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Commercial Law and Indigenous “Reproduced from Douglas Sanderson, "Commercial Law and Indigenous Sovereignty: It's a Nice Idea, but How Do You Build it in Canada" (2012) 53 Canadian Business Law Jouranl 92, by permission of Thomson Reuters Canada Limited.” COMMERCIAL LAW AND INDIGENOUS SOVEREIGNTY: IT'S A NICE IDEA, BUT HOW DO YOU BUILD IT IN CANADA? Douglas Sanderson* Commercial law is ubiquitous in modern life. It is therefore somewhat surprising to learn that commercial law has played virtually no role in the life of modern Canadian Aboriginal law. It is true that economic aspects have played a role in the development of some Aboriginal rights cases1 but, outside of the land claims settlements in the far North like Nunavut and Nunatsiavut,2 jurisdiction over commercial law has played no role in land claims agreements.3 The lack of commercial law jurisdiction as a venue for the assertion of sovereignty and law-making powers in the Canadian setting is in sharp contrast to the United States where tribal communities are recognized as having jurisdiction over commercial law in addition to some criminal and civil law * Faculty of Law, University of Toronto. An earlier draft of this paper was presented at the 41st Annual Workshop on Commercial and Consumer Law held at the Faculty of Law, University of Toronto, on October 14-15, 2011. I want to thank Avery Au and Liam Churchill for their research in assembling this article. Editorial assistance was provided by staff at the C.B.L.J. John Borrows pointed me several times in the right direction when I began to wander. 1. R. v. Gladstone (1996), 137 D.L.R. (4th) 648, [1996] 2 S.C.R. 723 (S.C.C.), and R. v. Van der Peet (1996), 137 D.L.R. (4th) 289, [1996] 2 S.C.R. 507 (S.C.C.), to name but two. In Delgamuukw v. British Columbia (1997), 153 D.L.R. (4th) 193, [1997] 3 S.C.R. 1010 (S.C.C.), at para. 166, Lamer C.J.C. wrote that Aboriginal title had an ªinescapable economic componentº (italics in original). 2. These massive land claims include some powers of law-making that are akin to provincial jurisdiction, in much the same way as Territorial powers over property and civil rights are delegated by the federal government to the territorial government in the Yukon and Northwest Territories. 3. The Nisga'a Treaty makes little mention of commercial law (Canada, British Columbia, Nisga'a Nation, Nisga'a Final Agreement (Ottawa, Queen's Printer, 1998). See Nisga'a Final Agreement Act, 2000 S.C., c. 7; and Nisga'a Final Agreement Act, S.B.C. 1999, c. 2). Sections 90-94 speak to ªNisga'a commercial recreational tenureº which is a license issued by the province of British Columbia, under which the Nisga'a nation can conduct commercial activities such as guided tours, hiking and wildlife viewing. Chapter 8, s. 32, specifies that ªfederal and provincial laws of general application pertaining to the sale of fish, in respect of commercial transactions, health and safety, transport, inspection, processing, packaging, storage, export, quality control, and labeling of fish, apply to the sale of all Nass salmon harvested in Nisga'a fisheries.º Chapter 8, ss. 111-113 contains provisions to enable the Nisga'a greater entry into the general commercial fishery. None of these sections purport to govern commercial law that is of the Nisga'a's making, but rather, work to entrench Nisga'a commercial participation within federal and provincial jurisdiction. 94 2012] Commercial Law and Indigenous Sovereignty 95 jurisdiction. Commercial Codes are a common feature of U.S. tribal authority, and studies from scholars associated with such institutions as the Harvard Project on Indian Economic Develop- ment suggest that there is a direct correlation between economic development and the rule of law.4 Of course, the U.S. conception of Indian Tribes as ``domestic dependant nations''5 provides that country a constitutional means of framing jurisdiction over commercial law in U.S. tribal communities. The very different legal standing of Canadian First Nations6 significantly curtail, if 4. See, for example, Stephen Cornell and Joseph P. Kalt, ªReloading the Dice: Improving the Chances for Economic Development on American Indian Reservationsº in Stephen Cornell and Joseph P. Kalt, eds., What Can Tribes Do? Strategies and Institutions in American Indian Economic Development (Los Angeles, American Indian Studies Center, University of California, 1992), at pp. 22 and 24-25; Stephen Cornell and Joseph P. Kalt, ``Sovereignty and Nation- Building: The Development Challenge in Indian Country Today'' (1998), 22 Am. Indian Cult. and Res. J. 187. Harvard Project-associated scholars also routinely mention the theoretical importance for economic development of independent dispute-resolution me- chanisms; see Joseph Thomas Flies-Away, Carrie Garrow and Miriam Jorgensen, ``Native Nation Courts: Key Players in Nation Rebuilding'' in Miriam Jorgensen, ed., Rebuilding Native Nations: Strategies for Governance and