Orienting Remarks: How Does Colonialism Persist?
In their influential work on Native American economic development, Stephen Cornell and Joseph Kalt have championed a certain model of “separating business from politics” as the way Indigenous governments ought to develop their own institutions.Footnote 1 This adage has been well applied in Canada as well, as practically all Indigenous governing bodies in Canada deploy complicated corporate structures and tiers as the mainstay of their economic development strategies. And yet the use of these structures, and their necessary “separation” from governing bodies, has brought challenges for many Indigenous governments’ economic guidance precisely because these arrangements are conducted under federal and provincial jurisdiction as private law entities. Legal advisors meet the challenge of balancing separation and control by tethering the non-profit societies and economic development corporations of these governments with ties of representation to the Indigenous peoples themselves. As experienced practitioners put it: “A society can be a corporate mirror image of a First Nation, removing all the legal uncertainties related to a First Nation and providing the flexibility to meet the needs of the community and third parties.”Footnote 2 Buried within the everyday deployment of business vehicles by First Nations as an arms-length way to pursue economic development are also legal notions of corporate personhood, neutrality and representation, as well as ownership and belonging. Thus, while it has also been helpfully noted that the commercial law that governs the economic development of Indigenous peoples harbours part of the problem of colonialism,Footnote 3 the idiomatic notions of “business as neutral” by “legal rights-holders” implicit in Cornell and Kalt’s programmatic slogan camouflage the colonial force of corporate law with a facade of “access to capital” that is grounded in the conferral of legal personhood under colonial jurisdiction.
While it has been important to say that corporate law must be colonial because it underlies capitalist economic orders, it nevertheless remains as something to be shown and explained: there is nothing self-evident about the relationship between the “forces of colonialism” and the doctrinal operation of Canadian corporate law. This article begins a critical analysis of the specific ways Indigenous peoples are turned towards the legal structures they use, with an eye for the colonizing bases and obscuring effects of the law governing the use of corporate bodies (both non-profit and for-profit). In what follows, we will examine elements of the way that Indigenous peoples’ traditions of procuring livelihoods are transformed, in boundary-crossing moments, into forms inscribed by law so as to be legible to contemporary liberal legal orders. As we will see, this “making legible” of Indigenous people as legal persons obscures the formation of specifically Indigenous legal subjects by mirroring and representing the sui generis “Indian” or native, and, in doing so, it forecloses upon possible expressions of Indigenous legal orders.Footnote 4 To see how Indigeneity is articulated and used by corporate law, the article begins with a look at two prior moments in the history of legal personality: the role of the Roman persona as appropriated into English law’s persona ficta of the “King’s two bodies,” and the coalescing power of English legal words of Indigeneity. With these background moments clarified, we look at how Indigenous people are turned towards “legal persons” in response to specific aporias in legislation and caselaw that express the Indigenous and “Indian” bodies as sui generis. By critically reading this legislation and caselaw, the article draws out the way Indigenous legal subjects are broadcast and transformed in the mirror of colonial law’s legal person while also succumbing to a displacement of their jurisdiction. Considering the colonial forces latent within corporate law, the article concludes with some cautious observations regarding the possibilities for mitigating the extent of certain neo-colonial consequences.
At every point of this analysis, however, the reader may notice that the scope of the analysis moves from very general discussions of “Indigenous peoples” to a consideration of the specific engagements with legal personhood of specific nations in caselaw and may wonder whether the analysis holds for other peoples’ situations—from the Métis’s use of non-profit societies, to the Assembly of First Nations’ governance, to the development corporations of the Inuit (such as the Makivvik Corporation or the Nunavut Development Corporation). Part of the activity of settler colonialism in Canada has been to turn Indigenous people singularly towards “economic development” through “development corporations,” and thus the analysis herein demands, to an extent, to be taken to these communities such that Indigenous people can ascertain the degrees of law’s colonial force or of other paths they may be taking to find relational legal persons.
