Chief Gilbert W. Whiteduck (Algonquin Anishinabe Nation, Kitigan Zibi Anishinabeg First Nation): Kwey kakina
. Bonjour. Bon après-midi.
I wish to begin by thanking you for the invitation to address the committee today. I am Chief Gilbert Whiteduck, from the Kitigan Zibi Anishinabeg First Nation, about 130 kilometres north of here. I'm accompanied today by Councillor Wayne Odjick, who has been on the band council, just as I have been, since 2008, although I have served on band councils all the way back to the seventies. I've served at different times.
The community I represent is one of the ten Algonquin communities that make up the Algonquin Nation on whose lands the Parliament of Canada sits. The Kitigan Zibi community I represent was created in 1853. The KZ reserve lands total some 18,438 hectares of land, or approximately 45,600 acres. The initial discussions were that the reserve would be 60,000 acres. There was obviously some funny business in the 1850s. We have a total population of approximately 2,900, with 1,600 members living on reserve. We project that our population will grow to well over 2,000 over the next ten years. We have some 530 households built throughout the community. Homes, with the exception of 20, are owned individually by community members. Some 46% of reserve land is held by certificates of possession, with the remaining 54% considered to be commonly held land for which we have management plans or on which the school is built.
The community has always had a well-structured environmental protection plan for its commonly held lands. We have well over 5,000 CPs registered with the Indian land registry. Some 50% of the reserve was surveyed in the 1880s, with land being divided, even in those years, into individual lots. This process accelerated the movement towards a designation of CP lots.
The reserve has been surveyed, but in the late 1800s there was a strong push by settlers and lumber barons to have the membership surrender some 50% of the community. It was felt at the time that the red man would not make good use of the land. Although well over 1,000 acres of land was taken or stolen in one form or another, with large pieces located in the town of Maniwaki, over 500 acres of this land, or what has now become 23 specific claims, are presently the subject of negotiations with the Department of Aboriginal Affairs. Our goal is to have a speedy and beneficial result for the membership. We are approaching this as what we hope will be a global settlement.
I wish to also note that we initiated discussion with Quebec to add some 24 square kilometres of land to our present reserve, with the land really located in our backyard where our elders grew up. We are hoping that this process will move forward quickly, and subsequently to the federal level with the additions to reserve. This land will allow us to add to our management area and allow us to begin international tourism opportunities. We can only hope that the addition-to-reserve process works to support our efforts and not to create a barrier. We are having a unique discussion with Quebec, because it's not tied to a land claim. It's a discussion we've had with them. They've agreed in principle to making the reserve bigger for a variety of reasons. That is moving forward. We're hoping to have a decree from the Quebec government with regard to these lands by early summer of 2012.
I want to be clear. The attachment we have to the land is at the core of our identity and birthright. Wayne and I and all who have lived in the community were raised and educated to respect the land because the land will always take care of us. Even though CP land designations were in place in the 1800s, the concept of owning land as a commodity has always felt foreign because doing so does not identify with our values.
The Kitigan Zibi community has worked diligently over the past 30 years to develop a long-term management plan for its commonly held lands, and to initiate and assist business development on commonly held lands as well as on individually held CPs. I must say we have been modestly successful, but no doubt much more needs to be done.
I also want to share that I recently worked in a collaborative manner with the Business Development Bank in the development of a project on CP-held land. The development of an agreement took six months but allowed the project to be funded. All parties feel and know that there was a detailed arrangement, which came to entrench an important level of understanding and security. This was done without Department of Aboriginal Affairs involvement, directly with the Business Development Bank.
The analysis of our present land regime by our Kitigan Zibi lands staff concluded that there are many challenges to business development, but it would appear that the Department of Aboriginal Affairs and Northern Development is a bigger challenge than the regulations in the Indian Act. This is not a slight to any individual, but the Department of Aboriginal Affairs machine is slow, often unresponsive, and not helpful. Bottom line, it is more worried about liability than true progress. It is our contention that it is possible to have speed of business under the present system. All it takes is a little vision and creativity.
