fishing with a drift net longer than that permitted by the terms of his Band's Indian food fishing license. He admitted that the facts alleged constitute the offence, but defended the charge on the basis that he was exercising an existing aboriginal right to fish and that the net length restriction contained in the Band's license was invalid in that it was inconsistent with s. 35(1) of the Constitution Act, 1982.

The appellant was convicted. The trial judge found that an aboriginal right could not be claimed unless it was supported by a special treaty and that s. 35(1) of the Constitution Act, 1982 accordingly had no application. An appeal to County Court was dismissed for similar reasons. The Court of Appeal found that the trial judge's findings of facts were insufficient to lead to an acquittal. Its decision was appealed and cross-appealed. The constitutional question before this Court queried whether the net length restriction contained in the Band's fishing license was inconsistent with s. 35(1) of the Constitution Act, 1982.

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R. v. Pamajewon

The Shawanaga First Nation and the Eagle Lake First Nation both passed by-laws dealing with lotteries. Neither by-law was passed pursuant to s. 81 of the Indian Act and neither First Nation had a provincial license authorizing gambling operations. The Shawanaga First Nation asserted an inherent right to self-government and the Eagle Lake First Nation asserted the right to be self-regulating in its economic activities.

The appellants Howard Pamajewon and Roger Jones, members of the Shawanaga First Nation, were charged with keeping a common gaming house contrary to s. 201(1) of the Criminal Code. The charges arose out of high stakes bingo and other gambling activities on the reserve. The appellants Arnold Gardner, Jack Pitchenese and Allan Gardner, members of the Eagle Lake First Nation, were charged with conducting a scheme for the purpose of determining the winners of property, contrary to s. 206(1)(d) of the Code. The charges related to the band's bingo activities on the reserve. All were convicted and the convictions were upheld on appeal. At issue here was whether the regulation of high stakes gambling by the Shawanaga and Eagle Lake First Nations fell within the scope of the aboriginal rights recognized and affirmed by s. 35(1) of the Constitution Act, 1982. The constitutional question before the Court queried whether subsections 201, 206 or 207 of the Code, separately or in combination, were of no force or effect with respect to the appellants by virtue of s. 52 of the Constitution Act, 1982, by reason of the aboriginal or treaty rights within the meaning of s. 35 of the Constitution Act, 1982.

Delgamuukw v. British Columbia

The appellants, all Gitksan or Wet'suwet'en hereditary chiefs, both individually and on behalf of their "Houses", claimed separate portions of 58,000 square kilometres in British Columbia. For the purpose of the claim, this area was divided into 133 individual territories, claimed by the 71 Houses. This represents all of the Wet'suwet'en people, and all but 12 of the Gitksan Houses. Their claim was originally for "ownership" of the territory and "jurisdiction" over it. (At this Court, this was transformed into, primarily, a claim for aboriginal title over the land in question.) British Columbia counterclaimed for a declaration that the appellants have no right or interest in and to the territory or alternatively, that the appellants' cause of action ought to be for compensation from the Government of Canada.

At trial, the appellants' claim was based on their historical use and "ownership" of one or more of the territories. In addition, the Gitksan Houses have an "adaawk" which is a collection of sacred oral tradition about their ancestors, histories and territories. The Wet'suwet'en each have a "kungax" which is a spiritual song or dance or performance which ties them to their land. Both of these were entered as evidence on behalf of the appellants. The most significant evidence of spiritual connection between the Houses and their territory was a feast hall where the Gitksan and Wet'suwet'en people tell and retell their stories and identify their territories to remind themselves of the sacred connection that they have with their lands. The feast has a ceremonial purpose but is also used for making important decisions.

The trial judge did not accept the appellants' evidence of oral history of attachment to the land. He dismissed the action against Canada, dismissed the plaintiffs' claims for ownership and jurisdiction and for aboriginal rights in the territory, granted a declaration that the plaintiffs were entitled to use unoccupied or vacant land subject to the general law of the province, dismissed the claim for damages and dismissed the province's counterclaim. No order for costs was made. On appeal, the

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original claim was altered in two different ways. First, the claims for ownership and jurisdiction were replaced with claims for aboriginal title and self-government, respectively. Second, the individual claims by each House were amalgamated into two communal claims, one advanced on behalf of each nation. There were no formal amendments to the pleadings to this effect. The appeal was dismissed by a majority of the Court of Appeal.

The principal issues on the appeal, some of which raised a number of sub-issues, were as follows:

1. Whether the pleadings precluded the Court from entertaining claims for aboriginal title and self-government;

2. What was the ability of this Court to interfere with the factual findings made by the trial judge;

3. What is the content of aboriginal title, how is it protected by s. 35(1) of the Constitution Act, 1982, and what is required for its proof;

4. Whether the appellants made out a claim to self-government; and, 5. Whether the province had the power to extinguish aboriginal rights after 1871, either under

its own jurisdiction or through the operation of s. 88 of the Indian Act.

R. v. Van der Peet

The appellant, Dorothy Marie Van der Peet, a native, was charged with selling 10 salmon caught under the authority of an Indian food fish license, contrary to s. 27(5) of the British Columbia Fishery (General) Regulations, which prohibited the sale or barter of fish caught under such a licence. The restrictions imposed by s. 27(5) were alleged to infringe the appellant's aboriginal right to sell fish and accordingly were invalid because they violated s. 35(1) of the Constitution Act, 1982. The trial judge held that the aboriginal right to fish for food and ceremonial purposes did not include the right to sell such fish and found the appellant guilty. The summary appeal judge found an aboriginal right to sell fish and remanded for a new trial. The Court of Appeal allowed the Crown’s appeal and restored the guilty verdict. The constitutional question before this Court queried whether s. 27(5) of the Regulations was of no force or effect in the circumstances by reason of the aboriginal rights within the meaning of s. 35 of the Constitution Act, 1982.

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Lesson 3-Self-government in the NWT

Self-government in the NWT

The federal government has taken the view that it "would prefer that the inherent right find expression primarily, although not exclusively, through public government" and "the creation of completely separate Aboriginal governments in the western NWT may not be practical or efficient. In the federal government's view, the self-government aspirations of Aboriginal peoples in the NWT can be addressed by providing specific guarantees within public government institutions."

If self-government is to be realized within the context of public government, how might this be accomplished?

By the government of a minimum number of seats to Aboriginal group By the guarantee of a number of cabinet seats By the granting of a veto over legislation

These possibilities will be examined in light of the recent electoral boundaries case, which made any of the above scenarios unlikely. It now appears that self-government will take another direction more along the lines of a municipal government with extra powers and constitutional entitlement.

Metis self-government

Self-government is generally associated with Indians and Inuit and not with the Metis. With the exception of Alberta, there is no legislated land base for the Metis. With the exception of the Northwest Territories, the Metis are not included in the land claims process.

Determining who is Metis represents a difficulty in advancing along a road to self-government as does the lack (outside of Alberta) of a legislated land base. The Metis in the Northwest Territories have proposed self-government sometimes with the Dene and sometimes on their own.

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Discussion Activity


Discussion Activity 3.1

Several areas of self-government development are more controversial given the government’s unwillingness to cede power and jurisdiction. Explore one the following areas of contention and propose an approach that might satisfy a win-win negotiation strategy:

Canadian external affairs Money and monetary policy Criminal law Postal services Charter rights


Discussion Activity 3.2

What is meant by a 'fiduciary relationship' and why does the government have such a relationship with the Aboriginal peoples? With this question in mind, study one of the following resources:

R v Sioui R v Sparrow; R v Pamajewon; Delgamuukw v British Columbia; and R v Van der Peet

Summarize the results in your case. Report back by answering questions about the fiduciary relationship involved:

Who was supposed to protect whom from what? Was protection sought or needed? Was protection sought or needed? Did the right of the beneficiary win out in your case? Why? Why not?




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Lesson 3-Conclusion

Conclusion

As you have seen, self-government is both a significantly important and significantly complex issue for First Nations. Not only do First Nations regard their claim to self-government as part of a series of claims based on rights that will ensure their existence, it is also the fulfillment of a desire to practice a way of life that is productive, chosen freely, and able to contribute to the welfare of society as a whole by preserving identity and culture.

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BIBLIOGRAPHY


Imai, Annotated Indian Act, 1999, (Carswell, 1999)



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Lesson 4-Lesson Objectives

Lesson 4: Tort Law and Professional Liability

Lesson Objectives

Examine the development of tort law and the basis for liability Intentional interference with a person or property Examine the Law of negligence Understand the concept of professional negligence and how it can affect professional

organizations

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Required Readings

Contemporay Canadian Business Law: Chapters 4, 5 and 6


Complete and submit Assignment #1.

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Lesson 4-Submit Assignment 1

Submit Assignment 1

Assignment 1

Bill C31 is seen by many as an overdue corrective to one of many unjust, because unequal, policies for dealing with First Nations under the Indian Act. Write a report on the events leading up to the passing of Bill C31. What motivated the Bill? What are its consequences in practice? Use local examples of the meaning and impact of Bill C31 in your work.


Save and email the file to instructor

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Lesson 4-Tort Law

Tort Law

The word “Tort” derives from the French meaning ‘wrong’. The law of torts is a very broad category that includes intentional wrongs, such as trespass or assault, negligence and a variety of miscellaneous wrongs such as nuisance or defamation. Insurance will not replace any wrongdoing, legal or otherwise, but it will cover a business or, in the case of a First Nation, the Band office, to ensure it is not put in a position of financial ruin in the case of a loss or damage to property or people.

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Lesson 4-Professional Liability

Professional Liability

As business becomes more complex, professional services have become one of the fastest growing and most important sectors of the economy. At the same time, however, the potential for economic harm caused by negligent conduct of professionals has also grown considerably. This section deals with professional liability, in particular:

Given that this has been covered extensively in Contemporary Canadian Business Law, we suggest that you read Chapter 6 for a more in-depth analysis of Professional Liability.

The Duty of Professionals Liability for Inaccurate Statements The Standard of Care for Professionals Causation The Role of Professional Organizations; and Multi-Disciplinary Partnerships

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Discussion Activity


Discussion 4.1

In what circumstances may a public authority be held liable for damage resulting from its failure to carry out a statutory duty imposed on it? Inquire with your Band office. Has this ever occurred to them, and if so, what were the repercussions?


Discussion 4.2

What is the test now applied in Canada to determine whether a person is liable for a negligent misstatement? Should this test be different for First Nations, and if so, how?




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BIBLIOGRAPHY




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Lesson 5

Lesson 5: Business Law I

Economic activity in communities can include land use and harvesting, band enterprises, joint ventures (partnerships), corporations, construction, sole proprietorships, and business takeovers. Aboriginal businesses may take several forms and combine service to the public with profit seeking. In this unit the advantages and disadvantages of various forms of Aboriginal business will be considered. Tax implications, liability implications, and objectives are key parts of the decision matrix facing Band Managers.

The structure chosen for doing business will have implications for record keeping, payment of taxes, and decision making about the company or business. All forms of business involve risk and investment. Money, time, energy, and talent are invested where no guarantees exist for the results. The results may be less than, equal to, or greater than the inputs. Commercial relationships are organized in order to manage risks and make the best use of investments. Many of the principles studied in the courses titled First Nations Strategic Management and First Nation Programs, Planning and Implementation apply to the design of business partnerships.

