Welcome to Drumbeats, the must -listen -to podcast
which explains why Indigenous partnerships are
the key to securing successful outcomes in natural
resource and infrastructure investment in Canada.
I'm Mark McNack and my co -host Robert Brant
and I are joined today again by Bern Christmas,
KC, Principal at the Bern Christmas Law Group.
The discussion today delves into the historical
and legal significance of the Mi 'kmaq Nation's
treaty rights. particularly the 1725 Peace and
Friendship Treaty with the British, which was
one of those treaties that British soon regret
signing. It laid the basis for a challenge over
250 years later called the Marshall Decision,
where it reinforced the Mi 'kmaq's right to fish
commercially. The Supreme Court sided with the
Mi 'kmaq, leading to a 30 -day moratorium on
fishing. and subsequent government recognition
of their commercial fishing rights, changing
fishing on the east coast of Canada. The conversation
will also cover the Squamish Nation's 1 .5 billion
Sanok housing development in Vancouver, British
Columbia. Can you just give some further background
about the McMack and the Supreme Court decision
that you referred to? Because I think it is a
very important decision in Canadian history.
And I think our listeners would like to understand
that because that became a case for many in terms
of relations. Yeah, so what happened with our
community, the Mi 'kmaq Nation, which is our
traditional territories in what is called Atlantic
Canada, eastern part of Canada. There's Newfoundland,
New Brunswick, Prince Edward Island, Nova Scotia.
and the Gaspé Peninsula of Quebec, and then also
into Maine, the state of Maine in the United
States. The interesting background for the historical
buffs is that obviously in the 1600s, 1700s,
you had the Hundred Year War and all those things
going on between France and Britain, and amongst
other things. territories and skirmishes that
they were dealing with. And then, of course,
you had the United States, the beginning of the
early colonists and creating of those states
in the early days of the United States and how
it then eventually became its own country. But
during those days, the power between the British
And the French in North America was determined
mostly by being allied with my nation, the Mi
'kmaq. And, you know, we swayed the power each
way. And the British, you know, I'm speeding
up history a little bit here. Eventually, the
British and the Mi 'kmaq signed some treaties.
In fact, we signed a lot of treaties, but one
in particular in the early 1700s. We signed where
we said that we would be at peace and be friends
and allies forevermore. And it was the only time
the British ever did that. Historians might argue
with me a little bit, but... If you look at it
from that perspective, the treaty making process
was the only time that the British said, OK,
yeah, the Mi 'kmaq are unequal. And they had
no choice because we were like we were a major
fighting force. And so we entered into this peace
and friendship treaty. And one of the benefits
of that treaty was that they would open up a
truck house or trading post. or a store, I guess,
in modern times, where the Mi 'kmaq would come
and bring their furs, their berries, their fish,
their meat, and the British would have to buy
it. And we thought that was a good deal, you
know, keeping us happy. You know, I always think
about what my ancestors say, wow, what a deal
they struck. However, the British didn't think
it was a good deal because I think they called
on the lords of trade in England. I guess the
king's man said, yeah, this is costing us way
too much money. Like, yeah, we really got to
take it on that one because there was no choice.
They had to buy. They had to buy at a certain
price. And we did research on that because concurrently
to that, Donald Marshall Jr., one of our community
members, his father was once the grand chief
of the Mi 'kmaq Nation, our traditional government.
And, you know, obviously his dad is telling him
we have these rights, this, this, this, you know,
we're equal. They shouldn't be doing all these
things to our people. And so Donald Marshall
Jr., he said. He always remembered that and kept
telling Chief Terry Paul, you know, we got to
do something about this, got to do something
about this. And for those also, just as a quick
background, Donald Marshall Jr. is also a man
that was wrongfully convicted for a crime, in
this case, a murder that he did not commit and
was eventually exonerated, fully pardoned and
apologized. received some money for that as well,
for that wrongful conviction after spending roughly
11 years in jail. And he always held to the point
that he was innocent. And eventually it turned
out that the whole system, the justice system,
not only in Nova Scotia but Canada, was against
the Mi 'kmaq. And there was a royal commission
that was started and a big report was done. And
people can read up on this. About him in particular.
