Indigenous and Northern Affairs Committee on Feb. 7th, 2012

[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, Conservative, Chris Warkentin]

Thank you very much, Mr. Alcantara.

[Dr. Christopher Alcantara]

But like all—

[The Chair, Conservative, Chris Warkentin]

No, I have to jump in, just because we're running out of time here.

We'll turn it over now to Monsieur Genest-Jourdain, for five minutes, please.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Chief Whiteduck, good afternoon.

If I understand correctly what you said in your presentation, currently your community does not adhere to a land tenure arrangement, as presented by government authorities. Are there some environmental considerations justifying your reluctance?

[Chief Gilbert W. Whiteduck]

Our reluctance stems more from the fact that we want to manage ourselves and develop our local capacities for doing things. This is why we sometimes go beyond what the Department of Aboriginal Affairs and Northern Development Canada is prepared to grant us. We have always taken care of ourselves, just as our ancestors took care of themselves. We want to do the same thing.

The environmental aspect is very important in all our discussions, whether at the community level or outside. This is always a major priority issue in planning what we are going to do, be it for economic development, land development or land management, because half of the land is held for the community. As a result, all the lakes, all the forests, all that is properly organized.

We have got a 25-year plan which has been renewed because we want to protect the land. This has been the goal we've pursued. We are doing this for future generations. We always consider the environment, economic development and opportunities that arise. We try to manage all this for the well-being of the community. We do not just think about the present, because it would be easy to cut everything down, make a lot of money and go. We take a long-term view.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

On the reserve, what are the environmental challenges facing you at present? What are the answers and what are the ways you've promoted?

[Chief Gilbert W. Whiteduck]

There are not a lot of environmental issues because we have put in place an internal system in which we try to make regulations. I will give you an example concerning the transfer of contaminated soil.

This year, we observed individuals who have lots in the community that went and got contaminated soil from the village of Maniwaki to put on their allotments within the community. So we wondered what we could do. We contacted Environment Quebec, Environment Canada and the Department of Indian Affairs, but no one wanted to do anything. The soil is now there and it is going to have an impact on the water. We are trying to introduce an administrative regulation to control this sort of situation. We expected that representatives of Indian Affairs, who are always concerned about responsibility issues, would intervene or even that Environment Canada would intervene, but no one wanted to act. That is unacceptable.

So we are going to put in place regulations that will be a bit tougher. We look at what Quebec has already put in place to figure out what we can introduce in the way of regulation. These are examples of what private individuals can so sometimes when they own lots. There have to be regulations.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

What sort of expertise have you developed over the years?

[Chief Gilbert W. Whiteduck]

We have not developed a lot of expertise for lack of funding. We have a biologist who works for us at the community level and we ask him to handle any environmental files where threatened species are involved. We do a lot of research in these areas. We are developing expertise.

As you know, there are environmental factors that may have impacts on the health of members of the community, such as uranium, contamination of the community's drinking water or radon. We really try to remain informed and do what we can with the funding available to us. We also work with the Department of Human Resources.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Thank you.

Mr. Alcantara, I have a fairly short question for you.

I read your summary and I heard your previous presentation. You mentioned the difficulties for a member of the community to go to court to challenge a band council decision. I would like to know whether you know about or are acquainted with the subtleties pertaining to the legal review of band council decisions by the courts. Could you give us more information about to the possibility of a member of the community going to court to challenge an administrative decision by a band council?

[Dr. Christopher Alcantara]

The jurisprudence suggests that customary rights are only enforceable in Canadian courts if they mimic certificates of possession. If they mimic the certificates of possession in terms of how they were allotted and how they are administered and recorded, then the jurisprudence suggests that the Canadian courts will uphold them. Otherwise, customary rights are not enforceable in Canadian courts. In the end, it's up to the band council; the band council has final authority.

This is problematic, because a number of first nations in my research have developed first nation adjudication committees that are separate from and completely insulated from the band council. There have been elders' committees that ensure that you have an equal number of elders from competing families to make certain that decisions are fair. Some first nations have developed very good processes.

My suggestion is for the crown to support these initiatives to help first nations acquire and create the expertise to create legal bodies that insulate decisions from the political system. That means thinking about first nations court systems outside of self-government agreements—first nations court systems whose job is to adjudicate these types of disputes. You might be able to pool resources by creating regional first nations courts that are controlled by the first nations but that are at arm's length from them and would have experts—

[The Chair, Conservative, Chris Warkentin]

Thank you, Mr. Alcantara.