I. Persona, Legal Body, and Name-Calling
1. The Persona of the Legal Body
The practice of differentiating entities by legal personhood has its origins in Roman law, where persona indicated anyone who stood in relation to law. While citizens and non-citizens enjoyed status with respect to rights and duties, foreigners (peregrines) did not; and yet all were persona under Roman law.Footnote 5 The word carried both the dramatic and straightforward senses of how persons appeared: the persona was the “mask” worn by an actor as well as the character played, being the nominative form of personare (“to resound,” “to chant loudly,” or “to sound through”).Footnote 6 A person’s “place” in Roman society did not add legal status, as the slave, foreigner, and head of household were all “persons,” whether or not capable of acting upon rights or duties.Footnote 7 However, the common law’s absorption of the “person” has rendered it as “a being or entity that is capable of acquiring and exercising legal rights and becoming subject to legal obligations.”Footnote 8 This (legal) person still bears the sense of presenting a public face, the mask one wears as that person, in both public and private spheres of jurisdiction. Similarly, to become subject to law (i.e., to jurisdiction) requires being present to (standing in relation to) the sovereign body, as sovereign power draws out the difference between the rights-bearing person present to law and the not-present, incapacitated subject. Many theorists have identified the potently ambiguous thresholds implicit in the differentiation of subjects from the “person,” “legal person” or “legal subject” as the way the sovereign exception appears: the personhood of any “body” in law broadcasts the sovereign sanction it enjoys as that kind of rights-bearing person.Footnote 9
Ernst Kantorowicz’s study of the persona ficta of the body politic in medieval juristic accounts of kingship revealed the doubled aspect of Crown sovereignty in western law, portraying a sovereign body distinct from natural bodies with an exceptional capacity to define legal bodies.Footnote 10
For the King has in him two Bodies, viz., a Body natural, and a Body politic. His Body natural… is a Body mortal, subject to all Infirmities that come by Nature or Accident, … But his Body politic is a Body that cannot be seen or handled, consisting of Policy and Government, … and for this Cause, what the King does in his Body politic, cannot be invalidated or frustrated by any Disability in his natural Body.Footnote 11
The body politic is the artificial one (that persists), united with the natural body (that passes) in the singular persona ficta of the King (the legal fiction of a primordial mask). The corporeal legal person becomes literally both an embodiment and representation as the focal body presenting (all) those within it (forming the public sphere). At law, the King’s body politic had more reality and carried more substance than the natural body of, say, Richard or Henry, whose natural bodies pass away (“the Queen is dead, long live the King”).Footnote 12 Likewise, the Crown and corporation today are no less real for being artificial rather than natural bodies.Footnote 13 The “fiction” of the corporation as a legal person is not to be thought of as “merely” fictional: it is an artifice denoting a personhood independent of and irreducible to its members, owners, or managers. Building on Kantorowicz’s work, others have elucidated how the corporation has become the sanctioned extension of the sovereign, and in this sense exhibits the sovereign exception.Footnote 14 The legal person thus becomes a complex and abstract embodiment that grounds the possibility of presenting and representing different beings (natural or otherwise), and which happens because the sovereign has sanctioned its existence.Footnote 15 Because of this extension of the sovereign into the beings it sanctions, Barkan notes that “[c]orporations were given exceptional powers to manage, direct, and channel the conduct of the corporate body, its individual members, and the lives of whole populations, … [amounting to] a fundamental reorganization of power between the sovereign and the corporation.”Footnote 16
In a similarly important intervention, Welters argues that the core aspects of the corporation’s legal personality are not reducible to limited liability or separating ownership from management but, rather, belong to prior attributes of legal bodies: state sanction, perpetual succession, and name.Footnote 17 These three principal elements underlie the difference between the corporation’s status as a separate legal person and those other entities or relationships that do not enjoy the same status, and they make sense of the sanctioning of a rights-bearing subject under law’s jurisdiction.Footnote 18 Corporate personality is thus only legally cognizable under the legislative regime of default rights, duties, and identities that dictate the conditions of its existence as a subject of that jurisdiction. To grasp what is at stake for the law’s subjection of Indigenous people, however, we need to see how legal subjects and legal persons are mobilized to denote and represent Indigenous governments in Canadian society at large, which will involve noticing the specific way that Indigeneity is captured in law.
