After eight years of jumping through legal and bureaucratic hoops, Muskowekwan is poised to become the first Band in Canada to have the mineral rights to its reserve land, and only the third to gain regulatory security through the First Nations Commercial and Industrial Development Act (FNCIDA). “We are at the last mile,” said Muskowekwan’s Chief Reg Bellerose, who has led the community for twelve years. He hopes the legislation will get Royal Assent before Summer.
Muskowekwan is a Saulteaux (Ojibway) First Nation located approximately 140 km northeast of Regina. It was approached by Encanto Potash Corp., a mining junior, along with several other bands in potash-rich Treaty 4 territory. “None of the Big Boys [BHP, PotashCorp, K+S] ever came to talk to us before Duty to consult, before the Courts made them,” said Bellerose in an interview at their offices at the English River development outside Saskatoon. Encanto and Muskowekwan, who have established a Joint Venture through Muskowekwan’s Business Development Corporation, Muskowekwan Resources Ltd,, are now helping set a precedent for other First Nations and mining companies.
“Charging” Their Jurisdiction
In order to develop their sub-surface resources, Muskowekwan had to get the mineral and surface desingation. This meant getting approval from the Muskowekwan people through designation votes. . The legal process to get there has been long and technical, involving both the province and the federal government. Bellerose says discussions started out very cautiously, with all parties needing to develop confidence in the intentions and capacity of the others. In their case, the project needed to conform to the 42 laws that make up the provincial regulatory regime, and get rolled into a federal law applied uniquely to the Muskowekwan project.
In order to secure investment to reserve, they also had to be able to offer a stable and predictable investment environment: “you can’t raise tens of millions of dollars based on a BCR (Band Council Resolution) that can be overturned by a single vote.” Like many urban reserve and TLE properties, and First Nation property developments in BC and elsewhere, Muskowekwan developed a property rights regime that allows them to offer 99-year leases on their reserve land.
While there were many hurdles to overcome, Bellerose believes their path is one more First Nations and their business partners will choose in the future. Resource developments across Canada are subject to consultation with, and based on the Tsilhqot’in decision, possibly consent by, Aboriginal peoples. Developing on reserve under FNCIDA promises certainty for investors: “The most secure developments in the country are going to be on reserve because they won’t be facing any challenges in court.”
Any development of this magnitude raises questions in the community, especially when you’re entering uncharted territory. Many votes had to be held to develop an effective legal regime, often requiring the Indian Act standards of “a majority of a majority”: 50% +1 of eligible voters. One vote was disallowed due to a technicality.
The nature of the project – potash mining – amidst the realities of the current commodities cycle has posed additional challenges, in terms of communicating reasonable expectations to the community. Actual mine construction will happen when there is adequate investment, which is dependent on world prices. The nature of business is that nothing is a sure thing, but communities can be uncomfortable with uncertainty.
The expectations that First Nations communities sometimes place on their business arms can be overwhelming. Many members don’t accept risk or loss, and failures are widely exposed in Aboriginal and non-Aboriginal circles. “How do you learn, how do you get good, if you have a no-failure option?” asks Bellerose. “No wonder so many bands don’t want to try – they aren’t allowed to fail.”
Throughout the past decade, Bellerose and his team have been guided by a vision of self-sufficiency for his community: “We have political sovereignty but we are trying to achieve economic sovereignty. You can’t get out of the Indian Act if you have no revenues, no economic systems.”
Leon Wolfe Jr., the Muskowekwan Councilor with the Economic Development portfolio, has been pursuing ventures beyond potash. They have a combined 480 acres east of Regina that was purchased in the 1990s for $600/acre from their TLE (Treaty Land Entitlement) claim settlement. The land is now worth about $15,000/acre. They are currently working to develop that project, named “Port Regina”, potentially as an industrial and commercial park.
Chief Bellerose describes his ultimate objective as a carousel, with many different horses, or businesses, providing stable and continuous revenue to the community. “We are focused on reoccurring revenue and intergenerational revenue.
“We are just like the other 630 nations. We have the same problems, suicides, poverty. But there is a vision: what do we see for tomorrow and the day after that?”
For Muskowekwan, the future is now.