Development (Tucson, University of Arizona Press, 2007); Stephen Cornell and Joseph P. Kalt, ``Two Approaches to the Development of Native Nations: One Works, the Other Doesn't'' in Jorgensen, ibid., at p. 23; Stephen Cornell, ``What Makes First Nations Enterprises Successful? Lessons from the Harvard Project,'' Joint Occasional Papers on Native Affairs (Cambridge, Massachusetts, Harvard Project for American Indian Economic Development, 2006), at p. 16; Stephen Cornell, Catherine Curtis and Miriam Jorgensen, ``The Concept of Governance and Its Implications for First Nations,'' Joint Occasional Papers on Native Affairs (Cambridge, Massachusetts, Harvard Project on American Indian Economic Development, 2004), at pp. 11-14 and 17-18; Stephen Cornell, ``Self- Determination in Australia, New Zealand, Canada and the United States,'' Joint Occasional Papers on Native Affairs (Cambridge, Massachusetts, Harvard Project on American Indian Economic Development, 2006), at p. 14. There are some countervailing findings, however; in one study, Cornell and Kalt, the founders of the Harvard Project, found that an independent judiciary had no significant effect on income growth: ``Where's the Glue? Institutional and Cultural Foundations of American Indian Economic Development'' (2000), 29 J. of Socio-Economics 443, at pp. 458-461. However, Martin Mowbray, in a detailed critique of this paper, calls into question the measure of income growth chosen by Cornell and Kalt and suggests that it is out of date and might not provide a particularly accurate picture of the income situation on reservations; see Martin Mowbray, ``Localising Responsibility: The Application of the Harvard Project on American Indian Economic Development to Australia'' (2006), 41 Aus. J. of Soc. Issues 87, at p. 96. 5. The phrase was originally used by Marshall C.J. in Cherokee Nation v. Georgia, 30 U.S. 1 (1831), at p. 13. 6. First Nations in Canada are not recognized as sovereign entities. This means that the only law-making power First Nations have, and the only jurisdiction they exercise, are delegated powers from the federal Crown via the Indian Act, R.S.C. 96 Canadian Business LawJournal [Vol. 53 not completely eliminate, the opportunities for assertion of sovereignty over commercial law. There is a line of thinking that suggests that in Canada the range of constitutional authorities has already been, more or less definitively, distributed.7 The provinces have jurisdiction over property and civil rights, and therefore, there just is no jurisdiction left for First Nation communities to assume with respect to commercial law.8 My aim here is not to beat the constitutional bush in terms of distribution of powers. My goal is more modest: to develop a means for First Nation communities to assert jurisdiction over at least some aspects of commercial law in their communities, and to develop a means to adjudicate disputes arising from contracts, without getting into the division of powers and s. 35 arguments about the inherent rights of First Nations. To do this, I want to lay out the case for developing an Indigenous commercial code and tribunal as a matter of contract law under the Arbitration Act, 1991.9 Having laid out the theory of why I believe commercial law can and should play a more prominent role in Indigenous sovereignty, I then describe the process by which I have been working to develop an Indigenous commercial code and tribunal in a partnership between the University of Toronto, Faculty of Law, and First Nation communities and their political representatives. 1985, c. I-5, in much the same way as municipalities only have the powers delegated to them by provincial Crowns via the various Municipalities Act(s) and various city charters (e.g., the Vancouver Charter, S.B.C. 1953, c. 55 and the City of Toronto Act, 2006, S.O. 2006, c. 11, Sch. A). 7. This line of argument was marshalled to challenge the Nisga'a Treaty settlement, first in the case of Campbell v. British Columbia (Attorney General) (2000), 79 B.C.L.R. (3d) 122, 2000 BCSC 1123 (B.C.S.C.), and then again in the recent case of Chief Mountain v. British Columbia (Attorney General), where the claimants argued that no powers could devolve to the Nisga'a people because the full range of federal and provincial powers had already been distributed by the Constitution Act, 1867, ss. 91, 92, and the ªPeace, Order and Good Governmentº clause retaining for the federal government whatever residual powers might remain. The plaintiff Chief Mountain was opposed by the Nisga'a, British Columbia and federal government, and the defendant governments prevailed at trial (Sim'augit v. Canada (Attorney General), 2011 CarswellBC 2788, 2011 BCSC 1394 sub. nom. Chief Mountain v. British Columbia (Attorney General) (B.C.S.C.)). The case is now being appealed. 8. Section 88 of the Indian Act says that all provincial laws of general application Ð including commercial law Ð apply on an Indian reserve as federal law.
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