2. What’s in a Name?
Even when Indigeneity is capaciously articulated in English, the historical force and presence of the vocabularies fashioned to refer to Indigenous peoples continues to be wrought through colonial law. Notice that despite the well-understood pejorative weight of the word “Indian,” scholars, lawyers, judges, and legislators see fit to qualify the words “Indian” and “Indian band” as “just legal terms.”Footnote 19 Even if we work to clarify the usage of expressions such as “First Nation,” “Aboriginal people,” and “Indigenous people” in terms of who they include or how they refer to people, English speakers are left with the phrases’ one-sidedness, amalgamating and erasing different peoples and their territories, languages, histories, and laws, and absorbing their disparate experiences of colonialism into one.Footnote 20 Moreover, the legal status of these terms can distract inquiries into colonial law precisely by amalgamating and erasing their non-legal usage. These words circulate consistently only because they denote the legal subjects of colonization and genocide during European imperialism, and they operate to place them in relation to that colonial system—at once amalgam subjects and subalterns identified from the perspective of the colonizer.Footnote 21
While the terms “Indian band” and “First Nation” have had some legislative and judicial interpretation, it is less clear how “Aboriginal,” “Indigenous,” “First Peoples,” or other historically fusing terms, such as Inuit or Métis, are to be interpreted to better reveal their colonial provenance. There is no question that the Indian Act has been an active force in maintaining and extending colonization and dispossession, but the intransigence of the Act and its terminology in avoiding repeal and mediating the colonial relationship between Indigenous peoples, “Indians,” and territory provides clues about what colonial law requires of these words: the “Indian band” and “Aboriginal peoples” have remained sui generis bodies with sui generis rights.Footnote 22 This identification of uniqueness, while simultaneously placing and holding Indigenous peoples in relation to colonial law, nevertheless projects something Other, and it will be in the way that corporate law grapples with Indigenous otherness that we can witness its colonial force. At the same time, we may wonder whether these sui generis legal categories could be temporary placeholders for the work of reconciliation: might the words characterizing the “Indian,” “Indian band,” “First Nation,” “Aboriginal” and “Indigenous” occupy places of unresolved matters between founding nations?Footnote 23
II. Being Turned to Law’s Persons
1. Non-Persons and Ambiguous Subjects
While Indigenous people have been legally designated as “Indians” and “Indian bands” in colonial legislation since the 1840s, the first consolidated version of the Indian Act in 1876 created the system of registration and re-naming of Indigenous peoples and individuals. This scheme inaugurated the organized differentiation of Indigenous peoples as “Indians” for the purposes of constitutional jurisdiction in subsection 91(24), and those who can be “registered” as an “Indian” have “Indian status” or can be a member of a “band” under the Indian Act. Footnote 24 Subsection 2(1) defines “Indian” as “a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian.” This legislative identification of “the Indian band” was intentionally designed to exclude the Métis and the Inuit,Footnote 25 and to ensure that the power to identify an “Indian band” rested with the state. One might note the capitalization of “Indian” in a way similar to “Canadian” or “French,” but also dissimilar from the designation of an ethnicity or racial category. A “band” by contrast, is not capitalized, and is not defined anywhere other than the Indian Act. Footnote 26 The definition in subsection 2(1) illuminates the role the sovereign has in sanctioning persons and bodies:
“band” means a body of Indians
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(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,
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(b) for whose use and benefit in common, moneys are held by Her Majesty, or
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(c) declared by the Governor in Council to be a band for the purposes of this Act;Footnote 27
The “band” is only ever referred to in relation to the Crown’s power to set aside land, hold (“Indian”) money and declare a “body of Indians” to be a “band.” Indigenous people are not designated in relation to a nation, tribe, or clan, or in any terms that might be specific to an Indigenous people (such as Anishinaabe or Nêhiyawak or Stó:lō), further suggesting that law’s colonial dominion extends through the curated articulation of these alternative words.
“Indian bands” are not legal persons at law in Canada, and a “‘First Nation’ is not an entity known to the law.”Footnote 28 “Indian bands” are not corporations,Footnote 29 nor are they unincorporated associations, as they are not created with the consent of their members but by statute.Footnote 30 These legal facts should not be surprising, if only because Canada’s colonial law has been constituted by placing and recognizing “the Indigenous” as the outsider, such that, strictly speaking, Indigenous peoples as discrete groups are legal subjects without being legal persons.Footnote 31 Terms like “Indian band,” as a body of Indians, and “First Nation,” as a kind of polity of “prior inhabitants,” elude easy categorization precisely because they are identified as sui generis legal terms: they become “unique,” restricted to meanings flowing from the Indian Act or even as entities “not known to law.”
The legal personhood and legal capacity flowing from the definition of a “band” remain unspecified and unclear, and we must be careful to not conflate the two even though the “band” itself is considered sui generis. Footnote 32 Despite ambiguous legal personality, it has been variably held that “Indian bands” can sue and be suedFootnote 33 and exist separately from their membersFootnote 34 but cannot hold land in fee simple.Footnote 35 It also remains unclear whether “Indian bands” can hold shares or otherwise be “persons” or “owners” under provincial law.Footnote 36 Moreover, while the “Indian band” is very clearly a “body” under the Indian Act, it has not been judicially interpreted as such with any consistency that would assist anyone in understanding how a band exists as a legal subject independent of its specific legislative regime.Footnote 37 An “Indian band” can carry out various enumerated activities under the Indian Act, implying legal capacity and at least a presumption of some kind of legal presence.Footnote 38 However, while the “Indian band” has legal capacity in many ways, it does not have legal personality for all purposes or circumstances, nor does its “band council” have complete authority to act on its behalf in all cases.Footnote 39 It is precisely because of this tenuous legal status that “Indian bands” and Indigenous governments use corporate entities (both non-profit and for-profit) to act as legally recognized and authorized persons, often being the only way to give legal effect to activities in Canadian society, from holding property and carrying out transactions to simply representing a nation in its dealings under Canadian law.