The simplest form of a commercial relationship is one between a sole proprietor and their business. This is a “relationship” involving only one person. The company and its owner are legally one. The owner is responsible personally for all of the debts of the company. Taxes are charged on business income net of business expenses. This net income is declared as personal income from a sole proprietorship. Personal debts and assets of the owner, however, are not included in the company’s financial statements.

Entrepreneurship programs, Aboriginal youth business programs, and other First Nations resources for personal business ventures are included in the website resources for this course. Use them to link to networks that are helping First Nations develop business opportunities.

This lesson will explore more complicated forms of business activity based on types of partnership, from limited partnership to corporations. Note that not all business relationships are for profit. Non-profit community services are also businesses and may be organized using the business models described below.

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Lesson Objectives

Understand and apply legal rules on business organizations and the evaluation of advantages and disadvantages of different forms of business organization

Understand several forms of business organization and evaluate their respective advantages and disadvantages

Identify the advantages and disadvantages of Band corporations

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Required Readings:

Aboriginal Law Handbook: Chapters 20, 21, 22

Contemporary Canadian Business Law: Chapters 15, 16 and 17



Aboriginal Business Canada Website

http://www.ainc-inac.gc.ca/ecd/ab/abc/index-eng.asp

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Lesson 5-Joint Ventures

Joint Ventures

Economic development in the North includes partnerships between First Nations and a variety of resource development projects. Diamond mining, commercial fishing, tourism, and transportation services are areas where business projects provide opportunities for commercial partnerships.

Achieving one or more of the following goals justifies joint ventures:

1. They can reduce the amount of sales tax (GST, provincial tax) 2. They can limit personal liability for debts incurred by the business 3. They can accomplish tax reductions on the income realized from the project or business. 4. They can offer control to First Nations so that the First Nation retains profits. 5. They can offer control that adds value to projects and businesses by ensuring that

employment, involvement, and learning are local and benefit the First Nation. 6. They can provide guarantees that partners (Aboriginal and non Aboriginal) know what their

return on investment will be and that is will be calculated in a fair way. 7. They can provide a structure that funding sources may require for approval. 8. They can provide a structure that ensures business-like management and record keeping.

Each project or business will have its own opportunity to design a joint venture that works. Websites for this course can direct participants to resources that assist First Nations in business partnership design.

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Lesson 5-Partnerships

Partnerships

A partnership is a "business entity", but it is not taxed as such. Instead, each partner is taxed on their personal net proceeds from the partnership, which they declare as income. Each partner receives a proportionate share of the business income, expenses and credits. Partnerships take two forms:

Limited partnerships

A limited partnership includes one or more limited partners. Limited partners are liable only for the amount of money they have invested in the business. Their personal assets are not at risk. The partners will have a legal agreement (a contract) that spells out what decisions require consultation with all partners. For example, a decision to sell a major portion of the partnership’s assets would usually require the consent of all limited partners.

General partnerships

All partners share general management responsibilities for business operations. Ownership of business assets and liability for debts are also shared equally. Because they are unincorporated, each partner is personally liable, up to the limit of their resources, for the total debts of the entire business- not just their share based on the number of partners.

Partnerships with Government

When First Nations offer services in a community, a partnership is usually involved. As with other communities, public services are delivered with local programming support and administration. The idea that the partnership is “mandated” is useful in order to focus on the obligations that are assumed by a community organization when funds are provided for a particular service- whether it is a school, friendship centre, daycare, or health program. This relationship, where to some degree “the piper calls the tune”, is no less true for non-First Nations municipalities. All communities answer to the source for their community service funding. In effect, communities use monies they did not earn themselves but to which they claim an entitlement in order to sponsor public services.

Unlike a business partnership, where a voluntary exchange of resources and risks is involved in a joint profit making venture, the partnership between a First Nation and the government is based on goals of public service and an investment of money by government that carries with it expectations and standards of performance. A partnership with government is however, based on expectations of mutual benefit. The bargain being struck involves a shared purpose. The shared purpose is that of service- something that people need and want is going to be provided by a joint effort.

In this course, consider the structures and participation of First Nations communities in services that involve partnerships based on taking over programs formerly administered by government. The transfer of programs, rather than the creation of programs, is the focus here.

In the past many services relating to health, education, and welfare were delivered by government without involvement and direction by First Nation people. In the topics for this unit consider the range of services being organized by Northern First Nations in their communities. The development of self-government will include increasing responsibility for services including welfare and income support, child welfare services, education, and justice administration. Structures that include

58

Lesson 5-Partnerships

volunteer boards, local employment to deliver services and community participation in program design can provide benefits to First Nations that Band Managers can facilitate.

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Lesson 5-Corporations

Corporations

Corporations are legal entities separate from their owners. Owners are not personally responsible for company debts when the company is incorporated. Corporation owners, or shareholders, only risk the money they have invested in the business. Corporations are taxed on their profits directly. Corporations can be organized for non-profit purposes to provide a community service, or as profit seeking businesses.

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Lesson 5-Subcontracting

Subcontracting

When a contract is awarded to a First Nation, for example to survey their land claim, a tender can be put out to attract offers to do part of the work. The First Nation is the contractor for the project and then assigns parts of the project to others. Legal agreements are needed to specify what is being exchanged (consideration) between the parties, and other aspects of valid contracts must be observed as well. Provisions for nonperformance are important aspects of subcontracting, especially when risks are involved as in construction projects where cost overruns are more common than not.

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Lesson 5-First Nations Corporations

First Nations Corporations

First Nations organize corporations for economic development and for community service. Community corporations are formed to serve charitable, educational, social, and other useful purposes for communities. If the corporation makes money, it must be spent on community projects.

Individuals can also form corporations for profit. First Nations Managers will need to assess the advantages and disadvantages of forming both community corporations and corporations for economic gain. Incorporation is useful in protecting individuals who organize community projects from personal liability if the project cannot meet its financial commitments.

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Discussion Activity


Discussion 5.1

Consultants are available to help First Nations design business structures that meet their needs. Accountants, lawyers, and management consultants offer services that are described on the Internet. Select three sources from those suggested for this course or find three of your own choosing. Write a report outline the approach taken by three such services toward First Nation business organization. What is similar and different between the three examples? How are First Nation issues addressed? What are the steps that are recommended to arrive at a decision on a business structure?


Discussion 5.2

Outline the steps involved in forming a First Nation Corporation. Use business forms and guidelines for incorporation provided by legal service resources. Indicate the legislation and reporting requirements for First Nation corporations. The Aboriginal Law Handbook, p. 195, is a resource for starting this activity.


http://courses.learninglibrary.com/VanillaForum/Login.aspx?ShopperID=&sku=


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Lesson 5-Conlusion

Conclusion

By its unique nature, First Nations' businesses are a 'step-apart' from other businesses in Canada. They not only perform the actions of other businesses, but in the case of First Nations corporations, will also serve charitable, educational and social for the community itself. Therefore, it is of extreme importance that you can identify the advantages and disadvantages of Band corporations and be able to differentiate them from other businesses.

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BIBLIOGRAPHY




65


Lesson 6: Business Law II: Aboriginal Commercial Law

Course Objectives

Identify the domain of commercial law Identify the issues that aboriginal commercial law address Identify the advantages and disadvantages of Band corporations

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Required Readings


R. vs. Gladstone- PDF

R. vs. Sparrow- PDF

Complete discussion activity 6.1



Contemporary Canadian Business Law - Chapters 15, 24, and 34-35

http://courses.learninglibrary.com/tllflash/AFOA/AFM%203/r_vs_gladstone.pdf

http://courses.learninglibrary.com/tllflash/AFOA/AFM%203/r_vs_Sparrow.pdf

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Lesson 6-The Domain of Commercial Law

The Domain of Commercial Law

Commercial law, like all law, serves to combine the goals of orderly interaction in society with the ideals of justice based on principles that include equality before the law and fairness based on a consideration of all relevant facts. How these ideals are understood, changed, and used is a complex subject outside the scope of this course. However, the origin of the legal system in Canada is summarized Lesson 1. Consult supplementary resources and readings to further explore foundations and issues in the philosophy of law.

Commercial law is organized under the heading “private law” as opposed to “public law” in the Canadian legal system. Public law includes Constitutional law, Criminal law, and Administrative law. The Indian Act is a statute under Constitutional law. Commercial law, however, includes the law of business associations, property law and contract law. Commercial law deals with economic activity and commercial relations. Commercial law deals with business transactions and concerns relations between private citizens as they conduct their business.

This creates a complex background for First Nations, or bands, insofar as bands can be governed by both areas of law when doing business. Aboriginal Commercial Law is an apt title for this course, because commercial law for Aboriginal people combines aspects of public law with aspects of private law. Managers face a challenge in exploring how to make the better of these two worlds. Managers are in effect managing “two worlds”- the world of public service from a Canadian government perspective, and the world of First Nations community development from a First Peoples cultural and historical perspective.

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Lesson 6-First Nation perspectives on commerce

First Nation perspectives on commerce

From First Nation perspectives what counts as commercial may be framed within a worldview that is different from the view taken within Canadian commercial law. Recent decisions affecting the interpretation of Aboriginal rights, for example R v Sparrow, have reflected some of the concerns created by worldview and perspective arguments.

Commercial law, as well as other areas of law, has a history and a significance that can be critically examined by applying a number of disciplines. Although it is beyond the scope of this course, several supplementary readings are recommended for participants who wish to investigate the social construction of legal knowledge, the philosophical basis for claims about "justice", and the use of the legal system as an instrument for maintaining particular ideologies.

In Canadian law, the domain of commercial law can be described as the regulations and principles that govern the following activities associated with commerce.

Contracts

Making legal agreements Working with legal agreements Ending legal agreements

Labour Law

Employer-employee relationships Unions

Business Organization and taxation

Corporations Joint ventures Limited Companies Proprietorships Taxation (on commodities, on income)

In areas where there are few reserves (i.e. NWT), many issues do not arise regarding on vs. off reserve economic activity. The area of commercial law affecting First Nations is somewhat simpler as a result.

In order to approach commercial law topics, First Nation Band Managers can consider their plans for economic activity and development.

Consider the following questions as a departure point for deciding what legal knowledge will be useful.

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Lesson 6-First Nation perspectives on commerce

Will resource development be a major focus? (Mining, logging, hydro) Will Tourism be developed as a business? (Hunting, cultural camps, photo journeys) Will cultural production and marketing be a source of income and economic development?

(Art, clothing, tools) Will harvesting wildlife be a commercial activity? (Commercial food sales, hunting, trapping,

fishing) Will Secondary industry provide business opportunities? (a diamond sorting facility, a

construction company, a catering/expediting company)

Each First Nation will have its own profile of commercial relations to manage based on the forms of economic activity that are important and possible. Use the learning activity for this topic to describe, and anticipate, Northern First Nation’s commercial activity.

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Lesson 6-Discusion 6.1

Discussion 6.1

Read R v. Gladstone


Summarize the findings and their implications for commercial law. How does this case compare to R v. Sparrow? What are the major differences? What are the implications, if any, for commercial law in Canada?

Submit your answer here.



