3 Top Reasons Why First Nations need a First Nations-Focused Corporate Lawyer

1. The Medical Analogy

Lawyers are like doctors in that each has their own area of specialization. The further you go into a specialization, the more certain skills are needed. In the same way as you wouldn’t attend a walk-in clinic for a major surgery, you don’t want to go to a lawyer who doesn’t concentrate on First Nations law for your community. And even among First Nations-focussed lawyers, a lawyer who concentrates on First Nations litigation is not the same as a lawyer who emphasized First Nations corporate and commercials business transactions in their practice.

Take for instance a heart surgeon and a brain surgeon. Both went to medical school. Both are highly trained physicians. Both perform complex surgeries. However, no one would suggest that a brain surgeon step in to perform open-heart surgery. Each has a distinct skillset built through years of focused training and experience.

The same applies in law.

A First Nations litigator is trained to resolve disputes, navigate court processes, and advocate in adversarial settings. A First Nations corporate lawyer, on the other hand, is focused on structuring deals, building governance frameworks, and supporting long-term economic growth. Corporate lawyers work to set up agreements and business structures that protection the Nation and its businesses from disputes down the road.  

First Nations corporate lawyers can be compared to heart surgeons that are responsible for keeping the blood flowing. Just as the heart regulates blood flow to vital organs, a corporate lawyer helps ensure that a Nation’s economic and governance structures operate efficiently and effectively. This way, leadership can focus on what matters most. Growing the nation, supporting membership, and planning for the next seven generations.

2. Corporate Governance for a First Nation versus a General Business

A corporation is mostly driven by the objective of increasing the profit that goes back to the shareholders. There is no heart in a corporation and its brain is fixated on one thing which is profit.

First Nations are different.

We know that our communities are driven by intricate networks of relationships between leadership, membership, future generations, and the lands, waters, and resources within our territories. Our corporations are not just vehicles that are solely driven by profit but must be steered by self-determination, long-term sustainability, and overall nation building.

This is ever more important in today’s era where those in the mining, energy, and resource sectors have a duty to consult and contract with First Nations communities. The opportunities that are being presented can be transformative, but only if they’re structured properly. This is why corporate structure and governance are becoming increasingly important to manage now.

Non-First Nations general corporations don’t have to take into account an outgoing Chief and Council and the fiduciary obligations of an incoming Chief and Council. They also do not have to consider the tide changes that First Nations politics can bring along with evolving community priorities.

First Nations do.

This is why structuring your First Nation corporate entities at the outset of their creation is critical, as they can take these First Nation-specific changes into account and can strengthen transparency and accountability.

3. Death and Taxes

The old saying is that the only certainties in life are death and taxes. With the right First Nations corporate lawyer your nation stands a chance to avoid or at least reduce the likelihood of both.

Let’s start with Life and Death

All too often, First Nations businesses are brought to life either by an online and “Do-it-Yourself” models or by advisors that don’t fully understand the unique considerations needed for a First Nations or Band-owned businesses. This may seem fine at the outset as the entity is brought to life, its articles of incorporation are issued, and it opens its own bank account.

However, the real issues often come to the surface later.

Poor structuring and weak corporate governance can lead to improperly drafted agreements and uncertainty in ownership. This can create transparency issues between First Nation leadership and members, as well as between those responsible for operating the corporation on a day-to-day basis and the incumbent Chief and Council. Over time, these vulnerabilities can lead to internal and external disputes, loss of control, damaged partnerships and missed opportunities. In other words, they can lead to the death of what could have been a successful and sustainable business.

A First Nations corporate lawyer helps prevent this. They ensure that the business is set up properly from the beginning, with clear governance, strong agreements, and protections in place that reflect the Nation’s future endeavours. They help build something that is meant to last.

And now Taxes.

First Nations operate within a unique legal and tax landscape that can result in little to no tax being paid to the Provincial or Federal Government if established correctly. This can result in dollars being reinvested back into the Nation or business but elements of on-reserve/off-reserve, connecting factors, limited and general partnerships, and other factors need to be considered to ensure tax efficiency and exemption.

Without proper planning, a Nation can miss out on these benefits or be subjected to a tax reassessment, penalties, and interest by Canada Revenue Agency. Money that should have been available to the Nation and its businesses will then end up in the hands of the government or lawyers fighting the dispute.

A First Nations corporate lawyer understands these complexities and works alongside a network of trusted tax professionals to ensure that your business entities maximize their benefits and return back to the nation.

Author Dustin Seguin is an experience lawyer practicing exclusively for First Nations in Manitoba and Ontario. First Nations are not an “add-on” practice area. Our Nations deserve legal counsel who understands their legal position, rights, governance perspectives, and social aspects that form the fabric which holds our Nations together. At First Nations Advocates our focus is on First Nations, period. If you are a First Nation or a First Nation individual not in conflict with a First Nation, feel free to contact us for a no-cost evaluation.