2. Representation through Legal Entities?
As noted, part of the ambiguity with the English words designating “Indigenous people” stems from the imperial project of racializing inhabitants in specific colonized territories.Footnote 40 The recourse to corporate structures, as legal persons, is also a consequence of the colonially rendered ambiguity of the legal personhood of Indigenous people in Canada. Practically speaking, all Indigenous governments in Canada, including those of Inuit and Métis peoples, must use corporate bodies to carry out their economic plans, and in doing so they are not trying to emulate the public–private distinction. The colonial legal paradigm requires the distance of the “arms-length” representation of a nation’s pursuit of the conditions of its livelihoods, summed up in Cornell and Kalt’s recommendation to “separate business from politics.” This separation aims to produce a kind of neutrality of representation in the non-profit societies and corporations that are deployed by Indigenous governments. While their use is thought to be neutral, the law governing legal structures in Canada is not able to grasp its own limits in these moments when Indigenous people become subjected to the jurisdiction of Canadian law, thus hiding the force of settler colonialism through the use of these corporate entities. That is to say, the moment that Indigenous governments create a corporate entity under federal or provincial law in Canada, they have become subjected to the legislation and jurisdiction by which those entities have been sanctioned. The sovereign sanction to create the corporate body is, in this sense, a far-reaching colonial act insofar as it excludes the application and relevancy of Indigenous juridical orders.
One of the most challenging concerns of Indigenous governments is the potential for losing control over their economies precisely because associations are operated “at arms-length” by different legal persons under private law. The nexus of control and access to various rights and entitlements that funnel any participation in the life of their territories is not anything leaders wish to place in hands that are “arms-length,” which is why lawyers seek to create just the right balance of ownership and control over organizational structures used to pursue “economic development.”Footnote 41 In turning to these structures, however, Indigenous people are confronted with the requirement of submitting to the jurisdiction in which the corporate law operates, as their own legal traditions are not seen to provide any way for Indigenous “entities” to exist. Thus Cornell and Kalt’s paradigmatic way for Indigenous governments to approach “economic development” mobilizes lawyers to use the attributes of legal structures to create this separation.Footnote 42 While their program was conceived to mimic forms of statecraft, encouraging the emergence of specialized bureaucracies and nascent state institutions, their numerous reports and consultations on “Aboriginal economic development” in North America have been parlayed into a notional approach focused on liability, accountability, and the control of Indigenous people.Footnote 43 Because of this worry about separation, control, and representation, Shepard and Poulin have described the conundrum confronting Indigenous governments that need to be legally cognizable by Canadian law: “A society can be a corporate mirror image of a First Nation, removing all the legal uncertainties related to a First Nation and providing the flexibility to meet the needs of the community and third parties.”Footnote 44 If an Indigenous people “chooses to be represented” by an entity “inside” colonial law, it must be a persona visible to that law. However, as we will see in Spookw v Gitxsan Treaty Society,Footnote 45 the non-profit society that mirrors an Indigenous people does so only in relation to the dual structure of “Indigenous government” and “Indian band” that positions the Indigenous people “outside” the representative operation of law, akin to Marx’s identification of the role of representation within the political structure of the state: “They cannot represent themselves, they must be represented.”Footnote 46
Despite the ongoing Aboriginal title litigation of the 1980s and 1990s that resulted in Delgamuukw v the Queen,Footnote 47 the Gitxsan sought to assert and negotiate their rights and title through the British Columbia Treaty Process (“BCTP”). The Gitxsan experienced the colonial force of corporate law’s jurisdiction-relieving personification when they incorporated the Gitxsan Treaty Society (“GTS”), a requirement for any Indigenous peoples entering the BCTP for the purposes of negotiating with Canada, holding funding for the Gitxsan, and representing the Gitxsan people. While it may be more efficient to have a single body representing the various voices comprising the Gitxsan, its hereditary government, and its “Indian bands,” the requirement of a representative body aims to capture this dual governance feature of settler-colonial law in the mirror of law’s person. The Gitxsan juridical order is manifest through a hereditary governance structure of some sixty Wilps (Houses), Pdeeks (Clans), and communities, and which simultaneously consists of six Indian Act bands.Footnote 48 The hereditary system of governance and elected band governments work in tandem by force of necessity, with the former generally understood as the seat of political authority and the latter as local authorities working within Canadian federalism. The governing body of the Gitxsan is the Simgiigyet, which holds and exercises the Gitxsan’s Aboriginal rights and title and is composed of the hereditary chiefs of the Wilps along matrilineal lines. In 2008, five hereditary chiefs (along with four of six “Indian” bands—the Gitanmaax, Sik-e-Dakh, Gitwangak, and Kispiox—and the Gitxsan Local Services Society) alleged that the GTS did not have a proper mandate from the Gitxsan people according to its own laws, and that it had not been acting in their interests in the BCTP (while assuming debt of over $21 million through BCTP support loan agreements).Footnote 49 The hereditary chiefs were not members of the GTS at any time, as Gitxsan law prohibited them from becoming subjects and ordinary voting members of a society in a way that would render their own laws as mere interests within it and under provincial law: their responsibility as members of the Simgiigyet was to uphold Gitxsan laws while also trying to preserve the Aboriginal rights and title recognized under Canadian law. The hereditary chiefs thus applied to the court for an order to wind up the GTS. However, because they were not members and were unwilling to exercise any rights under provincial law to become members of or participate in the GTS, they had to acquire standing as “proper persons” to apply for the order. The chiefs thus brought an application under section 71 of the Society Act to be classified as “proper persons” for the purpose of winding up the GTS.Footnote 50 Both the chambers court and the British Columbia Court of Appeal dismissed the application on the grounds that (i) the hereditary chiefs could have and should have exercised their option to become members of the GTS, (ii) the GTS did not have the power to bind the Gitxsan, and (iii) it was inappropriate for courts to get involved in the internal governance of the Gitxsan.
