Sunday, June 1, 2008

Chilwin is leaving Market Regulation Services Inc. and is looking for new opportunities

Friends, family, and colleagues:

I am leaving Market Regulation Services Inc. (RS) on August 28, 2008.

As many of you know, for the past three years, I have been RS's Chief Enforcement Counsel and for the past two years, also its General Manager, Western Region. As of June 1, 2008, RS will merge with the Investment Dealers Association of Canada to form the new Investment Industry Regulatory Organization of Canada (IIROC). IIROC will consolidate its executive legal function to Toronto and has selected a good friend and colleague of mine to be the regional executive for Western Canada. I declined IIROC's offer to serve as the Director, Market Regulation, Western Canada and have chosen to pursue other opportunities.

To facilitate a successful transition to IIROC and allow them to recruit a new Director, I have agreed to stay until the end of August to manage the Market Regulation team and advise the new Vice-President. On a personal note, this time will also enable me to finish my MBA thesis before I begin a new opportunity.

I would appreciate any leads for short or long term consulting projects, legal retainers, business, or employment opportunities to which I can contribute. While Lisa and I will stay in Vancouver, I am available for consulting or legal projects and retainers outside British Columbia. I believe that my legal, managerial, and executive background, with special knowledge and skill in competitive strategic analysis, law, and regulation, makes me a compelling value proposition for potential clients or employers. As many of you know, I have successfully started and grown a small business, led functional teams, led enterprises, and have successfully completed many consulting projects on a diverse range of topics ranging from industry analyses, board governance, and strategic planning….not to mention a successful career as a litigator.

Let me know if I can send you my resume. I will also post my resume on Facebook and post my career information on LinkedIn.

Thank you.

Sunday, December 23, 2007

Chilwin's Book Recommendations for Spring 2008

Well, the new year approaches and a whole series of books beckon to be read. This time around, I am recommending skill-based management books. These are the books I think I'll be turning to in the year ahead. You'll notice that my list for the spring focuses on books on skills: management, critical thinking, negotiation, and others rather than big ideas. I'm focusing on skills that I think I'll be relying a lot on in 2008:

1. Why Not? Barry Nabeluff, et al., a fantastic book on creative thinking, asking different "out of the box" questions, and using questions to analyze and lead, definitely Fresh Thinking. So often, we think of managers and leaders as providing "The Answer" or coaching other people to find "The Answers". In this book, Nabeluff and his co-authors help all of us use Questions, not Answers, to create innovation. In a world obsessed with innovation, here is a book that gets to the necessary skill to create innovation, asking good questions.

2. Beyond Reason, Barry Fisher, from one of the founders of Interest Based Negotiation and the Harvard Negotiation Project, comes an excellent book about how to use emotions constructively during a negotiation. This is a particularly interesting read given Ury and Fisher's contribution to the rationalist school of negotiation. This book is a particularly good build on the Harvard Negotiation model, building even more on the themes expressed in Getting Past No. Fresh Thinking for anyone who negotiates for a living or in life.. meaning pretty much all of us.

3. Competitive Strategy: Michael Porter .. an MBA classic, but one I'll be turning to a lot as we approach a potential Federal and Municipal election. Porter's timeless classic for business students provide Fresh Thinking to people responsible for election and political results.

4. The Effective Executive, P. Drucker: this timeless classic seems to be overshadowed by all of the fashionable business books in print today. However, I have yet to read a business book yet that has raised a topic that has not been addressed by the Grandfather of the management and leadership discipline before. I'm going to be leading my team at work through some significant changes in 2008 (and who isn't going through some kind of change). For these major changes, I'll be looking for Fresh Thinking by re-visiting this timeless classic.

I would love to hear what books you have read or plan to read. Let me know!

Wednesday, January 3, 2007

Canadian Aboriginal Rights and R. v. Sappier

The Supreme Court of Canada recently decided that two men in the maritimes of Canada had an aboriginal right to cut timbers without a provincial license to harvest wood: In its decision, the court relied on my article: Cheng, Chilwin Chienhan. “Touring the Museum: A Comment on R. v. Van der Peet” (1997), 55 U.T. Fac. L. Rev. 419.

An excerpt of the Court's summary of the judgment is as follows:

The respondents, S and P who are Maliseet and G who is Mi’kmaq, were charged under New Brunswick’s Crown Lands and Forests Act with unlawful possession of or cutting of Crown timber from Crown lands. The logs had been cut or taken from lands traditionally harvested by the respondents’ respective First Nations. Those taken by S and P were to be used for the construction of P’s house and the residue for community firewood. Those cut by G were to be used to fashion his furniture. The respondents had no intention of selling the logs or any product made from them. Their defence was that they possessed an aboriginal and treaty right to harvest timber for personal use. They were acquitted at trial. S and P’s acquittals were upheld by the Court of Queen’s Bench and the Court of Appeal. G’s acquittal was set aside by the Court of Queen’s Bench but restored on appeal. G did not pursue his treaty right claim before the Court of Appeal or before this Court.

Held: The appeals should be dismissed. The respondents made out a defence of aboriginal right.