It is our position that Canada, as the crown, and the provinces do not recognize or respect first nation rights over our ancestral lands. If we were to endorse privatization of reserve lands under any scheme, then this would mean that we are recognizing the present system as legitimate.
The Kitigan Zibi Anishinabeg has endured centuries of lies and thievery by governments and individuals wanting to take the little land we hold according to the crown. There is no doubt that we have reason to not trust government, and also to not trust prophets disguised as first nations who preach from the mountaintop that privatization will turn our lands into heavenly fountains of prosperity. These prophets are walking in their own heavenly clouds and know only the realities that are their own.
I do respect individual first nations communities that decide they want to move forward towards private land ownership. This is obviously their decision to make. But this discussion is forgetting the more inclusive, community-level reality, and questions around lack of resources, capacity for land-use planning, resourcing for land surveying, collective versus individual rights, and how commercial land changes would come to protect and not harm the environment.
Finally, I wish to state that we can't limit our discussion to only our reserve lands, as I firmly believe we must include the unavailable—at least for now—ancestral lands of our community and nation. If development is truly to take place, there needs to be visionary thinking, and that must be founded on respect, honesty, and accountability.
The words I have shared are a very small part of what I have learned growing up and living all of my life in the community. This is but a grain of sand of what was handed down from the teachings and what was recorded in our nation's wampum belts.
All of our efforts must be for the present and future generations, so that they may have opportunities that I and others never had. This I hope for my own children and my own four grandchildren, who all live in the community, and for all Kitigan Zibi children and future generations.
I firmly believe that much is possible with collective willingness.
Dr. Christopher Alcantara (Assistant Professor, Department of Political Science, Wilfrid Laurier University, As an Individual):
Thank you for the opportunity to speak on the issue of first nations land management and sustainable economic development. In general, my research examines how existing land tenure regimes on Canadian Indian reserves limit or facilitate economic development.
A common misconception is that indigenous peoples living on reserves have no individual property rights. Although it's true that ultimate legal title to reserve land resides in the crown, and that Indian bands collectively administer these lands in accordance with the Indian Act, band members, as Chief Whiteduck indicates, actually have access to three types of individual property. The most common are customary rights. The second, less common, are certificates of possession, and then there are a wide variety of different types of leases.
Today, due to time constraints, I'm going to focus my comments on customary rights and CPs, certificates of possession, since I think they create the most drag on development in terms of land tenure regimes, and therefore are in need of possible reform.
The most common form of individual property rights on reserves is the customary right. This type of property right has no direct statutory basis, but instead emerges as a result of either the historical usage of lands by individual members or families, the community recognition of those usage rights, or band council resolutions that either create or affirm these types of usage rights. Once a member gains a customary right to an individual parcel of reserve land, they can do a number of things with it, like build on it, improve it, farm it, sell it to another band member, and in some cases devise it in a will.
However, because customary rights have no statutory basis in Canadian law, their existence is entirely dependent on the support of the band council. In short, this means that the band can determine how the individual uses the land. It also means that the band council can at any time repossess the land for community purposes, like building a school or building another type of community building. Now, if the band council does expropriate the land and expropriate the customary right, the band member has no legal recourse to prevent the band council from doing so.
One of the implications of customary rights for economic development on reserves in terms of advantages is that indigenous communities like them because customary rights are seen as being consistent with their cultural norms. In my interview work with first nations communities in British Columbia, Alberta, and Ontario, members have told me that some communities feel that the band as a whole, rather than the individual, should benefit from the land. The lack of security of tenure of these rights is in fact an advantage in some ways, since if the community needs the land and if it privileges communal ownership of the land, it can easily reacquire it and use those lands for community purposes.
Band members also seem to value customary rights because it gives them a direct connection to their cultural heritage, so there's value there as well. Recall that many of these rights emerge out of historical practices and usage.