The key finding made by the chambers judge in British Columbia Supreme Court was that membership in the GTS “remained open” because the hereditary chiefs continued to possess the opportunity to become members of the GTS and to advance their concerns from within, but instead they “chose to continue to complain from outside.”Footnote 51 This finding of fact reveals three ways in which the Gitxsan exist in relation to Canadian colonial law: through their traditional system of hereditary governance, the “Indian band” system, and the provincially incorporated society. The hereditary chiefs’ emphasis on Gitxsan law was acknowledged both in chambers and on appeal, with Harris JA noting that “extensive consultation” had been required during a previous restructuring of GTS.Footnote 52 Here, the reality of Gitxsan law is gleaned by working back from what is represented, or unrepresented, in the mirroring of the GTS. This curious fact present in the mirror, that “it remained open” for the chiefs to become members of and participate in the GTS, is what leads the court to state that “the way in which the Gitxsan nation organizes itself to engage in treaty negotiation is a matter of internal self-government.”Footnote 53 Note that the court comes to this because of the mediating effect of the sui generis body of the “Indian band.” “The judge’s analysis of the Bands as being organizational manifestations of the relationship between government and the Gitxsan people is accurate, reflects the fact that the Bands do not form part of the traditional government of the Gitxsan nation, and in my view, was properly taken into account in denying them standing.”Footnote 54
The GTS, as the internal body of colonial law, can only mirror a set of historical relationships in a way that is consistent with legal personality under colonial law. Indeed, the court specifies the character of this legal person in terms of its role: “The Treaty Process, established by parallel provincial and federal legislation, created an arm’s-length entity to assess a First Nation entity’s negotiating mandate and to allocate negotiation support funding.”Footnote 55 This rather stark pronouncement about the relationship of the Gitxsan hereditary chiefs to a treaty society they originally “supported” suggests something other than the certainty that a “separation of business from politics” or “pure representation of interests” would seem to promise—as the political question of Gitxsan title was, at that time, by no means merely “external” to provincial law.Footnote 56
3. Separating Business from Politics?
The conundrum is much the same for Indigenous governments using for-profit corporate bodies to pursue “economic development,” which is their only option if Indigenous juridical orders remain invisible in Canadian society while legislators and judges do not perceive any overlapping jurisdiction.Footnote 57 Cornell and Kalt’s separation thesis did not originally specify “legal personhood” as part of the solution, but simply that government institutions, private businesses, and ruling bodies needed to be “separate.” Even as the sui generis nature of the “Indian bands” as quasi-legal persons signals a further variety of bodies comprising “Indigenous Canada” (i.e. particular First Nations, Aboriginal peoples, Métis, Inuit, their tribal councils and variously discrete kinship groups and relations), these are not “legal persons” that are legally authorized to run businesses.Footnote 58 This precarious mode of being a legal subject has driven the turn to complicated corporate structures as the only way to create any kind of groundwork for their discrete economies. What is lost in this turn is the displacement of Indigenous jurisdiction over the very fabric of provisioning their livelihoods.
