Our Experience with First Nations Economic Development

What is Economic Development?

The term “economic development” encompasses a very broad spectrum and means something different to each community.

Here’s what we mean when we talk about economic development:

  • Corporate structuring: separating business from politics in a tax-efficient and liability-controlled economic development group
  • Governance and policy: helping First Nations and their businesses make informed decisions, and implement defensible governance structures and bylaws
  • Commercial law: helping First Nations and their businesses negotiate sound business agreements
  • Natural resource and infrastructure development:  assisting First Nations participate meaningfully in resource and infrastructure development
  • Impact benefit and partnership agreements: negotiating strong impact benefit agreements with developers and enduring partnership agreements with companies seeking to do business in our clients’ traditional lands
  • Government to government agreements:  engaging with other levels of government to address matters like ownership of resources, shared decision making and revenue sharing
  • Financial services: borrowing money from traditional and non-traditional lenders to finance project participation or business opportunities
  • Workplace law: understanding jurisdictional issues relating to First Nations employees, managing risk in employment and consulting contracts, and advising on hiring and dismissal of employees
  • Cultural and intellectual property:  protecting and commercializing cultural and intellectual property

Corporate Structuring

Like a building, a successful economic development group requires a solid foundation.  That foundation is its corporate structure.

A carefully planned corporate structure maximizes tax exemptions, minimizes liability and allows for good governance decisions to be made effectively.  Our corporate commercial lawyers have many decades of collective experience in corporate structuring, tax planning, contracts and governance.  In the First Nations context, our work often includes:

  • Consultation with communities regarding priorities and objectives
  • Conducting due diligence on existing businesses and governance structures to assess eligibility for tax exemptions and liability risks
  • Recommending the best structures for the particular client and creating those structures
  • Helping establish strong corporate governance processes
  • Assisting economic development groups structure, negotiate and finalize contracts

Successful examples of our recent corporate structuring work includes:

  • Structuring partnerships and joint ventures for the Nisga’a Commercial Group
  • Establishing Kanaka Bar Indian Band’s economic development group
  • Establishing a corporate structure for Sts’ailes to invest in energy projects
  • Structuring the Snuneymuxw economic development group
  • Advising on and implementing a corporate reorganization for Klahoose First Nation
  • Creating an economic development entity for Lax Kw’alaams Indian Band
  • Advising High Bar Indian Band on corporate structuring matters

Governance and Policy

Good governance resources provide a solid foundation upon which to build, and, when done right, helps create enduring prosperity that will benefit future generations.

Our commercial law firm is regularly retained to assist corporations, communities, citizens, staff and leadership to revise and implement governance & leadership policies, including bylaws, council policies, custom election codes and membership codes.

We are always guided by our client’s vision, values and principles as we work together to towards the development, ownership and implementation of good governance mechanisms.  We believe the involvement and input of members, youth and elders, no matter where they reside, are the key to developing participatory, transparent and accountable governments.

Recent engagements in this field include:

  • Representing the Snuneymuxw First Nation on corporate structuring and governance matters
  • Advising the boards of First Nations non-profit organizations on governance policies procedures and constitutions
  • Working with Kanaka Bar Band to implement membership rules, an election code and a governance code
  • Advising Tahltan Central Council on electoral and policy matters
  • Advising Takla First Nation on electoral matters

Commercial Law

Our lawyers are, first and foremost, commercial lawyers. This means that we are experienced negotiators, that we understand how to draft complex agreements, and that we are able to advise on risks associated with any deal.

We routinely assist our clients with a wide range of agreements, such as services contracts, joint ventures, leases, purchase contracts and much more.  For a more detailed description of our commercial legal services, see our Business Transaction group page.

Natural Resources and Infrastructure Development

From oil and gas extraction and pipelines to forestry operations and hydroelectric generation, Miller Titerle + Company has significant experience assisting First Nations communities to successfully engage with natural resource projects. Our group lead, Rob Miller, has been consistently recognized as a leading practitioner in the areas of Aboriginal, energy and natural resource law. He brings this focus to major projects in our clients’ territories, and is able to effectively negotiate with developers because he understands their projects and their motivations.

Recent engagements in the energy field include:

  • Acting for the Kanaka Bar Indian Band in the development and financing of the Kwoiek Creek Hydro Project
  • Assisting the Splatsin First Nation in its negotiations with a large utility relating to an energy corridor right of way
  • Advising Tahltan Central Council in its negotiations regarding a transmission line right of way and major mining project
  • Negotiating and structuring joint ventures for the Nisga’a Commercial Group to provide services to companies in the energy industry
  • Acting for Sts’ailes in the negotiation, closing and financing of its acquisition of equity in the Sakwi Creek hydro project
  • Advising a number of British Columbia First Nations on government to government agreements, such as shared decision making and economic and community development agreements
  • Negotiating First Nations forest tenure and Forest Consultation and Revenue Sharing Agreements
  • Advising on the acquisition of sawmill and pulp facilities
  • Managing a Request for Expressions of Interest for the engineering, harvesting and marketing of approximately 625,000m3 of logs from a First Nation’s forest licence