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Lesson 6-Conclusion

Conclusion

The Indian Act is the basis for Aboriginal Commercial Law. Bands were created under this act and the powers bands have to make laws are those recognized under the act. The term "Aboriginal" is defined by a complex and ethically questionable system of classification. The problems of status, non-status, Metis, Inuit, and on reserve vs. off reserve populations were reviewed and applied to recent settlements, Alberta Metis and Nunavut, that illustrate the unique historical and cultural circumstances of different First Nations. The presence of a very small number of reserves in the Northwest Territories avoids many of the issues faced by First Nations engaging in commercial activity with both on and off reserve components. The inherent and treaty rights of First Nation are evolving in a series of interpretations coming from court cases that recognize, to varying degrees, the Aboriginal right to self-government.

Aboriginal commercial law, although nominally a part of private law in the organization of the Canadian legal system, is involved in public law through the involvement of First Nations in the Indian Act. Commercial activity and the right of First Nations to hunt, trap and fish are balanced in deliberations about collective and individual rights using section 35 of the Constitution and the Charter of Rights and Freedoms.

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BIBLIOGRAPHY




R v. Gladstone

R v. Sparrow



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Lesson 7: Aboriginal Title and Treaties

Lesson Objectives

Understand the Doctrine of Aboriginal Title Examine the Foundations for Aboriginal Title Understand the issues related to Aboriginal Title and the contemporary treaty process Understand the current relationship between the government and First Nations with respect

to land claims Understand the different concepts when it comes to land rights Understand the definitions involved when discussing land rights, the differences between

the definitions, and how they affect issues concerning land rights

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Recommended Readings:

Aboriginal Law Handbook: Chapters 1,2 and 5



None

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Lesson 7-The Doctrine of Aboriginal Title

The Doctrine of Aboriginal Title

Aboriginal title has its origins in the occupation of North America by organized societies prior to contact with Europeans who began to colonize the "new world". The doctrine of title involves a perspective towards land that combines ideas about ownership and property with ideas about fairness and how people can acquire property and transfer it. Several important precedent setting cases are studied to illustrate changes taking place in the interpretation of Aboriginal title in the courts.

A brief examination of the cultural systems in North America prior to European contact will demonstrate that Aboriginal occupation and land use pre-date European colonization. Furthermore, distinctive societies with their own values existed. The concept of "title" comes from European thought concerning ownership and property. The concept "to colonize" is a European term. The doctrine of title has its origins in both statute and common law traditions. The concept of land involves perspectives about what land means and what land should be used for. Particular perspectives on land lead to the doctrine of Aboriginal title.

Land came before title

European and Aboriginal views of land ownership and society need to be compared in order to understand land claims. Land and property are not equivalent concepts and need to be connected to each other by means of a theory of ownership that addresses legitimate acquisition and transfer principles. It is useful to ask where property comes from in order to understand the need for such a theory.

Traditional government among First Peoples was based on a special relationship to the land. Elders and small tribal groups of families lived on the land by harvesting and managing the natural resources that were available. Survival on the land was a primary task for self-government. This was accomplished by maintaining cultural values in a process of consensus.

Decisions affected survival and were made by those most trusted to act as guides and leaders. People needed close connections to each other and to the land in order to survive. Listening circles and storytelling played a part in the process of reaching consensus. Self-government was a source of pride and dignity for First Peoples.

First Peoples and the land

For First Peoples, land was a gift from the Creator of all things. Human beings were given the opportunity and responsibility to live in peace on the land by taking what was essential for life. Elders preserved the meaning of the past in the society of First Peoples. Respect for the land as the source of livelihood and life was expressed through conservation practices acquired over centuries of traditional knowledge development.

The land was regarded with reverence and thanksgiving. The natural world was seen as an experience to be shared rather than as a commodity to be exploited.

The use of resources, primarily wildlife, was geared to making a future that resembled the past. Life on the land was thought of as a circle, or cycle, that continually repeated itself. The idea of a circle has two meanings. First, the ability of people to live on the land by hunting and trapping will be the

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Lesson 7-The Doctrine of Aboriginal Title

same from one generation to the next. Young people learn how to live on the land from their elders. This way of life can repeat itself because the land will not change from one generation to the next. People will be born and die, but their way of life will be renewed in each generation.

In a second meaning, a circle of life on the land can be understood as the connection between birth, death, and new life. This cycle of life is based on thinking of people as a part of nature rather than as opposed to it. As people grow, have children and die, they are part of a cultural transmission that passes on all of the skills and values that will allow life on the land to repeat itself. Life on the land will be sustainable when people know how to use resources wisely. As long as life goes on, the cycle of life on the land will go on as well.

Progress in the sense of "conquering" the land, increasing the productivity of the land, changing the land, or in the sense of inventing new ways to spend time or increase wealth and power was not part of the relationship to the land for First Peoples. After contact, the relationship that First Peoples had with their land was disturbed and challenged by radically different ideas imported from European civilization. European settlers introduced a wage economy and industries designed to create profits and change the land. These changes were foreign to the way of life practiced by First Peoples.

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Lesson 7-The Foundations for Aboriginal Title

The Foundations for Aboriginal Title

It is essential to understand that Aboriginal people had, prior to 1492, their own forms of government, laws, and economies and that their societies differed from each other as much as they differed from European cultures.

To think that all Aboriginal peoples were or are identical is to promote a “pan Indian” myth out of ignorance of the diversity that actually exists. In the North, where contact happened more recently, the risk of overlooking diversity lead to oversimplifications on the part of non-Aboriginal newcomers that resembled those of their earlier southern counterparts.

Ronald Wright in Stolen Continents: The New World Through Indian Eyes writes:

“In 1992, the West - by which I mean nations and cultures that are either European or derived from Europe's expansion of the past 500 years - celebrated the quincentenary of Columbus's first voyage from an "old" world to a "new." ...The inhabitants of America saw it differently. Their ancestors had made the same discovery long before. ...They had developed every kind of society: nomadic, hunting groups, settled farming communities, and dazzling civilisations with cities as large as any then on earth. By 1492 there were approximately 100 million Native Americans - a fifth, more or less, of the human race.”

The arrival of Europeans had a major, often disastrous, and even genocidal effect on these societies. What we now call “culture shock” was the order of the day. Indigenous societies, like societies anywhere, were not static and were all evolving in different ways by learning and adapting to their environments. These societies deserve consideration from an ethical standpoint based in universality. If one society deserves consideration as a self-determining group, than all do, unless reasons for interference can be given that anyone would accept no matter what society they happen to be in.

Furthermore, the same standards for progress cannot be applied to all societies as if they had agreed in advance what progress means. Progress is a matter for debate as is any standard applied to the way of life chosen by others. Progress in particular is defined as much by cultural values as by technology and economic development programs.

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Lesson 7-The Judicial Examination of Aboriginal Title

The Judicial Examination of Aboriginal Title

Aboriginal title is a result of case law accumulated from precedents developed through the common law system of judicial review.

Using the Royal Proclamation of 1763 as a starting point, United States decisions of Johnson & Graham's license vs. McIntosh and Worchester vs. Georgia discussed the origins and nature of Aboriginal title. The decision by the High Court of Australia in Mabo v. Queensland, which relied heavily on Canadian case law, recognized that Aboriginal title existed prior to and had survived British settlement of Australia.

Early Canadian decisions such as St. Catherines Milling and Lumber vs. Regina clarified that Indians possessed title and rights to lands and that such right were part of the law of Canada. Although technically not a Canadian case (until 1949 decisions of the Supreme Court of Canada could be appealed to the Judicial Committee of the Privy Council) the decision was binding on Canadian courts.

The case is of importance because the Privy Council held that the title of the Indians was a right dependent in the "good will of the Sovereign". Participants will find it interesting that although the case affected the course of Aboriginal rights and therefore Canadian history, the Ojibwa who were directly involved in the case, were not represented.

Baker Lake

The 1979 decision of Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development is significant for Aboriginal title case law. This pre Constitution Act 1982 case came about as a result of the attempts by the Inuit of Baker Lake, faced by extensive mining exploration, to seek a declaration that they possessed Aboriginal title to 78,000 square kilometres around Baker Lake. The decision will be studied not only because it was followed in important later decisions such as Delgamuukw v. British Columbia, but also because it reflected cautious judicial acceptance of Aboriginal title prior to the advent of the Constitution Act in 1982.

The Court did however set out elements, which they stated must be proved by the claiming group to establish an Aboriginal title recognizable at common law. These elements included:

Essential in any understanding of Aboriginal title is that title, once established, cannot be extinguished without consent. Treaties may accomplish this extinguishment, but courts have held that the intention to do so must be clear. Determining the necessary and sufficient conditions that make such intentions clear on the part of Aboriginal signers to treaties is an important part of legal decisions related to land claims.

The situation of the Dene in the Northwest Territories is important for community government in many communities. The Dene occupy a large area of North central Canada and are related by language to certain Aboriginal groups in the United States (Navajo). The impact of the Klondike gold rush on the Dene and the historical background leading to Treaties 8 and 11 will be explored in the learning activities for this topic. Important parts of the background for Aboriginal title can be found in these treaties.

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Lesson 7-The Judicial Examination of Aboriginal Title

That they and their ancestors were members of an organized society. That the organized society occupied the specific territory over which they assert Aboriginal

title That the occupation was to the exclusion of other organized societies. That the occupation was an established fact at the time sovereignty was asserted by Britain.

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Lesson 7-Extinguishments of Aboriginal Title

Extinguishments of Aboriginal Title

The 1973 Supreme Court case of Calder v Attorney General of British Columbia is particularly important for the question of title and conditions for extinguishing title. In this case the Nish’ga Indian Tribal Council had taken a case to the courts seeking a declaration that they held an unextinguished title to their traditional territories. Although the Nish’ga lost the case on technical grounds six justices of the Supreme Court held that Aboriginal title existed in law and where it was not extinguished continued to have force in law. The case is important as it convinced the federal government to begin negotiations of comprehensive land claims in areas where title had not been clearly extinguished.

In the past the federal government has taken the position that the words often contained in treaties "cede, release and surrender" extinguished Aboriginal title. This has been a point of contention for First Nations; both in court cases, and in land claims agreements and modern treaties such as the Nish’ga Final Agreement. These agreements have attempted to find wording that serves to provide some certainty for the government that claims over land are finally settled, while avoiding use of the contentious word "extinguish" to describe what has been agreed to.

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Lesson 7-Treaties

Treaties

A treaty is a formal document that contains an agreement between two self-governing bodies. "Sovereignty", and “nation state” are terms from European history that set the stage for treaty making during the colonial period in North America. A treaty is an agreement that binds people to promises made by their leaders. The purpose of a treaty is to establish a peaceful relationship that respects the interests of all the parties to the treaty. Treaties avoid conflict by reaching agreement about boundaries, the exchange value of land, the settlement of disputes, and other matters that are important for cooperation and coexistence.

The history of treaties and the judicial interpretation of treaties, when taken together, form a basis that supports the right of First Nations to establish self-government. The concept of "title", its meaning and validity in law, is at the centre of the arguments in favour of self-government.

Indian title, based on a definition of property maintained in law, has been established by a number of significant legal cases in other jurisdictions including the United States and Australia. Decisions made in these jurisdictions have made it clear that Aboriginal title existed prior to and after colonization, and furthermore decided that such title could only be extinguished by the clearest of agreements.