The case of Gitga’at Development Corporation v Hill highlights the ambiguities of identity and control in relation to an Indigenous people’s government and corporate structures. The Gitga’at have lived along the north coast of central western British Columbia since pre-colonial times. They have governed themselves through a hereditary order of three clans (the Gispudwada, Lx Skeek, and Ganhada), each with its own simoogit (hereditary chief). Of these, the Gispudwada is the “highest ranking tribe” and its simoogit is the Wahmoodmx (the head of all its tribes).Footnote 59 The Hartley Bay Band (“HBB”) is an Indian band, and it closely resembles the Gitga’at nation, though not identical in its membership because the band and its membership register were constituted under the Indian Act. The members of HBB’s council are elected pursuant to custom election procedures authorized under ss 2(1) and 74 of the Indian Act, and they are not the same individuals as the hereditary chiefs. To engage in “economic development,” the Gitga’at Development Corporation (“GDC”) was incorporated in British Columbia in 2001, with all shares of the corporation held in trust by the hereditary chiefs for the HBB. Two of the share-holding hereditary chiefs subsequently died in the early 2000s, and the surviving hereditary chiefs transferred the shares held by the deceased to two other individuals. A dispute arose between the hereditary chiefs of the Gitga’at nation and a newly elected HBB band council over the transmission of those shares. The court was asked whether the shares previously held in trust by the hereditary chiefs were held for the benefit of the HBB or for the Gitga’at nation more generally, even though the trust deed indicated the HBB as the beneficiary. At trial, Macaulay J said that identifying the “proper interests” in the shares required an inquiry into the proper representatives of the Gitga’at nation—the band council or the hereditary chiefs. Unlike the court in Spookw, however, Macaulay J grasped this inquiry as necessitating “a consideration of aboriginal governance under both the traditional clan system and the Indian Act, as well as of the general application of trust and corporate law in the province.”Footnote 60 The GDC, the corporate body that might serve to mirror the nation’s economic planning, is itself comprised of other legal persons, with shareholders, trustees and beneficiaries reflecting hereditary chiefs, band council members and the nation. What stands at a further remove, however, is the Gitga’at nation (or “the community,” as Macaulay J articulates it). Because the trial judge’s visibility of the Gitga’at nation was limited to its seemingly representative bodies, the place of Gitga’at law surfaces only as something that authorizes its chiefs, which is perhaps why Macaulay J ordered the matter be remitted to the Gitga’at community for a decision regarding the shares, on the basis that they were the “proper beneficiary.”Footnote 61 In coming to this decision, the trial judge found that the HBB remained a territorially constrained statutory instantiation of the larger and more significant political entity that the GDC served, and that the Gitga’at nation was in this sense “represented” by both the Hereditary Chiefs and the HBB Council.Footnote 62
The HBB appealed to the British Columbia Court of Appeal on the basis that it was the only proper “legal entity” entitled to deal with economic matters on or off the reserve. In a technically careful judgment, Huddart JA stated that the term “band” has no other legal sense than by way of the Indian Act, signaling the application of that law.Footnote 63 Where a trust agreement identified the “Hartley Bay Band” as the beneficiary, Huddart JA noted that only the Indian Act band could be the beneficiary and that the HBB band council had the legal authority to represent the band in respect of HBB’s collective right in the shares. While echoing Macaulay J’s praise for the relative harmony and effectiveness of its “dual governance model,” Huddart JA noted that the legal reality of those relations is to be construed in terms of federal and provincial enactments. “The fact that the legal representatives of the Band (the Band Council) should choose, for political harmony, to take direction from hereditary leaders, does not change the nature of the legal authority of the Band Council, nor does it establish that there are two separate entities recognized in provincial law.”Footnote 64
Huddart JA went beyond stating that the Gitga’at First Nation is “not an entity known to law,”Footnote 65 emphasizing that the “only mechanism in Canadian law by which collective property rights may be held and enforced is the Band structure.”Footnote 66 There is perhaps no more revealing recitation of the relationship between corporate law bodies within provincial jurisdiction and those non-law entities of Indigenous peoples outside it than Huddart JA’s indication that the existence of the Gitga’at’s juridical authority was “extrinsic” to the question of the proper construction of the document and the legal relationships of the parties: “when the Gitga’at set up the GDC to assist them with their economic development, they chose to use a vehicle provided under provincial legislation.”Footnote 67 And as every student of corporate law knows, the difference between incorporating in one jurisdiction over another is called the “choice of jurisdiction”: “By choosing to use existing commercial and legal structures, the Gitga’at chose to be governed by existing commercial laws of general application, to the extent Canadian law permits them to make those choices.”Footnote 68 This rather breathless pronouncement on the technical requirements of provincial commercial law may distract us from concerns over the place of Gitga’at law, but Huddart JA makes the basis of colonial corporate law very clear: colonial law governs the Gitga’at when (i) the Gitga’at choose to enter the frame of the mirror by way of the HBB (the only “legally recognized entity”), and (ii) if and only if that colonial law “permits them.” “There is no means by which an undefined community without a legal representative could give ‘consent in writing’ to the sale of shares, ‘sign, execute and deliver’ the share certificates or receive dividends….”Footnote 69