But again, on this case, in essence, the Lords
of Trade in England decided it was way too much
money to keep this truck house going. And Donald
Marshall Jr. at the same time was saying, you
know, we got to do something. We have the right
to fish. Donald Marshall Jr. went out and said,
I'm doing this. And he was encouraged, obviously,
by Chief Terry Paul as his chief and said, we
got your back. And he went out and went and caught
some eels. And so the first day, and we told
the, you know, the enforcement folks, in this
case, Natural Resources slash Fisheries and Oceans
Canada, that we're going to go fishing. And he
went down to the harbor and went and caught some
eels. And the enforcement guys came and kind
of looked at what he was doing, but didn't didn't
do anything about it. They said, OK. They said,
well, I'm going to be back tomorrow. I said,
OK, we'll be here, too. And then he went and
did his thing, you know, did another few hours
and they're watching him. And then the third
day. They said, OK, clearly they got instructions.
Arrest them, charge them. And then right from
that point, that's where the case started. We
basically said, yeah, we have the right to commercial
fish pursuant to treaty. And we used that truckhouse
clause in the treaty to say, you recognized that
we commercially fished. You wouldn't have bought
it from us, you know, hunt and fish. and collect
berries and other flora in the area and brought
it to you and you bought it. So you recognize
implicitly that we had commercial operations
going on at that time, back in the early 1700s.
And so we went all the way to Supreme Court of
Canada and ultimately the Supreme Court sided
with us. And yeah, that was something. I still
remember that day vividly when the case came
down. There was a big press conference. You probably
could look that up and see how we dealt with
that. And it was one of those situations that
it was where we said, OK, let's not rub it in
the face. We realize this is a big, massive opportunity.
We're not ready to undertake it. And so let's.
let's go and say, okay, we'll work with government
to get this situation underhand. And there were
so many things happening at the same time. You
know, you had the fisheries organizations going
crazy. Department of Fisheries and Oceans Canada
couldn't believe it. But, you know, we coalesced
the 36 First Nations at the time to say, OK,
let's work together. And in fact, actually, we
sent out an olive branch and said we would do
a 30 -day moratorium. Don't go out fishing until,
you know, government can get caught up to speed.
And sure enough, that was greatly appreciated.
In fact, circling back. The prime minister was
Jean Chrétien at the time. And he, you know,
I remember talking to him a few times about it.
And he said, we really appreciate you doing this.
And we'll all work it out. And what we'll do
is get your capacity built up and make this all
go according to the law of the land, which was
the recognition of your commercial fishing rights.
And then that's what started the whole. Acquisition
of quotas and purchasing of quotas for the Mi
'kmaq people. Also fleets of ships and all the
attachments that go with fishing in the North
Atlantic. And then ultimately from the member
two perspective, that led us to start the journey,
which ultimately culminated with the purchase
of Clearwater Fisheries, which I'm sure Chief
Terry Paul talked to you extensively about. for
over a billion dollars a few years back. So that
case was very important to us at the time. Country
changing, game changing, and all kinds of lessons
to that and learnings. First of all, everybody
loves conspiracies. Who was in charge of the
enforcement officers? Was it an indigenous person
to say, okay, now go do it. Let's see what happens.
I'm joking. I know, I know. But we don't know.
Like, you know, I don't. No, of course not. People
never remember their names anyway. It's not that
I don't mean that in a disrespectful way. It's
just that those guys at the time were probably
doing their job, right? Go charge those crazy
guys. And then it culminated domino effect, which.
they probably are happy to say, well, I was involved.
I was a good charge. I'm sure they are today.
