Whitehorse Daily Star

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Photo by Vince Fedoroff

DEAL REACHED – Justice Minister Brad Cathers, Doris Bill, the chief of the Kwanlin Dün First Nation, and Premier Darrell Pasloski announce the enactment of the Land Titles Act, 2015, at Kwanlin Dün First Nation council chambers on Tuesday. Rod Snow left

Historic agreement reached between KDFN and YG

Kwanlin Dün First Nation citizens will soon be able to obtain mortgages to develop on their land, and home improvement loans, without surrendering aboriginal rights and title.

By Sidney Cohen on July 6, 2016

Kwanlin Dün First Nation citizens will soon be able to obtain mortgages to develop on their land, and home improvement loans, without surrendering aboriginal rights and title.

The agreement between the Kwanlin Dün First Nation government and the Yukon government allows the First Nation to register its land at the Land Titles Office, an option not previously available for settlement lands in the territory.

This “landmark regulation,” as Kwanlin Dün Chief Doris Bill called it, is the first of its kind in Canada, and it paves the way for other Yukon First Nation governments to get financing to lease and build on their land while retaining aboriginal rights and title.

Premier Darrell Pasloski, Bill, and Justice Minister Brad Cathers announced the enactment of the Land Titles Act, 2015 at Kwanlin Dün First Nation council chambers Tuesday afternoon.

“The road to today has been challenging and costly, but Kwanlin Dün needed a registry to ensure our citizens have opportunities to build homes and to enable residential and commercial leasing to generate revenue for present and future generations,” said Bill.

“With the registered lease, Kwanlin Dün citizens, and the Kwanlin Dün government, may approach potential lenders, like banks or other funding institutions, for mortgages, but ultimately the aboriginal rights and title to the lease land will remain with the First Nation.”

Aboriginal title has various meanings for First Nations, provincial, territorial and federal governments, but in essence, it refers to indigenous people’s inherent right to jurisdiction over and the use of their ancestral homelands, according to the University of British Columbia’s Indigenous Foundations.

As part of the Umbrella Final Agreement, First Nation settlement land in the Yukon is owned and managed by the First Nation.

Because neither the territorial nor federal government owns settlement land, making it available for registration at the Land Titles Office was tricky.

“There’s a clause in the treaties that says if you register your fee-simple right (the highest form of estate ownership, where the owner can sell the estate or pass it on through a will) in settlement land, you surrender your aboriginal rights and title,” said lawyer Rod Snow, who was involved in negotiating the land titles deal.

“(Kwanlin Dün) did not want to do that because they didn’t want to surrender rights and title. This (agreement) allows them to do that without surrendering rights and title.”

The premier noted that the First Nation is under no obligation to register any parcel of land, but it can now do so if it chooses.

“We know that our land titles legislation and an efficient and reliable land titles system is the foundation of a stable real estate market and healthy economy in Yukon,” said Pasloski.

“Today we are saying, ‘let’s take the land Kwanlin Dün holds and the land titles system that is so well understood and trusted, and find a way to ensure those two resources are brought together to create new opportunities for everyone.’”

What will happen in the future, explained Snow, is that aboriginal rights and title will be downgraded on any parcel of land while it is registered and while a lease is issued, for the duration of that lease.

When the lease is up, the First Nation can choose to de-register the land and exercise full rights on that land once again, or it can renew the lease.

It is worth emphasizing that the First Nation retains rights and title to all of its land always, but so long as there is a lease on a portion of its land, the lessee takes priority over the First Nation.

For example, said Snow, First Nations citizens have the right to hunt on their lands.

“Nobody’s going to be able to go hunting in your backyard,” said Snow, if you lease Kwanlin Dün land that is registered at the Land Titles Office.

In the event that a settlement land lessee defaults and doesn’t make mortgage payments, the bank will have the authority to take whatever property is on the land, and the lease, and sell those things to repay the loan, said Snow.

The process is similar on non-settlement land.

The First Nation will not have a say in who the bank sells the property and lease to, unless it reserves some say, like veto power over a foreclosure, in the lease agreement, said Snow.

The fact that the First Nation will be able to register its land and still retain aboriginal rights and title is what makes this deal unique in Canada, said Snow.

As a point of comparison, he said, the Inuit peoples of Nunavut surrendered all their rights and title to the land they received in the settlement for that territory.

“The legal theory behind land in Yukon is that (before final agreements were reached) all land was Crown land. The idea was that an individual could get a grant to a fee simple title is it would be a grant from the Crown,” said Snow.

“The final agreement is built on a different premise: these lands were lands that First Nations say were always theirs, they never came from the Crown, so they didn’t fit the model of the land which is currently in the Land Titles Office, which is that it is a grant from the Crown.”

The ability to register land at the Land Titles Office comes with big benefits, said Bill.

It means that Kwanlin Dün citizens will be able to approach banks and other funding institutions for residential and commercial mortgages, which could unlock the economic potential of hundreds of square kilometres of settlement land.

“We may not have vast mineral or mining potential, but we are the largest land owner in the City of Whitehorse,” said Bill.

“For the well-being of our citizens and to generate wealth for the First Nation, Kwanlin Dün has worked long and hard with the Government of Yukon to access a land registry that is known, understood, and trusted.”

Kwanlin Dün has 1,036 square kilometres of land, much of which is in the city.

This includes includes an area of land across from the Erik Nielsen Whitehorse International Airport that is a third of the size of downtown Whitehorse.

This piece of land by the airport has been reserved for commercial development.

“Lands that have development or commercial potential are going to be lands within the city,” said Snow.

“The First Nation pays taxes on these lands, so the ability to generate some income from them is one of the objectives that they seek to achieve here.”

Kwanlin Dün pays property taxes to the City of Whitehorse, said Mary-Louise Boylan, communications manager at Kwanlin Dün.

This is a stipulation of the Umbrella Final Agreement, said Snow.

The new land titles agreement requires Kwanlin Dün to amend its self-government agreement.

Kwanlin Dün and the Yukon are still working on the language for that amendment, and then it needs to be signed by the First Nation, Yukon and Canadian governments.

That should take about another six months, said Bill.

At the press conference on Tuesday, the government leaders were asked why it took so long for the new land titles regulations to come to fruition.

“It is extremely complex,” said Bill.

“From the Yukon government’s point of view, they did not want to compromise the integrity of the land titles system in any way, so we had to work through that, and because of the fact it hadn’t been done before, there were many hoops to jump through.”

Snow noted that, “One of the reasons it took so long was we had to find our way together, working together.”

Comments (3)

Up 4 Down 2

Kwanlin Dün First Nation on Jul 12, 2016 at 10:48 am

Dear JC and thorough Reader, like any regular mortgage, the home owner is responsible for paying their mortgage and lease. And, like any mortgage, should there be a default, the financial institution may sell the mortgage and the lease. The money for the mortgage comes from the financial institution. Like all mortgages the borrower must qualify. The key difference here is that Aboriginal rights and title remain with the land should the land be de-registered. Unlike registered "fee simple" land, Aboriginal rights and title are not surrendered. Thank you for your interest.

Up 9 Down 5

Thorough reader on Jul 7, 2016 at 12:36 pm

Jc it is implied in the article that the person leasing the land and who registers it is the one who pays any mortgage taken out on the leased land. In the event that this person (or entity) defaults on the mortgage KDFN is then responsible for paying it off.

Up 11 Down 7

jc on Jul 6, 2016 at 5:26 pm

Excuse me for asking, but who will have to pay those mortgages off and where is the money going to come from?

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