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