The point of using corporate entities is to thus “give effect” to activities inside the jurisdiction of colonial law, to be (i) recognized as a person “representing” political non-person entities, and (ii) entitled to give legal effect to activities recognizable at law. The Indigenous polity must be recognizable and legible as a particular kind of entity before being able to engage in this representation exercise. That is, the Indigenous polity that could be “reflected” in the mirror of a non-profit society by way of its “Indian band” ceases to exist in its own way precisely by submitting to the jurisdiction of the province, being consigned to the “outside.” This requirement is undeniably colonial. Further, the Indigenous polity that exists alongside its Indian band counterpart will struggle to express itself in commercial relations in Canada insofar as the use of corporate structures demands that legally effective representative relations proceed through a sui generis entity. The separation thesis creates an entrance into capitalism that has all but ensured socio-economic segregation and maintaining the discourse of development economics.Footnote 70 Here, the person is the mirror, but what is in the mirror is not a reflection of Gitga’at, but the HBB; the colonial legal apparatus thereby presupposes the moment of “choosing” to abandon its own juridical order in favour of the colonial one. That such choices present no choice is perhaps yet another way that corporate law masks its colonial force, but the question remains whether corporate law can see Indigenous juridical orders in terms other than as anthropological facts that exist beyond its representations.Footnote 71
III. Sui Generis Bodies and Ambiguous Personification
Based on the tenuous relationship between Indigenous people and their instantiations under colonial law, one wonders what kind of legal persons Indigenous people are permitted to become when they transact its corporate-commercial frame. The “dual governance structure” does not create any legal relations, and so the sui generis “Indian band” stands in front of the “mirror” of a set of corporate relations with questionable personhood. One only ever reaches the Indigenous people if the framing and positioning of the mirror brings them into view, and when it does, it is based on the unique “Indian band” that colonial law has positioned in front of the mirror.
This potent reflecting and erasing of the ambiguous personhood of the “Indian band” is evident in the British Columbia Court of Appeal’s recent decision in British Columbia v New Westminster Indian Band No 566. Footnote 72 The Qayqayt First Nation (“QFN”) subsists in the lower mainland of British Columbia, and it has been pursuing a specific claim for unlawfully taken reserve lands. Even though it does not currently have “reserve lands,” it is an Indian band under the Indian Act, called the New Westminster Indian Band No 566 (“NWIB”). The QFN financed the pursuit of the specific claim by securing certain insurance policies issued by a British insurer to the QFN as the NWIB, and the policies have been held and the specific claim pursued in its name. The British Columbia government assessed a tax on the insurance premiums payable by the NWIB pursuant to s 4 of the Insurance Premium Tax Act (the “IPTA”).Footnote 73 The NWIB challenged the assessment on the grounds that it is not a “person” under the IPTA, and, even if it were, it would be exempt under paragraph 87(1)(b) of the Indian Act (which exempts an “Indian” or “Indian band” from any taxation on its personal property situated on a reserve). The chambers judge granted the petition on the grounds that the NWIB is not a “person” (and hence not a “taxpayer”) within the meaning of the IPTA because Indian bands are sui generis in that they are “unique” and unlike other rights-bearers. The chambers judge noted, however, that the s 87 exemption would not be available to the NWIB in the event it was a “person” because it did not have a reserve on which to locate the insurance policies.
The Court of Appeal dismissed the British Columbia government’s appeal, but on opposite grounds, holding that the NWIB was a “person” for the purposes of the IPTA, and that the NWIB was ultimately exempt from tax by virtue of paragraph 87(1)(b) despite not presently having its own reserve lands. While the court’s ruling on the exemption presents a lucid and agile analysis, it is the court’s analysis of the NWIB’s “personhood” that is most illuminating for our purposes. Newbury JA notes that the question of the NWIB’s personhood begins not from anything intrinsic to “a body of Indians” but from the legislative regime in which these become visible: the IPTA is a “law of general application” under s 88 of the Indian Act that applies to the NWIB, such that the real issue is whether the NWIB as an “Indian band” is a “person” within the meaning of “taxpayer” under the IPTA. Newbury JA points out that the sense of the word “person” includes a band’s implied “capacity to enter contracts, to sue and be sued” under the Indian Act, disagreeing with the chambers judge’s view that a band’s “‘communal interest’ in association with the interests of other members… removed a band from the definition of ‘juridical person’ or ‘person’…. It seems to me, in other words, that a band can be both a unique entity and a ‘person.’”Footnote 74 Interestingly, what remains absent from view during the consideration of the NWIB’s legal personhood is the QFN and its specific claim. While the QFN’s reality is noted, its juridical existence is effaced even in consideration of the significance of the Aboriginal rights held by the QFN in its specific claim. At no point does the relationship between the QFN and the NWIB enter into the analysis of the status of the legal person, even if they present the same dual governance as in Gitga’at, which is presumably because the place to begin the analysis is from within the legislative realm of colonial law. One may ask how the QFN’s juridical order has any bearing, but it is precisely the point: the “Indian band” is the sui generis entity that stands to be reflected in corporate law instruments and bodies, and its relationship with or lack of representation of an Indigenous people arises only if it bears on the representing of an “Indian band” in the mirror of legal personhood.
