Rule changes to reserve lands mark new hope for indigenous businesses

Rule changes to reserve lands mark new hope for indigenous businesses 

 

A proposal for a gas station, restaurant and gift shop alongside Highway 69 near Parry Sound, Ont., is more than a small business plan: It’s a sign of a new era for the tiny Shawanaga First Nation.

About three hours north of Toronto, the Shawanaga First Nation has about 200 on-reserve members and nearly 70 per cent unemployment. But Chief Wayne Pamajewon says things are set to change, thanks to a process that has just granted the band more direct control over its own lands.

Before a referendum on the reserve in May, the band had to seek permission from the Indigenous Affairs bureaucracy in Ottawa to designate land on its reserve for commercial development or sign a lease – a paperwork-heavy process that could take years. Any profits made were held in trust by the federal government.

But now, after adopting a “land code” that gives the band municipality-like powers, the Shawanaga First Nation is exempt from parts of the controversial Indian Act, which governs First Nations, meaning it can make its own deals with business partners and handle the cash itself. It can even pass its own bylaws and environmental rules. The band’s first project: Find an outside partner for the new gas station.

“It allows my community to move forward now,” Chief Pamajewon said. “I don’t have to ask somebody if I can go to the washroom. And I think this is the great thing about it. Our future is what we make of it now, and nobody will be able to slow us up.”

The new Liberal government in Ottawa has pledged to build a new relationship with First Nations, with cabinet ministers saying they were open to reforming or even scrapping the Indian Act. But behind the scenes, an increasing number of First Nations across Canada have been opting out of parts of that legislation in a process that rarely makes headlines but that proponents say is unleashing indigenous entrepreneurs and creating thousands of jobs.

To sign on, bands must undertake a two-year process that involves a vetting by Ottawa of their governance and economic prospects and an on-reserve referendum. As is the case now, reserve land still cannot be sold. Also, oil and gas and uranium are excluded from the new powers.

While an option since legislation enacted in 1999, only a trickle of First Nations qualified initially. In the past few years, many more have made the switch. A total 95 of the country’s more than 630 First Nations have now either adopted land codes, or are in the process of doing so. A 2009 KPMG study for the government of 17 reserves that had made the switch said 2,000 jobs for band members and 10,000 for non-members had been created, attracting $100-million in external investment.

But the changes have not come without controversy. A handful of land codes have gone down to defeat. Some opponents felt voting for a land code meant acknowledging what they see as the illegitimate authority of the rest of the Indian Act. Others warned that their chiefs or band councils could not be trusted to handle the new powers or the new money that could flow.

But in a May referendum at the Shawanaga First Nation, which has a total of more than 600 band members when those living off-reserve are counted, 155 voted Yes to the new land code, and 56 voted No.

Winning the new autonomy has been a long road. The band first started looking into drafting a land code in 2009 and hired a lawyer, Cherie Brant of Dickinson Wright LLP in Toronto, who is a member of the Mohawks of the Bay of Quinte and specializes in acting for First Nations.

Ms. Brant said many First Nations are still unaware of the potential benefits.

“The First Nation is totally in the driver’s seat,” she said. “If they wanted to, they could sign an agreement and put in place a partnership [with an outside business partner] within 90 days. And that’s just unheard of in the status quo.”

The Shawanaga First Nation already operates a small gas station farther north on Highway 69 that employs nine people. But the plan is for the new one to resemble the Ontario government’s more elaborate ONroute rest stops and employ 20 or more.

The impetus is the province’s plan to widen that stretch of Highway 69. But that plan is now on hold after talks between the Ministry of Transportation and Shawanaga stalled this summer. (Earlier this year, the band accepted a $4-million deal to settle a claim that it was not paid for land used to build a road in the 1930s.)

Chief Pamajewon said he is optimistic that a deal can be reached despite a “bump” this summer that came after his insistence that the new highway remain recognized as First Nations land.

He said he wants shovels in the ground on the new service centre next spring, whether there is a deal or not.

The band is looking at other business opportunities too. Chief Pamajewon said it is forming a new construction company with two neighbouring First Nations, using $700,000 handed over for “capacity building” after a highway bridge was built on traditional lands. They hope to partner with an established company and bid on part of the work involved in the upcoming Highway 69 widening, creating jobs for band members.

Those jobs, he said, could last long after the asphalt on the new highway is set in place: “Let’s build the highway. But once it’s built, we want to look at the long term, and that’s what I want to look at. I want to look at maintaining that highway after it is built.”

Follow Jeff Gray on Twitter: @jeffreybgray