The federal Conservative government announced in the March budget its “intent to explore” with interested First Nations the option of proceeding with legislation that would allow more than 600 First Nations communities to voluntarily introduce private property ownership on reserve lands.
The legislation is now being drafted and is expected to be introduced in the coming months, although federal officials say it won’t be tabled this fall.
The government and some First Nations leaders believe allowing private property ownership on reserves could trigger new housing and economic development for aboriginals across Canada.
But many aboriginal leaders — including newly re-elected Assembly of First Nations national Chief Shawn Atleo — strongly oppose the initiative. They fear that transferring property rights could lead to non-natives controlling First Nations land, and some worry the legislation is an attempt by Ottawa and the provinces to seize control of lucrative petroleum and mineral rights on reserves.
“This act is essentially a big oil and mineral land grab. This contemplated legislation isn’t in any stretch of the imagination for our own benefit,” said Pam Palmater, academic director of the Centre for Indigenous Governance at Toronto’s Ryerson University and runner-up to Atleo in the race for AFN national chief.
“This is how you transfer ownership from First Nations to (pipeline) and mining companies,” she added. “It’s fairly obvious. We all know what Harper’s policy and economic plans are.”
Palmater, who has encouraged First Nations chiefs to take a much more aggressive approach with Ottawa, believes the purpose of the contemplated federal legislation would be to change property ownership rules for First Nations that ultimately eliminates the constitutional protection on aboriginal lands.
Currently, First Nations reserve lands are controlled under federal jurisdiction through the Indian Act, and they’re held collectively, meaning no one can individually sell a piece of land to a private company.
The legislation would be based on what’s called a “fee simple” approach, which would allow for full land ownership on reserves. The change would enable First Nations to voluntarily divide reserve lands into individual parcels that could be bought or sold. Palmater worries it also could be expropriated — along with the resources.
“We know exactly what Conservative code word means, and unlocking (economic potential) means unprotecting,” she said. “That’s the whole purpose of this. Canadians don’t have constitutionally protected lands. We do.”
Jody Wilson-Raybould, AFN regional chief for British Columbia, said the Conservative government’s budget implementation legislation, Bill C-38, was already a huge issue to aboriginal communities because it overhauled such things as environmental assessments and the Fisheries Act.
An expected onslaught in major natural resource developments on or around First Nations property across the country is sparking concerns as to whether governments and companies are trying to pry valuable resources away from aboriginal communities, she said, although it remains unclear exactly what the legislation would do.
“There is concern. There’s questions as to different governments’ intentions. We’re certainly in a period of time where the federal government’s legislative agenda is hugely challenging for First Nations,” Wilson-Raybould said.
“The conflict exists out there and the reality is that there’s all this onset of unprecedented major development, the reality exists that there is potential conflict that’s going to increase and (jurisdictional) uncertainty that needs to be resolved.”
A spokesman for Aboriginal Affairs Minister John Duncan said First Nations are interested in exploring private property ownership on reserves, but discussions around what could be included in legislation governing First Nations private property are premature.
“There are no plans — at this time — to introduce legislation. We will continue to work with First Nations on this initiative,” Jason MacDonald, director of communications for Duncan, said in an email.
But Tom Flanagan, a political scientist at the University of Calgary who specializes in First Nations issues — and a one-time chief of staff to Stephen Harper — said he has seen a draft of “the First Nations Property Ownership Act” and that a working group is helping the government craft it.
“They’re far advanced in the drafting,” he said, expecting the government will have draft legislation soon. When the bill is actually introduced will be a political decision left up to the government, he noted.
Flanagan said there are several misconceptions about the upcoming legislation. He rejects suggestions that it could allow pipeline and energy companies to easily scoop up land needed for major developments on First Nations lands, or that provinces would take some jurisdictional control over the lands and resources.
He expects there would be two stages to private property ownership on reserve lands. First, the “fee simple” title would be transferred from the federal Crown to a First Nation collectively, including the mineral rights.
The First Nation could then — if it wished — confer the titles and parcels of land on reserve members, leaving it up to the band to determine whether the property would include mineral rights. Reserve members who are granted the fee simple title could sell it to anyone they wanted outside the band or they could lease it, he said.
He said First Nations could voluntarily opt in to the private property ownership and would still control resource projects on their lands, explaining it would, for example, make it easier for a band to invite a developer on to their lands for a mining project.
“They would get their own control over their own decisions of whether to develop any minerals,” Flanagan said. “Nobody says they have to. It’s their decision.”
Manny Jules, chief commissioner of the First Nations Tax Commission, said the new legislation is needed to “free dead capital” on reserve lands by allowing aboriginals to own their own home and start a business — which would reduce their dependence on the federal government.
Fee simple ownership would make it easier for First Nations to pursue mining, forestry and petroleum developments on reserve lands that could see aboriginals seek equity partnerships with companies that produce ongoing revenues and economic development, he said.
“It’s an incredible opportunity for First Nations,” Jules said. “This changes the way business is going to be done on our lands.”
Original Article
Source: ottawa citizen
Author: Jason Fekete
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