...Part 1 -- A Recipe for Poverty
...Part 2 -- A Step Towards Better Native Housing
...Part 3 -- Wrapping Native Land in Red Tape
...Part 4 -- Let Natives Choose
Millions of Canadians take the right to buy and sell their own home for
granted. Yet on Canada's reserves, where land is held communally,
aboriginals are systematically denied this right. In this third part of a
four-part series, Tanis Fiss explains how bands are subject to costly
restrictions that limit their ability to lease tribal property.
As I have described in the first two parts of this series, land on Indian
reserves cannot be bought and sold in the usual way. As a result, native
bands that wish to transfer their property to an outside party are forced to
rely on a variety of indirect leasehold arrangements.
These leases allow native bands to temporarily "designate" or
"conditionally surrender" reserve land to the federal government. The
government then leases out the land to a third party, which may subdivide
and sublease the property. These complex arrangements are a poor substitute
for the straightforward commercial arrangements that Canadian landowners and
entrepreneurs are able to freely pursue off-reserve.
The process native bands face is cumbersome. Before it can enter into a
lease agreement, the band must obtain the approval of the majority of its
members. And since Indian reserve land is held in trust by the Crown, native
bands must also seek the approval of the Minister of Indian Affairs.
Once all the T's have been crossed and the I's dotted, the band typically
receives less money than it would have if the land were privately owned:
Because of the cumbersome protocols that surround the development of native
land, its value is diminished in the eyes of would-be business partners.
When conflicts arise, their resolution is often held up by the Department of
Indian Affairs, whose bureaucracy is as inefficient as any other. Consider,
for instance, the long and tedious landlord-tenant dispute between the
Musqueam Band of British Columbia and 73 tenants who leased homes in
Musqueam Park. The tenancy was rooted in a 1965 conditional surrender
agreement involving the band, the Musqueam Development Corporation and the
federal government. According to the terms of the 99-year leases, a rent
review was to take place after the first 30 years, in 1995. Until then, each
leased lot had its rent pre-determined, and the average annual lot payment
was $338. After 1995, the lease rents were to be hiked to 6% of the current
value of the lots.
But in 1995, the Federal Court of Canada intervened, overrode the lease
agreements, and set new rents - at an average of $10,000 per lot per year.
How did the court arrive at the new figure? It used the steep rise in
property values in neighbouring west Vancouver as a guide to the
appreciation on applicable Musqueam lands - and then discounted the reserve
lands' value by 50%.
Why the discount? The court argued that the muddled legal situation
surrounding the land makes it worth less than similar land off-reserve.
After a series of appeals, this result was confirmed by the Supreme Court
of Canada. In his ruling, Justice Charles Gonthier admitted that the
government's many restrictions on the sale and use of reserve land
substantially drives down its value.
Of course, in any normal commercial situation, prices are decided by supply
and demand, not courts. But under our patronizing land use policies, we have
decided that native bands cannot be trusted to manage their own properties
like private landowners. And we have laid down such a thicket of regulations
and prohibitions on what they can and can't do that their property has been
stripped of fully half its value.
This is unacceptable. Land is a fundamental asset for any community - no
more so than for native bands, which often have little else of value to sell
or lease. If our federal government truly wants to help aboriginals, then it
should give them the freedom to buy, sell, lease and manage their land like
the rest of us - without government intermediation and interference.