Op-Ed: Former Wiikwemkoong lands employee weighes in on proposed new land code

by Rolland Pangowish

This letter is being presented to inform those members of Wikwemikong who don’t clearly understand and to express the disappointment of many band members with the consultation process undertaken by Council. There are a number of people who now suspect that the council’s “land law” is actually a “land code,” as defined under new federal legislation called the First Nations Land Management Act (FNLMA). It appears that the process of developing our “land law” is being conducted under a framework agreement that initiates the first stage of opting out of the Indian Act and moving under this new optional legislation, primarily designed to define self-government within parameters and definitions set out by federal government in the legislation. 

Many band members have also expressed concern about the legal implications of releasing Canada from its legal obligations under 33 sections of the Indian Act. These have been defined in Canadian law as fiduciary obligations, which are trust-like obligations on the part of the Crown, which are trust-like responsibilities which apply whenever the federal government acts unilaterally and requires that it act in accordance with the highest standards of conduct that ensure First Nation interests are protected. These types of past legal obligations have already given rise to the several claims where Wikwemikong has lost lands illegally or without proper legal process. 

Members say that they have not been informed about the FNLMA and most have not seen the legislation the Band Council proposes to opt into. Once some see how this Act works, they ask whether the Council have signed on to the Framework Agreement with the Deputy Minister. Under the new Act, a blanket Order of Council (OIC), which is a federal order by Cabinet authorizing Canada to have Wikwemikong’s land registry files held by INAC transferred and maintained by the new Registry established under the FNLMA. A whole new set of regulations would apply under federal law. That part of the process has already commenced changing the legal status of the Reserve. 

Some fear that despite federal assurances, the words in the Bill and agreements that say land claims and Constitutionally protected rights will not be surrendered and this is not sufficient reason to accept it. Too many undefined areas of the law regarding inherent rights and self-determination may be affected by agreeing to a new definition of reserve lands, that in legal effect are no longer a reserve, let alone title resting with the Unceded Reserve members.

Most band members have not been informed of any of this. Four hundred members signed a petition calling to stop Council from proceeding under the legislation was submitted to Band Council May 6. The FNLMA itself says a referendum must be held in accordance with the rules under the Indian Act, except Parliament amended the Act in December lowering the threshold for community support to 25 percent from the normal 50 percent plus one normally required. Now people are hearing there will be no vote and Council will decide. People are worried that the off-reserve membership is not being adequately informed and are falling for this plan without seeing the legislation.

To date, the few handouts shared with community members under the consultation process are not providing full information about the legislation and its legal implications for our Section 35 rights. Nothing in the “land law” consultation material mentions the FNLMA. How can these consultations then be used to authorize the change in the status of our reserve and releasing the Crown of all future responsibility for our lands and resources, even though we will be left exercising a form of delegated federal authority? As most Islanders know, Wikwemikong Unceded Indian Reserve has never surrendered our title to our lands or our inherent rights, but the FNLMA will redefine the definition of our reserve status.  In fact, it my not be considered a reserve at all for legal purposes once this kicks in.

This is mentioned here because of the implied question as to why would we abandon our long-standing position as a “special reserve,” which is provided for under a section of the Indian Act that recognizes the underlying title to some reserves that may not rest with the Crown? It allows us to argue that the Wikwemikong Anishnabek still hold the underlying title, even though the Indian Act was imposed on us in the 1870s. That section of the Indian Act allowed Canada to administer the Unceded Reserve as though it were lands held by the Crown for the use and benefit of Indians, like so many reserves across Canada, while we never consented to any of it. We have a unique legal situation, so we must ask whether its worth possibly compromising our own legal position. We are not aware of any band members or councillors who have seen a legal assessment of the new legislation and the possible legal effects on our claim to title and Unceded status.

Many do not like the restrictions under the Indian Act, but First Nations across Canada have condemned this FNLMA and its related legislation as a part of the Government of Canada’s overall strategy for releasing all its obligation to First Nations and restricting the definition of Section 35 rights. The federal government has have never provided First Nations with adequate funds to administer the Indian Act properly, now if we agree to release Canada of all obligations in future, we will be forced to find new ways to finance our land administration.  Enhanced funding is used as the attractant and First Nations desperate for financial resources to manage lands are falling for it at an increasing rate. There are enough legal experts that warn that all this “alternative” legislation is designed to make the reserve a municipality, with zoning and a management system compatible with the provincial land titles system. Have the council been informed of the negative side of this legislation and the federal approach to land management? 

Finally, the coming into force of the FNLMA upon the approval a land code may even have the legal effect of defining our lands as no longer being “reserve lands.” This is the kind of termination of rights that we need to be diligent about and ensure proper legal analysis is done. No one is sure whether the chief and council appear to be saying to the membership that Band Council has the authority to sign off under this change without a referendum under our new Constitution which was accepted by a vote, but now many can now see that there may differences of interpretation about the new powers being assumed and implemented. It appears that we have some internal housekeeping on to do on that before we proceed further, as the FNLMA gives Council authority it has never exercised before, under new federal law that is untested and for which all the legal outcomes cannot be predicted, as case law develops very slowly. 

Our Anishnabek Peoples are entitled to all information, especially where federal legislation and the legal release of Crown obligations are released in such a sweeping manner without following the standards for a formal surrender. A new federal government down the road, under another party may well say the whole array of so-called these “opting out” bills for sectors such as elections, financial management, taxation and industrial development mean something else. After all, these new bills are intended to eliminate federal responsibilities, limit future liability and delegate federal authority through legislation that some experts feel is lowering the standard of Crown conduct to a new low, contrary to the law, a defined by the Supreme Court of Canada. There are some of us who feel the legal effect this approach will eliminate our access to collective rights that may be clarified in law in future, despite federal denials.

International human rights standards include the right of Indigenous Peoples to “Free, Prior and Informed Consent” before allowing lawful access to Indigenous lands and resources. I would expect our own leaders to abide by these same standards that we, ourselves have been fighting to establish for many decades. There needs to be a much more thorough discussion, whenever we change the status of our lands, including the provision of all relevant materials. We need to discuss the broader picture of Canada’ approach to facilitating self-government, which has serious limits and a number of pitfalls that may affect our inherent rights in ways we haven’t considered.

EDITOR’S NOTE: Rolland Pangowish is a former Wiikwemkoong lands employee with extensive experience in lands issues.