Aboriginal Title and Commercial Development on Native Lands

Jul 15th, 2014 | By Paul Miron

With recent court decisions, the scope of lands covered by aboriginal title land is poised to become greater. The recent rulings indicate that the courts are not taking a restrictive interpretation on the rights of First Nations on ancestral aboriginal land. Instead the Supreme Court has rendered the decision in Tsilhiqot’in granting further say to First Nations on development of ancestral aboriginal land. The decision in Grassy Narrows has also confirmed provincial rights over these types of lands.

While the implications of these decisions are still being assessed, I think that this is a very positive development which will facilitate much needed economic development in native communities. A number of resource company executives and legal experts are making similar comments in the press. A Global News story http://ow.ly/z0GSU cites B.C. Grand Chief Stewart Phillip as saying that, bands are “quite sensitive” to the need for economic development. “They want it on their terms and they want it based on the fact that they own the resources and the land.” Also Xeni Gwet’in Chief Roger Williams put it: “Once the first people of this country have title, then only good things going to come.”

Canada does have a history of disputes between government and First Nations over land claims, but Canada also has a mutually beneficial history of joint native-private sector developments on native lands. FCT has been willing to shoulder the risk to private sector developers and their lenders for First Nation projects. FCT coverage has facilitated private sector commercial developments on FN lands, including energy projects, shopping malls and residential construction

One need only look to the development on the Westbank First Nation in British Columbia to see the mutual success for both the First Nations and the business community. Situated on Lake Okanagan, the First Nation is now the site of several retail shopping centres. In late 2007, FCT title insured leasehold interests on Hub Centre on these lands for the tenants of the shopping plaza and their lender, a life insurance company. We believe it may have been the first time that a Canadian life insurance company has provided permanent financing for a development on such lands.

In the past, while Canadian chartered banks have provided mortgages for commercial developments on First Nations lands, other commercial lenders have not. The availability of title insurance has enhanced the perceived security afforded to major tenants and lenders on First Nations lands and has made First Nations lands much more attractive from a commercial point of view.

I believe that most companies recognize that First Nations are strategic economic development partners. The more the private sector can do to bring economic development to support First Nations across Canada, the better off all Canadians will be.

Categories: Title Insurance

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