I'm sorry, but we're running against the clock. I'm going to have to pass it on to Mr. Payne for the next five minutes.

We appreciate the information we're getting. This is always what happens when good information is coming: we run out of time.

Mr. Payne, I'll turn it over to you for the next five minutes.

[LaVar Payne, Conservative, Medicine Hat, AB]

Thank you, Chair.

Chief Whiteduck, it's good to see you again. I did travel with the committee, as my colleague Mr. Rickford talked about earlier. Welcome, Councillor Odjick. Welcome to you, too, Professor Alcantara.

Professor, I'd like to build on what my Chris Alexander was discussing with you and the questions he was asking you. In terms of our committee work here, it is extremely important that we get all the information from you on this particular study.

My question for you is how are comprehensive land claims different from first nations property ownership?

[Dr. Christopher Alcantara]

In principle, they're similar. The Nisga'a basically provides the model, because the Nisga'a gained title and jurisdiction through their comprehensive land claims agreement, and then they passed a law that allows for fee simple ownership to occur and that fee simple ownership is going to be registered in a Torrens system.

So our proposal is one that builds off that model and uses that same model, except without the comprehensive land claim. First nations communities could gain title and jurisdiction through this legislation, and then could do the same things the Nisga'a are doing.

[LaVar Payne, Conservative, Medicine Hat, AB]

Some of that usually includes land ownership, money, wildlife harvesting rights, participation in land claims—

[Dr. Christopher Alcantara]

I see what you're saying.

[LaVar Payne, Conservative, Medicine Hat, AB]

—and those kinds of things.

Have you any other comments you'd want to add to that?

[Dr. Christopher Alcantara]

This legislation shouldn't be thought of as similar to comprehensive land claims in that way. It's not comprehensive like modern treaties are, but it achieves in many ways the same purpose, which is to give entitlement, jurisdiction, and certainty of ownership to the first nation community on the reserve.

[LaVar Payne, Conservative, Medicine Hat, AB]

Yes, and many of those agreements do include provisions for aboriginal self-government.

[Dr. Christopher Alcantara]

Right, but ours would not. The proposed First Nation Property Ownership Act would not have a chapter that involves self-government; that would be something that continues to be negotiated under the current federal self-government policy. This simply focuses on property ownership in the narrow sense.

[LaVar Payne, Conservative, Medicine Hat, AB]

What are the advantages and disadvantages with respect to a loan under leasehold estate in comparison to fee simple estate?

[Dr. Christopher Alcantara]

We actually would argue that, first of all, leases are a very powerful and useful economic tool. The difference would be that the process for getting a leasehold interest and then turning that into a mortgage would be more onerous than getting a mortgage or a loan based on a fee simple ownership. The main difference would be simply the acquisition of a leasehold versus a fee simple, and then the leveraging of that. In terms of actually acquiring the mortgage, they both serve the same purpose.

[LaVar Payne, Conservative, Medicine Hat, AB]

So as I understand, the first nations tend to issue leasehold interests and do so much faster than under the Indian Act. I think you may have mentioned that earlier. I can't remember if it was Chief Whiteduck or you. So that's one other thing....

[Dr. Christopher Alcantara]

It should be noted that there are three types of leases under the Indian Act. There is the permit, under subsection 28(2); there is the land designation process, which Chief Whiteduck has talked a little bit about, under section 38; and people who hold CPs can get leases under section 53.

All of these leases, again, are very useful tools for economic development, but they also have problems with transaction costs. Depending on the type of lease, they require either one level of government approving it or two levels of government approving it. So that's one problem compared to the fee simple, where you wouldn't have the multiple levels of approval.

The second thing is that some of the jurisprudence suggests that leasehold interests are worth less than their off-reserve equivalents. There have been a number of cases in the last ten years where the courts have suggested that a discount of up to 50% should be applied to leasehold land on reserves, compared to its equivalent off reserve. That's a big discount. That means that the first nation or the first nation members are going to have to charge 50% less rent than the off-reserve equivalent, where the fee simple ownership wouldn't have that type of problem. The fee simple land ownership would avoid that potential discount.