Canada: First Nations And Insolvency In Canada: A Shifting Landscape

Article by Colin Brousson and Emelie Kozak*

1. INTRODUCTION

The upcoming ten years will be an exciting period for First Nations in terms of economic development, with First Nations across Canada more poised than ever to exercise their increasing economic and political clout. First Nations are now sitting at the table where governments negotiate large resource transactions and, as a result of the First Nations fiscal management regime, recently obtained excellent credit ratings. Thus, First Nations should have better access to borrow less expensive money. Just to use one resource-based example, it has been estimated that the liquefied natural gas (LNG) industry could add as much as $1 trillion in cumulative gross domestic product before 2050. Further, First Nations have seen some recent success in the Supreme Court of Canada, including the first declaration of Aboriginal title in Canada.1 Included within this decision is a thorough discussion of the rights conferred by Aboriginal title, including the Crown's duty to consult and, if appropriate, accommodate.

In light of such developments, First Nations should be positioned well to increase their participation in the market economy through avenues such as the negotiation of revenue-sharing agreements. In a similar manner to non-First Nation matters, more transactions in the financial sector lead to a greater potential for insolvencies. Despite this reality, the realm of insolvency as it relates to First Nations in Canada has been largely unexplored.

The purpose of this paper is to provide an overview of this area of the law. In doing so, certain fundamental questions will be addressed regarding the interaction between the Indian Act,2 the federal bankruptcy, insolvency and restructuring regime pursuant to the Bankruptcy and Insolvency Act3 (BIA) and the Companies' Creditors Arrangement Act4(CCAA), as well as the First Nations fiscal management regime as established under the First Nations Fiscal Management Act5 (FMA).

The first part of the paper will consider whether an Indian band, as defined under the Indian Act, may become bankrupt or subject to the BIA's bankruptcy provisions. The second part of the paper will briefly address the relationship between the CCAA and Indian bands and will discuss some recent examples in which the CCAA has been applied within the First Nations context. Next, the focus will shift to receiverships, with a discussion of the potential appointment of a receiver under the BIA and the role of a receiver appointed over an Indian band or band council.

Part 5 of the paper involves an overview of the federal government provision of funds to First Nation communities across Canada through funding agreements, the role of the federal government upon default and how this might impact insolvencies. Then, the First Nations fiscal management regime will be addressed, a relatively new system that has been established to enable First Nations to raise capital and maximize the economic benefits associated with their real property tax and other revenue streams. Default under this regime can invoke intervention of First Nations, which could impact the solvency of such First Nations and priorities of their other creditors. Finally, the last two sections of the paper will discuss the various aspects of the exemption from seizure of property that is situated on a reserve pursuant to s. 89 of the Indian Act and will provide some brief commentary on the Crown's duty to consult and accommodate a First Nation's claimed or established interest in land.

Outside the scope of this paper is a complete discussion of: (a) creditors' remedies as they relate to individual judgment debtors and to assets of an Indian band, band council or corporation; and (b) the Crown's duty to consult and accommodate a First Nation's claimed or established interest in land. Additionally, the ramifications of personal bankruptcy and insolvency will not be addressed, thus limiting the discussion to the corporate commercial context.

a) A Note on Terminology

Throughout this paper, reference will be made to an ''Indian", ''Indian band" or ''band" as these terms are defined pursuant to the Indian Act or used in case law that refers to the Indian Act. Reference will be made to a ''First Nation" or ''First Nations" when discussing the First Nation Fiscal Management regime or First Nations that have entered into self-government arrangements, are party to modern treaties or are involved in the British Columbia treaty process.

b) A Note on Modern Treaties and Self-Government Arrangements

More than 600 Indian bands are subject to the Indian Act, representing the majority of First Nations in Canada. However, any dialogue in respect of First Nations also requires consideration of self-government arrangements and modern treaties, particularly in British Columbia, where, historically, treaties were largely not negotiated.6 While it is not possible to undertake a full discussion of this complex topic, certain elements are worth briefly mentioning.

