Some Business Associations Materials (‘LaRue’ meets ‘Big River First Nation’)

February 8, 2022 business, law, Pegadogy Indigenous Law, LaRue

[AUTHOR NOTE: I wrote this post early last year at the end of teaching my first iteration of Transystemmic Business Associations in UVic’s JD/JID program. I posted it to my personal blog so I could re-access resources when needed, but it seems to me it is worth re-sharing here, for those who might be thinking about drawing conversations regarding Indigenous Law into the Business Associations/Societies Law classrooms this year. Think of it less as a fully formulated teaching plan, than a set of resources and ideas around one way of getting at linkages in Canadian and Indigenous legal orders related to governance. Feel free to use, adapt, extend, critique or comment!]

One of the challenges in the Business Associations context is how to teach in ways that connect to the broad context in which economic work is situated (ie. not only in corporate boardrooms, but also in small businesses, local cooperative movements, and community-innovations). Another of the challenges for all law schools at this point is how to develop teaching resources that engage with Indigenous law, and Indigenous legal orders. In this point, I offer a few materials at the intersection of these two questions in the context of “LaRue Investments” and “Big River First Nation v Agency Chiefs Tribal Council Inc“. 2020 SKQB 273.

big-river-first-nation-2020skqb273Download

Let me back up to say that, over the years, I have drawn on some of the challenges that have emerged in the context of the family-owned closely-held corporation (LaRue Investments Ltd) that is the ‘owner’ of the Shuswap lands that have been such an important part of the growing up experience of so many in my extended family.

“The Lake” (as we call it) is at the centre of important identity-forming moments for so many of my siblings and cousins. It has also been at the centre of a series of family conflicts that have resulted in nearly 20 years of litigation, involving schisms between people. And so (given that much of the documentation is public), I have sometimes used moments of family history in the classroom, as a way of walking students through a ‘small-scale-but-story-rich’ case study to explore how the concepts we study in the statutory materials have application in many different locations. It is also a way of making visible that the phrase ‘business is business’, often hides another refrain, which is ‘business is personal’!

Family ties to eachother and the land

By this, I mean that an understanding of the affective and emotional dimensions of economic problems can be really important for solicitors. Indeed, it can be just as important as it is for lawyers doing family law, or wills and estates. But it can be a challenge figuring out how to “teach” emotion and affect in the context of the business associations classroom. Getting personal by using the family business has been one strategy. This makes taking seriously also ‘the ground’ on which the conflicts emerge.

Cedar boughs and thimble berry in the forest at the lake

For many years, I was also able to have the students think about how to work with a business client by bringing my mother Arta Johnson to class. She was the corporate memory for LaRue after the death of her own father, and had worked with many different lawyers over the years, as the family business had changed and grown. She was well positioned to talk to the students about challenges that had arisen, and about the things that she had done well, as well as about the mistakes that she had made. Quite a gift!

One of the gifts she was able to give us was the opportunity to grapply with “the making of a mistake”. Let’s call this mistake “Wrongly Removing a Director from the Corporate Registry”.

The short version of the story would be this: at one point during an emerging conflict, Arta believed that one of the Directors was not eligible to be a Director, so she went and filled out the Notice of Change of Directors form and submitted it to the Corporate Registry. The questions raised by the mistake were:

• What is the appropriate process for removing a director?
• What was the legal effect of submitting a form saying a director had been removed?
• Might this action be called “oppression”?
• What remedy would fix the harm?

NOTE: There are many longer versions of this event (which happened in 2003). If you want to follow the longer story, you can check out the history section of the LaRue Investments Ltd website. You will find there a set of video interviews in which Arta talks about the longer versions of this story.

In the classroom, I give the students all the background on this saga. It allows us to look at all the ways directors can be replaced, as well as at the relationships between Directors, and Officers. It lets us see that it is actually very simple to fix some mistakes (eg. all you have to do is submit a new Notice of Directors…no big deal). One can also see that the bigger problem might lie in the ongoing relationships between the parties, and not so much in the legal documentation. This is an important issue in the context of work with Indigenous legal orders, where relationality is a deeply important question in both legal process and legal remedies.

So, lets’s add in a piece of Canadian case law which engages with these questions in the context of Indigenous business associational forms. It is the case of Big River First Nation and Agency Chiefs Tribal Council Inc. The case comes out of the Non-Profit Sector, but gets at the same question as above: what happens when group A tries to remove someone from group B as a director?

What makes the case doubly interesting is that the Judge here refers not only to Canadian law (working with Saskatchewan law dealing with non-profit corporations), but also to Cree law.

