Taking a Further Look at the Research Supporting the Push for First Nations Property Ownership Part Two...

 So what have we established?  Apparently it’s ok to attack the effective self governing efforts of other First Nations through misinformation and outdated inaccurate “research” to prop up a controversial concept for reserve lands.  Also, it appears that the government  is more than willing to heap millions of dollars  to  fuel this spectacle.

It is truly a shame that things had to proceed in this fashion.  I want to believe that this approach was wasn’t intentional, but the sheer amount of vitriol coming from the proponents of the First Nations Property Ownership Act (FNPOA) aimed at other First Nations is undeniable.  This really came out of left field and in “droves” starting in March of 2010.  No advance warning seemed to be forthcoming, nor has this rhetoric done much to build advocates for FNPOA.  On the positive side, I guess it’s good to know what certain people, consultants and organizations really believe.

Let’s have a look at some more of the glaring inaccuracies presented by various “Experts” supporting FNPOA from recent conferences. (If you haven't already seen them, I have attached the source material for download below)

Author/Source

Inaccurate and/or Outdated Statement

Fact

Fiscal Realities – Presentation Property Rights, Governance, and Property Values March 15, 2010 (IPTI, Victoria) and October 20, 2010 (FNPOA, Vancouver)

(referring to an Aerial shot of the City of Chilliwack and 3 First Nations: Squiala, Shxwha:y, and Tzeachten are either depicted and/or immediately adjacent)

 

“You can see that there is no development on First Nation lands compared to the municipality of Chilliwack...This is because it costs 4 to 6  times more to do business with these First Nations than off reserve.  Why would anyone want to pay 4 to 6 times more for something?  Why would developers want to go there at 4-6 times the cost?”

First of all, not all First Nations aspire to fully develop their lands.  Many First Nations seek to protect and ensure measured, responsible development consistent with their own vision and on their own terms.

 

Second, a large portion of the lands depicted are undevelopable because of a flood plain.

 

Third and likely more important,

Tzeachten, Squiala and Shxwha:y all have self governing land regimes outside of the Indian Act.  Compared to the Indian Act, transaction costs have either been drastically reduced or eliminated.  It does not cost 4-6 times more to do business with these First Nations.  The actual (fiscal) reality is, that many developers have recognized and are taking advantage of this much improved business climate.  

 

The individual members and governments of Squiala and Tzeachten have numerous multi-million dollar business and housing developments with partners such as Wal Mart, Galaxy Cinemas, Home Depot, Avonlea, Royal Bank, Save on Foods, Genica, Gulf Pacific, and Halcyon Meadows to name a few.  These have already either been completed or were in the works at the time of these presentations.

Lang Michener – Best Practices in Land Administration Systems (2007)

Included the FNPOA October 2010 conference package

Page 11, “Specifically, the powers conferred on the Crown to create a new First Nations Land Register provide an opportunity to create a registry that addresses the problems inherent in the Indian Land Registry and could require survey for all reserve lands including lands subject to Certificates of Possession As the regulations relating to the register (FNLRS) have not been created, it is yet to be seen whether issues raised above will be successfully addressed.

Regulations pertaining to a separate registry for Framework Agreement First Nations (FNLRS) were actually created in 2007.   A significant and major achievement.

 

The FNLRS regulations were jointly developed by First Nations, government and the finance/banking industry.  Notable  improvements over the Indian Act registry include:

  1. Paperless, Instant Registration
  2. Priority Based
  3. Allows for title insurance
  4. Backed by Regulation not policy

 

Page 12 “However, it should be understood that by passing a land code, a First Nation ends up in the absurd situation of managing and regulating the lands on behalf of the Crown on behalf of themselves”

This is just plain wrong, First Nations with Land Codes are not agents of the crown, nor is the Crown liable for acts and/or omissions of the First Nation. 

 

In addition, I don’t get why this is absurd...aren’t all lands in Canada subject to the Crown???  The only difference would be that First Nations with a land code can make their own laws with respect to their lands and resources. 

 

Page 13 “Legal title to the land remains vested in the Crown, and, as in the Indian Act, the land cannot be sold, mortgaged, charged or taken through legal process.  For this reason, the FNLMA does not permit First Nations to utilize for their benefit the capital tied up in reserve lands.”

Both Tzeachten and Westbank First Nations have mortgaged and sold  leasehold interests at or above market value of surrounding non reserve lands.

Many other Land Code FNs have followed suit.  Why would anyone want to risk losing their lands if they don’t have to? 

FNTC – Who should own reserve lands (2010)

Included the FNPOA October 2010 conference package

Page 7 “In summary, designated land, leasing and the FNLMA have been helpful in promoting on reserve, largely band owned economic development....However, these innovations provide relatively little direct benefit to First Nation individuals, depend on exceptional economic advantages and are not able to solve many problems such as matrimonial real property disputes and limitations which First Nation individuals face as a result of not holding title to their property.”

KPMG (2010) has found that the Framework Agreement has increased internal and external investment in First Nation communities by over $100 million, the majority of these businesses being First Nation member owned.

 

Also, the Framework Agreement requires all First Nations to enact matrimonial property laws.  Framework Agreement First Nations were the first in Canada to legislate such laws on their reserves. 

 

At both the International Property Tax Institute conference (IPTI) in Victoria March 2010 and the FNPOA conference in Vancouver October 2010, I watched several First Nations Chiefs and other representatives react with shock and insult as a so called expert on indigenous economies presented faulty research and warned the room not to work with self governing First Nation communities.  These audiences were largely made up of unquestioning, non indigenous local, municipal, provincial, federal and international government and business people.  The chiefs, councillors and land managers from the scorned communities expressed their dismay in writing regarding the lack of research accuracy, possible ruin to their reputations and current economic development ventures under negotiation.  The reaction from FNPOA proponents has been “No offense was intended”.   It is unclear what this response means, since no reference  to correct the offending information was made. 

Furthermore, a word of caution to those analysts, both legal and non, who continually reference to the FNLMA and not the Framework Agreement on First Nation Land Management as being the guiding document.  The danger of only relying on ratifying legislation as a sole source of information is to completely miss the detail, spirit and intent of the actual agreement.  The FNLMA “ratifies and brings into effect the Framework Agreement” this is the first line of the FNLMA.  The Framework Agreement is the contract between First Nations and Canada, not the ratifying legislation.  The contract is what is being implemented and adhered to by the parties.   The ratifying legislation can be deceiving by simply repeating certain aspects of the Framework Agreement and leaving out other important parts. 

According to this recent article (click here) First Nations Property Ownership is gaining momentum....just one question, who is Cathy and Mcleod? 

Unfortunately, there is more to come, thanks for reading!

Quick fact, there are 33 First Nations that have passed their own self governing “Land Codes” under the Framework Agreement, another 10 in development and approximately 70 on the waiting list.

 

 

 

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