From left; Mrs. Diane Cragg, Dr. Maràa del Carmen Delgado,
Prof Maureen Tehan, Nic Olivier, Dr. Céline Auclair and C.T. (Manny) Jules
Indigenous peoples to gain land rights in Canada
Canada's indigenous peoples are gaining greater legal control over their lands so they can have the powers of investment and development that all non-native Canadians now enjoy. To aid in this process, the Forum of Federations and Canada's First Nations Tax Commission recently held a working session on Land Title Certainty for First Nations.
At the event in Vancouver, British Columbia, selected experts from around the world shared their experiences and visions of how a land title system could be improved to support the economic development and to increase the revenues of First Nations governments and indigenous peoples at large. Participants from Australia, South Africa, Canada and a representative from the Instituto Libertad y Democracia of Peru, which is led by economist Hernando de Soto, brought their expertise to the table and agreed to pursue the exchange of knowledge on a more extensive basis. The event was held on March 10-11, 2008, and received the financial support of Indian and Northern Affairs Canada.
Recently in Canada there has been a significant change in legislation and intergovernmental relations between the First Nations, the federal, provincial and municipal governments. A number of powers have been transferred to First Nations through the First Nations Land Management Act and the First Nations Fiscal and Statistical Management Act. These transfers involved the co-operation of three spheres of governments since many powers transferred were already in areas assigned to one or more orders of government. In addition to giving Canada's indigenous peoples the powers over land, these new laws have created a legal framework which led to the establishment of four new institutions:
- First Nations Tax Commission, a body that is working to create a national regulatory framework for First Nations tax systems that meets or exceeds the existing standards of provinces. The Commission will help reduce the barriers to economic development on First Nations lands, increase investor certainty, and enable First Nations to be part of their regional economies.
- First Nations Financial Management Board, an agency that is designed to provide First Nations with the practical tools available to other levels of government for modern fiscal management.
- First Nations Finance Authority, a non-profit finance authority that will improve access to capital by pooling of funds, borrowing and investment in order to improve capital access.
- First Nations Statistical Institute, a centre designed to build First Nations capacity to use statistics, develop an understanding of national statistical collections, and to provide objective analysis and interpretation of First Nationse' statistical information collected by Statistics Canada and other federal departments.
The work of these four new agencies is aided by the First Nations Gazette, a semi-annual publication which publishes First Nations laws from across Canada.
One of the main concerns of both the federal government and First Nations leaders is reducing the barriers to economic development on First Nations lands, increasing investor confidence, and enabling First Nations to be part of their regional economies. To date, investor confidence was kept low and economic integration has been hindered by the uncertainty of the First Nations land titles. This situation made it difficult for First Nations persons to earn equity from their land or use it as collateral for business start-up loans. Investors and First Nations must go to substantial lengths to devise contractual arrangements to do what the system of property rights provides in other contexts. The existing systems for First Nations land are unfamiliar to both First Nations people and investors. Investors have faced a steeper learning curve and a lower payoff from learning these systems. The need to secure land title is generally the first step in investore's decision making and when it is not available the process terminates. As a consequence, investors have shied away from First Nations projects.
Given the recent reallocation of jurisdiction, and the desire to attract investment to First Nations lands through greater certainty and transparency, there is a drive to harmonize the First Nations land title systems with existing provincial and municipal land title systems. Without this harmonization, investors will continue to avoid opportunities in which property rights are unfamiliar and uncertain. Sustainable economic development for First Nations requires a harmonization of property rights between orders of government, a process that necessitates intergovernmental dialogue and cooperation.
Since its inception, the Forum of Federations has been committed to providing a forum for exploring the possibilities of better integrating First Nations into federal systems. After the Canadian government and First Nations leaders created an institutional framework to ensure that knowledge, systems, standards and laws are transferred to First Nations governments, there were still components missing. The development of a proper system of First Nations land titles has become the next key component of the Canadian strategy for both political and economic reasons. At this point, the Forum can provide expertise from other federal countries to inspire the design of a better land titles system to improve economic development on indigenous lands. This conference was the first contribution of the Forum to get some specification of legal certainty over land and to assess the co-operation needed among different orders of government. Throughout the various international contributions, the conference has created an understanding of how accommodation of indigenous rights within a federal state can produce an improved investment climate and actually empower indigenous people.
In attendance were:
- Mrs. Diane Cragg, Registrar of Land Titles for Nisga'a Lisims Governmen
- Dr. Maràa del Carmen Delgado, Legal Manager, Instituto Liberdad y Democracia, Peru
- Prof Maureen Tehan, Associate Dean, University of Melbourne, Australia
- Nic Olivier, Director Centre for Land-related, Regional and Development Law and Policy, University of Pretoria, South Africa
- Dr. Céline Auclair, Vice President, Research and Governance Programs Forum of Federation
- C.T. (Manny) Jules, Chief Commissioner, First Nation Tax Commission
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