Treaties in Canada have a long history and the treaty process has had several phases:

Pre-confederation (1867) treaties with the British crown Numbered treaties Modern treaties

Where does property come from?

Ideas about how property may be acquired so as to create a legitimate claim to "it" have, and can, change. In order to comprehend the basis for particular land claims in the exercise of treaty rights we must first explore what claims about any form of property assume.

The social contract theory of government is a useful idea for this purpose. It can help explain why a concept of property is useful for social organization everywhere. It can also be used to discuss the justification of individual rights as part of a bargain between individuals who agree to govern themselves by limiting what they are permitted to do in exchange for the benefits of membership in a society.

Self-government can be studied as an implied bargain, or contract, between people who agree in principle about the rights and duties they are willing and able to take on. Property is a term used to describe what can be owned. Property can take many forms. Property is based on the rights and duties of ownership that people agree to in their social contract. Misunderstandings about property are possible between different cultures. For example the Abenaki people thought land and other property reverted back to the tribe when someone died. In their dealing with Europeans they assumed that land “owned” by particular individuals would revert back to the Abenaki after death occurred.

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Lesson 7-Treaties

Land is not real estate - at first

In nature there is no real estate and no social contract. Real estate refers to tangible property that can be bought, sold, and traded, especially land and buildings. These transactions are based on shared understandings within a society. The understanding of land as real estate was foreign to First Peoples.

Land claims are made possible by the belief that European settlers could treat the environment that supported the lives and livelihood of First Peoples as real estate. From this point of view, land could be treated as unowned, undeveloped, and available if it was in a natural state. The idea that land could be "discovered", or "claimed" was based on this belief. A newcomer could be imagined thinking, "I can claim this land because no one is using it."

Property

The concept of property can be defined in terms of rights, responsibilities (or duties) and entitlements that property holders enjoy because everyone recognizes the property as theirs. Property is the outcome of a game played according to rules of ownership.

Ownership is the term used to describe the ability of a property holder to obtain, use, and transfer something. Land claims can be studied as the exercise of one of the rights of ownership, namely the right to prove a clear title and make demands based on the outcome. Property, land in particular, will always have a history relevant to its present status.

Title in the sense developed by European lawmakers made land into a permanently identifiable commodity that could be surveyed and whose history of acquisition and transfer determined ownership. "The standard incidents of property" were the determinants that made it into an economic and personal resource for exchange.

All property implies some degree of "private" ownership to the extent that claims about property mean that restrictions are placed on who gets to do what with the property. Every culture has customs and understandings that involve placing limits and permissions on what is an acceptable use of objects, land, tools, and valued items. This is equally true among First Peoples and European cultures. Rules and customs relating to property are different, but shared understandings can be found among the people within either culture. The role of treaties in determining Aboriginal title can be placed in this larger context of ideas and decisions about how property is defined.

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Lesson 7-Land claims

Land claims

Land claims are being made by First Peoples’ groups around the world in order to seek fair treatment from various governments. Land claims have several causes in history, but it is the provisions and promises of treaties that have lead directly to contemporary claims based on promises that remain unfulfilled.

Land claims are the outcome of the settlement of Canada by non-Aboriginal peoples. The Canadian government after Confederation in 1867, inherited and further developed a series of promises and formal agreements with First Nations called treaties. First Nations historically occupied the land first, and claim a legal title today to the land they occupied before contact on the basis that their title is still valid.

The argument for valid title is made using the principles and procedures of the Canadian legal system itself, in addition to First Nations beliefs about property, ownership, and the right to self-government. First Nations, by employing the legal concepts of real property, ownership through title, and the procedures of the Canadian legal system, have argued that their title to land has not been "extinguished". From a First Nations perspective, these arguments effectively use the language of assimilation to challenge assimilation.

Land claims are being settled

In Canada, limited self-government is supported by provisions in the Indian Act. New models of governance are being negotiated as the relationship between First Nations and the Government of Canada continues to evolve. The settlement of land claims is an important part of this evolution. Land claims based on a particular treaty are called specific land claims, while claims based on a consideration of Aboriginal rights where no treaty exists are called comprehensive claims. A modern land claim can occur in the context of a comprehensive treaty or as a fulfilment of the terms of an existing treaty. To use an example, today land claims are in various stages of settlement in the North. The Inuvialuit people of the Mackenzie Delta have completed negotiations on behalf of their land claim with the federal government. Although the draft comprehensive claims agreement negotiated by the Aboriginal groups in 1990 rejected the Dene and Metis, a change in policy by the federal government led to regional agreements with the Gwich'in in 1992 and with the Sahtu Dene and Metes in 1993.

These modern land claims provide new opportunities for self-government and partnerships with the Government of Canada that senior community government managers will be able to develop through programs, policies, and services. In this course you will explore the concepts and issues surrounding title, claiming a title, and interpreting a treaty.

Land claims and self-government involve negotiation

The road to self-government and land claims settlement involves negotiation between First Nations, the Government of Canada, and others.

The negotiation process includes addressing several issues that make negotiation both possible and practical:

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Lesson 7-Land claims

Funding negotiations Readiness to negotiate Feasibility and affordability of negotiations Extent of third party (territory, province or municipality) involvement Mandate to negotiate Approval of agreements Implementation of agreements

Every negotiation is different, but some formal principles for negotiation can be developed to approach any negotiating relationship. And when speaking of negotiations, were are not just discussing your orthodox "zero-sum"; negotiations, or win-lose models (where any gain by one side is seen as a loss to the other), such as interest-based negotiations where it is possible for win-win outcomes such that both sides in a negotiation are satisfied.

Land is more than property

Land claims on the part of First Nations require an understanding of land as more than property, and as fundamentally distinct from ideas about property within western civilization. Land claims are not to be understood as only pertaining to physical land. Land claims are comprehensive and refer to the value of the land in its significance for a way of life. Comprehensive land claims include:

Claims for the restoration of a way of life Claims for restitution based on losses that resulted from a failure to deliver on promises

contained in treaties Claims for consideration as co-managers of public resources that enable the social and

economic development of First Peoples in the world as it exists today.

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Discussion Activity


Discussion 7.1

In your opinion, what criteria should be used to establish legitimate ownership? Contrast these to the criteria that are used to establish legitimate ownership over land in contemporary cases? Compare the two where your thoughts overlap and explain (if necessary) why you disagree with the contemporary line of thought.


Discussion 7.2

Undertake a web search for Aboriginal Title and Treaties. Try to look for sites that not only examine the question on the whole, but may also examine your particular First Nation as well. Post these on the discussion board and look at those found by other students. Compare and contrast your findings with those of other students, and try to build a 'database' of these sites in your bookmarks folder on your computer.




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Lesson 7-Conclusion

Conclusion

The doctrine of Aboriginal title has foundations in history providing that history is open and objective rather than closed and limited by Euro-centric perspectives about the meaning of progress, property, organized societies, and the occupation of land. Aboriginal title has been reviewed in Canadian courts and several important precedent setting cases are reviewed in this lesson. The issue of title extinguishment was discussed by reviewing recent cases that have decided that only clear and demonstrable intent to surrender title can extinguish it. Historical treaties have been decided to fail tests that show this is the case. Modern land claims are being negotiated that seek to avoid extinguishing title forever in order to reach agreement with the government.

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BIBLIOGRAPHY




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Lesson 8

Lesson 8: Taxation Issues

Taxation is a complex topic. First Nations taxation is more complex. The primary goal of this lesson is to provide you with access to information that can resolve tax questions before they become tax problems. In general, tax exemptions exist for registered Indians and predate confederation. This fact can be used to support the interpretation that First Nations were independent and self-governing communities before 1867.

The following is a synopsis of Chapter 20 of the Aboriginal Law Handbook. For more information on Taxation, please refer to the chapter.

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Lesson Objectives

Understand and apply basic taxation rules flowing from the Indian Act to different personal and business circumstances

Understand the special taxation rules that affect First Nations and their people Understand the concept of personal tax exemption and how to apply this to First Nations

and First Nations peoples Understand how the issue of personal tax exemption affects salaries and wages Understand the current taxation rules on the collection and payment of commodity taxes by

First nations citizens and organizations Understand how the personal tax exemption affects all forms of businesses (sole

proprietorship, partnership, corporation, joint venture and commercial trust) Understand the relationship between First Nation taxation laws and incorporation

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Required Readings:

Aboriginal Law Handbook: Chapter 24



Section 87 of the Indian Act: Recent Developments in the Taxation of Investment Income

http://courses.learninglibrary.com/tllflash/AFOA/AFM%203/5904_2000ctj5_maclagan.pdf

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Lesson 8-Individuals

Individuals

Individuals

Section 87 of the Indian Act states that:

“No Indian or band is subject to taxation in respect of the ownership, occupation, possession or use of any property mentioned in paragraph (1)(a) or (b) or is otherwise subject to taxation in respect of any such property”

That property that is exempt from taxation includes:

The interest of an Indian or a band in reserve lands or surrendered lands; and The personal property of an Indian or a band situated on a reserve

Income tax on wages

As stated above, tax exemption is dependent on (a) Indian status and (b) residence on a reserve. In 1992, the Supreme Court of Canada (Williams v. Canada) dealt with tax exemption of unemployment benefits. In this case, it was decided that tax exemption on wages is dependent on the following factors:

The location of the head office; The residence of the employee; The place where the work is performed; and The place where the wages are paid.

If after considering all of the factors, income is connected to a reserve, then the wages paid to a registered Indian would be exempt from income tax. See pages 451-464 for a summary of Revenue Canada’s guidelines on tax exemption.

Tax on income from an unincorporated business

Income from an unincorporated business is treated as if it is the personal income of the person operating the business. If the permanent establishment of the business is located on-reserve, then the profit of the business would be tax-exempt.

Income tax on scholarships

A registered Indian who lives on-reserve does not have to pay income tax on a scholarship to attend an off-reserve university.

Income tax on employment insurance premiums and Canada Pension Plan (CPP)

Everyone has employment insurance premiums taken off their paycheques. When a person stops working, they may qualify for employment insurance payments. Since Canada Pension Plan payments are also related to employment, the same rules apply

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Lesson 8-Individuals

Income tax on income from investments

Given that there are so many types of investments that provide income (i.e. interest from bank deposits, dividends from shares, rental income, etc.) there is no simple answer to deciding whether or not the income can be taxed. For more information on taxation of income from investment, see views of Revenue Canada in TN7-210296 Technical News No. 7 http://www.ccra-adrc.gc.ca/E/pub/tp/itnews-7/itnews-7-e.html#P75_8827.

Income tax on withdrawals from RRSP’s and RRIF’s

Money withdrawn from an RRSP or an RRIF is taxable.

Provincial sales tax on goods purchased

When the point-of-sale is on-reserve, registered Indians do not have to pay sales tax. If the point-of-sale is off-reserve, however, registered Indians do have to pay sales tax, regardless of whether the good will be used on-reserve. See Union of New Brunswick Indians v. New Brunswick (Minister of Finance) for a further explanation (page 457-458 of the Aboriginal Law Handbook).

Tobacco

Registered Indians living on-reserve do not have to pay provincial sales tax on cigarettes. In order to limit the illegal sale of cigarettes to non-Aboriginal people, many of the provinces have set quotas on cigarettes for each reserve.