Click on the link below for an 8 minute video I prepared about this case for students in my 2020 version of Law 315: Business Associations

https://echo360.ca/media/e28ce6f9-fbc4-4a5e-9a33-69e6d9e5d7e2/public

If you need a bit more backstory on the legal pieces before jumping into the ‘classrooom link’, here are a few more resources. First, here is a summary of the case from CanLII.

https://canliiconnects.org/fr/r%C3%A9sum%C3%A9/73312

Here is a blogpost about the case by (former law student) Miny Atwal.

https://indigenouseconomies.wixsite.com/main/post/big-river-first-nation-v-agency-of-chiefs-tribal-council-inc-2020-skqb-273

The link below will connect to a PDF version of some of my handwritten annotations on a printed copy of the case (which can be useful for modelling to more visually oriented students ‘some’ of the ways a person might engage directly with a written text)

26-big-river-first-nationDownload

I will be so very interested to hear what others make of the case, and how these two stories together might facilitate some of the important conversations we need as we begin struggling towards ways of working through the complicated business of problem solving in this period of decolonial work.

#StandForTruth, or,What is the place of Indigenous Laws in Truth and Reconciliation? (a bit of a rant)

The Supreme Court of Canada in Ottawa is shown on Tuesday, April 14, 2015. THE CANADIAN PRESS/Sean Kilpatrick

In the middle of the last gasps of marking law school final exams, I find myself mentally (and, frankly, emotionally) caught up in discussions about the upcoming Fontaine case at the Supreme Court of Canada.  So… I thought I might as well get my stresses and anxieties articulated.

As I best understand it, the Fontaine case concerns what to do with the 38,000 (highly personal and confidential) records (plus another million supporting documents) that were collected or created during the Independent Assessment Processs set up as part of the Indian Residential Schools Settlement Act (IRSSA). (The Settlement gave us both the IAP and the Truth and Reconciliation Commission).

At the time survivors gave their testimony in the IAP, it was not made clear to survivors what would happen to the records.  Now there is significant contestation: should the records be kept by Archives Canada?  By the NCTR (National Centre for Truth and Reconciliation)? Should they be destroyed?  Should individual former students have a say in the matter?

The resolution was to give individual former students a 15 year window to come forward if they wanted their documents archived with the NCTR.  At the end of that period, all remaining documents are to be destroyed.  The SCC will hear the case on May 25, 2017.

The Coalition to Preserve Truth has been granted Intervenor status in the case (artist Carey Newman, and lawyer Nicole Bresser have been driving forces behind the coalition).  The Coalition is described thus:

We are the Coalition for the Preservation of Truth whose members are representatives of both residential school survivors and intergenerational residential school survivors.  The coalition is formed to advocate for the preservation of the Indian Residential School Settlement Agreement – Individual Assessment Program’s documents. 
 
The Coalition recognizes the ongoing impacts of intergenerational trauma and as such, we acknowledge that future generations have a right to know the content of these documents.  The Coalition wishes to preserve these documents while honouring individuals’ rights to privacy.

I personally support the Coalition for Truth.

What has been tricky for me is trying to describe what this support means.  So, I thought it would be useful to try to articulate (at least for myself) what it means for a non-Indigenous Canadian law professor to #StandForTruth in case like this.  This is particularly so when I know that Indigenous colleagues and friends are significantly torn over the case, and may be lining up on both sides (for retention and for destruction. (You can see the Affidavit of Carey Newman here Affidavit #1 of Carey Newman, or view the Coalition’s funding campaign on the gofundme here).

In this case, at the heart of things, my support of the intervention of the Coalition to Preserve Truth is linked to their attempt to change the story that is being told about this case.  Canadian law sees this as a story of privacy and confidentiality.  It that the story that best describes the situation here?   A story about the need to honour individual choice?  A story about the protection of individual interests in privacy and confidentiality?

Those are, of course, important values, ones that have often been denied to Indigenous people in Canada (and certainly denied in the context of residential schools).  And yet….The Coalition to Preserve Truth raises important questions about people in relation, and relationships to both the past and the future, particularly in the context of times of trauma and injury.   Should the records related to residential school survivors be kept or destroyed?  What are the relationships of the individual to the collective?  To the past?  To the future?  The Coalition’s intervention, with its focus on intergenerational connections, invites us to understand that the case should not be decided in the absence of Indigenous Laws.

To put it bluntly, Canada has a long history of making decisions about Indigenous, Metis and Inuit peoples rather than with Indigenous, Metis and Inuit peoples.  Will this case be similar?

That is, what matters here is not only the ‘outcome’ [destroy or keep the records], but also the ‘process’.  It matters that there is space for Indigenous Laws to be enacted here.  Or maybe flipped, it is very problematic that there has NOT been space for Indigenous Laws (and by that, I am including substance, process, protocol, ceremony and more) to be applied here.

