Queen’s Law students, faculty and community members packed a large campus classroom on February 2 for the school’s first-ever “Reconciliation on Bay Street” conference. Organized by the Faculty, the Queen’s Indigenous Law Students’ Alliance and Corporate Law Club, the event attracted Indigenous and non-Indigenous peoples alike for wide-ranging discussions with lawyers, business leaders and professors on economic reconciliation and entrepreneurship.
The day began with a welcome from Elder Fred McGregor, who provided some interesting perspective on the topics for the day. He then introduced the screening of the 2018 documentary Reconciliation on Bay Street, which showcased the resilience of Canada’s First Nations communities and their success in legal and corporate decision-making in Canada.
A Q&A then followed with documentary filmmaker Andrée Cazabon and two key figures in the film: Chief Duke Peltier of the Wiikwemkoong Unceded Territory, and Bridging Finance Inc. CEO David Sharpe, Law’95.
Cazabon was compelled to create a film on economic reconciliation where none existed before, and was inspired by the largely untold success stories of Indigenous peoples in corporate Canada. “This film is shaped by the business leaders I met at the 20-year anniversary celebration of First Nations University,” she said. “It is such an honour to showcase the vision and direction of our Indigenous peoples.”
Chief Peltier emphasized the essential role of Indigenous peoples in bringing their own issues to the forefront. “Our individual responsibility as First Nations peoples is to walk into any environment and be proud of who we are,” he stressed. “Today’s environment offers many supports to this end. You no longer need to be the student who keeps his or her head down in the far back corner. You have a responsibility to your ancestors to be the best you can be.”
Sharpe – who is also Vice-Chair of the Queen’s Law Dean’s Council and a member of the Queen’s Board of Trustees – said that in his view, corporate Canada has been receptive to the needs of First Nations people and is impressed by leaders who commit to making a difference. “We’re where we are because of what the Chief said,” stated Sharpe. “Now, we can talk about truth and reconciliation like never before. When I played this documentary for my colleagues on Bay Street in Toronto, it was a sold-out room. Many said they heard of residential schools, but wanted to know more. Leaders like Dean Bill Flanagan – who had said ‘I want to understand, and I want to promote Indigenous people coming to the law school and business school,’ – are making a real difference. We’re building momentum; it’s very grassroots, but it’s tangible.”
Following the Q&A, event attendees congregated in the student lounge for lunch and collaborated on an artwork piece representing a Two-Row Wampum Belt, in commemoration of the 1613 treaty between the Dutch and the Haudenosaunee. Attendees were then invited to the afternoon’s first workshop, “We Are All Treaty People,” co-chaired by Sharpe and Chief Peltier.
Sharpe said that while First Nations have been largely successful at establishing their land claims in the Canadian court system, he vastly prefers negotiating with the federal government as opposed to litigation. “If you are the government, does it make sense for you to spend taxpayers’ money to deny Indigenous peoples their rights?” he asked. “No. Litigation wastes time and money, while real people lack clean water and housing. These are real people with real families. Let’s stop the litigation, honour the treaties and engage in real conversations.”Chief Peltier’s arguments focused on how treaties are often misunderstood, in terms of their significance once signed and who became responsible for what once implemented. “Society must demand that treaties come to the forefront of government operations and diplomacy,” he said. “These are agreements between nations. When I was elected Chief in 2012, it became my mission to figure out who the Crown was. But the Crown is essentially a concept, not any one person. Coming to an understanding on treaties is very complex and it must get resolved. We can only do that by coming together.”
The second session, “Investing in Aboriginal Communities and Businesses,” was moderated by Professor Tina Dacin, the Stephen J.R. Smith Chair of Strategy & Organizational Behaviour and the Director of the Smith School of Business Centre for Social Impact, and featured guest speakers Cherie Brant, a partner at Dickinson Wright, and Gail Henderson, a professor at Queen’s Law.
Dacin advocated for First Nations investment as a necessary step toward creating equal opportunities for everyone in society. “Many young people dream of pursuing entrepreneurship,” she emphasized. “But many, particularly in Indigenous communities, don’t have the privilege of walking into the bank and asking for money to make that happen. Moving forward, we need to engage on this issue in an open, caring way.”