Gasoline

Registered Indians on-reserve do not have to pay tax on gasoline which is provided on-reserve.

Other provincial taxes

Registered Indians are exempt from other provincial taxes which might otherwise attach to goods or services located on-reserve.

Federal goods and services tax (G.S.T.)

G.S.T is not payable in the following circumstances : bullet

On-reserve purchases of goods (i.e. clothing) by registered Indians On-reserve purchases of services (i.e. small engine repairs) by registered Indians where the benefit will be realized mainly on-reserve Off-reserve purchases by registered Indians of goods delivered to the reserve by the vendor.

http://www.ccra-adrc.gc.ca/E/pub/tp/itnews-7/itnews-7-e.html#P75_8827

http://www.ccra-adrc.gc.ca/E/pub/tp/itnews-7/itnews-7-e.html#P75_8827

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Lesson 8-Bands, band controlled institutions and tribal councils

Bands, band controlled institutions and tribal councils

The general rule is that Band organizations are treated like registered Indians for tax purposes and get the same tax breaks as provided by the Indian Act. Bands and Band corporations may get additional tax advantages because they are treated as municipalities under the Income Tax Act. For an analysis of these tax breaks, see pages 463-464 of the Aboriginal Law Handbook.

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Lesson 8-Community non-profit organizations

Community non-profit organizations

All nonprofit corporations get some tax benefits. These tax benefits have nothing to do with being an Aboriginal organization. They apply to all such organizations both on-reserve and off-reserve.

Non-profit associations qualify for tax-exempt status when they meet the criteria outlined in the Income Tax Act, including the following conditions:

The prohibition against making a profit is not absolute. Some associations carry on a secondary business activity that is profit-making. For example, selling jackets or insignia to members at a profit is incidental to the association's main purpose and is acceptable. But renting out large amounts of space in a building in which the association occupies very little space could well affect tax-exempt status. If there is a question about whether an activity is allowable, seek legal advice.

Excessive accumulation of income is also considered operating for the purpose of profit. Generally, having one year's anticipated expenditures in reserve is considered reasonable, but it is always a question of the needs of a particular association. Since there is no specific rule, even a year's accumulation could be excessive in some cases. Associations that are concerned about this should obtain professional tax advice. This is preferable to consulting Revenue Canada, since its advice can be expected to be extremely conservative and could result in an audit.

Payments to members are prohibited where such a payment is a direct benefit similar to stock dividends. Members can be paid wages if they actually perform documented services for the association, but the amounts paid must be reasonable for that type of work. Members may also be reimbursed for expenses that directly relate to association activities such as workshops, seminars and travel to committee meetings.

Tax considerations on the winding up (i.e., dissolution) of a non-profit association are complex. No distribution of assets - or even a method of distribution - should be decided upon before obtaining professional tax advice. In every case, associations should retain the highest level of expertise they can afford. For all but the simplest association, effective accounting and tax planning requires experts.

The association must not be a charity (charities qualify under different provisions) The association must be organized and operate exclusively for social and civil improvement,

pleasure or recreation, or for any other purpose except profit No part of its income is to be payable to or otherwise available for the personal benefit of

any member.

Charities

Charities acquire tax-exempt status, and the right to issue receipts for donations for income tax purposes, by registering with Revenue Canada. Preserving this status requires careful observance of a number of rules specifically directed at charities. There are differences in the rules, depending on whether the organization in question is a charitable organization or a public or private foundation.

The most important rules are those directing the amount of money that must be disbursed during the year. A registered charity must devote 80% of the amount for which it issued receipts in the preceding taxation year to charitable activities. The calculation of this amount can be complex,

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Lesson 8-Community non-profit organizations

depending on the charity's activities. A charity must take care to continue to pursue the activities for which it was organized and not be diverted into primarily political activities. For example, a religious denomination may make statements on political issues but it may not support a particular political party or candidate.

Charities should ensure that the receipt process is not abused. Receipts should only be given for genuine donations; the donor must not benefit in return. A receipt is not appropriate in lieu of wages, either. A charity must distinguish between volunteers and employees. If a job requires a paid employee, then wages must be paid in the normal way.

Since the ability to issue tax receipts is critical to the survival of most charities and the loss of charitable status would preclude this, the association executive or chief elected officer of a charity should ensure that all bookkeeping and record keeping is done in accordance with Revenue Canada's rules for charities. For small charities that rely on volunteers, there are several excellent summaries available. Larger organizations with professional staff should invest in a handbook on the tax treatment of charities. If the charity's financial statement is prepared by a professional accountant, choose one who is familiar with the special needs of charities- As a charity increases in size and sophistication the standard of financial expertise expected of it by Revenue Canada will increase, although in theory all are expected to comply with the rules equally.

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Lesson 8-Business corporations

Business corporations

As a general rule, business corporations owned by private individuals are not eligible for Indian Act tax benefits. Individuals or First Nations may decide to become shareholders in business corporations. These corporations operate like non-Aboriginal businesses. Any profits go into the pockets of the shareholders. There is no requirement that the profits be used for community purposes.

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Lesson 8-Taxation by First Nations

Taxation by First Nations

Bands have power to impose tax on-reserve, and can impose tax on non-Aboriginal users of the reserve. The statutes provide that the tax exemption under section 87 of the Indian Act does not apply to members of these bands when they are being taxed for these items.

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Lesson 8-Aboriginal organizations located off-reserve

Aboriginal organizations located off-reserve

There are no special tax provisions for Friendship Centres, locals of the Ontario Metis and Aboriginal Association, and other off-reserve institutions. Such institutions may, however, take advantage of benefits available to nonprofit organizations and charities (see section 7.3 and the table on pg. 463 of the Aboriginal Law Handbook).

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Discussion Activity


Discussion 8.1

The First Nations Tax Commission coordinates many aspects of taxation, tax law, jurisdiction, and First Nation issues related to taxation. Use this website: www.fntc.ca and others to answer the following questions about taxation and First Nations business activity.

What taxes apply in your province to First Nations businesses? What records need to be kept? How are taxes collected?

Upon completion, prepare a list of FAQ's with answers to guide Band Managers in your First Nation.


http://www.fntc.ca/

http://www.afoalearning.ca/index.php?id=5905

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Lesson 8-Conclusion

Conclusion

Taxation law is of extreme importance to Band Managers, given that it reflects Aboriginal status and how Aboriginal businesses and individuals can, for the lack of a better word, “operate”. Band managers need access reliable information on taxation rules and issues that affect First Nations, and should constantly seek to improve and expand on their knowledge of taxation law and changes to the Indian Act that may affect them and their community. Business development in First Nations requires a Band Manager to assess the tax implications of proposed business structures, and First Nations have an vested interest in structures that facilitate value added components of commercial projects, including jobs, training and education, and how the tax laws will affect these projects.

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BIBLIOGRAPHY




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Lesson 9: Contract Issues I: Formation of the Contractual Relationship

Lesson Objectives

Provide you with an introduction to the purpose and content of contracts; Examine and evaluate different kinds of contracts, their legal effects and practical

consequences; Understand how a contract is formed; and Understand the concept of consensus

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Recommended Readings:

Contemporary Canadian Business Law - Chapters 7,8,9



Bora Laskin Library links to contract law

E-biz section on Contract Law

http://www.law-lib.utoronto.ca/resources/topic/cont.htm

http://www.ic.gc.ca/eic/site/ee-ef.nsf/eng/ee00362.html

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Lesson 9-Working with Contracts

Working with Contracts

Bands can enter into contracts, as can individuals. The nature of a legal agreement, the assignment, limitation, breach and discharge of contracts, are all parts of the "toolkit" Band Managers need to have. Aboriginal contracts are still contracts, and in this area of law a general understanding of contracts will apply to First Nations situations

Commercial relations are often between contracting parties. Knowing who is agreeing to what is the key question in understanding responsibilities and expectations. The Indian Act, once again, has implications for contracts that involve reserve lands or Indians living on a reserve. More generally, when the federal government is involved in advancing funding for a project this may not mean that the government is also advancing a guarantee for the project should it exceed budget, run into trouble, or require an extension – a band's financial obligations are not automatically guaranteed by the Department of Indian Affairs.

Treaties are legal agreements subject to interpretations of their validity. Contract law has special importance for First Nations due to the basis of Aboriginal rights, land claims, and self-government in promises and expectations that may be contracts in law. The tests of treaty rights and other sources of inherent rights for First Nations include the criteria for valid contracts. The topics for this lesson introduce some key elements of this complex area of law.

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Lesson 9-Making Legal Agreements

Making Legal Agreements

A legal agreement is one meant to be enforceable at law. Legal rights and duties are identified in contracts, and this makes them different from agreements of a social or informal nature, for example if a hunter indicates he will take someone hunting (not a client) and fails to show up, there will be inconvenience or a lost opportunity, but no legal action would be justified.

Making legal agreements requires clear definitions of the form of such agreements, as well as the elements of its validity. Validity refers to the factors that prove that legal rights and duties can indeed be assigned by the agreement.

Valid contracts do not need to be in writing, a situation can speak for itself sometimes and support an interpretation that an implied contract is the case. For example, simply entering a cafe and ordering a coffee is sufficient to establish an implied contract that the beverage will be paid for.

On the other hand, simply intending to make a contract may not be enough to make it valid in law. In this topic consider the form and criteria for validity that establish valid contracts.

Specialty Contracts

A specialty contract is one "in writing and under seal". Today small red stickers are affixed to documents in place of the wax seals of earlier times. Specialty contracts include mortgages; land claims agreements, deeds to property and long-term leases. Most are also signed by witnesses. The evidence of the seal and witnesses will usually be taken by the courts as sufficient to establish "execution with due deliberation"- in effect informed consent is demonstrated by all parties to the agreement.

Simple Contracts

These are any contracts not under seal. Outside specialty contracts, all are simple. They are easier to enforce when put in writing, but need not be in order to meet tests of validity. Consider the café example again. "Behavior can demonstrate contract" is the maxim here. Writing the contract down, however, is one way to avoid disputes over what was actually agreed to.

"Put it in writing" - has a history

The Statute of Frauds from 1677 in England marked a change from the common law tradition of making no distinction between written and oral contracts. The statute was motivated by cases involving claims of fraud (cheating) and perjury (lying). Old claims and promises could be alleged but not proven. After the statute was adopted the test of written proof could be applied to allegations concerning past promises and claims. This statute is an example of the evolution of law in response to justice issues. Canada has adopted this statute and applied the requirement that certain contracts have to be in writing before they are valid in a court of law.

For First Nations a key example is a promise to pay for the debt, default, or wrongful conduct of another person. Relations between the Department of Indian Affairs and First Nations can involve promises of this kind. Two forms are possible:

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Lesson 9-Making Legal Agreements

1. A guarantee, meaning one person (or organization) will pay another’s debt if that person (or organization) does not pay. A guarantee comes under the statute of frauds writing is required to establish a contract of guarantee.

2. An indemnity, meaning direct responsibility for the debt of another, whether the other fails to pay or not. An indemnity does not have to be in writing to be enforceable.

The practical implication is that First Nations need to seek written guarantees, not verbal or assumed ones, against future financial obligations if they enter partnerships where this is the understanding desired. In the transfer of community programs this is an important negotiating point. First Nations need to know clearly what financial responsibilities they may face after a program is taken over with government funding.

