First Nations Law

These forms of abuse can fuel cycles of maltreatment in First Nations communities. Abuse must be resolved immediately through prepared community responses which are fair, and respect cultural traditions.

Business and economic development plans can be created to respect First Nations traditions, and create jobs and wealth without sacrificing lands and waters. Economic development plans that fail to respect First Nations traditions can do more harm than good.

Conflicts of interest happen when chiefs, councilors, and First Nations employees appear to use their jobs for personal benefit. Conflicts of interest undermine the confidence that First Nations members have in their leadership, and can defeat effective self-government.

Controlling how leadership is elected is part of self-government. With custom election codes, First Nations can follow their own procedures for electing leadership. Otherwise, election rules are imposed by the Indian Act.

The Canada Labour Code sets the rules for First Nation employment contracts. Failure to obey the Code results in expensive disputes between First Nations and their employees. These employment disputes strain First Nations finances, and divert leadership attention from self-government.

Some parts of the operations of a First Nation, such as administration, are subject to federal jurisdiction over employment matters, while other parts such as economic development, businesses, schools, kindergartens and daycares, may be subject to provincial employment jurisdiction. First Nations need to determine which parts of the operations are federally or provincially regulated for employment matters, so the First Nation will know which laws to apply.

Each member of Chief and Council has a fiduciary duty to act in the long term best interest of the First Nation membership as a whole. This duty means that Chief and Council must move very carefully in matters such as economic development, hiring and firing, spending decisions, and potential conflicts of interest, any of which may benefit either council members or any of their immediate family members.

First Nations limited to a two-year term for Chief and Council elected under the Indian Act, can go to a four-year term under the First Nations Elections Act, without a membership vote and without having to develop an election code. The four-year term gives Chief and Council the stability required for strategic planning, economic development and improved service delivery.

First Nations can customize their governance according to cultural traditions. This is an important step towards self-governance and to getting outside the Indian Act.

Forestry and resource development on First Nations territory should only occur with the consent of First Nations people. First Nations who control their own resources can enjoy the full economic benefit of their lands while protecting them for future generations.

The Canadian Human Rights Act offers native people important protection from harassment or discrimination by the federal government, First Nations or federally regulated companies. The Aboriginal Employment Preferences Policy of the Canadian Human Rights Commission allows First Nations to prefer aboriginal people in employment decisions, such as hiring, promotion, training and lay-off.

By an impact benefit agreement which a First Nation makes with any business operating in the traditional territory, the negative environmental or social impacts of that business on the traditional territory can be reduced, and the benefits of the business can be shared with the First Nation.

A person who comes to work for the First Nation as an independent contractor, when really he or she is an employee, can expose the First Nation to a significant liability to the Canada Revenue Agency for unpaid income tax, CPP and EI deductions for that employee. This liability may have built up over a number of years, with penalties and interest payable as well, and can amount to tens of thousands of dollars. CRA will determine whether that person is an employee, with any independent contractor agreement signed by the First Nation with that person only being one factor in a thorough analysis.

A person who comes to work for the First Nation as an independent contractor, when really he or she is an employee, can expose the First Nation to a significant liability to the Canada Revenue Agency for unpaid income tax, CPP and EI deductions for that employee. This liability may have built up over a number of years, with penalties and interest payable as well, and can amount to tens of thousands of dollars. CRA will determine whether that person is an employee, with any independent contractor agreement signed by the First Nation with that person only being one factor in a thorough analysis.

The 99-year lease unlocks the full economic value of reserve lands. There must first be a land designation for leasing by the First Nation, except if a certificate of possession has been issued by the Federal Crown to an individual First Nations member, or locatee. A land survey, a land appraisal, an environmental assessment, and a heritage and archaeological assessment or traditional use survey, are also important steps. Without the 99-year lease, reserve lands are valued at fifty to seventy percent less than equivalent lands off-reserve.

The limited liability partnership is the best structure for economic development for First Nations. Without this structure, a First Nation cannot manage the business, shield assets from liability, and benefit from tax exemptions, all at the same time.

A locatee, being a First Nations member who holds a certificate of possession or “CP” for reserve land, can make a 99-year lease. This unlocks the full economic potential of the land. Without a 99-year lease, the locatee’s land is valued at fifty to seventy per cent less than equivalent land off-reserve.

With membership codes, First Nations can determine their own membership rules. Otherwise, membership rules are imposed by the Indian Act. Controlling membership can be an important step towards self-government.

Native joint ventures provide First Nations with access to the expertise of businesses such as mines, forestry, power companies, or tourism ventures seeking to operate in the traditional territory. This expertise can provide important leverage to the First Nation in realizing sustainable economic opportunities that benefit the nation for the generations to come.

The rules about how the First Nation governs itself, including the relationships between Chief and Council, the Administrator, the staff and the membership, can be set down in writing. This assists future governance decisions to be made in a manner that is both fair, and consistent with tradition. Traditional mechanisms can be brought back to life to allow disputes within the First Nation to be resolved internally.

The province is required to compensate First Nations for highways that cross reserve lands. This compensation may not yet have been paid. The province is also required to maintain its highways. Poorly maintained highways on reserve are dangerous and can damage vehicles.

A member of Chief and Council who is not performing his or her duties can hinder the rest of Chief and Council in carrying out its governance function. The legal process to discipline or remove an elected member of Chief and Council who is not performing his or her duties, will vary depending upon whether the election of Chief and Council was under the Indian Act, the First Nations Elections Act, or a custom election code for that First Nation.

A First Nation should have a pre-agreed procedure to solve disputes before they get worse. This is an important part of any government structure. Disputes between First Nations members and their leadership can undermine self-government.

Boundary overlaps must be resolved to unlock the full economic potential of First Nations traditional territories. Potential business partners will not consider overlapping territories until uncertainty about aboriginal rights and title is resolved.

According to Wilson v. Atomic Energy of Canada Ltd., a 2016 decision of the Supreme Court of Canada, First Nations must now be able to demonstrate “just cause” before firing employees.  First Nations may no longer be able to terminate the employment by making a payment in lieu of notice of termination.  This is a critical planning issue that must be addressed either by written employment contracts or in the human resources policy for that First Nation.

Wrongful dismissal claims can often be avoided by careful planning, with good legal advice, when an employment relationship is starting to break down.  Progressive discipline measures may turn the employee around.  If the employment relationship must be brought to an end, then careful, respectful communication, which acknowledges the legal rights of the employee together with an exit plan that is fair to both employer and employee, will soften the blow.  These will also reduce the chance of a wrongful dismissal lawsuit by the employee.