Impact Benefit and Partnership Agreements

As a significant component of our work helping First Nations engage with resource and infrastructure projects, our lawyers have gained substantial experience in negotiating impact benefit agreements. Examples of our recent work in this area include:

  • Representing the Tahltan Central Council in negotiations relating to transmission corridors and major mine development
  • Advising the Nisga’a Commercial Group on benefits arising out of transmission line development
  • Negotiating participation and partnership agreements for the Kanaka Bar Indian Band respect of the development (and environmental assessment) of its 50% owned 50MW run-of-river Kwoiek Creek hydroelectric project
  • Assisting Sts’ailes First Nation implement impact benefit agreements relating to a number of energy projects in its traditional territory

We also have extensive experience helping First Nations negotiate partnership agreements with companies seeking to do business in their traditional territories. Our commercial lawyers help clients manage the financial, liability and relationship risks associated with these types of partnerships by negotiating and preparing strong agreements designed to last many years.  Examples include:

  • Negotiating partnership agreements relating to site work and camp catering on behalf of Nak’azdli Development Corporation
  • preparing joint ventures and partnerships in a wide variety of industries for Nisga’a Commercial Group
  • Advising on a camp services joint venture for Sts’ailes

Government to Government Agreements

MT+Co. has been involved in the negotiation and implementation of a number of cutting-edge government to government agreements. These agreements often involve complicated issues relating to ownership of resources, jurisdiction and regulatory authority, decision making processes, protection of rights and title, and resolving historic government wrongs.  Examples of recent mandates in this area include:

  • Assisting Splatsin First Nation implement a perpetual land rights agreement with a provincial Crown corporation
  • Advising Kanaka Bar Indian Band on revenue sharing agreements in the forestry and mining sectors
  • Assisting Tahltan Central Council implement its Shared Decision Making Agreement with the Province
  • Assisting Snuneymuxw First Nation implement its Reconciliation Agreement
  • Advising Kwakiult First Nation on a health services funding arrangement

Financial Services (Borrowing and Lending)

Post-Haida, and certainly post-William, First Nations’ increased leverage in resource and infrastructure development has set new social licence norms.  One of these norms is that First Nations have achieved greater opportunity to participate as owners of development projects.  This participation, called equity participation, often has an investment attached.

In order to fund equity participation in projects, First Nations often borrow money from traditional and non-traditional lenders. We believe that obtaining financing on the right terms is fundamentally important to maximizing the benefits of equity opportunities.  Our practice group has assembled a team of legal professionals that has significant project lending expertise on behalf of both lenders and borrowers, and have been involved in the financing of some of Canada’s largest developments.

Our specific work on project finance includes:

  • Advising Sts’ailes on financing its equity ownership in the Sakwi Creek hydroelectric project
  • Advising Kanaka Bar Indian Band on financing its equity ownership in the Kwoiek Creek hydroelectric project
  • Acting for the First Nations partner in a $168.5 million financing of a power project development
  • Acting for the First Nations partner in a $17 million financing of a power project development
  • Acting as lead Canadian counsel for the investment of approximately $1 billion in Canadian mining projects in the form of royalty agreements, metal stream agreements, and equity options

Workplace Law

Our law firm is familiar with the issues unique to First Nations employers and we work closely with our clients to reduce risk by implementing workplace policies, best practices, and written employment and consulting agreements.

We also assist with discipline and dismissals, severance packages, workplace re-organizations, and human rights and discrimination in the workplace. We prevent, manage, and resolve workplace conflict if it arises and, when necessary, we provide effective advocacy and representation in contentious matters.With a thorough understanding of the distinct jurisdictional and constitutional issues that First Nations employers face, we are able to assist clients in determining whether provincial or federal labour and employment laws apply to them.

We work with a diverse range of First Nations entities including:

  • First Nations businesses
  • Band Councils
  • Credit and lending organizations
  • Charities, trusts and non-profit organizations
  • First Nations education, health, and housing authorities

Specific clients that we have provided workplace legal advice to include:

  • Nisga’a Commercial Group
  • Lax Kwa’laams Indian Band
  • Klahoose First Nation
  • Kanaka Bar Indian Band
  • Tahltan Central Council
  • Tribal Resources Investment Corporation (TRICORP)

Cultural and Intellectual Property

We believe First Nations have the right to be stewards of their own heritage, and an important element of our practice is helping our clients protect their cultural property.  To realize this, we work with traditional laws and Canada’s intellectual property laws to help protect, repatriate, and – where appropriate – commercialize our clients’ cultural property.

Our experienced intellectual property lawyers are passionate about applying their technical legal expertise to help our First Nations clients further their cultural property objectives.

To learn more about our legal team’s work experience relevant to your needs, please contact Rob Miller.