By April Roberts and Heather Exner-Pirot
On January 16th, 2017 the members of Mistawasis First Nation voted by a ratio of 9:1 to approve its proposed Land Code, allowing the transfer of control and management of its lands back to the community, under the provisions of the First Nations Land Management Act.
Mistawasis was preceded by the other six members of the Saskatoon Tribal Council – including Kinistin, Muskeg Lake, Whitecap, Yellow Quill, Muskoday and One Arrow – making STC the first tribal council in Canada with all of its members now responsible for their own land management regimes over their 30,000+ acres. Muskoday, the first, was one of a handful of First Nations across Canada that successfully lobbied the federal government in the 1990s to enact new legislation that would allow them to opt out of land related sections of the Indian Act and assume jurisdiction over their reserve lands and resources under their own land code. The result was the First Nations Land Management Act (FNLMA) of 1999, which Muskoday ratified in 2000.
We spoke with Saskatoon Tribal Chief Felix Thomas about this historic achievement.
What was the political landscape like when the FNLMA was first passed?
In the mid-90s this was a controversial topic. Austin [Bear] was the Chief of Muskoday, which was one of only nine First Nations with delegated authority under sections 53/60 [of the Indian Act], and the only one in Saskatchewan. They advocated for what became the FNLMA, replacing part of the Indian Act.
They then had to convince people – not only their own members but other First Nations – that this was the best avenue to move forward. There were still 600+ bands that weren’t managing their lands, didn’t have delegated authority, that were critical to this passing. People thought that they would start selling off First Nation lands. That was the fear. But a 99 year lease, which FNLMA allows you to do, is bankable. It was not about selling our lands but controlling them.
It’s also taken a long time for the banks to recognize that. The new regime gives more security to lenders and builders.
There are other improved measures built in to the Act – right now a lot of bands have roads or railways running through lands that were expropriated from First Nations under the Indian Act. With FNLMA, you can’t do that. It can’t be expropriated anymore, except in very narrow circumstances, like during a war or a national security emergency.
Was there a turning point at which First Nations started to be more open to FNLMA?
People just slowly started to accept it, to see the benefit. At first, anyone that wanted to get in to it, you could; now there’s a waiting list at INAC to start the process because there’s so much interest. There are only so many claims they are able to process, and right now they are not accepting more applications.
Was this a Tribal Council initiative?
No, it all happened individually for the different bands. But because Muskoday was already in there, in the Chiefs’ meetings, they would talk about it, and other people started to see the benefits. STC bands became early adopters, and got on the list, and started their own processes.
But now we have to look at our lands, especially in terms of environmental protection, and make sure we are managing them responsibly. So working together at the Tribal Council to make sure that we have that second level service, now that INAC is not involved, makes sense. There are environmental and legal requirements, and we need to comply with our own Land Codes.
How were the land codes drafted?
The original fourteen signatories [to the FNLMA] had a technical team, and they had some templates. Those of us that came later adopted a lot of that, especially if there were overlaps in the kind of land – if you were primarily agricultural, you would adopt those parts for example. Lots of sharing going on. There was also a Lands Advisory Board established, and Austin [Bear] was chairman, so when a band needed help it was common to ask the Resource Centre [which was established to fulfil the Board’s technical and administrative responsibilities].
What have been the biggest challenges in implementing this?
The biggest challenge was community consultation, and making sure people knew what the initiative was. And once people were for it, you had to make sure you had the correct number of people to vote on it, and get the vote out. There is a certain percentage of eligible voters that needed to vote to ratify the Land Code, and we have members everywhere, in the cities and so on. It just became a logistical challenge.
Also, we needed to address the environmental reclamation before the responsibility could be transferred. INAC provided the resources for that because it was argued they were responsible for the land at the time the environmental damage was done. And it could be expensive, and it took time. But we wanted to make sure we were taking over a good product, a clean product.
Initially, as part of administrative self-government, you didn’t have total control but you could lease your lands and put in rules for the lease, and zone your lands – agricultural, residential, commercial. But you cut out 25% of the Indian Act through the FNLMA. You used to need to get permission from INAC to get that authority and it was too slow. Under FNLMA you still need to report back – but you report to your own membership. You administer everything. Any resource money you make, it goes back to your own coffers now. It doesn’t pass through Ottawa’s hands.
But now we have to build capacity in terms of leasing land, having checks and balances, and running leases which is basically like running a business. And we need to have our own data management and security in terms of lands records since we are no longer required to file those reports to INAC.
What do you hope the impact will be?
The big thing that I see is that First Nations are now looking after their own community finances and livelihood. We are responsible for our own members, and the members are responsible for each other. And ultimately it’s our kids who will have to deal with our legacies, so we need to do right.
Discussions are now happening in the community that we didn’t have the authority to discuss beforehand. Now that we have our own Land Codes, people are asking, “what else can we get rid of in Indian Act so we can be more successful”. Members are asking: “what else can we do?”
We are talking about building a central governance house as a Tribal Council, to address not just corporate decisions but governance decisions. We need to build a governance house that deals with land, health care, family services, education. Depending on the issue, some individual bands may have the capacity to address it, but others may not. The Tribal Council can help in terms of developing that economy of scale.
We turn thirty-five years old this year, as a Tribal Council. And it’s been ten years since we opened the casino. And now we’re the first Tribal Council in Canada to have all their bands implement their own land regimes. So there’s lots to celebrate.
Timeline: Coming-into-Force dates of Land Codes for STC members
Muskoday First Nation January 1, 2000
Whitecap Dakota First Nation January 1, 2004
Kinistin Saulteaux Nation February 1, 2005
Muskeg Lake Cree Nation September 1, 2005
One Arrow First Nation September 1, 2014
Yellow Quill First Nation March 31, 2015
Mistawasis First Nation March 31, 2015