Indigenous and Northern Affairs Committee on Feb. 16th, 2012

[Chief R. Donald Maracle]

From the band, yes, or we guarantee one at a bank.

[Kyle Seeback, Conservative, Brampton West, ON]

One of the things you mentioned, and I'm just curious—

[Chief R. Donald Maracle]

Our security for the loan is that property. It's no different. We foreclose the way a bank would foreclose. If you don't pay, we'll foreclose.

[Kyle Seeback, Conservative, Brampton West, ON]

A bank can't really go on to reserve land and realize—

[Chief R. Donald Maracle]

The band would foreclose and pay the bank and sell it to someone else.

[Kyle Seeback, Conservative, Brampton West, ON]

Right.

One of things I found interesting in your statement was that you said you're not interested necessarily in the FNLM regime due to land alienation. Can you explain that to me? That was one of the things, not the only thing, certainly.

[Chief R. Donald Maracle]

From what I understand about the First Nations Land Management Act, there is this business of designation, which is really tantamount to surrender of property, and I think because so much of the reserve land base in our community has been lost, from 97,000 acres down to 18,000 acres, anything that resembles alienation is very unpalatable to our people. If there are debts against the property, somebody has to pay that to rid that interest from that property. So people are concerned about whether the lands would be lost forever if it becomes indebted to somebody else.

How would you regain control of your land base? Particularly when you have 8,300 members and there are only 18,000 acres left, there is not much of an appetite to alienate what little bit is left.

[Kyle Seeback, Conservative, Brampton West, ON]

I know a lot of native bands look at ATRs, addition to reserve lands. Is that something you have looked at? Are there any benefits to your community taking that approach?

[Chief R. Donald Maracle]

In our case, most of the land has been illegally alienated by the crown. For example, land has been deeded in fee simple to non-Indians without the crown ever obtaining a surrender, which is required by the royal proclamation, which is part of Canada's Constitution, or which is a requirement under our specific treaty, which is Treaty 3 1/2. So there are a lot of illegalities.

Instead of going through the addition-to-reserve policy, we believe that in those cases where the alienation has taken place without a surrender or a consent of the band and the crown acknowledges that it was illegal, the crown should buy that land back and pay the third party non-native interests there and just simply pass an order in council confirming that it continues to be part of the reserve. It still is part of the reserve until we surrender it, and the land we're talking about in our community has never been surrendered to the crown.

[Kyle Seeback, Conservative, Brampton West, ON]

That's the claim you mentioned earlier, the Culbertson—

[Chief R. Donald Maracle]

The Culbertson Tract. We implemented that model with another 200-acre piece of land in the village of Shannonville. It was called the Turton Penn lease, and by and large the lessees were treated by the crown as though they had freehold title, fee simple title. It was just a lease interest they had, and they were allowed to sell the land to the Department of Highways at the time in the 1960s and before and to trade that property back and forth for the payment of 30 barrels of flour to the band in September of each and every year.

That arrangement wasn't acceptable. They were in default, so we asked the crown simply to buy them out. Our community needed houses, and there were houses there, so the crown got the houses, and we settled it that way. They returned the land, but we have the loss-of-use compensation issue to resolve with the crown.

[Kyle Seeback, Conservative, Brampton West, ON]

I probably don't have a lot of time left.

[The Chair, Conservative, Chris Warkentin]

You don't. I'll give you a few seconds.

[Kyle Seeback, Conservative, Brampton West, ON]

Then there is no point. All right, thank you.

[The Chair, Conservative, Chris Warkentin]

Now I'm going to annoy everybody and take the chair's discretion to ask a couple of questions, if my committee members will allow.

[An hon. member]

Somebody start the clock.

[An hon. member]

Yes, we're starting the clock.

[The Chair, Conservative, Chris Warkentin]

I'm sensing that I'm going to lose my committee chairmanship.

Chief, I don't know whether there's a clarification I need, but just to try to understand the issues surrounding your personal circumstances—because we are studying first nations land management and the ways that different communities do it—my sense is that every community over the long term hopes to achieve some method to remove themselves from the obligations or the tying of themselves to the Indian Act. Obviously, there are a number of different ways that can be done.

Through the First Nations Land Management Act, first nations communities have been able to remove themselves from the obligations of the Indian Act through going into a different act. You've said there are some sensitivities within your community and some resistance to going into that particular regime.

I wonder whether your community has ever contemplated what would have to change within that regime for your community to desire to be part of a regime like that, or whether there's a different regime, a different legal framework, that you would opt into. This is just to get a sense for the committee, because we are looking at it and hopefully are going to make some recommendations about what might be an alternative.

Is it the provisions within the First Nations Land Management Act that might lead to a seizure of land, based on the mortgaging of land or the use of land as collateral to financial institutions? I'm just trying to get a sense of what would have to change or whether there's a desired alternative legal framework.

[Chief R. Donald Maracle]

First of all, I want to say that in terms of the protection of the land there is a continuing treaty obligation, under Treaty 3 1/2, that the crown is to protect that land so that we have safe and quiet enjoyment of that property; this is what the crown guarantee was. We interpret that to mean protected from illegal alienation, protected from environmental contamination that would harm our quiet enjoyment of the property.

The other point would be that the certificate of possession is pretty entrenched. People either have inherited from their families those parcels of land or they have bought them from other band members. The certificate of possession is really deeply entrenched in 90% of the land, so to opt out of the Indian Act and call the certificate of possession a “deed” is simply a name change. It still is the same land, with the same purpose. It's going to be confined by the constraints of the Indian Act. As long as it's a reserve, they're only going to be able to sell that interest to another Indian or to the band collectively.

I would favour maybe a long-term economic lease that was voted for by the community, but which doesn't resemble an alienation, like a qualified surrender of the property.

[The Chair, Conservative, Chris Warkentin]

That's my question. We're going to learn more about the First Nations Land Management Act when we visit with some of the people who have undertaken it. My understanding is that the community then has the authority to do exactly what you're suggesting: enter into long-term economic leases, but having full control and being able to make individual laws.

I guess we'll learn more about that, but I just wondered about the sensitivities that your community has. Clearly, you've found something that works, so I'm not suggesting that things should change, but I was wondering whether there's something that you would suggest you would like to see changed. If not, I—

[Chief R. Donald Maracle]

We're strategically located between the two largest cities in Canada, Toronto and Montreal, and so there could be other economic development proposals struck. For example, if we were to have warehousing, I don't think we would need to alienate the land, as long as there's some certainty that the business could operate that business on that land without going through the alienation process—some sort of enforceable agreement that the lease would continue until, if there's a debt to be paid, it's paid. But there should be nothing whereby there's some kind of alienation, such that we have to provide the money back to the crown, because we may not have it.

[The Chair, Conservative, Chris Warkentin]

Is it your impression that under First Nations Land Management Act there would be the possibility of an alienation, if...?

[Chief R. Donald Maracle]

The people do see it as an alienation, the designated lands, that it is not really reserve land while that function is going on.

[The Chair, Conservative, Chris Warkentin]

So it's a perspective.

[Chief R. Donald Maracle]

And I think it's sensitive because there are only 18,000 acres left and there's a growing population, so the alienation of any more interest in reserve land is something that would not fly with our people.