Brant promoted the inherent value in empowering Indigenous communities, by helping them enter commercial transactions and build the necessary confidence to invest their own capital in new businesses. “It’s so critical that corporate Canada assists First Nations, and helps them build the courage to address the systemic legal barriers they face,” she noted. “The provisions of the Indian Act prevent day-to-day banking – which prevents Indigenous communities from accessing wealth and capital. When corporate Canada hears about these barriers, they’re shocked and want to help remove them. They are uniquely placed to help finance First Nations projects and light that first spark for successful Indigenous entrepreneurship.”
Henderson elaborated on the key connections between social entrepreneurship and Indigenous entrepreneurship, as illustrated in the First Nations enterprises showcased in the Reconciliation documentary. “These enterprises are engaging with markets, such as the fishing and tourism industries, guided by a connection to the land, for the social goal of keeping people living and working in their own communities.”
The third and final panel, “Thoughts on Duty to Consult,” was to be led by Sara Mainville, Law’04, a partner at OKT and Ryan Lax, a senior associate at Torys. Unfortunately, they were delayed on the disabled train. In their stead, the panel moderator and Queen’s Law sessional instructor Hugo Choquette, Law’05, LLM’10, PhD’16, and audience Justin Connidis, Law’79, a Queen’s Law sessional instructor and counsel to Dickinson Wright, led the discussion.
Choquette stressed that despite their high-profile land claim victories at the Supreme Court of Canada, Indigenous communities remain at a structural disadvantage in the courts. “Today, in Canadian common law, using and occupying your traditional territory for thousands of years means nothing if you can’t prove it,” he said. “That sets Indigenous groups back, because they always bear the burden of proving and asserting their rights in court. Placing that burden squarely back on Indigenous communities to challenge government action is a costly thing, and they often don’t have the necessary financial resources.”
Choquette and Connidis then discussed the difference between “consultation and accommodation” under Canadian jurisprudence and the obligation set out in the TRC calls to action and the United Nations Declaration on the Rights of Indigenous peoples for governments and businesses to obtain free, prior and informed consent (FPIC) from indigenous peoples before undertaking large-scale energy, extraction and other projects affecting lands subject to indigenous claims or affecting local communities.
“The current federal government committed to implementing all 94 TRC calls to action,” Connidis stated. “But since then, their actions would suggest they had not read all of the TRC calls to action when making this commitment since they have not honoured FPIC.” Connidis discussed the fact that businesses are used to obtaining FPIC in their day to day commercial dealings since FPIC is the underlying concept of contract law and determining fair market value. He advised that businesses would generally be much better off to agree with indigenous groups that they would not proceed without FPIC, rather than to argue and litigate over whether there is a right to FPIC. “Such an agreement would create trust between parties essential to agree to the long term contracts and partnerships essential for the development of resources. This is a far better result for businesses then years of litigation to assert a unilateral right to proceed. Even if successful, litigating businesses would face a myriad of non-legal processes designed to delay or prevent their project, such as lawful protest, civil disobedience, and market boycotts. Socially responsible companies recognize that they will be more successful at developing resources when they honour their Indigenous partnerships and FPIC. Government should not be afraid to do the same.”
To conclude the day’s activities, students and panelists attended dinner at the Holiday Inn Kingston Waterfront. Professor Mark S. Dockstator, President of the First Nations University of Canada, delivered the keynote address on the theme of inspiring future leaders, both personally and professionally, on ways they can contribute toward reconciliation.
Dockstator offered various ways, ideas and concepts to illustrate how Canadian universities can better “Indigenize” the work of their institutions. Specifically, he discussed the ways in which First Nations University of Canada is utilizing academic courses to bring students back to the land, stressing the importance of land based education in the development educational pedagogies for all students. He further highlighted how the university consults with and includes Elders and traditional knowledge holders, including the integration of Ceremony and traditional protocols, to infuse the university with the “spirit” of Indigenous knowledge as it is passed down to students. Stitched throughout his presentation, President Dockstator stressed the importance of artistic expression, the land, Elder knowledge, and most importantly, the use of traditional languages in reconnecting students to Indigenous education.
By Justin Murphy