The utilization of the Indigenous Land Title Initiative (ILTI) in this context would reduce uncertainty on Aboriginal Title lands and facilitate investment by providing guaranteed individual property rights, facilitating efficient registry of property interests in a Torrens registry system, enabling property rights based financing and creating a land title framework to support First Nation fiscal and service jurisdictions.
On June 25, 2014, the Supreme Court of Canada released a decision on the case Tsilhqot’in Nation v. British Columbia [2014] 2 S.C.R. 256 and recognized the Tsilhqot’in Nation’s Aboriginal title to 1,750 km2 of their traditional territory. Aboriginal Title is a form of ownership and jurisdiction unique to First Nations (sui generis). However, the court did not clarify how Aboriginal title and any associated jurisdictions would be implemented. As a result, this decision creates four types of economic uncertainty:
- Property rights: The interaction of Aboriginal Title with all existing surface and, most likely, subsurface property rights are all uncertain. Modern property registry systems (Torrens and Deeds) do not register Aboriginal Title creating even more uncertainty for existing property rights on asserted Aboriginal Title lands. The result is that you can’t pledge Aboriginal Title to the bank and it is more difficult to obtain financing for land under Aboriginal Title claim.
- Jurisdictional: There is jurisdictional uncertainty on Aboriginal Title lands at least related to resources, lands, citizens and taxation. For example, the potential impacts of a concurrent First Nation revenue jurisdiction on Aboriginal Title lands with provincial revenue collection creates cost uncertainty to potential investors. A number of other concurrent jurisdictions such as land registration may also exist on Aboriginal Title lands which add to this uncertainty.
- Fiscal: Jurisdictional and property right uncertainty creates two types of fiscal uncertainty. Firstly, governments (especially provinces) rely on revenues collected from Aboriginal Title lands and from proposed investments on these lands to implement regulations, deliver services and build infrastructure. Reductions in these revenues could impact the quality of these services. Second, the current fiscal framework does not account for Aboriginal Title related jurisdiction, so revenues potentially forgone by provinces are not addressed in federal-provincial transfer programs.
- Governance: Aboriginal Title is held by the collection of First Nations. This requires the title holders to develop governance structures different from those imposed by the Indian Act. Creating the cultural and political legitimacy for these governance structures is a considerable leadership and administrative challenge for many First Nations.
First Nation leaders, aboriginal law firms and some academics are suggesting this decision applies to any First Nation that does not have a pre-confederation treaty nor has signed a more recent treaty. As such, ILTI can be utilized as a reasonable option to implement Aboriginal Title. Where opted into, Aboriginal Title lands could be transferred to the ILTI First Nation and a system of tradable property rights held within a national First Nation Torrens title registry could be established on the underlying Aboriginal Title. The utilization of ILTI in this context would reduce the four types of uncertainty on Aboriginal Title lands and facilitate investment by providing guaranteed individual property rights, facilitating efficient registry of property interests in a Torrens registry system, enabling property right based financing, and creating a land title framework to support First Nation fiscal and service jurisdictions.
In addition, this system could meet the Tsilhqot’in Decision elements as it is optional, requires community consent, transfers the title to the First Nation and protects the underlying title.