Michael McKinney has seen a dramatic evolution of First Nations self-governance in the last three decades, going from a period of little to no recognition to now a period in which the Sawridge First Nation has signed a memorandum of understanding with the federal government to gain further recognition for self-determination.
McKinney is executive director, general counsel with the Sawridge Group of Companies, part of the Sawridge First Nation in Slave Lake, Alta., located at the east end of the Lesser Slave Lake near the town of Slave Lake. It is an original signatory to Treaty 8 and considered a leader in self-determination and economic development. It adopted its own Constitution in 2009.
He is also currently serving as president of the Canadian Corporate Counsel Association, named to the position in September of last year.
McKinney is GC for both the Sawridge Cree First Nation and the Sawridge Group of Companies, which have different governance structures. The First Nation is governed by a counsel and in 2009 passed a constitution so they now have an assembly.
“They have a pretty significant governance structure and then the group of companies, which are held separately by some trusts, which are overseen by trustees and independent board of directors, are totally separate. I report to two different governance bodies,” he says.
McKinney has been with Sawridge for 32 years. He articled with the organization and a year later was promoted to executive director and general counsel.
“A friend in law school said they were looking for an articling student and I applied. I knew very little about First Nations or Indian law as it was called then. The whole area has changed so dramatically during my career. When I first started, it was questionable whether First Nations had the capacity to do anything. Very few First Nations had any investments or corporations — most of them weren’t involved in the mainstream economy and the duty to consult hadn’t been recognized yet,” he says.
Most First Nations were not governing themselves to a great degree. Today, he says, the duty to consult has been recognized and created a situation where they are much more involved in what’s happening in their traditional territory and local areas and they have become more involved in investing and governing themselves.
McKinney splits his time between an office near Slave Lake and one based in Edmonton and is the only lawyer for Sawridge. The Sawridge Group of Companies consists of various real estate holdings, land developments, retail and service businesses and three hotels — Sawridge Inn and Conference Centre Peace River, Sawridge Inn and Conference Centre Edmonton South and a Best Western Plus Sawridge Suites in Fort McMurray.
“We have gone through a lot of changes and businesses — it hasn’t been the same job for 32 years; there has been a lot of change that has kept it interesting,” he says. “I do use a lot of outside counsel for litigation and some M&A. The trend has been to do more and more work in-house over the years.”
The work he manages includes corporate commercial in the area of acquisitions, dispositions, HR issues, litigation and major catastrophes such as incidents in Fort McMurray and Slave Lake. “We’ve been involved in a lot of insurance work and dealing with government on those things,” he says.
On the First Nations side, McKinney says, the work is more along the lines of dealing with a government body such as drafting laws and regulations, helping to write policy. He also serves as the clerk of the assembly, which meets every month.
“We have a lot going on with the First Nations governance side such as claims that deal with the government and helping members with issues,” he says.
Like many First Nations right now, Sawridge is considering the opportunities around cannabis businesses since legalization of the product for recreational purposes came into force in October.
“Our corporate side is involved as an investor in some retail operations [not on reserve]. Our primary focus for our corporations is mainstream businesses and not strictly focused on reserves. We do have some businesses on reserve but also have a diversified portfolio of investments and to be close to markets and have a viable business you have to be in the right location,” he says.
McKinney acknowledges the issue of cannabis regulation is a controversial one when it comes to the role of First Nations — or the lack of it — in developing policy on the federal level.
“It is one area where there has been very little consultation by any government with First Nations that I’m aware of,” he says. “I have recently learned there is a First Nation in Saskatchewan that is opening their own cannabis store and passed their own law.”
In mid-November, the Muscowpetung Saulteaux First Nation near Fort Qu’Appelle announced the opening of the Mino-Maskihki Cannabis Dispensary after the band’s chief and council, along with its Elders Council and membership, passed the Muscowpetung First Nation Cannabis Act.
“It tends to be an issue that people at the First Nation could be on either side of,” says McKinney. “You have people very supportive of the industry and other people are concerned about the consequences of the industry the same way they would have concerns about alcohol or gambling or other businesses that might cause social problems or attract people that might cause problems. There are those kinds of concerns that come up from some people and then there are others who feel it would be a great convenience to have that kind of business.”
Another First Nations community in Alberta also passed a smoking law and many First Nations, including Sawridge, have passed their own laws, which essentially created a different legal structure for smoking on First Nation or reserve lands than what was elsewhere in the province.
“The Enoch [Cree] First Nation has a casino you can smoke in, but you can’t smoke in those that are not on reserve land. The same situation could arise with cannabis but hasn’t been tested yet. We haven’t explored that,” he says.
Sawridge also just signed a memorandum of understanding in November with the federal government to get further recognition for self-determination of the First Nation.
“That’s one of our big projects we’re working on right now,” he says.
The co-developed memorandum of understanding commits the parties to working together to help advance the First Nations’ visions of self-determination for the benefit of their communities. The memorandum of understanding sets out the process and topics for discussions between the parties with a focus on self-government.
The vision of the chief who was in place when McKinney started was that the First Nation should create opportunities for its people to have jobs and make sure they have education and opportunity to get those jobs.
“Rather than give handouts to people and distribute money, he tried to ensure they had the opportunity to work and get an education and other training opportunities. For the most part, Sawridge members are educated and pretty well employed. It’s very close to a town and there is employment in that town,” he says.
While Sawridge does fairly well from a standard of living perspective, McKinney notes that all of the First Nations are underfunded for housing and infrastructure.
“There isn’t enough money to take care of all that — that’s an unfortunate reality everybody has to live with,” he says.
The reality is the number of First Nations people in Canada has grown dramatically in the last 30 years and the funding has not. For most First Nations, the funding is frozen at a level it was at in the 1990s with a less than two per cent increase per year for inflation but nothing for the increase in people. “So, it’s like taking the same pie and dividing it smaller and smaller and it’s challenging for First Nations,” he says.
As the 2018-2019 chairman of the almost 5,000-member Canadian Corporate Counsel Association, McKinney sees his challenge for the next year being one of stimulating interest in membership renewal and keeping the appeal of the organization alive.
“We do have growing competition, but the CCCA is the only national in-house lawyer organization in Canada and we believe we provide great value to our members and to the CBA,” he says.
While the CCCA national conference will be in Toronto again April 7 to 10, he says the plan is to move it outside Ontario in 2020.
“With the restructuring of the CBA, the CCCA is becoming more like a branch — a little more independent but a strong part of the CBA, he says.
“We are trying to offer more collaborative and online programs and we’re looking at how to make it applicable across the country. Our largest deliverable is at the branch level. For most of our members, their contact with the CCCA is at their branch where they go to their section meetings. We’d like to offer additional national offerings for professional development,” he says.