Concluding Reflections: The Mirror and the Other
We can now draw some conclusions about the colonial forces at play “separating business from politics” by summing up the relationship between the corporate mirror, the entity it reflects and represents, and those who stand outside the frame of the mirror but nevertheless in relation to those standing before it. The courts suggest that there are two “jurisdictions,” but the spaces through which these legal orders overlap is the tenuous sui generis legal subject of bands and legally recognized Indigenous bodies. Indigenous peoples are encouraged to “separate business from politics” by separating themselves in two distinct ways: first, the “Indigenous people” must step into an embodied position to be acknowledged and recognized as legal subjects, as persona in that older, Roman sense; second, these sui generis legal subjects must separate themselves into another proper legal person that can transact under and within the colonial law’s jurisdiction of “business.” In this way, when the Gitxsan become legible and cognizable only in relation to the authorities (band councils) that allow for the creation of a non-profit society, the governing orders of the Gitxsan become doubly alienated into different legal entities that are subject to different jurisdictions. The Gitga’at nation is differentiated from the Hartley Bay Indian band, and then again from the Gitga’at Development Corporation Ltd. The Qayqayt First Nation is presumed to stand in relation with the New Westminster Indian Band No 566, and the latter’s entities and transactions are read entirely as matters involving the “general application of provincial law.”
The separation thesis achieves a certain kind of neutrality, but by neutralizing the very existence of the identity of Indigenous peoples into representable legal interests. The legal person created to give effect to this “separation” is the mirror itself, replete with the image represented within it. The “person” it represents is of course intended to be the “Indigenous” people… but we have seen otherwise. The “Indian band,” as that unique legal subject, is that quasi-person determined by forces of colonial history reflected in the mirroring of corporate entities and transactions. The proper legal person that Indigenous peoples seek with the help of their legal counsellors involves stepping into this “legal subject” of the legally identified “Indian band” so as to then become available for reflection in a corporate mirror, which is nothing other than the sanctioned mask of a corporate entity under colonial law. This “stepping into” is really a “stepping across” legal orders that continually strips Indigenous peoples of their juridical orders.
The foregoing critical analysis of corporate law has sought to grasp the ways in which its elemental forces sustain the colonial project of separating and removing Indigenous people from their juridical traditions and territories. It is not to say that these Indigenous juridical orders no longer exist, quite the contrary.Footnote 75 Indeed, robust Indigenous juridical orders continue to exist despite the role of settler colonialism in removing and attenuating the Indigenous relationship with their own laws and territories. There are ways to think through and act along with the Indigenous laws at work in territories that may assist us in confronting this colonial force, from a consideration of a possible “radical federalism”Footnote 76 that is infused by multi-juridical and legally pluralist spaces,Footnote 77 to work from within the colonial law that may mute the effacing effect of corporate law’s person (such as with a “conflict of laws” approach).Footnote 78 However, in order to move into those spaces in which the deep diversity of Canada’s juridical landscape can become visible, the way Canada grounds the persistence of the colonial project in common law and civil law legality must be grasped in the legal technicalities through which Indigenous people are removed from the frames of law’s mirrors. Clarifying the colonial force of corporate law can assist the inquiry into the persistence of colonialism, as many others are showing in other legal contexts.Footnote 79
To date, the sui generis legal subjects named in law have existed as a kind of placeholder for Indigenous people to step out of their legal orders and into colonial ones. But, by and large, settlers have yet to learn how to step out of the colonial legal order and into Indigenous ones, which is what legal pluralism, Indigenous juridical traditions, and “transsystemic” law require. The foregoing has taken steps to unmask a colonial edge to Canadian corporate law that requires that Indigenous people take these steps into legal personhood. Eyes open, we might seek other starting points for approaches that do not force the taking of those steps, if only so the sui generis nature of such placeholders might become stepping stones for colonial legal subjects to step across into Indigenous juridical orders.
Undertaking decolonization can be possible to the extent that these corporate forces can be seen, recognized, restrained, altered, or even simply re-purposed in ways more consistent with, for lack of better terms, specific Indigenous juridical orders.Footnote 80 It is possible to cease requiring their use by Indigenous peoples while also learning to see alternative jurisdictions with the authority for identifying and naming juridical forms with the mandatory character of law. Robert Nichols has eloquently gestured to evolving and appropriating Indigenous practices that work recursively with their own traditions in a robust way he calls “expressivist resignification.”Footnote 81 The work of expressively re-signifying legal personality requires listening and learning on the part of non-indigenous settlers and Canadian governments and a willingness to be reconciled with colonial forces while supporting the re-emergence of Indigenous law in a multi-juridical “Canada.”
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