Economic development is a promising direction for First Nations in Canada especially since the process has come under close scrutiny from coast-to-coast. Back in 2008 the University of Toronto Law School held a unique forum on First Nation economic development. “I think the most important thing is that everyone recognizes First Nation economic development is a political matter,” said event moderator, Professor Doug Sanderson.


Holding an economic development conference at a law school should come as no surprise. Commercial law in Canadian life is huge yet remains strangely inconsequential to First Nations. Professor Sanderson and other law faculty attended a luncheon on day two of the conference highlighted by a speech by then-minister Hon. Michael Bryant, Aboriginal Affairs.


commercial law practice
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It was Bryant who suggested the need to create commercial law courts for First Nation people on Canadian Indian reservations with respect to commercial activity in reserve property and traditional territories. “How much of law in Canada is commercial law, Professor Sanderson?” we asked. “About 60 percent or more,” Professor Sanderson replied. This is the law that sews up jurisdictions, and it is this law that is unavailable to people living under the Indian Act. First Nations people are born under a completely different set of rules when it comes to money. Does not the realization come that the Indian Act excludes a race of people from the economy by depriving their communities access to commercial law?

First Nation economic development is written out of the realm of mainstream economy through the Indian Act, and the missing commercial law is conspicuous by its absence, conspicuous enough to be discussed at a legal forum in a law school in the country where this notable absence is under way.

The Indian Act is a system of trusteeship that holds wealth and decisions about economic development and monitors activity on an Indian Reserve, everything decided by a Minister of Indian Affairs. One hundred twenty-two sections of the Indian Act make this potentate’s role very clear in the lives of Indian Act governed people. They are not allowed to make money. 

Aboriginal economic development became a legal academic exercise with a wide focus because the minister of Aboriginal Affairs in Ontario was arresting and jailing elders from Kitchenaumaykoosib Innunwig who protested Platinex Mines when the Ring of Fire was beginning to attract attention of developers. Perhaps it was out of frustration with the prospect of arresting senior citizens that the then-minister spoke to the matter as one of commercial rather than criminal concern. 

Bryant called for a legal system to be put in place to accommodate the commercial concerns of people in the world who are legally excluded from it. It is a fearsome problem, intractable when the law deprives a specific group of people a legal doorway to the Canadian and international economy.

Solutions to these substantial concerns of legality are being sought. People are beginning to meet to address economic matters at the political level. Sanderson said the situation is made worse because a “settler versus native” attitude prevails and political issues remain unresolved. “There are many ways for First Nations and corporate Canada to act together. The current political reality demands thought and speech gravitate around ways to do economic development.” Sanderson suggested an example of a way forward was cited in Bryant’s speech regarding the Chocktaw Tribal Council (CTC) in the USA. The CTC has a federally-constituted commercial law court that governs commercial activities under their jurisdiction along the Mississippi River, federally-mandated American Indian judges adjudicate Chocktaw commercial law in the valuable properties under their control.

Commercial Law Missing from Canada's Indigenous Business Economy