University of Alberta Faculty of Law Assistant Professors Malcolm Lavoie and Anna Lund are among the 13 contributors to the new book Business Implications of Aboriginal Law, published on March 8, 2018.
The book, edited by University of Saskatchewan College of Law Professor Dwight Newman - the university's current Canada Research Chair in Indigenous Rights in Constitutional and International Law - features 12 papers focused on new developments in Aboriginal law and their consequences for both Indigenous communities and the Canadian economy as a whole. The collection was simultaneously published as an issue of the Supreme Court Law Review (SCLR).
Charting a Middle Path
Prof. Lavoie's paper, entitled "Aboriginal Title Claims to Private Land and the Legal Relevance of Disruptive Effects," focuses on the highly contentious issue of Aboriginal land claims to privately owned land. Such claims can arise in many areas of the country, including much of British Columbia, that are not subject to treaties between the Crown and First Nations.
"People tend to view Aboriginal title claims as a zero-sum contest between the Aboriginal claimants whose land rights were violated and the current landowners and communities that risk being disrupted. In this paper I argue for a middle path that both vindicates title claims while protecting third-party property interests. This can be achieved in different ways, including through monetary damage awards against the Crown, which is the party responsible for the original historical wrong," he said.
Lavoie acknowledged that it is preferable for Aboriginal title claims to be addressed through negotiated agreements between the Crown and First Nations, an approach exemplified by the landmark 2000 Nisga'a Final Agreement. "However, when claims are brought in court, courts have a duty to issue a decision" he said.
"What I tried to do with this paper was to show how courts can do justice between the parties while also protecting reliance interests and avoiding undue economic uncertainty. This area brings out a unique set of tensions among these competing ideas."
Debt Collection on Reserve
Prof. Lund's paper, entitled "Judgment Enforcement Law in Indigenous Communities - Reflections on the Indian Act and Crown Immunity from Execution" (which was also simultaneously published in the latest edition of the SCLR), discusses the problems that stem from the special debt collection rules contained in the Indian Act.
The Indian Act sets out debt collection rules that apply to on-reserve property held by "bands" (a defined term in Act). The article contrasts the inconsistent protection provided to band assets under the Indian Act with the more rigorous protection provided to provincial and federal government assets under the doctrine of Crown immunity from execution. The lesser protection provided to band assets means that creditors' debt collection activities can impair the ability of bands to fund basic public-sector services, such as education, housing, health and welfare. Moreover, Lund argues that the differential treatment of bands is inconsistent with reaffirming the nation-to-nation relationship between Aboriginal Peoples and the Crown.
The starting point of the article is that "Indigenous communities should decide for themselves by what, if any, commercial law they wish to be governed." Lund hopes that the article will be a resource for decision-makers in these communities as they reimagine how the current debt collection rules could be changed to better protect important public-sector services from disruption, and thereby safeguard the long-term viability of reserve communities.
Business Implications of Aboriginal Law is available to order online.