First Nations: Open for business – Lawyers Weekly

April 25 2014

Next time your clients are seeking growth or expansion into a new market — tell them to consider First Nations.

For many First Nations across Canada, the Indian Act regulates real and personal property, resulting in a unique land tenure and enforcement system. Add to that the need to consider case law dealing with the application of provincial and federal laws, and lawyers can be wary of transactions involving First Nations. There are several lawyers now familiar with the practice, though, who can act as trusted advisors and help you and your clients overcome these differences.

For example, few are aware that lenders can contract around certain Indian Act provisions. A First Nations capital corporation did just that, and its lending documents were successfully upheld by the Manitoba Court of Appeal in Tribal Wi-Chi-Way-Win Capital Corp. v. Stevenson [2009] M.J. No. 232. The court was guided by an earlier decision of the Supreme Court of Canada in McDiarmid Lumber Ltd. v. God’s Lake First Nation [2006] 2 S.C.R. 846, where Chief Justice Beverley McLachlin stated that provincial credit regimes are designed to apply universally. Lawyers must be vigilant and ensure that borrowers understand the contractual waivers and acknowledgements in these types of transactions to ensure enforceability of provincial credit regimes.

In addition, new tools have been created to assist First Nations in bridging the regulatory divide.

First Nations Land Management Act (FNLMA)

On March 3, an additional 19 First Nations opted into a framework agreement to remove from application approximately 34 provisions of the Indian Act. The FNLMA is enabling legislation that can create stronger local decision-making for land use and asset management by First Nations. The act will reduce transaction costs and enable First Nations to attract businesses.

Read More: http://www.lawyersweekly.ca/index.php?section=article&volume=33&number=47&article=4