Finally, customary rights are advantageous because they're only subject to one level of government, which is the band council. So band members, when they want to use these customary rights, don't have to deal with multiple levels of government and bureaucratic procedures.
Despite these advantages, there are some disadvantages with customary rights. For one, they are not enforceable in Canadian courts. Second, the fact that the band council is the sole authority over customary rights is a potential problem, especially in small communities where politics and personal connections can more easily collide. It's not to say that they always collide, but it's more likely in smaller communities. Third, the lack of security of tenure, because they're not enforceable in Canadian courts, can discourage band members from pursuing on-reserve economic development, since the band council can revoke a customary right at any time.
A second type of property right available to band members is the certificate of possession, and unlike customary rights, CPs in fact do have a statutory basis. They're actually found in the Indian Act, and as such, they are in fact legally enforceable in Canadian courts, so they have much stronger security of tenure. To get a CP, a band member usually applies for one from the band council. Once the band council decides to allot the CP to the band member, the CP must be approved by the Minister of Aboriginal Affairs. Once approved, the band member is basically issued the CP and gains, in the language of the Indian Act, “lawful possession” to an individual tract of reserve land.
Much like customary rights, CP holders can use their land for a variety of purposes—build a house, build a farm, or put up any other building on their property—but unlike customary rights, they can actually use their land without any fear of squatters, or the band council, or any other third party interfering with their lands. So the security of tenure is much stronger than the customary right.
Besides creating positive incentives for individuals to maintain their land and use it to generate economic activity, the security of tenure that's inherent in CPs provides other important economic advantages.
Some of the obstacles to economic development on reserves are sections 29 and 89 of the Indian Act, which constrain band members from mortgaging their reserve lands, or to obtain mortgages on the basis of their reserve lands, to build housing or start a business.
Now, a number of first nations have found innovative ways to get around these obstacles by transferring their CPs to the band council, for instance, for the life of the mortgage or the loan. The band council will hold the CP for the life of the loan. In the event of a default by the individual member, the band council will then either absorb the monetary loss, if the band was the one that lent the money to the band member, or it will pay off the bank, if the bank provided the mortgage or loan. Then the band council would sell the CP to another band member to sort of help make up for the money lost in the defaulted loan.
The key to success here in getting around these major obstacles—sections 29 and 89 of the Indian Act—is the security of tenure provided by the certificate of possession.
Now, CPs, despite their many advantages, also have disadvantages. For one, they can only be transferred between band members, meaning that the property markets on these reserves tend to be relatively small. Second, and more importantly, CPs are subject to what are called “significant transaction costs”. In other words, the amount of red tape attached to using CPs can be actually quite staggering because of the need for due approval. You need to get the approval of the band council, but you also then need to get the approval of the aboriginal affairs minister.
At Six Nations, for instance, in Ontario, the average time to process a CP transfer between band members—this was four years ago, when I did this research—could range anywhere from three months to a year. In some instances, transfers have taken much longer, ranging from a year to, in one case, eleven years. The delay at this point was in Ottawa.
So although CPs provide members with more economic tools, with stronger security of tenure than customary rights, they are still limited by significant transaction costs as well as by restrictions on to whom CPs can be transferred. They are limited to being transferred between band members.
In short, aboriginal peoples on reserve do have access to a range of individual property rights, and all of these property rights have advantages and disadvantages. My analysis has been a very narrow one, which is to look at the security of tenure of these regimes and the transaction costs involved in using them. I just want to make it clear that this is the frame I'm using.
In general under this frame, the property rights, in my view, pose a significant constraint on sustainable aboriginal economic development, either because the security of tenure is weak, in the case of customary rights, or the transaction costs of using them are high, in the case of certificates of possession.
Based on this analysis, I would make the following recommendations. I've grouped them in terms of two categories. One is a set of recommendations on how to strengthen and improve existing property regimes under the Indian Act. The second grouping would be on how to create new property regimes that are separate and perhaps more efficient and effective than the current Indian Act regimes.
