Canadian Lawyer

46 M a r c h 2 0 1 4 w w w . C A N A D I A N L a w y e r m a g . c o m is being set up, but Kathy McCue, its administrative and communications co- ordinator, is adamant it will never pro- vide legal advice. "We will be advising bands from a technical perspective on what their rights are under the federal rules and how to successfully ratify the MRP, so that when they are drafting it, they will create something that satis- fies the approval process." The centre is still in the developmental stage, hav- ing commenced operations within the National Aboriginal Lands Management Association on Dec. 18, 2013. First Nations will have to self-fund the development and drafting process. "There is legal time and time in front of the community," says Nicholas. "To do it the proper way, lawyers are integral to the process. Developing these things with funding is a challenge, let alone without funding. If there are no First Nations able to financially develop the laws, the legislation will fail." The time limit poses another prob- lem unless there is a law-making process already in place, such as the community decision-making model of the Mohawk Council of Kahnawake in Quebec. It is a consensus-building model incorporat- ing traditional principles and meeting formats. The Mohawk Council is using the accelerated law-making process and is confident it can have its legislation drawn up within the time limit. Bill Henderson, long-time counsel to the Lands Advisory Board, recommends First Nations seek legal help from law- yers who practise aboriginal and family law. "There are a growing number of people with a foot in both areas." Tannis believes there should be fund- ing for facilitators for each particular band. "We not only have to facilitate consensus, but all the departments on reserve such as justice, police, and social services should be proactively prepar- ing for how they are going to interact with each other." He is honorary coun- sel for Family Mediation Canada and for the Ontario Association of Family Mediators, which are developing pro- grams to supplement traditional ADR processes. Family Mediation Canada has recognized an increase in the need of First Nations communities to engage in community planning and to contact and communicate with members who may not necessarily be living at home or even within the territory. This may be vital where bands are try- ing to meet the 25 per cent of eligible voters required for approval of the laws. "Most bands don't achieve that level for elections, so how would they achieve it for legislative requirements?" asks Restoule-Mallozzi. She agrees the lack of resources may be fatal to the law's effectiveness. "Capacity is the biggest issue — financial resources, human resources, and general knowledge of MRP. First and foremost, First Nations must consult with their citizens to see if they want to use the provincial system or whether they have an existing system, writ- ten or unwritten." The UOI found in its consultations it was next to impossible to encom- pass all situations so it opted for a law developed for all the Nations that gives each member Nation the ability to pass its own regulations. "Work has con- tinued to develop the regulations but we have encountered the big obstacle of funding," states Restoule-Mallozzi. "Development of any type of legislation goes hand-in-hand with finding experts in the field who also have a working knowledge on the ground to develop something that the citizens will use and understand." Matrimonial rights property laws are just one item on the overcrowded agenda of bands. Don Bain, executive director of the Union of British Columbia Indian Chiefs, has a long list of legislation being imposed, generally without additional funding. "There's lots of front-end polit- ical sizzle for the Conservatives but the back-end is empty. They've provided a legislative framework and regulations to deploy the process without the infra- structure to handle it." Provincial governments also have a challenging path ahead. B.C. Aboriginal Relations and Reconciliation Minister lEgal rEport/FAMilY lAw hildview_CL_Mar_14.indd 1 14-02-07 10:42 AM

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