Protests at Soowahlie First Nation are expected as a non-aboriginal developer in cooperation with the holder of certificate of possession and the Department of Indigenous and Northern Affairs moves to develop a part of the Soowahlie reserve as a housing development for non-members. How is this happening and how can First Nations respond to this possibility on their own reserves in the future?
How is this happening?
Under the Indian Act there is a form of private land ownership close to (but not quite the same as) holding a fee simple interest in land – the certificate of possession. This regime allows band members to hold reserve land for their personal benefit and pass it on after their death, subject to certain limited exceptions. Under s. 58 of the Indian Act a holder of a certificate of possession can apply to the Minister to have the lands leased out and then developed. The Federal Court of Appeal has held that while the Minister owes the band a common law duty to consult the band council does not have veto over such leases. In the Soowahlie case it appears that this is exactly what is happening.
What can a First Nation do to prevent this under the Indian Act?
Even where a certificate of possession has been created – and the band’s ownership control over land has been limited – a First Nation still has governance powers over these lands. Under s. 81(1)(g) of the Indian Act bands are given broad powers to zone reserve land and regulate land uses and businesses. A well-designed zoning and business regulation by-law could significantly limit the ability of certificate of possession holders to undertake developments such as this over the fundamental objections of the band. However, to do this it is best that a band act before a proposal is made as in the context of a specific proposal there is a real danger that the Council will be seeing as acting in bad faith if it appears to be using its powers to target a particular land holder. In using this power councils are bound to basic rules of administrative fairness – which leave them with a great deal of latitude provided that they stay within the basic boundaries of the statute and do not act in bad faith.
Can we go beyond the Indian Act to control this?
First Nations that want to achieve a greater level of control over their lands can do so using the First Nations Land Management Act. This act can allow First Nations to define the rights held by landholders on their land and also transfers much of the Minister’s powers to regulate events like this to the Council or another body controlled by the nation. To do this however, the nation much engage in the rather extended process of developing and approving their Land Code – a process which cannot be short-circuited or done quickly. Additionally a nation should carefully consider whether this is the right path for them as Land Code carries with it costs as well as benefits and it is important to ensure the latter outweigh the former.
Is there anything we can do if a project like this is approved?
In the early stages a nation is always entitled to challenge a decision if the appropriate consultation did not occur or to test if the project approved is beyond that which would be permitted under the legislation. However, beyond court challenges there are still measures that a band can take to regulate and tax projects such as these.
Under the Indian Act there are broad powers under s. 81 to regulate nuisances, disorderly conduct, as well as the use of public infrastructure such as roads and wells. These powers can certainly help to ameliorate some of the more significant negative effects of these sorts of projects and protect the remainder of the reserve. Additionally under the Indian Act (s. 83) and, more generally, the First Nation Fiscal Management Act there are broad powers to levy taxes and impose business licensing fees. These powers can be used to derive significant benefits for the Nation and also to help defray the costs of having or dealing with he benefits and detriments of such on-reserve development.
What is the big picture here?
This situation highlights a ticking time bomb built into the Indian Act. Individual band members often have land rights which may allow them to effectively control the development of important areas on reserves. The Indian Act and related legislation provide tools to control this but they have to be deployed early and usually in advance of a crisis developing. Using these tools can creates a real opportunity for a First Nation to develop a vision for how its reserve lands are to be developed but this is best achieved if these tools are used proactively rather than reactively. Unfortunately, absent existing tax bases and given limited Federal funding to support the development of these by-laws or codes it is often hard for relatively impoverished First Nations that often face daunting administrative workloads already to undertake the work needed to be done to implement these measures.