And I think the other thing is, you know, when
you talked about this, I think the 36 communities,
you got them working together. I mean, that probably
was an exceptional moment because it's tough
to get independent communities and each with
their own chiefs. Okay. Here's how we're going
to play it. And then to say, okay. And. We're
going to have a 30 -day moratorium. Yeah. Yeah,
that was something there because, you know, we
did it. I say we because I work closely with
a good friend and colleague of mine, Dan Christmas,
who, you know, eventually became a senator in
the Senate of Canada. And he and I both worked
very diligently to make this happen. And, of
course, Chief Terry Paul working behind the scenes,
you know, with his special expertise to make
sure the chiefs eventually came on side. You
have to remember we're different provinces, you
know, different territories of the Mi 'kmaq Nation,
little slight little variances. But, you know,
we pulled it off. And even the government people,
I've had conversations with government people,
even most recently, that remember all that. And
people have worked in the minister's office and
both the prime minister's office said we couldn't
believe, A, that we lost because we were being
told by justice people that this case is in the
bag. But B, how you guys coordinated all that
and still had us on our toes because, you know,
obviously government always thinks they're in
charge. But yeah, it was a fun time, Mark. It
was very interesting. I think the one point that
made it really special, and it's something I
deal with in other parts of the country when
I'm dealing with groups of First Nations trying
to collaborate or a nation in itself that has
very different communities, is that I always
try to focus on one particular, we'll call it
motherhood issue. That they all can say, yeah,
this is why we're doing this. And that seems
to work. You know, you're not trying to, you
know, scam them, so to speak. You're trying to
get them to work collectively. And you always
use this one particular motherhood issue that
will bring them all together and they keep focused.
Well, that's how Chief Terry Paul got you home.
Yeah. Feel to your heart, right? Yeah. The SINUC
development. in Vancouver is really interesting.
Why don't you talk a little bit about where you
were there day one. It's almost ready for first
tenants, I think, early next year. Tell us a
little bit about the vision and how that evolved.
Yeah, so the Sanak deal is the brainchild of...
quite a few of the politicians of the Squamish
Nation, a lot of traditional chiefs and current
leadership that had seen this idea blossom with
some developers. And I was brought on to, initially
I was brought on as a member of the board of
directors of Enshikai, which is the business
arm of the Squamish Nation. And then they asked
me then to eventually become the CEO based on,
you know, my past experiences and the things
that I'd done. And so, as I already mentioned
early on, you know, we had some other projects
on the go, the LNG facility with fiber with the
Singaporean interests. And then we had our forestry
operations that we're trying to get rolling.
And then we're starting some fishing. fishing
operations and but real estate was a is a big
thing for the squamish nation because they're
in the the heart of the hottest real estate market
in canada at least vancouver that whole region
known as the mainland of british columbia and
they had this idea to build get into the the
marketplace with a property Around 10 acres in
downtown Vancouver, which again has same kind
of similar history to, you know, a lot of nations
across the country could say the same thing where
their land was taken. You know, it was just someone
just decided, yeah, I'm taking that. Nothing
you do. And they couldn't do anything because
they didn't, as you pointed out, rightly didn't
have legal representation and you couldn't represent
a First Nation in. in fighting government or
police or anything like that in the early days
of this country. So they went to a court way
before my time and re -garnered this piece of
property, a very prime spot, and near the Kitsilano
area of Vancouver. For those who aren't familiar
with that, it's a very posh, posh area. Very
posh. They said, well, this is our Indian reserve
and we're building. You know, you guys built
and we're building. So they decided to do this
project with a developer called West Bank. And
we started the project with them. And, you know,
again, it was well over, I think, again, around
the one point. two to one point five billion
dollars that the uh that squamish has uh invested
into this and uh part of the rationale for building
it was to create affordable housing also for
its community members a lot of people don't know
that because it's not really focused on in um
in the uh the press but it was to create uh affordable
housing uh vancouver i'm sure is just like london
crazy The prices for rental properties like in
London or New York are astronomical. Well, guess
what? It's like that in Vancouver too. And a
lot of community members aren't in that bracket,
that pay grade that they can afford $2 ,000,
$3 ,000, $4 ,000 rent for a small little space.