Written legal agreements need a particular form and content

Two basic things have to be in a valid contract:

1. The Contract must identify subject matter of the contract and include important terms. 2. All parties to the agreement should sign the contract.

Once the written agreement exists, it becomes legally enforceable unless oral evidence (the parole evidence rule) can be used to prove any of the following six points:

1. Fraud was involved (someone lied or cheated) 2. Ambiguity was involved (the meaning of terms was unclear, the facts were not complete or

correct) 3. Mistakes were made and need correction 4. A prior condition is relevant 5. The agreement is incomplete (the document was not intended to constitute the whole

agreement) 6. Misrepresentation was involved

Offer, acceptance, exchange

A legal agreement is based on offer, acceptance and exchange. A valid legal agreement will satisfy five essential criteria associated with offering, accepting, and exchanging:

1. An offer was made and accepted (offer and acceptance) 2. The purpose of the contract violates no laws (legal purpose) 3. Consent is genuine (genuine consent) 4. The parties are competent to make agreements (competent parties ) 5. Identifies what will be exchanged (consideration)

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Discussion Activity


Discussion 9.1

Explain the importance of notice of terms in a standard for contract. To what extent doe the law protect the interest of the public in standard form contracts?


Discussion 9.2

How 'valuable' does consideration have to be to make a promise binding? When might a court review the value of consideration?




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Lesson 9-Conclusion

Conclusion

Knowledge and understanding of the formation of the contractual relationship is critical to understanding commercial law. The legal rights and duties are identified in contracts make them inherently different from agreements of a social or informal nature (i.e. a pledge to go hunting with someone). Contracts require clear definitions of the form of the agreement (e.g. a simple contract versus as specialty contract), as well as the elements of its validity (whether it be a written contract or not) and the content of the contract (e.g. the actual stipulations of the contract). Without these three you cannot form a valid contract.

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BIBLIOGRAPHY




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Lesson 10

Lesson 10: Contracts II: Interpreting the Contract and Terminating the Contractual Relationship

This lesson contains a synopsis of Chapters 11 & 12 of Contemporary Canadian Business Law For a more in-depth analysis, please refer to these chapters.

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Lesson Objectives

Examine the assignment of a contract Understand the concept of limitation of actions Understand when a contract can be legally dismissed Understand the grounds upon which a contract may be impeached Understand the concept of mistake, misrepresentation, undue influence and duress Understand the concept of a breach of contract and the remedies for a breach

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Required Readings:

Contemporary Canadian Business Law - Chapters 11 & 14



None

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Lesson 10-Assignment of contract

Assignment of contract

One person in a legal agreement may want to leave it by assigning their part in it to someone else. The other party to the agreement can transfer a transfer of rights under a contract to another without prior consent. Obligations, however, cannot be transferred without the consent of the other party to the contract. An example is a contract of debt. A creditor (person who is owed) can assign their interest in being paid to someone else without the debtor’s approval, provided the indebtedness is not increased and notice is given of the change. Assignment of obligations is subject to different rules and can also be accomplished by law under the legislation pertaining to bankruptcy.

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Lesson 10-Limitation od actions

Limitation of actions

Actions are claims in court to recover damages or bargains that are not kept. Specific land claims are actions of this kind. Simple contract claims are subject to time periods such that debts and claims cannot be enforced after a limitation period. After this period debts become “outlawed” and claims to sue are "barred". The law has formulated rules governing limitations.

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Lesson 10-Breach of Contract

Breach of Contract

Contracts can be in default in minor and major ways. A complete breach of contract relieves the party who failed to receive their consideration from their obligations in the contract. They may furthermore sue for any damages they suffered as a result of the default. Contracts that fail to be performed are evaluated and dealt with in a number of ways that include:

For First Nations managers a breach of contract will usually require legal services to assess the best course of action under the circumstances. For more information on Breach of Contract, please read Chapter 14 of Contemporary Canadian Business Law

Substantial performance Liquidated damages Mitigation of loss Specific performance Personal services

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Lesson 10-Discharge of contract

Discharge of contract

A contract is discharged when it is completed or terminated. There are three ways to discharge a contract:

By performance By mutual agreement By the impossibility of performance

Discharge by performance

When both parties have performed their obligations according to the contract between them, there is discharge by performance. Performance also includes the right to demand payment in legal tender. Cheques, although used widely, are not legal tender at law.

Discharge by mutual agreement

There are two ways this can happen. First, the contract may contain instructions about its own cancellation under certain conditions. For example a First Nation could have an employment contract with someone to perform forest fire observation duty until the lake freezes over. When the lake freezes the contract is cancelled by mutual agreement. Secondly, when both parties agree to a new agreement that releases them from the first one the first contract is discharge.

Discharge by impossibility of performance

If certain conditions essential to the performance of the contract cease to exist, the contract will be discharged. This can occur when:

The subject matter of the contract becomes unfit or is destroyed Incapacitating illness makes the performance of a personal service impossible A change in law makes the contract illegal

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Lesson 10-Impeachment of a Contract

Impeachment of a Contract

There are several ways in which a contract can be impeached. These include:

Impeachment by Mistake; Impeachment by Misrepresentation; Impeachment due to Undue Influence; and Impeachment due to Duress

Impeachment by Mistake

As the title suggests, impeachment by mistake is a situation in which the contract can be impeached due to a mistake made in the contract. There are two main types of mistake:

Mistake about the Terms of a contract; and Mistakes in Assumptions about important facts related to a contract although not a part of

the contract itself

Mistakes concerning the terms of the contract can come in the forms of words used inadvertently (i.e. mistakes in the amount of money passing hands), errors in recording the agreement (i.e. leaving a portion of the agreed upon terms out of the contract), and misunderstandings about the meanings of words.

Mistakes in assumptions can concern the existence subject matter of a contract, the value of the subject matter, the challenge in achieving a fair result, and unforeseen future events.

Impeachment by Misrepresentation

Misrepresentation and Torts

As was noted in Chapters 4 & 5 of Contemporary Canadian Business Law, a misrepresentation may amount to a tort when it is made fraudulently (Chapter 4 on ‘Deceit’) or negligently (Chapter 6 on ‘Misrepresentation).

Misrepresentation and Contracts

Read Chapter 11 of Contemporary Canadian Business Law pages 203 – 208.

Impeachment due to Undue Influence

Read Chapter 11 of Contemporary Canadian Business Law pages 208 – 209.

Impeachment due to Duress

Read Chapter 11 of Contemporary Canadian Business Law page 210.

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Discussion Activity


Discussion 10.1

Describe the nature of risk allocation when the parties make different assumptions. How do the courts deal with the problem? What may a court do when it cannot find a satisfactory solution?


Discussion 10.1

Describe the nature of risk allocation when the parties make different assumptions. How do the courts deal with the problem? What may a court do when it cannot find a satisfactory solution?




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Lesson 10-Conclusion

Conclusion

As you have seen, a contract can be dismissed in three specific ways: (1) by breach of contract; (2) by discharge of a contract; and (3) by impeachment of a contract. Each of these have very specific implications on the contract and the parties involved (e.g. whereby one party of the contract may be required to compensate the other party), and should not be lumped into one bowl as being all of the same variety. While the situations may have similarities, they are each a separate entity unto themselves and should be considered as such when examining contractual law.

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BIBLIOGRAPHY




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Lesson 11

Lesson 11: Contracts III: Special Contracts

The following lesson deals with three specific types of contracts - contracts of sale, contracts of insurance and contracts of employment – along with the associated topics of consumer protection legislation, employment legislation and collective bargaining.

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Lesson Objectives

Examine contracts of sale, the title and risk associated to them, the implied conditions and remedies;

Examine contracts of insurance, their purpose, nature and importance; Examine contracts of employment, the employment relationship and termination and

discharge; Analyze consumer protection legislation and assess its implications for First Nations; Examine specific employment legislation; and Review the concept of collective bargaining

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Required Readings:

Contemporary Canadian Business Law - Chapters 20, 22, 23

Completing discussion activities 11.1 and 11.2


Chapters: 19, 28

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Lesson 11-Contracts of Sale

Contracts of Sale

The following is a synopsis of Chapter 23 of Contemporary Canadian Business Law. For a more detailed description of the concepts below, please read pages 417 – 422).

Contracts for the sale of goods are the most common type of contract, and as such, are the most readily understood. However, given that they are the most common type of contract, they have in turn generated a vast amount of case law. This case law was eventually codified into a statute by the British Parliament in 1893 – the Sales of Goods Act (Source). All the common law provinces in Canada have since adopted this Act.

A contract of sale “is a contract whereby the seller transfers or agrees to transfer the property in the good to the buyer for a money consideration, called the price.” The Act distinguishes between a sale (i.e. a transfer that happens immediately) and an agreement to sell (i.e. a transfer deferred to some time in the future). In the case of an agreement to sell, the transaction may be undertaken even when there are no goods to be transferred (i.e. the sale of a crop 3 months before it is harvested).

For the Sales of Goods Act to apply, the subject matter of the contract must be “goods” (i.e. personal property, other than money and things in action).

Terms in a Contract of Sale

The Caveat Emptor Principle

“Let the buyer beware”. In other words, the risk is with the buyer. This principle encourages buyers to take care and to determine that the goods are what they want before they contract to buy them.

Statutory Protection for the Buyer: Implied Terms

Conditions and Warranties – For the purpose of the Sale of Goods Act, “condition” means a major or essential term of the contract, the breach of which relieves the injured party from further duty to perform the contract. “Warranty” means a lesser or non-essential term, the breach of which does not relieve the injured party from the bargain, but they may sue for damages.

Seller’s Title – The concept that the seller has title to the goods being sold and is ‘honestly’ selling them to the buyer and the buyer alone with no strings attached. The Sale of Goods Act states that:

In a Contract of Sale, unless the circumstances of the contract are such as to show a different intention, there is:

An implied condition on the part of the seller that in the case of a sale the seller has a right to sell the goods, and that in the case of an agreement to sell the seller will have a right to sell the goods at the time when the property is to pass;

An implied warranty that the buyer will have and enjoy quiet possession of the goods; and An implied warranty that the goods will be free from any charge or encumbrance in favour

of any third party, not declared or known to the buyer before or at the time when the contract is made.

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Description – This term implies that the goods sold by description (i.e. a cotton blouse) will conform to that description (i.e. it actually is a cotton blouse and not a nylon blouse).

Sustainability and Quality – It is implied that the goods are of a type that are suitable for the purpose for which they are bought and are of a “quality” as designated by the seller.

Sale by Sample – This term implies that the goods correspond with the sample that has been shown (i.e. what you see in the display case is what you get and not something inferior).

Exemption Clauses

The Sales of Goods Act contains the following provision:

Where any right, duty or liability would arise under a contract of sale by implication or the law, it may be negatived or varied by express agreement or by the course of dealing between the parties, or by usage, if the usage is such as to bind both parties to the contract.

What this means in plain English is that the seller may insist on the contract containing an express term that exonerate them from the liability normally imposed by implied terms – the fine print. See CCBL pages 210-251 and pages 422- 424 for examples of exemption clauses.

Payment

This is the time of payment as set out in the contract. When the contract does not specify as to the time of payment, courts assume that delivery and payment are concurrent.

