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U of T to develop commercial code for indigenous peoples

|Written By Olivia D’Orazio

Canada’s commercial code, as it stands now, does not accommodate nearly any of the special needs of First Nation communities. The code does not incorporate any of the special traditions in aboriginal communities nor does it clearly outline the differences in doing business on First Nation reserves. For these reasons, commercial businesses are often reluctant to do business on First Nation reserves.

Commercial codes are essentially aggregates that create standard practices from various commercial, environmental, and employment standards into one standard practices form. They can be useful tools for promoting economic development by providing clarity to parties interested in doing business on reserves on the laws that apply to First Nation territories.

Professor Douglas Sanderson of the University of Toronto’s Faculty of Law is spearheading an initiative to develop a commercial code for indigenous peoples — the first of its kind in Canada. He, like many other experts and scholars in this field, believe that a uniform commercial code like this is a step in the direction of economic growth and sovereignty for First Nations.

On Nov. 5, U of T’s law school hosted a workshop and seminar to discuss the implementation of such a code.

The event, organized by Sanderson, was held to gather ideas from panellists and stakeholders, and raise awareness of this unique project.

The list of panellists included Mark Jarboe, a former Indian law practitioner at Dorsey & Whitney LLP in Minneapolis, Minn. Jarboe spoke of the importance of creating a clear regulatory framework for such a code. He explained that when a regulatory environment is unclear or largely different from state laws, commercial investors will tend to avoid doing business in that community. He said commercial investors want to know their interests are safe and protected by law, and a clear commercial code will provide this security.

He also said this code should be relatively harmonious with existing state, or in Canada’s case, provincial, law so as to make the regulatory environment as clear as possible so business transactions with First Nations are efficient.

Sanderson added that businesses tend to be afraid of expanding to First Nation communities because of this regulatory gap. A familiar commercial code for doing business on reserves would alleviate this fear and draw business owners to First Nation communities. This, in turn, would stimulate economic development on these reserves.

Panellist professor John Borrows, widely recognized as a leading scholar in aboriginal law and indigenous legal orders, spoke of the importance of developing a code that is not only comprehensive, but also reflective of the unique needs and interests of Aboriginal Peoples.

“There are laws that are found in the natural world that we can reason about,” said Borrows. “And in reasoning about it, we can find ways to be able to implement how we should be living with one another today.” He asserts that First Nations may assert sovereignty by taking control over the areas where they may assume legal jurisdiction. He claims that aboriginal “laws should be living laws and be able to speak to us today in this present generation.”

In addition to fuelling economic growth on reserves, Sanderson sees this initiative helping First Nation communities to develop a self-governing system. He sees taking control of commercial law on reserves as a step on the path to tribal sovereignty.

Sanderson hopes to begin a first draft of the code in the summer of 2011. He has hired four students to help with both the conceptual side of developing the code as well as with drafting it. Sanderson also welcomes students who are interested in volunteering their time to help with this initiative. He hopes to see the commercial code for indigenous peoples implemented on reserves within six years.

Any students wishing to get involved can contact professor Douglas Sanderson via email at d.sanderson@utoronto.ca or by phone at 416-946-5770.

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