There are currently 60 First Nations participating in the British Columbia treaty process, which includes approximately two-thirds of all First Nations people in the province.7 At the time of writing, the Tsawwassen First Nation Final Agreement (Tsawwassen Agreement) and the Maa-nulth First Nations Final Agreement have both been implemented.8 A number of other First Nations are in the fifth stage of the six-stage treaty process.9 Additionally, three First Nations in British Columbia have entered into self-government arrangements that are independent of the treaty process.10 These and future developments will have significant implications for anyone dealing with First Nations in the insolvency context or otherwise, due to the legal status and capacity of First Nations that are no longer governed by the Indian Act. In addressing the ambiguous nature of First Nations' legal capacity under the Indian Act, the British Columbia Assembly of First Nations has noted the direct treatment of the issue in modern governance arrangements:

[P]ractically speaking, the lack of a simple and clear recognition of legal status and capacity has been a thorn in the side of our First Nation governments. This is why, for certainty, all sectoral and comprehensive governance arrangements directly address the legal status and capacity of the Nation and the governing body to act on behalf of the Nation.11

As a result, First Nations that have ratified modern treaties (Modern Treaty First Nations) or self-government arrangements (Self-Governing First Nations) thus far are expressly entitled to all the rights and obligations of a natural person, with the Tsawwassen Agreement serving as just one example:

Tsawwassen First Nation is a legal entity with the capacity, rights, powers, and privileges of a natural person including the ability to:

(a) enter into contracts and agreements;

(b) acquire and hold property or an interest in property, and sell or otherwise dispose of that property or interest;

(c) raise, spend, invest and borrow money;

(d) sue and be sued; and

(e) do other things ancillary to the exercise of its rights, powers and privileges.12

Presumably, being entitled to all the rights and obligations of a natural person would mean that Modern Treaty First Nations and Self-Governing First Nations, plus any other First Nations that eventually fall within these categories, will be impacted much differently than Indian bands under the Indian Act. This distinction should be kept in mind throughout the ensuing discussion of bankruptcy, insolvency and receiverships.

2. BANKRUPTCY OF AN INDIAN BAND

One of the fundamental questions in respect of Indian bands and insolvency is whether an Indian band can become ''bankrupt" in the sense that a corporation or an individual may acquire this legal status under the BIA. This requires a discussion of certain legislative definitions and related judicial interpretation. The following section will first examine relevant provisions of the BIA, and will then address the manner in which Indian bands are defined in the Indian Act and considered by the courts.

a) The BIA: ''Debtor", ''Bankrupt" and ''Person"

Pursuant to the BIA, a ''debtor" may become bankrupt.13 The BIA defines ''bankrupt" as ''a person who has made an assignment or against whom a bankruptcy order has been made or the legal status of that person."14 A ''person" includes, but is not limited to, a partnership, an unincorporated association, a corporation, a cooperative society or a cooperative organization.15 Consequently, whether an Indian band may become bankrupt turns on whether an Indian band falls within one of the categories in the definition of ''person".

b) Partnership or Corporation

While the BIA does not define ''partnership", the commonly accepted definition of a partnership is a relationship ''that subsists between persons carrying on a business in common with a view to profit."16 Indian bands have the capacity to enter into partnerships. Nonetheless, it is the authors' view that, in accordance with the familiar definition of the term and well as general principles of partnership law, an Indian band itself does not constitute a partnership.

Indian bands are not incorporated and as such, are not corporations. However, as the BIA clearly applies to corporations,17 a company related to an Indian band can become bankrupt. The case of Re Bigstone Band Enterprises Ltd (Bankrupt)18 involved a dispute between the trustee and a secured party of the bankrupt, Bigstone Band Enterprises Ltd. (the ''Company"), over the interpretation of several security agreements. While the Company was the grantor of the security in most of the agreements, one agreement declared the grantor of the security to be ''The Bigstone Band of Indians". The Court held that this particular agreement did not provide the secured party with security against any of the Company assets, finding that ''[t]he Band and the bankrupt are not one and the same."19

c) Cooperative Society or Cooperative Organization

The BIA does not define either ''cooperative society" or ''cooperative organization", and the courts have not interpreted the meaning of these terms in the insolvency context. However, it would appear that, in using this terminology, the legislative drafters may have intended to refer to incorporated entities such as cooperative associations20 or cooperative entities.21 By their very nature, cooperative associations and cooperative entities are based on a cooperative basis or recognized cooperative principles, which are unique to their legal existence.22 The British Columbia Supreme Court has held that an Indian band is not a corporation as it does not ''find [its] genesis through an act of incorporation."23 This line of reasoning is capable of extending to other entities that are created by virtue of incorporation, such as entities founded on cooperative bases or principles, which leads to the authors' view that, in all likelihood, an Indian band is not a cooperative society or a cooperative organization as referred to in the BIA.

d) Unincorporated Association Courts have considered whether an Indian band might be an unincorporated association. In Keewatin Tribal Council Inc. v. Thompson (City),24 the Court of Queen's Bench of Manitoba held that Indian bands, as creatures of statute, are unincorporated associations with ''rather special features."25 In Montana Band v. Canada,26 the Federal Court clarified the issue of whether Indian bands have the capacity to sue and be sued in their own names. In discussing whether such an implied capacity could arise from statutorily imposed rights and obligations, the court noted that a band does not have corporate status and is not a natural person according to law.27 The Court went on to state the following:

A band is not an unincorporated association; it is not a group of tenants-incommon because membership does not confer a present right of possession of band property. In Keewatin Tribal Council Inc. v. Thompson (City) [citations omitted], Jewers J. described a band as an unincorporated association of a unique nature, because it is created by statute rather than by consent of its members.28

It is evident that in the view of the Federal Court, a band is not an unincorporated association. The Court's reference to the Keewatin description of a band as an unincorporated association appears to suggest only that the Indian band is a unique entity, not that it is the equivalent of an unincorporated association for legal purposes.

e) The Indian Band: A Separate Entity with Legal Capacity

Subsection 2(1) of the Indian Act defines a ''band" as a body of Indians:

(a) for whose use and benefit in common, lands, the legal title to which is vested in Her Majesty, have been set apart before, on or after September 4, 1951,

(b) for whose use and benefit in common, moneys are held by Her Majesty, or

(c) declared by the Governor in Council to be a band for the purposes of this Act. The Supreme Court of British Columbia has remarked that the Indian Act definition of ''band" does not expressly make an Indian band a legal person.29 Further, although bands have a separate existence from that of their members, ''they lack many of the abilities of natural persons, corporations, municipalities and even unincorporated associations."30 The distinct nature of Indian bands has not prevented the courts from providing them legal capacity in an array of situations. The Supreme Court of British Columbia held the following in Willson v. British Columbia:

An Indian band has been considered to be legally capable as:

  • an employer for the purposes of the Canada Labour Code;
  • a juridical person for the purpose of suing to determine the validity of surrender of reserve lands;
  • capable of contracting, and suing and being sued in contract;
  • capable of executing a contract of guarantee;
  • competent to sue and defend actions between Indian bands, to determine which of two bands is entitled to possession and enjoyment of a reserve;
  • competent to sue for a declaration that certain amendments to the Indian Act were unconstitutional; and
  • the proper [party] to an action commenced by a corporation formed by seven First Nations to claim aboriginal fishing rights, in place of the corporation, so that the First Nations were substituted for their corporate vehicle.31

f) Registered Bankruptcies in Canada

The Office of the Superintendent of Bankruptcy Canada (OSB) has an online database that lists all bankruptcies and proposals registered in Canada since 1978. Research of the database demonstrates that at the time of writing, no First Nation or Indian band has been assigned into bankruptcy in the last 36 years.32 Further, a thorough review of the case law has not yielded examples of bankrupt Indian bands or First Nations. While neither of these factors leads to the definitive conclusion that Indian bands cannot be bankrupt, they do suggest the remoteness of this possibility.

g) Commentary

The foregoing review demonstrates the improbability that an Indian band, as defined under the Indian Act, can become bankrupt. While perhaps open to argument, it does not appear that a band classifies as a ''person" under the BIA, as there is no clear indication that it is a partnership, corporation, cooperative society, cooperative organization or unincorporated association. Rather, the courts have held that bands do not have the same legal status as a number of these entities. On the other hand, Indian bands do have the legal capacity to be contracting parties and to sue and be sued in a variety of circumstances, and there has been no express declaration by a court in Canada that an Indian band is precluded from becoming bankrupt.

* Colin Brousson is a partner at Gowlings LLP and leader of the Restructuring and Insolvency National Practice Group. He practices in the Vancouver office. Emelie Kozak was an Articled Student at Gowlings LLP at the time of writing and is now a lawyer currently obtaining her Masters of Law at American University's Washington College of Law in Washington DC.

Footnotes

1 Tsilhqot'in Nation v British Columbia (sub nom. Xeni Gwet'in First Nations v British Columbia), 2007 BCSC 1700 at para. 455 [Tsilhqot'in], affirmed 2012 CarswellBC 1860 (C.A.), additional reasons 2013 CarswellBC 1 (C.A.), affirmed 2014 SCC 44.

2 Indian Act, R.S.C. 1985, c. I-5. 3 Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 [BIA].

3 Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 [BIA].

4 Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36.

5 First Nations Fiscal Management Act, S.C. 2005, c. 9 [FMA].

6 Thomas Isaac, Aboriginal Law: Commentary, Cases and Materials, 3d ed. (Saskatoon, SK: Purich Publishing, 2004) at 103. Isaac notes that ''[t]reaties are not only historical documents but also include modern land claim agreements and treaties between Aboriginal people and the Crown" (at 93).

7 Negotiation Update, online: BC Treaty Commission http://www.bctreaty.ca/files/ updates.php [BC Treaty Commission].

8 Tsawwassen First Nation Final Agreement Act, S.C. 2008, c. 32; Maa-nulth First Nations Final Agreement Act, S.C. 2009, c. 18.