I think that is why the intergenerational point the Coalition is making is so important.  It is a question of Law.  During the Independent Assessment Process, former residential school survivors shared stories of the ways that they had suffered harm that was both individual and collective.   We already know that those stories we gathered and collected in ‘non-optimal’ ways.  That is, they were not gathered in ways that would have better followed the laws (both substantive and procedural) governing the people whose stories were shared (be that Salish, Cree, Migmaw, Inuit, Metis, etc).  They also were not gathered in ways that followed Canadian law (ie. by having explicit consent forms providing choice to witnesses).

And so we are now in a position where the Canadian legal system is positioned to decide how to best deal with yet another harm experienced by both the people who shared their stories, and by the families and legal orders to which those people belong. And it will decide it in the legal lingua franca of ‘jurisdiction, privacy, and access to information’.

As the case is set out, the solution is one which is flawed in so many ways.  I get why people feel sick at the notion that, in the context of this history of genocide, the records that were created (the testimony that was witnessed) would be destroyed.  I also get why other people feel sick at the notion that their words and memories will be permanently kept by the very government that made possible the very harms they suffered.  The choice — Keep or Destroy — is a false and cruel one.  (i.e., would you prefer I cut off your right arm or your left arm?)  Framed in this way, the choice is one that (like the residential schools themselves) splits generations from each other, as people are required to consider which two untenable options will do less harm in the future.

And I acknowledge the (settler) desire I feel to keep quiet, rather than risk choosing ‘the wrong side’ in this struggle, or interfere in something that is not ‘my business’.  But the history of residential schools IS my business.  It is all our our business.  And I can’t help but think that it is not OK for settlers to stand on the side in silence, as if we can best support and respect indigenous peoples by letting them fight it out (in the corner Canadian law and history has forced them into).

There is no easy solution here.  But it is problematic to proceed as if Indigenous Laws are irrelevant, as if Indigenous Legal Orders do not have resources, as if Indigenous Communities are not deeply invested in how the memories of their peoples are held and kept and treated.   It is also problematic to proceed as if survivor voices don’t matter (in either direction… destroying the voices of those no longer able to give consent, or denying the express wishes of some for destruction of their testimony, or denying that the entire process as created conditions of unsafety and new trauma for people)

It matters not just WHAT the Court does here.  It matters also HOW the Court does it.

Indigenous peoples, in different communities, have resources for such moments, resources that are rich, and textured, and full of space to hold differences of opinion.

How do ‘we’ (people in the legal community) take up our TRC reconciliation obligations under Calls to Action #27, #28, and #50 to teach Indigenous Laws?  How might we think about our obligations to Indigenous Peoples, and that includes obligations to take into account their own laws and own ways of resolving conflicts like these?

How does Canada enact its own obligations to deal respectfully, its own obligations to acknowledge the harm it has done, its own obligations to learn more about how it too needs to act in ways that respect its connections to the past and the future.  Can the Supreme Court, at this moment, see the obligations that govern it? Obligations that may involve principles not only of Canadian law, but also of Indigenous Laws?

What I find powerful about the The Coalition for the Preservation of Truth, with its reminders about intergenerational connections, is its invitation for us to take law seriously.  It invites us to understand that we (indigenous and settler people) are both a part of this story.  It invites us to take seriously how we think about shared memory, and a shared past.  It invites us to ask what it might mean to ACTUALLY honour the testimony of those who spoke their truth at the IAP hearings.  Preserving Truth invites us to change the story we are telling about this case.

It invites us to imagine that it may be possible to simply stop for a moment.  What ever happens in the Court room, is it possible for the rest of us to make space for the questions to be reframed? It is possible to acknowledge that Indigenous law must be part of the decision-making?  What might the case look like were the courtroom to be populated with Indigenous peoples bringing principles of Indigenous law to bear in order to find solutions that truly honour the spirit of reconciliation?  What might the case look like if our law schools were populated with Indigenous colleagues doing the work of Indigenous (and non-indigenous) law? (see Zoe Todd’s latest blog)

Of course, it is hard to talk about this without getting personal (or being personal?)  Easy to blame the system.  I am left wondering really about what it might mean for me (in my own classroom, in my own home, in my own interactions with others, in this blogpost?!) to begin to to talk about the ways that I too, living in unceded Coast Salish territories, might have legal obligations to learn the laws of this place, and to make good on my own legal obligations to the past and the future (and indeed to the present).  What might it mean, anyways, for me to “Stand For Truth”, or “Stand In Truth” or “Stand With Truth”?

OK.  Rant over for now.   My hands up to my many Indigenous, Metis, and Inuit friends who bear the heavy weight of this case, which is re-traumatizing to people on so many levels.

Back to marking….