The key to all of these suggestions, however, is not to impose these reforms on first nations. I think history has taught us about the negative impact that has and how well that works. The key is to listen to what first nations want and need, what individual first nations want and need, and to work with them to develop appropriate solutions to their individual contexts.
In terms of the first category of reforms that I'm suggesting, in terms of improving existing property regimes under the Indian Act, my first suggestion is to work with those first nations who want to in order to strengthen the security of tenure of customary rights. So first nations that want to strengthen the security of tenure of customary rights should be given government support in the form of money and in the form of expertise to more fully document their customary rights.
Right now, the way in which customary rights are recorded across the country really varies, from very formal documents with all sorts of surveys and detailed information to places where there is no documentation at all, except for whatever the community holds as an informal collective memory of “who owns what”.
Along with better documentation, I would suggest the federal government consider helping interested first nations to develop band council resolution models that treat customary rights as binding written contracts that list comprehensively all the information about the land: who owns the land, a survey of the land, the types of activities that the band member is permitted to do on the land, and a clause that specifies under what conditions the band can expropriate the land and revoke the customary right.
Then the federal government should also support interested first nations in developing band-created or, perhaps better yet, regional first nation land adjudication committees, or first nation courts so that land allocation decisions and land dispute resolution decisions are made by an impartial legal body created by first nations rather than by political bodies.
That's for the customary rights. In terms of improving the certificate of possession system, I would suggest eliminating ministerial and perhaps band council involvement in CP transactions, not in terms of allotting but certainly in terms of using the CP, and being able to sell it and subdivide it. In my view, these restrictions are unnecessary and create significant drag on the time it takes to transact a CP. As well, I would suggest working with those interested first nations to allow band members to be able to transfer CPs out of the band to other band members from selected different reserves, in the hope of creating perhaps a more efficient and larger marketplace. The first nation would obviously decide which other first nations those lands could be transferred to, but the land would stay within first nations.
Finally, I would consider changing the land registry system that we use right now for CPs in Ottawa, which is an awful system, quite frankly, to a Torrens land registry system, which is much more secure and searchable than the current one.
So those are my suggestions for improving existing regimes in-house within the Indian Act, but I would also suggest that we consider proposals for alternatives to the Indian Act regimes. I think the federal government should encourage first nations to work with the crown to develop parallel land management and parallel land tendering legislation that would sit alongside the Indian Act and which first nations could voluntarily opt into, which would mean that those first nations who did so would no longer be subject to the land management provisions of the Indian Act.
A good example of this that's already in practice is the First Nations Land Management Act, which was an initiative of 11 and later 14 first nations. The first nations wanted this parallel legislation, and under this legislation the first nations are allowed to develop their own land codes for managing their property rights in more culturally and locally sensitive ways.
Another example that's currently working through the system is legislation being developed by Chief Manny Jules. The First Nations Property Ownership Act would involve first nations voluntarily opting in to this legislation to gain first title and jurisdiction to the reserve lands. So the crown would transfer title and jurisdiction to the first nations, who would own these lands forever. Then the first nations would have the ability to allot fee-simple ownership rights to their members. They could allot 10% of the land, 50% of the land, or none. It's up to them. And then these rights would be registered in a new national Torrens land registry system controlled and administered by first nations.
In short, I think two of the main obstacles to economic development on Canadian Indian reserves is the lack of security tenure and/or the high transaction costs inherent with the property rights under the Indian Act. Solutions should try to address these two problems, not only by strengthening the property rights in the Indian Act for those first nations that want to, but also encouraging first nations to develop and opt into parallel legislation that provides them with new forms of land tenure to pursue economic prosperity in this country.
Dr. Christopher Alcantara:
Thank you for the questions.
On the first one, concerning selling the land versus collective rights, I will echo what Chief Whiteduck says, which is that the proposed First Nations Property Ownership Act is not for all first nations. That's clear. We're not saying this is a panacea that all first nations are going to want; it's going to be for those first nations that want it. This is something Chief Jules has found. He has found that there are ten first nations that are interested.
