First Nation ownership will replace existing Government of Canada ownership of reserves. First Nations will have full land management authority as well as broader governmental powers over their lands, which will apply regardless of the type of individual ownership rights are granted. This means jurisdiction over land use, taxation & public services, expropriation powers, and reversionary rights are maintained. Some First Nations are considering this a practical method to convert their title and ownership won in the courts to ownership and jurisdiction.
First Nations currently do not own their reserves. Reserve land under the Indian Act is Crown land. Under section 2 of the Indian Act “reserve” is defined as:
“a tract of land, the legal title to which is vested in her Majesty, that has been set apart by her Majesty for the use and benefit of a band.”
Since the land is held by the Crown for the use and benefit of First Nations, a trust or fiduciary responsibility lies with the federal government regarding land management. This responsibility requires extensive review based on federal policy and limited legislation and regulations. As a result, this significantly raises the costs of doing business on First Nations land. First Nations Tax Commission (FNTC) research suggests the costs are at least four to six times higher on First Nation land than off First Nation land.
The First Nations Land Management Act can theoretically reduce these costs, but it is hampered by three constraints. First, participating First Nations must develop and implement their own laws to fill the significant regulatory gap created by the Indian Act. This is expensive and time consuming. Second, title remains with the federal government, so that property values and access to capital are often not equivalent to off reserve ownership. Lastly, although it recognizes First Nation jurisdiction, it does not provide a means to convert legally recognized Aboriginal title into practical First Nation ownership.
The Indigenous Land Title Initiative (ILTI) proposal provides a practical method to convert First Nation title and ownership and subsequently provides an enhanced land management and property right regime for First Nations. It accomplishes this in five ways:
- ILTI means First Nation ownership will replace existing Crown ownership of reserves.
- ILTI First Nations will have full land management authority as well as broader governmental powers over their lands, which will apply regardless of the type of individual ownership rights granted. This means jurisdiction over land use, taxation & public services, expropriation powers, and reversionary rights are maintained.
- ILTI provides a ready to use legal framework to implement these jurisdictions effectively.
- ILTI will be supported by accredited training to ensure jurisdictions are implemented efficiently in order to reduce transaction costs.
- Some First Nations are considering this a practical method to convert their title and ownership won in the courts to ownership and jurisdiction because it meets the tests established in the courts. It is optional, requires community consent, transfers title to the First Nation and protects underlying title.