Winnipeg Free Press - PRINT EDITION

First Nations ownership idea solid

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In its March budget, the federal government announced it would move to open Canada's native reserves to private ownership. The Globe and Mail reports legislation is coming that would allow First Nations to voluntarily adopt what for most Canadians is a natural right to own a house and the property beneath it. The legislation is in line with the Harper government's intent to gradually unwind the Indian Act's archaic and destructive hold over native people who live on reserve.

The act keeps reserve land communal, held in trust by the Crown for band members. It forbids any sort of lien or guarantee, such as those sought by banks when mortgages are written. The fact that the vast majority of reserve residents live in houses they cannot own outright, on land they cannot hold title to, has been an enduring symbol of the paternalistic regime under which First Nations people live.

While there are exceptions, generally houses are built by bands and allotted to members by the band administration. Few residents have certificates of possession, which can protect them from being arbitrarily ousted from the home. But those certificates are of limited value as they can be transferred only to another band member.

The inability to own a house or the property it sits on means most people on reserves cannot use the value of the house or the land on which it sits as an asset to finance improvements because no bank without enforceable claim in the event of default will grant a loan. Bands are similarly strangled when seeking to develop economic potential on reserves.

Few residents pay rent or taxes, and mortgages are rarely taken, although there have been numerous pieces of federal legislation to encourage all of these on reserves. It is possible for a reserve resident to take out a mortgage through a special provision called a ministerial loan guarantee, which puts a band on the hook if payments are defaulted on.

Manitoba's Opaskwayak Cree Nation has had success using this scheme, with a stellar repayment rate and dozens of homes owned by individuals. A mortgage that permits a resident to build means owners, not the band or CMHC, decide the layout of the house, the colours of the walls and when repairs happen and how.

But such legislative provisions to opt out of the Indian Act's constraints have their drawbacks. The paperwork is considerable and the property under the house cannot be owned, although it can be leased, long-term.

The Nisga'a band in British Columbia, which signed a treaty with Ottawa in 2000, announced three years ago it would be allowing ownership of land but it has yet to implement the plan. Bands across Canada, now just hearing of the Harper government's intent to open the same privilege to all reserve residents, note the Nisga'a actually owns their land. In Manitoba, the Assembly of Manitoba Chiefs points out that all services the federal government provides or finances are connected to the people who reside on reserve land.

This gets to the heart of one big concern around private ownership that reserve residents and band governments have: If private ownership chips away at a reserve, if there is no land reserve, what is the treaty obligation by the Crown to the people? Does it, in effect, reduce band governance to a municipal or provincial status, or are treaty rights of registered Indians transportable? The record on this is mixed.

Resource exploration and development has shown even the remotest tracts of land hold value. Very little of the three million hectares held by many First Nations governments is developed, and housing makes a small footprint. But attracting private investment from developers requires legally enforceable securities and guarantees that bands now cannot offer.

Homeowners at OCN say there is much more potential in homes if they own the property, too. That is what band members and governments should consider when presented with a chance to open reserve land to fee simple possession.

Editorials are the consensus view of the Winnipeg Free Press’ editorial board, comprising Catherine Mitchell, David O’Brien, Shannon Sampert, and Paul Samyn.

Republished from the Winnipeg Free Press print edition August 9, 2012 A10

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