Delivery

The terms in a contract of sale relate to delivery in three ways

Quantity to be delivered Time of delivery Place of delivery

Risk of Loss

If the buyer and seller do not expressly agree when the risk for loss cause by damage to or destruction of the goods will pass from the seller to the buyer, it becomes necessary to imply such a term from the contract as a whole.

Title To Goods

Specific Goods

Rule 1 - Where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment or the time of delivery or both is postponed.

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Rule 2 - Where there is a contract for the sale of specific goods and the seller is bound to do something to the goods for the purpose of putting them in a deliverable state, the property does not pass until such thing is done and the buyer has received notice.

Rule 3 - Where there is a contract for the sale of specific goods in a deliverable state but the seller is bound to weight, measure, test or do some other act or thing with reference to the goods for the purpose of ascertaining their price, the property does not pass until such act is done and the buyer has received notice.

Rule 4 - When goods are delivered to the buyer on approval or on “sale or return” or other similar terms, the property passes to the buyer

(a) When he/she signifies his/her approval or acceptance to the seller or does any other act adopting the transaction (b) If he/she does not signify his/her approval or acceptance to the seller but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of the goods, on expiration of such time, and if no time has been fixed, on the expiration of a reasonable time, and what is a reasonable time is a question of fact.

Unascertained Goods (i.e. future goods like a crop)

Rule 5

(a) Where there is a contract for the sale of unascertained or future goods by description and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in the goods passes to the buyer, and such assent may be expressed or implied and may be given either before or after the appropriation is made. (b) Where in pursuance of a contract the seller delivers the goods to the buyer or to a carrier or other bailee (whether named by the buyer or not) for the purpose of transmission to the buyer and does not reserve the right of disposal, he is deemed to have unconditionally appropriated the goods to the contract

Remedies of the Seller

In other words, what options can a seller take if the buyer does not pay the full and agreed upon price, or reneges on the contract? The following are examples of the types of remedy a seller can take upon the buyer in the event of a contractual ‘breach’.

Lien

A right of a person in possession of property to retain that property against the claim of the owner. Not every contract of sale creates a right of lien for the seller. The remedy exists only in the following situations:

Where the contract does not state that the buyer is to have credit, so that payment may be required upon delivery (b) Where the goods have been sold on credit, the term of credit has expired without payment being

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made and the seller still has possession of the goods (c) Where the buyer becomes insolvent before delivery

Stoppage in Transit

The right of a seller to order a carrier not to deliver to the buyer.

Repossession

Just as it sounds, the right to repossess the good.

Resale

After exercising a right of lien or of stoppage in transit under the Sales of Good Act, an unpaid seller may give notice to the buyer and resell the goods to a third party.

Damages for Non-acceptance

A situation whereby the seller incurs a loss for the non-acceptance (i.e. a tailor-made suit that cannot be reasonably resold to another buyer). The seller can then press for damages.

Action for the Price

When title has passed to the buyer, a seller is entitled to its full price regardless of whether the buyer has taken delivery. If the buyer rejects goods after title has passed, they are rejecting what is their own (see 16.10 on page 313 for an example).

Retention of Deposit

In a contract of sale, as in any contract, the parties may provide that, in the event of breach, the party in default shall pay the other a specified sum of money by way of liquidated damages.

The Seller's Liability

Just as a seller has rights against the buyer, so does the buyer have rights against the seller. The following are examples of the liability of a seller to a buyer.

Misrepresentation

This is a situation where the seller deliberately misrepresents the goods that they are selling. For a misrepresentation to be deliberate, the statement of misrepresentation must be part of the preliminary bargaining and not be incorporated as a term in the contract of sale. Second, the statement made by the seller must be made as a statement of fact.

Breach of Term

Generally a breach of a condition entitles the injured party to discharge the contract as well as sue for damages for any loss suffered.

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Wrongful Withholding or Disposition by the Seller

Essentially, the refusal by the seller to deliver goods whose title has passed to the buyer.

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Lesson 11-Contracts of Insurance

Contracts of Insurance

A contract of insurance is a method of purchasing protection against a possible loss. For instance, your car insurance or house insurance is a contract of insurance, given that it will protect you against damages incurred to either your house or car or contents therein insomuch as the stipulations of the contract.

Insurance against Loss or Damage

Typically, a business will insure against:

Damage to buildings and contents due to firm or storm Loss due to theft Loss of, or damage to, vehicles in the business

In addition, insurance may be taken out to cover:

Loss of profit due to interruption of business activities Bad debt losses (credit insurance)

Insurance against Liability

This is insurance that will cover:

Liability for negligent acts and omissions Liability for defective products Liability for the dangerous state of their premises Liability for breach of their professional duty of care

Comprehensive Insurance

As it suggests, this is an all-encompassing package of insurance that covers aspects of the previous two types of insurance.

Losses caused by theft or fraud of employees (fidelity insurance) Loss due to injury to, or death of, important personnel (key-person insurance)

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Lesson 11-Contracts of Employment & Employment Legislation

Contracts of Employment & Employment Legislation

Given that aspects of this will be covered in the next lesson, we will leave this topic for then. However, we do suggest that you read Chapter 19 of Contemporary Canadian Business Law to acquaint yourself with aspects of the Contract of Employment and the legislation surrounding it.

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Lesson 11-Collective Bargaining

Collective Bargaining

Briefly, collective bargaining is the establishment of conditions of employment by negotiations between an employer and the bargaining agent for its employees. Collective bargaining will most often occur when there is a significant number of employees to bargain for, and an agent to represent them (i.e. a trade union). Please read Chapter 21 of Contemporary Canadian Business Law for a more in-depth analysis of the collective bargaining process and its implications on employment and employment legislation.

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Discussion Activity


Discussion 11.1

How are 'goods' defined in the Sale of Goods Act? What types of personal property are not within the definition?


Discussion 11.2

What are the principal types of insurance that a business is likely to need? Contact your local band office and inquire as to what types of insurance that they currently hold and discuss it with other Managers. Try to see where your band might have gaps in their insurance coverage and where they may be carrying "too much" insurance.




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Lesson 11-Conlcusion

Conclusion

When examining the three specific types of contracts - contracts of sale, contracts of insurance and contracts of employment - you have to keep in mind both their distinctiveness from each other and the possible implications of the Indian Act and how that could alter their status from that which governs them in the rest of Canada. Each has its own nuances, and while related, cannot be lumped into one overall category of contracts.

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BIBLIOGRAPHY




135


Lesson 12: Employment Law

Lesson Objectives

Understand the rights of employees of First Nations organizations under the law and the legal obligations of the employer

Understand the relationship between employment law and contract law Understand the responsibilities of a financial manager towards the hiring and firing of

employees Understand the responsibilities of a financial manager for the working conditions of a

business Defining the employment relationship Hiring and Firing Workplace safety Human rights and the workplace Labour law

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Required Readings:

Aboriginal Law Handbook - Chapter 26, CCBL Chapter 19


Complete and submit Assignment # 2.


None

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Lesson 12-Submit Assignment 2

Submit Assignment 2

Assignment 2

Write an employment agreement for a First Nations employment contract. Research examples in use in your community or others and apply the ideas from this topic to determine how adequate the agreement is.

Consider the following questions:

1. Are working conditions spelled out? 2. Causes for termination made clear in advance? 3. Evaluation of performance made clear in advance? 4. The nature of the contract made clear (term or permanent)?

Conclude with a sample agreement that could be used as a template - where the blanks refer to local details and the text refers to the standard parts of any First Nations employment agreement.


Save and email file to instructor

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Lesson 12-Employment Law

Employment Law

When a First Nation operates a program they may act as an employer by hiring people to work for the First Nation. Employment relations fall in the domain of commercial law. The obligations of an employer include recognizing the right of employees to form a union and maintaining good working conditions- at least to a minimum standard set by law.

Band Managers need to know the current and relevant law on vacations, minimum wage, and permissible reasons for employees to be given time off work. An employer also has the right to fire or penalize someone who does not do his or her job satisfactorily.

Generally federal law will apply to First Nations. The courts have held that federal employment law covers First Nation schoolteachers and employees of a First Nation education authority. This also applies to employees of a band council and those contracted to work on projects such as construction. The relationship between the First Nations and the federal government is a close one and Managers need to keep up to date with the jurisdiction of each on employment standards.

In general, only when employment in a First Nation community is not related to a First Nation project or connected to Indian status, land or rights, will provincial law prevail. Occupational and health laws are applied using the same criteria.

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Lesson 12-Hiring practice

Hiring practices

Jobs in a community based program or institution are publicly funded, and the public interest in fairness must be served. The intent of the investment of public money is to serve everyone equally. Here is an example where private law and public law overlap. In private law a person may hire whom he or she wishes as long as human rights codes are respected. In band enterprises and First Nations programs generally, whenever public money is provided to operate a program or service, there is an expectation that jobs will be made public, and that hiring will be done using criteria that ensure that everyone who applies is given equal consideration. This expectation, when met, encourages confidence in the community administration and serves the ends of social and economic justice.

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Lesson 12-Affirmative action and discrimination

Affirmative action and discrimination

Defining equal consideration, however, is not a simple task. Identical treatment can actually result in unequal treatment when significant differences exist that should make a difference in how people are treated.

For example, a person who is paralyzed from the waist down should not be treated the same as those who can use their legs in the design of public buildings. Access should include ramps for those who need to use a wheelchair. In this case unequal treatment results in equal consideration based on the particular facts about needs that are involved, and the underlying beliefs about what any person deserves from their community.

Jobs can be thought of as "public property" when they are funded by the government purse. From this standpoint the distribution of jobs can be examined from the perspective of fairness in distribution. While everyone cannot demand a job from the government, they can demand an equal opportunity to be considered for public positions. From this standpoint it is wrong for a First Nations organization to hire only relatives and friends. Yet people in First Nations communities can describe themselves as "all relatives and friends". Cultural, as well as ethical and social issues are involved here.

The premise that mandated partnerships entitle public funding sources (i.e. government) to develop hiring policies provides the groundwork for affirmative action policies. Affirmative action has been called “reverse discrimination” to underscore the balancing of a wrong by a right. What makes affirmative action “fair” is part of an argument for justice based on a particular social and political philosophy. Hiring someone to do a Job can require the ability to do the job as a minimum qualification, beyond this minimum; however, questions of apportionment can be raised using social justice criteria. When two equally qualified applicants apply, the one from a disadvantaged group will be given priority.

In this lesson consider the desire of First Nations to hire First Nations people in public partnership projects. This can be accommodated by an argument based on under representative numbers of First Nations people in the workforce. To the degree that non-Aboriginal people hold more than their fair share of jobs, and assuming that jobs are "public property", new jobs should go to First Nations people first.

Band Managers need to know:

Current affirmative action policies in place that affect public service and First Nations hiring policies when public money is involved.

Human rights legislation dealing with discrimination that applies to First Nations.

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Lesson 12-Working conditions

Working conditions

Laws pertaining to working conditions specify minimum requirements. The federal employment standards can differ from provincial standards. Band Managers need to know what the minimum standards currently are for their communities. All legislation on working conditions (employment standards) covers the following areas:

1. Maximum hours of work per day and week 2. Overtime pay and onset requirements 3. General holidays 4. Vacations 5. Child care leave 6. Bereavement leave 7. Sick leave

Working conditions need to be understood before employment begins as part of the employment contract. Working conditions can be summarized in written policies prepared by the employer and these can be included in the employment agreement to expedite the process.