Even if it's Canadian, it's still a lot. It's
still a lot, yeah. So we said, okay, part of
the deal is you got to give us X number of units
that are just going to be for community members
to have, whether it's purchased through the Squamish
Nation or the community member is able to raise
the funds or get financing to do a traditional
type mortgage, but at an affordable price. So
that's how that came about. And that's why I
almost suspect probably the nation itself agreed
to say, yeah, let's build this thing. But you
got to have these units for us. Yes. And when's
that coming on stream or have some of those apartments
been released now? Well, it started. Construction
started about a year, year and a half ago, a
year ago. And it's if you come to Canada, come
to Vancouver, it's on the off the broad street
bridge and near a famous tour spot called Granville
Island. And you can see it there. I've seen pictures
of it. Wow. What a great location. Right. So
I don't know about the existing residents, but
the new ones will be very, very happy with the
ability to participate that and another interesting.
Just one question before we wrap up and talk
about some of your learnings and insights for
foreign investors. How does the Indigenous experience
differ? First Nations on Turtle Island, north
of the border and south, because Indigenous nations
in Canada, the First Nations, the Indigenous
peoples are now recognized. As the foundation
for the country. And the country will not succeed.
Unless the First Nations succeed. Without a doubt.
There'll be arguments along the way. And you
know we can talk about. Building Canada Act and
all that. But. It's not going to happen. In south
of the border. It's completely different. There
must be some. First Nations. Thinking jeepers.
We never looked north and thought they. had better
opportunities. What, do you have a view? Can
you share some perspective on that? Because I
don't know enough to, that's just from my perspective
looking in. Yeah. So I would, you know, first,
the first thing I'm going to say is that we're,
we're attuned to the fact that our rights are
ingrained in the constitution of the country.
So no government, no business can affect those
things. They could try putting little limits
on it, but they can't affect those rights that
have been ingrained in the Constitution. So that's
probably the biggest thing that people should
be aware of. And then combine that most recently
with the UN Declaration on the Rights of Indigenous
Peoples, which has been adopted by Canada. and
a slight version of that is has been adopted
by canada so it's making it even more um more
relevant and so uh someone asked me this question
just the other day and i think it's appropriate
you know they said well why aren't you know the
canada passed this legislation try to speed up
projects because of the current situation with
the United States and, you know, global marketplace.
So Canada, in the wisdom from the prime ministers
and his government, said, OK, we're going to
pass this thing called Bill 5, Bill C -5, and
fast track a lot of infrastructure projects,
big major projects. Some of the ones that I alluded
to, Port Churchill, nuclear development, LNG
development, and a whole host of other sort of
big housing initiative across the country, amongst
others. But they had always said, well, the issue
is that the regulatory red tape slows it all
down. So the notion was to pass this legislation
to speed up the process, to fast track everything.
But unfortunately, I think what they forgot was
that the Canadian Constitution says Aboriginal
rights have to be respected and maintained and
can't be affected. And so at one point they're
trying to say, well, we'll consult with you later.
Yeah, I have a feeling that's going to be tested.
And in fact, I know it's going to be tested.
There's cases that, you know, I already know
some communities are saying, OK, well, we'll
see how this goes. And, you know, I'm pretty
confident the Supreme Court is going to put a
little damper on that Bill 5 as it affects Aboriginal
rights. So I don't think they really meant to
do that. But, you know, the. indirectly it's
happened and it's caused a big stir here in the
country. But another part, just also flipping
it, it's not just that we're getting irritated
that our rights are trying to be trampled on
again. I don't think that's it. There's a whole
bunch of other things that are at play here.
Canada has a huge environmental movement that
affects a lot of projects, but they can't do
anything because, again, they don't have those
constitutional protections. So you don't hear
them talking about this in a very meaningful
way. But however, they are turning towards the
Indigenous community to say, you got to help
us. You're the only saving grace here that can
help stop some of the craziness that is being
brought out in legislation. And in the province
of Ontario, they did the same thing. And they're
also starting to realize, yeah, geez, I think
we might have made a mistake with the Indigenous
groups because. In Canada, the way the legal
system is, the province can, in a limited way,
get involved in a federal matter. What I would
refer to that is Indigenous communities, generally,
in a weird way, is a federal jurisdiction. But
they can't they can't alter it, alter those rights.
