The Indigenous Land Title Initiative (ILTI) can improve ATRs by ensuring the value of ATR lands are maintained. This will be done by establishing First Nation title and ownership over ATR lands. ILTI will enable the application of First Nation governmental powers related to land and environmental management, development procedures, and taxation. Additionally, ILTI will speed up the ATR process significantly by significantly reducing ATR process and review times because the land title can be directly transferred to First Nations, rather than being transferred to the federal government to be converted into a reserve
Maintaining Land Value
First Nations that expand reserves through Treaty Land Entitlements (TLEs) or through ATRs are faced with a dilemma. If the First Nation maintains the land as provincial land in fee simple it will retain its value, but the First Nation will only have ownership of the property, not governmental jurisdiction. This means the province and local government will retain legislative jurisdiction, expropriation and taxation powers. If First Nation members were to reside on the property, they may not have the opportunity to benefit from tax exemptions or programs to the same degree they would if the property was part of the reserve. The First Nation may receive less program funding than if the property and the members were on reserve and the First Nation would not be able to exercise land management, environmental, development process or taxation jurisdiction. Provincial laws and regulations for land transaction, registration, environmental standards, workplace safety and strata property would continue to apply.
On the other hand, if the First Nation converts the property to reserve lands they will have governmental jurisdiction, however the land will lose a portion of its value as it leaves the open market and becomes subject to the restrictions of the Indian Act. The ATR process can take decades and it would also take many years to re-establish the legislative base, legal institutions and administrative frameworks that facilitate land management, development and taxation off reserve.
ILTI can help resolve this dilemma by providing interested First Nations with the opportunity to maintain the value of the property while adding it to their reserve lands. Through ILTI, a First Nation establishes a First Nation property right system with a spectrum of comparable individual ownership options as off reserve. In addition, a First Nation will be able to exercises governmental powers, such as land and environmental management, development procedures and taxation. The ready to use legal framework also means that the participating First Nations can choose to establish a comprehensive and comparable investment climate (property rights and legal and administrative framework) to the previous provincial one. This should effectively maintain property values while adding the land to the First Nation land base.
Reducing Time
The figure below outlines the ATR process and illustrates the ILTI improve
ments at each stage.
ILTI represents a fundamental change in how title to First Nations land is held. Under the ATR process, the title is with the Crown held in trust for First Nations. Under ILTI, the title is with the First Nations. This overcomes a significant hurdle in the current ATR process. A great deal of time is spent in the ATR process by Canada reviewing all elements of the ATR because they are owners of the land and bear responsibility over the land. Under ILTI, the First Nation is the owner and they have the ownership responsibilities, not Canada.
This transfer of ownership and responsibility greatly reduces Canada’s review process. ILTI reduces time because the land does not have to be transferred to the federal government to be converted into a reserve. The ownership interest can be directly transferred to the First Nation. This significantly reduces the time and costs associated with the ATR process.
In a possible revised ILTI ATR process, federal government review requirements could be greatly reduced and the First Nation would only need to conduct the due diligence associated with adding lands to its jurisdiction (which already occurs). ILTI also speeds up the third-party interests and service agreement requirements associated with ATRs. ILTI provides more and comparable tenure options for third parties. ILTI provides a ready to use legal framework to address jurisdictional uncertainties for local governments in service agreements.
The table below summarizes the differences between adding land to the reserve through the ATR process, maintaining land as a fee simple interest and undertaking an ILTI ATR based on three important factors: market value, speed and jurisdiction.
In essence, ILTI will provide First Nations the ability to maintain market value and assume jurisdictional control over ATR land while speeding up the process.