First Nations are at liberty to increase requirements for each area, and to add additional areas considered important to working conditions. For example time off work for study and training, First Nations holidays, and participation in community government and leadership activities.

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Lesson 12-Termination of employment

Termination of employment

The employment agreement will specify evaluation procedures that may result in termination. Where a collective agreement exists, based on a union negotiated employment contract, procedures for lay-offs and termination will be specified in the collective agreement.

Employees fall into two categories:

Permanent

Permanent employees can be terminated for cause or without cause. Cause refers to general “willful disobedience” and includes work related crimes, dishonesty, and perhaps more contentiously: “misconduct” that affects the interests or reputation of the employer.

A term contract, or temporary, or casual, employee can be terminated for just cause using the same criteria as are used for a permanent employee. It should be stressed that at the end of the temporary contract there is no obligation to re- hire by creating a new temporary contract, or to re hire the same person in the event that a new employment contract for the same or similar work is created.

This fact can be misunderstood easily, and Band Managers should take extra steps to explain the meaning of temporary employment to new employees. It is unethical to leave an employee with the impression that their contract will be renewed if they do a good job when the employer cannot guarantee this outcome.

In the case of permanent employees, employment can be terminated without cause only when adequate notice is given. In the federal code, the employee must be employed for three months before this requirement takes hold. After three months of employment, a scale is applied to determine how much notice an employee is entitled to based on their cumulative employment period. Band Managers need to know what the legal requirements for adequate notice are in their jurisdiction.

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Lesson 12-Payroll Deductions

Payroll Deductions

Payroll deduction is a part of the tax collection process in Canada as well as the collection system for unemployment insurance and the Canada pension plan. Payroll management includes calculating deductions from the paycheques of employees. The question is, "what deductions should be made for which people?"

In the case of income tax (as alluded to in Lesson 7), this question is answered partly by using the classification system of the Indian Act. Indian status and relationship to a reserve are determinants of tax liability. For example, although there are very few reserves in the Northwest Territories, (the Hay River Reserve), it is useful to note the path taken by the courts in recent years to clarify the situation regarding payroll deductions for First Nations people who may work on and off a reserve.

The location of the work is taken to have determining significance for Revenue Canada. The combinations of whether a person is a registered Indian, where he or she lives, where the work is performed, as well as where the employer resides, produce the many scenarios requiring a determination for income tax purposes. 1992 as a result of Williams v. Canada, exemptions from income tax for a registered (status) Indian are granted when:

1. Employment duties (90% or more) are performed on a reserve 2. Employment duties are performed entirely off reserve, by a registered Indian, for an

employer located on the reserve. 3. Employment duties performed (90% or more)) on reserve by a registered Indian living on

reserve for an off-reserve employer. 4. Employment duties (90% or more) are performed on reserve by a registered Indian who lives

off reserve. 5. Employment duties are partly performed on and partly off reserve by a registered Indian.

Tax is paid on the income for work off the reserve.

Taxation law is also an evolving part of the legal system, and Band Managers will need to know, on an annual basis, what changes have implications for First Nations in the North. The Williams decision has additional implications for taxation based on the location of the head office of an employer to determine connections between income and a reserve. The status of the employee in cases where a clear connection to a reserve exists will determine liability for income tax.

Only people who are registered under the Indian Act may be eligible for exemption from income tax. The evolution of rules governing taxation on status Indians working on and off reserve illustrate the issues involved in applying the classifications of the Indian Act to contemporary economic and commercial activity.

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Lesson 12-Unemployment Insurance

Unemployment Insurance

Unemployment insurance premiums must be deducted by the employer from payroll. Importantly for qualifying First Nations people, if the income from which premiums were deducted was tax exempt, then any unemployment benefits received will not be taxable.

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Lesson 12-Canada Pension Plan

Canada Pension Plan

Membership in the plan is not automatic for First Nations employees. A registered Indian working on a reserve has several ways to join the plan. Review the legislation covering membership to maintain an up to date understanding.

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Discussion Activity


Discussion 12.1

Analyze the Canada Pension Plan and First Nations employees. What determines eligibility? Amount of contribution required? Research payroll departments in several departments or businesses in your First Nation and describe the way deductions for the pension plan is calculated.



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Conclusion

Given the unique status of First Nations and the laws regulating them, the employment law governing them is slightly different than that for the rest of Canada (i.e. tax status, Aboriginal businesses and their legal framework, Band offices, etc.). Unfortunately, this means that First Nations Band Managers have a slightly more complicated framework to work from, and more ‘legalese’ to decipher. However, the principles remain the same, along with the importance. As stated in the introduction, only when employment in a First Nation community is not related to a First Nation project or connected to Indian status, land or rights, will provincial law prevail. Occupational and health laws are applied using the same criteria. Beyond that, the Indian Act and its precepts take precedent.

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BIBLIOGRAPHY




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Lesson 13

Lesson 13: Debtor and Creditor Relations

Modern businesses rarely operate without "credit". Credit may be long-term, as when a corporation raises part of its capital by issuing bond or debentures, or it may be short-term, as when a business purchases supplies to be paid for within 30 days.

A reputable business generally has little difficult in obtaining credit to purchase its normal day-to-day needs (i.e. a small loan from a bank, a line of credit or your traditional credit card). For purchases of more substantial items, the firm granting credit may require ‘security’ beyond the buyer’s contractual promise to pay. The creditor may require collateral security in the form of a mortgage of the buyer’s land or other types or property (i.e. chattel, stocks, bonds, etc.).

The following lesson focuses on the topic of creditor and debtor relations, and looks at questions such as:

And so forth. Given that the bulk of this material is covered in great detail in Contemporary Canadian Business Law, there will be no lesson notes for this lesson. Instead, it is recommended that you go through Chapters 32 and 33 from Contemporary Canadian Business Law in detail, and attempt to answer the quizzies at the end of the lesson.

What is meant by ‘security’? What is the nature of a conditional sale? What is a chattel mortgage and how does it differ from a conditional sale? How are consignments and leases used as security devices? What is a floating charge? How do the Personal Property Security Acts (www.ppsa.net) operate to protect secured

creditors? How are secured creditors’ rights enforced? How do secured interests affect the rights of innocent third parties? What additional protection is given to banks as secured creditors? What are the principal objectives of bankruptcy law? How does bankruptcy law distinguish between different types of debtors – and why? What constitutes an "Act of Bankruptcy"? What principles govern the administration of a bankrupt’s assets? What is a mechanics’ (or builders’ or construction) lien? How are the interests of contractors and subcontractors protected? What is the effect of limitation periods on creditors’ rights?

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Lesson Objectives

Negotiable instruments Leasing Secured transactions — Traditional approach Creditors rights Bankruptcy and insolvency

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Required Readings:

Contemporary Canadian Business Law: Chapters 32 and 33

Complete discussion activities 13.1


British Columbia Law Institute (see search engine re: personal property)

Personal Property Security Act (explanation of how system works)

Office of the Superintendent of Bankruptcy Canada

Bora Laskin Law Library links to material on bankruptcy law

Information on declaring bankruptcy

http://www.bcli.org/

http://www.ppsa.net/

http://www.ic.gc.ca/eic/site/bsf-osb.nsf/eng/h_br01991.html?OpenDocument

http://www.law-lib.utoronto.ca/resources/topic/bankrupt.htm

http://www.bankruptcycanada.com/

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Discussion Activity


Discussion 13.1

Choose one of the case studies from "Cases and Problems" on page 683 of The Law and Business Administration in Canada and respond to the problem in the discussion area. Review the case studies that other students have completed. If they have done the same one as you have, review their response. Is there a significant difference in your interpretation of the case from theirs, and if so, why?



153


BIBLIOGRAPHY




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Lesson 14

Lesson 14: Special Topics for First Nations

In the following lesson we will explore several topics that do not fall under any specific category but should nonetheless be examined by First Nation Managers as they pertain to the Law and are of extreme importance to the successful operation of their community.

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Lesson Objectives

Explore the concept of tenders and how to evaluate bids Examine the impact of intellectual property law on First Nations Explore e-commerce and its potential for First Nations Understand when you should get legal advice and what to look out for

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Required Readings:


Contemporary Canadian Business Law - Chapters 34 and 15


Complete and submit Assignment # 3.


AFN: Protection of Intellectual Property Rights and Traditional Knowledge

First Nations Indigenous Knowledge

Bora Laskin Law Library, University of Toronto Website 1 & Website 2

http://courses.learninglibrary.com/tllflash/AFOA/AFM%203/5908_PROTECTION_OF_INTELLECTUAL.pdf

http://www.library.ubc.ca/xwi7xwa/knowledge.htm

http://www.law-lib.utoronto.ca/resources/topic/first.htm

http://www.law-lib.utoronto.ca/resources/topic/intprop.htm

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Lesson 14-Intellectual Property

Intellectual Property

Read Chapter 34 of Contemporary Canadian Business Law.

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Lesson 14-E-Commerce

E-Commerce

Read Chapter 15 of Contemporary Canadian Business Law.

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Lesson 14-Legal Advice

Legal Advice

How to choose a Lawyer

Most First Nations will require the services of a lawyer at some time. Some are large enough to have their own in-house counsel, but most retain a lawyer and consult him or her frequently.

There are several considerations in choosing a lawyer, the most important of which are the lawyer's skill, competence and interest in association law. Lawyers specialize or tend to practise in limited areas. Find out if a lawyer has other First Nation clients. Ask people in other First Nations who they use as legal counsel, and about their experience with him or her. Before retaining a lawyer, discuss these matters freely, fully and frankly. Ask whether the lawyer or the firm he or she is with represents other First Nations or companies with whom you may have a conflict of interest. Recognize that legal services are never inexpensive, but weigh the costs against the potential costs or risks if competent legal advice is not obtained.

There is the obvious temptation for associations to look for a lawyer as a board member. This may be the only solution for a very small, poorly funded or newly organized association. There are obvious disadvantages to this situation because the roles of directors and technical advisers to an association are separate and distinct. One person may carry out both functions at different times, but it is difficult to carry them out simultaneously. Board members are volunteers who take on their role because of their interest in the association's work. The lawyer who becomes a director is not necessarily the lawyer who is most qualified to provide the legal advice you may require. As well, because of his or her familiarity and friendship with other board members, a lawyer-director may lose the objectivity that is an important ingredient of the best legal advice.

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Discussion Activity


Discussion 14.1

Successful proposal documents provide a resource for Band Managers. Locate a successful First Nations proposal document - either one written for a project applied to by the First Nation, or one received and approved for acceptance by the First Nation.

Outline the form and content that made the proposal a successful one. Comment on layout and design, and the criteria that were satisfied by the contractor writing the proposal.



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Conclusion

By now, you’ve been exposed to virtually every aspect of aboriginal and commercial law, ranging from the Indian Act to contractual law to employment law and pretty much everything in between. It is our sincere hope that this course will help you in future endeavours with your First Nation, and will provide you with a sound legal basis to act as a efficient and effective Financial Officer in your community. Good luck!

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BIBLIOGRAPHY


Imai, Annotated Indian Act, 1999, (Carswell, 1999)



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