And so I think they got themselves caught. And,
you know, time will tell how that that works
out. So for, you know, the you know, the audience
in other places other than Canada, you know,
if you're wanting to come, you know, don't I
think you should still come here. And and if
by some amazing chance you are working with the
Indigenous community, I think it's even better
for you because of the fact that we have these
abilities to push certain levers and buttons
that, you know, a traditional. partnership in
the marketplace that you may be considering may
not have. And everyone's looking for the opportunities
to move shareholder value in the sense of the
Indigenous potential partner or other structure
that you're looking at. I can tell you right
now, we're looking for deals for own source revenues
to uplift our shareholders. the community members
bring up our standard of living and do all those
great things that, you know, people get into
business for. And then also the, so I, you know,
that's the, I think that's the kind of key point
that people kind of have to remember. It's, it
is an interesting time right now, a very interesting
time from a business perspective, the legal perspective,
the moral perspective, You know, the financial
institutions in this country, we have a, you
know, some people call it a monopoly. You have
five major banks. There, in fact, are, you know,
30 something banks in this country. But the five
major ones kind of control, you know, what goes
on. But, you know, even they are having difficulty
with some of these financings unless the First
Nation is involved in the project. Well, I think
a couple of things. Canada's always dependent
on foreign capital. And if you want to succeed
in Canada, it's in partnership with the Indigenous
peoples of Canada now. And that's the way to
succeed. And when you talk about your experience
and career and everything that's happened is
Indigenous people are pro -development. They
just don't want to be left behind or tread over.
With no input into how it happens. This is great
business stories. Yeah, exactly. It's not a situation
where we're trying to stop things. Oh my gosh.
No, I can, I can tell you that right now. The
theory is that, you know, we are looking to do
exactly what other people's in a capitalist oriented
marketplace. want to do. We want to buy cars.
We want to buy TVs. We want to buy groceries.
We want to buy nice clothes. We want to raise
our children, have a great education system,
a social safety net. We'd like to do all those
too. But you have to do it with hard -earned
money, revenue systems. So why not allow us to
be a part of that? And in the past, and to some
point now, if you're going to not do that with
us and it's on our territories, yeah, you're
going to get people saying, well, let's do get
out. And now that we, you know, the treasuries
are being built up in a lot of the communities
across the country, you know, the fight is on.
It would be on. But I think it makes more business
sense to say, well, let's kind of work something
out. And you're not looking for people trying
to, you know, destroy your business plan or destroy
your ultimate, you know, shareholder value. And
it's all within reason. You know, you got to
give some peace. You know, like when you come
to Canada right now, the provinces, you know,
the provincial governments, the federal government,
they ask for taxes. You know, that's a source
of revenue for them. First Nations are not taxing
you, so to speak, but they're asking for a piece
of revenue. Right. So that's what we're talking
about. We're not, you know, trying to take everything
that's been hard earned and created by the company
that's coming into the marketplace. Bernd, I'd
love to keep talking on and on and on. You've
touched on. the great modern history of the country,
current history of the country. And you talk
about Mishner, the law firm and governor general
at one point, Shoal Lake in Manitoba. I was born
in Brandon. That name's very familiar. And of
course the case itself. And so it has been wonderful
to have you on our podcast, Bernd. Rob and I
really appreciate. all the experience you've
shared and our audience will benefit from all
those stories you've told. So thank you very
much, Bernd. It's been a pleasure. Well, Bernd,
it's been great talking to you. Thanks again
for taking the time. I look forward to seeing
you soon. But in the meantime, y 'all can go.
Well, I really appreciate it. Thank you for inviting
me to the program. And, you know, it's a much
needed. Because, you know, the voice of Indigenous
peoples has to be out there. And you've always
had amazing guests and leaders that are well
beyond me that are doing some amazing things.
You know, I think people really appreciate what
you guys are doing. Thank you to Bern Christmas
for sharing his insights with us. And thank you
for viewing and listening. Mark your calendars
for the upcoming 2026 Summit taking place on
the 8th of April. Be sure to share, subscribe,
and leave a review on your favorite podcast channel.
Thanks for listening to Drum Beats. Until next
time.