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Human rights case changes landscape for aboriginal lands

|Written By Jean Sorensen

It’s a case that has attracted marginal attention but one that’s being watched by some First Nations lawyers given the far-reaching implications for land development on reserves.

The Okanagan, B.C., case has unfolded and succeeded before the Canadian Human Rights Tribunal that has severely criticized Indian and Northern Affairs Canada officials in their dealings with First Nations. The trickle-down effect of the tribunal’s ruling is expected to place more decision-making power into the hands of private individuals known as locatees who have rights to band lands and want to develop them.

Louie, James, Beattie, Joyce v. Indian and Northern Affairs Canada was heard before the tribunal last year, but a decision wasn’t issued until early 2011. The tribunal essentially ordered the federal body to “cease its discriminatory practices” in its land management practices related to locatees.

The case marks the first time that the Canadian Human Rights Act has been applied to the Indian Act and INAC since it was amended in 2008. Previously, the Indian Act was excluded with no jurisdictional reviews by the Canadian Human Rights Commission or the tribunal.

On June 27, 2007, James Louie entered into a joint venture agreement with Joyce Beattie. Both are Indians as defined by the act. They agreed to a “business association to respectively prepare and submit an application for use of land within an Indian reserve . . . pursuant to s. 58(3) of the act for a long-term and pre-paid residential lease of (certain) lands to the developer (Ms. Beattie).”

Under the deal, Louie would allow a 49-year lease for a nominal rent of $1. The joint-venture agreement had Beattie paying building costs on the land and marketing. Residual proceeds were divided two-thirds to Louie and one-third to Beattie. However, INAC wouldn’t approve the locatee’s application because the rent wasn’t fair-market value and Louie hadn’t sought independent financial and legal advice on the deal that the government body could use to establish a fair price.

Louie responded that he should receive “both an apology and confirmation that you and your officials will from now on respect my right to determine my own interests, and without any more of your so called ‘protection,’ which is entirely self-serving and is a cruel affront to my human dignity.”

The tribunal ordered INAC to “amend its land management manual and other policies to provide that where individual locatees (other than those determined to be mentally incompetent or under the age of majority) have determined for themselves that a transaction is for their individual benefit, INAC will accept that determination and conduct the processing of requested lease on that basis.”

Kelowna, B.C.-based lawyer Andrea East, who practises First Nations and business law but wasn’t involved in hearing, calls the case “significant” as it identifies that a discriminatory practice existed in the way INAC policy was carried out. East wrote a commentary on the case in Native Business Development Magazine in April. According to East, INAC’s role now largely becomes one of “administrative” approval.

The tribunal’s remedy states that INAC “shall cease its discriminatory practices and take measures, in consultation with the Canadian Human Rights Commission, to redress the practices or to prevent the same or similar practices from occurring.”

The Aboriginal Peoples Television Network, which carried extensive coverage of the ruling, said in its news story that the decision “is sure to have wider ramifications over how Indian Affairs interprets the Indian Act in its dealings with First Nations bands and individuals.”

  • Isabel Jackson
    On the face of it this seems like a "win" for First Nations but it may also be a case of be careful what you ask for. While INAC may be forced to be more "hands off", giving locatees more independance, it will also bar a familiar recourse when things go wrong on reserve lands. If this locatee is given the freedom to be an entrepreneur with respect to his reserve land, which he should be, then he should also expect to bear the burden if his venture doesn't pan out. In other words, no going back to INAC with a familiar charge of breach of fiduciary duty. You can't have it both ways. That said I am First Nations myself and our people have shown themselves to be survivors not just of residential schools but of colonialism writ large. I have faith that our people can bear any burden so long as they are also given the opportunity to reap the benefits.
  • Jean Sorensen
    Isabel: You bring up some good points. There is a growing expertise in business developing on reserve lands, mostly band lands with many bands having thriving prosperous ventures. It is only natural that this should extend out to locatee lands and such ventures. Hopefully, the case - which is under appeal - will help define the terms if the INAC case is not successful.




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