Per McLachlin C.J. and Bastarache, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ. Aboriginal rights are founded upon practices, customs, or traditions which were integral to the distinctive pre‑contact culture of an aboriginal people. Here, the way of life of the Maliseet and of the Mi’kmaq during the pre‑contact period was that of migratory peoples who lived from fishing and hunting and who used the rivers and lakes of Eastern Canada for transportation. The record also showed that wood was used to fulfill the communities’ domestic needs for such things as shelter, transportation, tools and fuel. The relevant practice in the present cases, therefore, must be characterized as a right to harvest wood for domestic uses as a member of the aboriginal community. This right so characterized has no commercial dimension and the harvested wood cannot be sold, traded or bartered to produce assets or raise money, even if the object of such trade or barter is to finance the building of a dwelling. Further, it is a communal right; it cannot be exercised by any member of the aboriginal community independently of the aboriginal society it is meant to preserve. Lastly, the right is site‑specific, such that its exercise is necessarily limited to Crown lands traditionally harvested by members’ respective First Nations. In these cases, the respondents possessed an aboriginal right to harvest wood for domestic uses on Crown lands traditionally used for that purpose by their respective First Nations. ...

Courts must be flexible and be prepared to draw necessary inferences about the existence and integrality of a practice when direct evidence is not available.
A practice undertaken for survival purposes can be considered integral to an aboriginal community’s distinctive culture. The nature of the practice which founds an aboriginal right claim must be considered in the context of the pre‑contact distinctive culture. “Culture” is an inquiry into the pre‑contact way of life of a particular aboriginal community, including means of survival, socialization methods, legal systems, and, potentially, trading habits. The qualifier “distinctive” incorporates an element of aboriginal specificity but does not mean “distinct”. The notion of aboriginality must not be reduced to racialized stereotypes of aboriginal peoples. A court, therefore, must first inquire into the way of life of the pre‑contact peoples and seek to understand how the particular pre‑contact practice relied upon by the rights claimants relates to that way of life. A practice of harvesting wood for domestic uses undertaken in order to survive is directly related to the pre‑contact way of life and meets the “integral to a distinctive culture” threshold. [38] [45‑48]

The nature of the right cannot be frozen in its pre‑contact form but rather must be determined in light of present‑day circumstances. The right to harvest wood for the construction of temporary shelters must be allowed to evolve into one to harvest wood by modern means to be used in the construction of a modern dwelling. The site‑specific requirement was also met. The Crown conceded in the case of S and P and the evidence established in the case of G that the harvesting of trees occurred within Crown lands traditionally used for this activity by members of their respective First nations. [48] [52‑53]


I am happy that the court chose to adopt an aboriginal right that recognized that aboriginal rights must evolve from their pre-contact forms. I however maintain the concern that I expressed in my earlier article. The Court is requiring Aboriginals to define how their culture is "distinct" from other forms of community life. This still requires Canada's First Nations to define themselves based on their differences from the rest of the society rather than an acknowledgement that First Nations can pursue cultural and community activities simply because they can as quasi-sovereign communities which existed before European contact and the foundation of English common law and asserted jurisdiction.

On the other hand, I hope that this kind of decisions lays greater groundwork for Canadian governments and First Nations to reach agreements and accomodations that are based on our mutual and common interests rather than continuing to drive cultural wedges between communities. While such a development may help in healing past injustices, it makes it more difficult to achieve future reconciliation.

Monday, January 1, 2007

What is justice?

Responding to the hanging of Saddam Hussein, the Globe and Mail (one of Canada's major newspapers) stated in its editorial today that despite the paper's editorial opposition to capital punishment, justice was still done. Earlier in the article, the editorial argued that capital punishment was wrong. It then argued that there could be no doubt that Mr. Hussein was an "evil" man and had committed numerous crimes against humanity. Therefore, there was greater assurance that the Iraqi sovereign killed a man justly, without a doubt of innocence. This seems a poor reason to compromise one's moral opposition to capital punishment, no matter where it happens in the world and to whom.
Let me be clear. Mr. Hussein's actions seems well documented. Assuming that the allegations of his crimes against humanity could be proven, he deserves justice. However, you either oppose capital punishment or you don't. I would have rather seen the Globe wrestle with the notion of the extent to which one country or the international community must respect the political and legal choices of a separate sovereign community. I would have respected that kind of position, while still disapproving of the result. But, I believe the Globe undermined the integrity of its argument and did public discourse on the issue of capital punishment and the role of the international criminal justice system a disservice.

Sunday, December 31, 2006

Nonprofit Boards are inherently flawed in today's world

Today, the nonprofit sector spends a lot of time wondering why boards don't perform well. Many articles in academic peer reviewed journals and trade journals focus on descriptive and normative discussions that describe the phenomenon and propose solutions. Often, these solutions involve steps to improve recruitment, retention, identification, and training of Board members. Some organizations often try to offer courses to educate board members about their legal obligations, with a view to scaring them into better activity. This is just wrong-headed and it's clear that this approach has not produced the right kind of results for nonprofits. I think there are a couple of key problems (I've used Canadian terminology since this is where I'm writing from, but my thinking would work in all sorts of legal venues).
The corporate model of structuring a nonprofit organization, in Canada often called a Society, is an inherently poor way of organizing nonprofit activity. There are three specific problems:
1.The Society model inherently attracts directors who do not possess the necessary skills to govern corporate activity and who are biased towards providing less than time and effort than is required to govern an organization effectively.
2.The Society model inherently fails to provide directors with the necessary incentives to govern corporate activity effectively.
3.The Society creates an environment in which members and other interested stakeholders have insufficient incentives to monitor directors and management properly.
•There are three roots of these problems:
1.a corporate form of organizing activities that separate ownership, production, and consumption, without creating or identifying any owners;
2.extreme asymmetry of information between management (the producer of nonprofit services) and the directors and members (the notional owners of the nonprofits); and
3.the corporate form creates insufficient incentives for individual stakeholders of a nonprofit to monitor management and directors.