9 BC Treaty Commission, supra note 7 (the six First Nations in stage five of the treaty process are the: (a) In-SHUCK-ch Nation; (b) K'omoks First Nation; (c) Lheidli T'enneh Band; (d) Sliammon Indian Band (Tla'amin Nation); (e) Yale First Nation; and (f) Yekooche Nation). The Yale First Nation Final Agreement Act, S.C. 2013, c. 25, received Royal Assent in June 2013, but it has not yet entered into force.

10 The Sechelt Indian Band Self Government Act, S.C. 1986, c. 27, came into force in 1986 (with the exception of ss. 17 to 20, which came into force in 1988) and enables the Sechelt Indian Band to exercise self-government over its lands and to control and administer resources and services (s. 4). The Nisga'a First Nation and the governments of British Columbia and Canada signed the Nisga'a Final Agreement in 1999, which was given effect by the Nisga'a Final Agreement Act, S.C. 2000, c. 7. The Westbank First Nation and the government of Canada signed the Westbank First Nation Self-Government Agreement in 2003, which was given effect by the Westbank First Nation Self- Government Act, S.C. 2004, c. 17.

11 Puglaas (Jody Wilson-Raybould) and Tim Raybould, BCAFN Governance Toolkit: A Guide To Nation Building (West Vancouver: British Columbia Assembly of First Nations, 2011) [Wilson-Raybould & Raybould] at 45.

12 Tsawwassen First Nation Final Agreement, ch. 16 at s. 7, online: Aboriginal Affairs and Northern Development Canada http://www.aadnc-aandc.gc.ca/eng/ 1100100022706/1100100022717. See also Wilson-Raybould & Raybould, supra note 11 at 47.

13 BIA, supra note 3 at s. 2(1).

14 Ibid.

15 Ibid.

16 Alison R. Manzer,APractical Guide to Canadian Partnership Law, loose-leaf (consulted March 2014), (Toronto: Carswell, 1994), ch 2 at 2.20.

17 Section 2(1) of the BIA defines ''corporation" as: a company or legal person that is incorporated by or under an Act of Parliament or of the legislature of a province, an incorporated company, wherever incorporated, that is authorized to carry on business in Canada or has an office or property in Canada or an income trust but does not include banks, authorized foreign banks within the meaning of section 2 of the Bank Act, insurance companies, trust companies, loan companies or railway companies.

18 Re Bigstone Band Enterprises Ltd (Bankrupt), 1999 ABQB 868 (Q.B.).

19 Ibid. at para 11.

20 See, e.g., Cooperative Association Act, S.B.C. 1999, c. 28 (associations are formed by incorporation).

21 Canada Cooperatives Act, S.C. 1998, c. 1, s. 2(1).

22 The Cooperative Association Act, supra note 20, states that ''[a]n association must be organized and operated and must carry on business on a cooperative basis" (s. 8(1)) and sets out the principles and methods that constitute a cooperative basis (s. 8(2)). The Canada Cooperatives Act, ibid., defines a ''cooperative entity" as ''a body corporate that, by the law under which it is organized and operated, must be organized and operated on— and is organized and operated on— cooperative principles" (s. 2(1)).

23 William v. Lake Babine Indian Band, 1999 CarswellBC 764 at para. 33, [2000] 1 C.N.L.R. 233 (S.C.).

24 Keewatin Tribal Council Inc v. Thompson (City), [1989] 5 W.W.R. 202, [1989] 3 C.N.L.R. 121 (Man. Q.B.).

25 Ibid. at para. 67.

26 Montana Band v. Canada, [1998] 2 F.C. 3 (T.D.).

27 Ibid. at para. 20.

28 Ibid.

29 Supra note 1.

30 Ibid., citing Blueberry River Indian Band v. Canada (Department of Indian Affairs & Northern Development), 2001 FCA 67.

31 Willson v. British Columbia, 2007 BCSC 1324 at para. 50 [citations omitted], (sub nom. West Moberly First Nations v. British Columbia) 2007 CarswellBC 1999.

32 Based on searches of the terms ''band", ''Indian" and ''First Nation" conducted in March 2014, online: Office of the Superintendent of Bankruptcy Canada: https:// www.ic.gc.ca/eic/site/bsf-osb.nsf/eng/home. Correspondence with the OSB indicates that statistics regarding bankruptcies or receiverships of First Nations are not recorded separately.

33 Lloyd W. Houlden, Geoffrey B. Morawetz and Janis P. Sarra, The 2013-2014 Annotated Bankruptcy and Insolvency Act (Toronto: Carswell, 2013-2014) at 1174 [emphasis added].

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