I think there are going to be some first nations that want to use it, and we should not get in their way. We should help them towards attaining it; we shouldn't force other first nations to adopt it. There are going to be strong cultural reasons for their not wanting the proposed First Nations Property Ownership Act. Also, in remote areas fee simple rights aren't going to be a solution, as Chief Whiteduck says. I fully agree.
That deals with the first question.
Concerning the second question, on who decides about reforms, I was trying to make clear in my presentation that it's the first nations. This is not something the crown should be suggesting, and certainly not academics. Instead, the crown needs to work with first nations and leave the ultimate decision up to them. That's why I like the idea of the First Nations Land Management Act. I like the idea of the proposed First Nations Property Ownership Act. It is different groups of first nations that have come up with these ideas and have approached the federal government about creating this parallel legislation.
This is the approach the crown needs to take: it needs to be open to different proposals coming from different groups of first nations. You could conceivably have three or four or five competing, parallel pieces of legislation all on the same issue, which would allow all sorts of choice for various first nations in differing contexts to make decisions.
In terms of the fee simple interest, the proposed First Nations Property Ownership Act is again not my idea; actually, it's an idea of Chief Manny Jules. Indeed, when I wrote those papers with Tom Flanagan, our research was basically critiquing the existing Indian Act property rights. We had no proposal for what should replace it, except for the first set, wherein I suggested we strengthen the property rights.
Some of the proposal for this type of fee simple model, whereby title and jurisdiction would be transferred to the first nation and fee simple rights could be granted on small portions of the land, was not our idea; it was Chief Jules's idea—it's a first nations idea.
We believe it can benefit both first nations and non-aboriginal people. Creating larger markets, in some instances and some contexts, can be a very beneficial thing for first nations.
Dr. Christopher Alcantara:
In terms of how many are interested, the initial number is ten. According to the last time I talked to Chief Jules, it was ten.
That number is quite normal. The First Nations Land Management Act, which has now 40 first nations, and with more getting more interested in it, started with 14 and then expanded to 40. We see the same thing. Right now we have ten, and that's a place to start. As these ten first nations go through the experience of this, we expect that other first nations, as they're ready and as they watch this experiment, may decide to join.
Actually, you know, this system already exists. The Nisga'a in B.C. are in fact the pioneers in Canada. Chief Jules's proposal is built off of that proposal. The Nisga'a signed a land claims agreement and now have created great fee simple interest in their land. So they're already doing that.
The Sechelt have this right to do it, but they have never done fee simple, mainly because they don't have that underlying title and jurisdiction. Without that underlying title and jurisdiction, they've been reluctant, but we've been told that perhaps with underlying title and jurisdiction, they as well would be interested.
So there are ten right now but there's the potential to grow, much like what happened with the First Nations Land Management Act.
In terms of credit, yes, first nations have shown extreme innovation in finding ways to get around the restrictions using CPs, such as using the revolving loan fund that Chief Whiteduck suggests, using band guarantees and ministerial guarantees. In Kahnawake they use a trustee system, a three-person trustee system.
So they've found very innovative ways to do that, and that's great. The fee simple process, the fee simple ownership, would streamline that process even more. It would increase the efficiency under which individuals would be able to access credit.
Again, this is all about empowering first nations individuals. In the words of Chief Jules, this is about unlocking the “entrepreneurial spirit” of first nations. In his foreword to our book, he talks about how his ancestors were great capitalists. If you think about the trade routes that existed among first nations communities pre-contact, these trade routes were extremely extensive and extremely economically efficient and beneficial.
So with this legislation, he wants to unlock—and this is one way, not the only way, but one way—this entrepreneurial spirit again. And our analysis agrees: fee simple for some first nations will have this effect of unlocking the economic entrepreneurial spirit that already exists and will make it easier for first nations individuals to go out and leverage their lands into economic wealth.
The Chair: Thank you very much, Mr. Alcantara.
Dr. Christopher Alcantara: But like all—